1. These two appeals arise out of execution proceedings. One Bohra Dao Pal was a member of a joint Hindu family with Hemraj, the appellant, and father of the respondents, in E.F.A. No. 344 of 1936. Dan Pal had advanced a sum of Rs. 4000 to Ram Chand and Sri Chand, who are brothers, on 22nd February 1919 and had a promissory note executed by them in his favour. That promissory note was renewed by Ram Chand and Sri Chand and their brother, Moonga Ram, on 21st December 1921 for Rs. 4680 in favour of Dan Pal. The debtors again executed a fresh promissory note for Rs. 5264 on 21st November 1924 in favour of Dan Pal in lieu of the previous promissory note dated 21st December 1921. In the year 1925 a suit for partition of the joint family property was filed by Hemraj on behalf of himself and his minor younger brother against Dan Pal and the members of his branch of the family. This was Suit No. 365 of 1925 of the Court of the Subordinate Judge of Agra. This partition suit was referred to arbitration and a decree in terms of the award was passed on 19th June 1926. Besides other items of property, this debt due under the promissory note mentioned above from Ram Chand and his brothers was allotted to Hemraj. In para. 2 of the award the arbitrators laid down that any document or decree which was allotted to one member of the family would be his and the member in whose name that document stood would be responsible to prove the debt and its legal necessity. In para. 6 of the award it was laid down that the party in whose possession any such document was, i.e. a document which stood in his name but was allotted to the opposite party, must file the said document in Court within seven days.
2. It was further provided that the said document must be within limitation; otherwise the party filing that document would be responsible for the money due on that document and that the plea of limitation by that party would be groundless because he would be deemed to have realized the consideration of that document by some means or other. Thus under the award, on the basis of which the Court passed a decree in the suit, it was the duty of Dan Pal to file the promissory note executed in his favour by Ram Chand and his brothers within seven days of the decree as the document stood in his name and had been allotted by the award and the decree to Hemraj and his brother. Dan Pal did not do so, but after the expiry of the week, filed on 28th June 1926 another document purporting to have been executed by the debtors on 21st June 1926. He did not explain in any manner what had happened to the promissory note dated 21st November 1924 or the previous promissory notes of 21st December 1921 and 22nd February 1919. He gave no notice or intimation of the filing of this document to the plaintiffs in the partition suit, Hemraj filed an application for execution of the decree in the partition suit in respect of several promissory notes and other articles which he alleged Dan Pal had not made over to him in accordance with the decree and prayed for the recovery by execution of over Rs. 10,000. This application for execution was filed on 9th January 1928 and one of the promissory notes about which Hemraj complained was this promissory note of Ram Chand and his brothers. It was only then that Dan Pal filed on 6th February 1928 the promissory note dated 21st November 1924. By this time a suit on this promissory note was time-barred.
3. On 3rd December 1928 Hemraj filed a suit, No. 191 of 1928 in the Court of the Subordinate Judge of Agra for the recovery of Rs. 6615 on the basis of the promissory note dated 21st November 1924 and impleaded the executants of the promissory note as defendants 1 to 3 and Dan Pal as defendant 4. The suit was dismissed by the trial Court as against the executants, defendants 1 to 3, on the ground that it was clearly barred by time, but it was decreed against Dan Pal on the grounds that it was his duty to have filed the promissory note dated 21st November 1924 in Court within seven days of the passing of the decree in the partition suit, that his conduct throughout had been dishonest and that Hemraj was entitled to recover the amount from Dan Pal as he was prevented from recovering it from the debtors by Dan Pal's conduct. In this suit it was admitted that the document dated 21st June 1926, which purported to be a fresh pro-note, or an acknowledgment of liability, executed by the debtors and which was on the record, was not a genuine document. There were allegations and counter, allegations by each party against the other in respect of this document. Whatever may be the truth with regard to this matter, the fact remains that Dan Pal had in his possession the promissory note of 1919, 1921 and 1924 executed by Ram Chand and his brothers, but did not file them within seven days of the passing of the decree in the partition suit as it was his duty to do. He filed instead a document of 21st June 1926 and gave no notice to Hemraj that he had filed it, and this document subsequently became the subject of controversy. In the course of his judgment the Subordinate Judge has remarked:
Dan Pal, defendant, has all along been acting dishonestly towards the plaintiffs and he cannot be allowed to take advantage of his cleverness and fraud.
4. Again, when dealing with Issue 3, the Subordinate Judge made the following remarks:
The alleged pro-note which is before the Court is admittedly forged. The execution of any other pro-note is not at all proved by any satisfactory evidence. What seems to have happened is this, that Danpal was the karta of the family of Hemraj and others. When he was threatened by a partition suit on behalf of Hemraj, he adopted various tactics to withhold a greater portion of the family outstanding debts and cash-money in his own pocket and to deprive the other members of the family of their legal share in the said debts and cash amount. In pursuance of the said scheme he concealed the debts and the cash as far as possible. He might have made an attempt to get a pro-note executed in favour of his father-in-law Mathura Prasad in lieu of the pro-note existing against defendants 1 to 3, but when the said debt was discovered and when in the partition suit of the parties it fell to the share of the present plaintiff, he finding his scheme exposed got a pro-note executed by defendants 1 to 3 in favour of plaintiff and filed it in Court. But later on for reasons best known to Dan Pal and the executants of the said pro-note the original of it was got removed from the file and forged one inserted in its place.
5. Dan Pal filed a First Appeal No. 391 of 1929 in the High Court against the decree passed by the Subordinate Judge. During the pendency of this appeal Dan Pal died and his sons were brought on the record as legal representatives of Dan Pal and the appeal was continued. This Court affirmed the decree of the trial Court and dismissed the appeal filed by Dan Pal. In the course of the judgment it was observed:
We consider that under this award it was the duty of defendant 4 to file in Court the promissory note of 21st November 1924 within one week. The defendant did not do so, and it is shown by a proceeding of 6th February 1928 in the partition record in execution that defendant 4 only filed this promissory note of 21st November 1924 on that date and that up to that time he had it in his possession. At the date on which he filed it, it was time-barred.
6. The document dated 21st June 1926 which was on the record was Ex. 3. In a subsequent portion of the judgment of this Court the following observations were made:
But the point which defendant 4 has to prove is that on 28th June 1926 defendant 4 did file a genuine document. There is nothing whatever except his own statement to show that he had filed a document other than Ex. 3 which he admits to be a forged document.
7. It was held that
the onus lay on defendant 4 to prove that he had placed the document on the record within a certain time which would enable the plaintiff to realize the debt due from defendants 1 to 3 and we are convinced that defendant 4 has failed to prove that he carried out this duty.
8. The appeal was accordingly dismissed. Hemraj has applied for execution of the decree against the sons of Dan Pal, namely Khem Chand major and Sundar Lal and Rajendra Nath minors and the family property in their hands. Two sets of objections under Section 47, Civil P.C. were filed, one by Khem Chand, the other on behalf of Sunder Lal and Rajendra Nath through their mother. So two miscellaneous cases were registered in the Court below. Both sets of objections raised the same point, namely that the liability incurred by Dan Pal in respect of which the decree under execution had been passed was of such a nature that the sons were not bound under the Hindu law to satisfy that decree. In other words, they pleaded that the conduct of Dan Pal had been avyavaharika and that the decree which was passed against him in consequence of that conduct constituted an avyavaharika debt. The Court below has dismissed the objection filed on behalf of the minors on the ground that Khem Chand having been appointed their guardian by the Court, the petition of objections filed through their mother was not maintainable. E.F.A. No. 475 of 1936 has been filed on behalf of the minors against this order. The objection of Khem Chand has, however, been allowed by the learned Civil Judge. He has held that it was due to Dan Pal's negligence and dishonesty that Hemraj's claim against the debtors on the pro-note became barred and that the decree, being in respect of loss and damage caused to Hemraj by the wrongful act of Dan Pal, could not be executed against the sons and the family properties in their hands. E.F.A. No. 344 of 1936 has been filed by Hemraj decree-holder against this order.
9. The point that has been argued before us is whether the decision of the Court below allowing the objection of Khem Chand and holding that the decree could not be executed against Dan Pal's sons and the family properties in their hands is correct. Having given the matter careful consideration, I have come to the conclusion that the decision of the Court below is right and should be affirmed. The point urged by the learned Counsel for Hemraj decree-holder is that the wrongful act of Dan Pal in consequence of which the decree was passed was of a civil nature and that the doctrine of Hindu law relied upon by Dan Pal's sons cannot be availed of unless there is an element of criminality in the conduct of the father. He has cited the cases in Sumer Singh v. Chaube Liladhar (1911) 33 All. 472, Beni Ram v. Man Singh (1912) 34 All. 4 and Chandrika Ram v. Narain Prasad (1924) 11 A.I.R. All. 745. On the other hand, it has been contended by the learned Counsel for Khem Chand that it is not necessary that there should have been an element of criminality in the conduct of the father and that if his conduct was such as would be considered 'repugnant to good morals,' the sons would not be liable. The cases in Chhakauri Mathon v. Ganga Proshad (1912) 39 Cal. 862, Durbar Khachar Odha v. Khachar Harsur (1908) 32 Bom. 348, Sunder Lal v. Bir Bhukan Saran (1924) 11 A.I.R. Pat. 645, Ratan Lal v. Bir Bhukan Saran (1921) 61 I.C. 774 which is a decision of a Bench of this Court, Raghunandan Sahu v. Badri Teli : AIR1938All263 and Brij Behari Lal v. Phunni Lal (1938) 25 A.I.R. P.C. 238 have been relied upon. The case in Toshanpal v. District Judge, Agra has also been cited, but in that case the father had been guilty of a criminal offence. Now, in the case before us, it is clear on the facts and on the findings recorded by the trial Court as well as by this Court in the suit which has resulted in the decree sought to be executed that Dan Pal had been guilty of dishonesty and grossly improper conduct. If he had filed the pronote dated 21st November 1924 within seven days of the passing of the decree in the, partition suit, as it was his clear duty to; do, he would not have incurred the liability in question. Instead of doing what as; an honest and decent person he was bound to do, he adopted a dishonest and devious course of conduct and brought on himself this liability to make good the loss which he had caused to Hemraj by that conduct.
10. In my judgment, the conduct of Dan Pal which has resulted in this liability was clearly repugnant to good morals. As observed in Brij Behari Lal v. Phunni Lal (1938) 25 A.I.R. P.C. 238 mentioned above, which is the latest case in this Court, the trend of authority is in favour of the view that a debt which is repugnant to good morals is an avyavaharika debt and is not binding on the sons. The principles applicable to such cases are discussed in the elaborate judgment of Mookerjee J. in Chhakauri Mathon v. Ganga Proshad (1912) 39 Cal. 862. The cases cited by the learned Counsel for Hemraj do not in my opinion apply to the present case. In Sumer Singh v. Chaube Liladhar (1911) 33 All. 472 the father, Rikhi Lal, had been sued for damages for libel. The first Court had dismissed the suit but the lower Appellate Court had decreed it. Rikhi Lal wanted to file a second appeal and needed money for that purpose. He borrowed it from a bank and Sumer Singh's father stood surety for him. The Bank realized the-money from the surety and Rikhi Lal executed a pronote in favour of burner Singh a father. Subsequently Sumer Singh sued Rikhi Lal on the pronote and obtained a decree and wanted to proceed against the family property. Thereupon the sons and grandsons of Rikhi Lal brought the suit which gave rise to the second appeal in which the ruling cited was given for a declaration that the property could not be attached and sold. It was pointed out in course of the judgment that the decree which Sumer Singh wanted to execute was a decree in a suit on a promissory note and was not a decree for damages for libel. The ruling of the Bombay High Court in Durbar Khachar Odha v. Khachar Harsur (1908) 32 Bom. 348 was distinguished and it was held that
the promissory note represented money which the father had borrowed for the purpose of defending himself against a suit for damages,
and that the debt was therefore one for which a Hindu son and grandson were liable. In the present case the decree that has been obtained by Hemraj is a decree for damages or compensation on account of loss caused by the wrongful act of Dan Pal. In Beni Ram v. Man Singh (1912) 34 All. 4 the facts were these. One Mathura Prasad, the head of a joint Hindu family was committed to the Court of Session on charges under Sections 467 and 471, I.P.C. In order to raise funds for his defence, Mathura Prasad, with one of his sons Janki Prasad, mortgaged some of the family property. The mortgagee brought a suit for recovery of the amount due to him under the mortgage deed and impleaded Janki Prasad, who was one of the executants of the deed, Beni Ram, another son of Mathura Prasad, and two sons of Janki Prasad. It was held by this Court that the necessity of raising money to pay for the defence of the head of a joint Hindu family committed to the Court of Session on a serious criminal charge was a valid legal necessity such as would support a mortgage of the family property executed by the father and one of his sons for such purpose. That is a very different point from the one which arises for consideration in the present case. At p. 6 of the report Chamier J. after mentioning a number of cases which had been cited in the arguments, observed that they
afforded little, if any, assistance, for in all of them the question was whether a father's liability originating either in the commission of a crime or the breach of a civil duty could be enforced against the family property in the hands of his sons or grand-eons. In all of them the question discussed was whether the debt incurred was illegal or immoral. The question of legal necessity was not discussed in any of those cases.
11. The decision was based on the ground that it was a case of musibat i.e. distress, or calamity, which threatened the family, and the mortgage was executed and money was raised with the intention of warding off that musibat. In Sumer Singh v. Chaube Liladhar (1911) 33 All. 472 also there was a calamity threatening the family and funds were raised with the intention of making an attempt to ward it off. The fact that it was a civil action for damages for libel does not in my opinion make any difference. In Chandrika Ram kv. Narain Prasad (1924) 11 A.I.R. All. 745 a suit had been filed by Narain Prasad against Ram Nandan and his brothers for recovery of a sum of money in respect of trees that had been cut and for demolition of a: building. The suit was decreed and the decree was executed in 1914 and a sale took place in 1916, the decree-holder himself being the purchaser. On Narain Prasad failing to obtain possession, he brought a suit for possession and obtained a decree in 1920. Then the sons of Ram Nandan brought a suit for a declaration that the sale which had taken place in 1916 and the subsequent decree for possession of 1920 were not binding on them. This Court agreed with the Courts below in dismissing the suit. On the facts the case is distinguishable and does not apply to the case before us. On the other hand the rulings cited by the learned Counsel for Khem Chand go the whole length of his contention. In my judgment the conduct of Dan Pal was at least as reprehensible and repugnant to good morals as is the conduct of a man who is found to have initiated a prosecution without reasonable and probable cause, and is subsequently successfully sued for damages for malicious prosecution. That is what had happened in Sunder Lal v. Bir Bhukan Saran (1924) 11 A.I.R. Pat. 645 and Raghunandan Sahu v. Badri Teli : AIR1938All263 . In my opinion the decision of the Court below is correct and should be affirmed, and E.F.A. No. 344 of 1936 should be dismissed.
12. Coming now to the connected appeal, I am of opinion that the decision of the Court below in this case also is correct. A guardian ad litem of the minors having been appointed by the Court, any petition on their behalf should have been filed through that guardian and not through anyone else. The Court below is right in holding that the petition of objections on behalf of the minors filed through their mother is not entertain able. I would dismiss E.F.A. No. 475 of 1936 also.
13. I, agree.
14. Execution First Appeals Nos. 344 and 475 of 1936 are dismissed with costs.