1. This is an appeal from a decree and order of the Additional Subordinate Judge of Agra in favour of the plaintiffs-respondents. The plaintiffe-respondents are the members of the Committee of management of the Balwant Rajput High School Agra, and the defendants are the three sons of the late Thakur Dhyan Pal Singh, who was Secretary of that Committee. The circumstances that led tip to the suit were briefly these: In 1915 the Government made a grant of Rs. 90,000 to the Committee to be expended on the school on condition that the money should be placed in deposit with the Bank of Bengal and should not be utilised till schemes had been prepared (after consultation between the Managing Committee of the School and Government) to which the Committee and Government should have assented. The work was held up during the war but on the 16th of October, 1920, Dhyan Pal Singh, the Secretary of the Committee, represented to them that Rs. 60,000 of this grant had been invested in the three years' War Loan the period of which had expired and that he had invested Rs. 50,000 in fixed deposit with the Bank of Bengal at 4 per cent, per annum and Rs. 10,000 in current account. He asked for 'the formal sanction of the Committee to this arrangement and further he asked for permission to operate on the account and to draw the money when necessary to meet the expenses of the brick kiln and the acquisition of other building materials. This was sanctioned by the Committee. It may be mentioned that Dhyan Pal Singh had drawn on the account before the sanction of the Committee was obtained and between the 23rd of August, 1920, and the 25th of October, 1921, he drew in all by various cheques Rs. 60,685. On the 13th May, 1922, he represented to the Committee that the estimate for the proposed alterations and additions to the school building was about Rs 78,000 according to the current public works rate and that he could get the entire thing done at a cost of Rs. 60,000 if the Committee authorised him to do it. He further represented that the Committee had inhand the sum of Rs. 70,000. The Committee passed a resolution authorising him to put in hand the alterations subject to some modifications proposed by the Executive Engineer which Dhyan Pal Singh himself had put forward on condition that the total amount expended should not exceed Rs. 60,000.
2. From the 15th of May, 1922, to the 30th of January, 1923, Dhyan Pal Singh got the President of the Committee to countersign cheques for sums amounting in all to Rs. 21,597-3-2. It may be observed that there had been changes in the parson of the President of the Committee during these proceedings. Mr. T.K. Johnston, Mr. J.R.W. Bennett and Dr. E. Bonnet in turn assuming that office ex officio as District Judges of Agra. On the 7th November, 1922, Dhyan Pal Singh asked Dr. E. Bannet to countersign a cheque for Rs. 2,000. This was the first occasion on which Dr. Bennet had anything to do with the matter. He asked Dhyan Pal Singh for vouchers and Dhyan Pal Singh replied that he had not so far been required to submit any but that he would now submit accounts. Accounts of some kind were after some considerable delay submitted purporting to show that a sum of roughly Rs. 50.000 had been spent on the building. Before the matter was cleared up Dhyan Pal Singh died on the 30th of May, 1923. Meanwhile several matters had been arousing the suspicions of Dr. Bannet who happened to be away from Agra when Dhyan Pal Singh died and on his return finding that no cash balance had been left by Dhyan Pal Singh and that the large sums which that gentleman had drawn had not been properly accounted for he applied for an official audit of Dhyan Pal Singh's accounts and as a result of that audit the present suit was filed by the Committee on the 29th of May, 1925. No allegation was made against Dhyan Pal Singh's sons personally but it was maved that they should be made to pay a sum of Rs. 85,863-4-2 or whatever might be found due 'from the property left by Thakur Dhyan Pal Singh and also out of the joint family property in their hands.' The Subordinate Judge after appointing an expert to value the work done, for he found Dhyan Pal Singh's accounts untrustworthy, decided that a sum of Rs. 48,143-1-2 was due and he gave a decree for this amount without past interest.
3. The Subordinate Judge has calculated that this sum of Rs. 48,143-1-2 represented the balance which Dhyan Pal Singh; had not accounted for by deducting the value of the buildings (as calculated by Mr. Daly the expert) viz, Rs. 35,454-2-0 from the total sum which Dhyan Pal Singh had realised from the Committee on account of the building which according to the Subordinate Judge came to Rs. 83,597-3 2.
4. The plaint states that the cause of action arose in August 1920 when Dhyan Pal Singh began making improper use of the Government grant but there is no mention in it of criminal misappropriation or breach of trust. The notice issued to Dhyan Pal Singh's sons the present defendants on the 19th February, 1924 (Ex. B) was to the effect that Dhyan Pal Singh 'committed breach of trust of sums of money as detailed' etc, but did not suggest that there had been a criminal breach of trust. The defendants in their written statement did not admit that Dhyan Pal Singh had misappropriated any money or that he had committed any criminal breach of trust. They did not positively deny either that he had misappropriated money or that he had committed criminal breach of trust. Neither allegation had been definitely made, it will be observed, in the plaint itself and the plaintiffs' case at that stage apparently was that Dhyan Pal Singh had been acting as the agent of the Committee, had made improper use of the Government grant and was liable to account for the whole of the Government grant to the Committee. Nevertheless the plaint did refer to the amount of Rs. 21,597-3 2 which had been drawn by Dhyan Pal Singh from the school accounts after the amount of the grant had been exhausted. The fact is that at that stage the legal position of the parties was not understood. When Dr. Bennet went into the witness box he was certainly induced in cross-examination to say: 'The complaint against Dhyan Pal Singh is that Dhyan Pal Singh by misappropriating a portion of this money and other sums detailed in the plaint committed a breach of trust.' There was, however, no specific issue on the question of whether Dhyan Pal Singh had committed criminal breach of trust or any other sort of crime. In view of the course taken by the argument this is unfortunate and the result has been curious. Both in the final stages of the suit in the Court below and in argument before us the defence has been based on two alternative and inconsistent theories: (1) that Dhyan Pal Singh had satisfactorily accounted for the whole sum for which he was responsible and (2) that he had committed criminal breach of trust or criminal misappropriation or some crime and that the sons could not be made liable for a debt that was tainted with immorality.
5. It is argued that although it is a pious obligation of the sons to discharge their father's debts it is by no means part of their pious obligation to protect his memory against the allegation of a crime. In fact it has been vehemently argued on behalf of the sons of Dhyan Pal Singh that the evidence discloses that Dhyan Pal Singh acted dishonestly throughout and would have been convicted in a Criminal Court. As the defendants-appellants took their stand from the beginning on their alleged ignorance of the proceedings of their father it was, we consider, open to them to base their defence in the alternative on these irreconcilable pleas.
8. The conclusion arrived at in regard to the first part of the defence by the learned Subordinate Judge was as we have already remarked that Dhyan Pal Singh's accounts were untrustworthy, incomplete and utterly insufficient to dispose of the large sums for which he had made himself responsible to the Committee. The alternative argument was perhaps not fully developed in the lower Court if we may judge from the fact that only one authority has been cited. The learned Subordinate Judge pointed out that the Committee on the 16th of October, 1920, gave formal sanction to the transfer of the two sums of Rs. 50,0110 and Ra. 10,000 to the personal fixed deposit account and the personal current account of Dhyan Pal Singh and concluded that Dhyan Pal Singh could, therefore, not be held guilty of criminal breach of trust and that there was no intention on his part to embezzle the money. As regards the later cheques the Judge remarks: 'Although he might be accused of drawing it over and above the amount at the cost of which he undertook to complete the building there was nothing to prove his intention to misappropriate this amount. The fact that the accounts filed by him are not accepted does not necessarily prove that there was any embezzlement by him.' He further remarks: 'The fact that Rs. 30,016-9-5 out of the amount of Rs. 48,143-1-2 which has been now found due from him was admitted by him to be in his hands on the 30th of March, 1923, shortly before his death excludes all intention on his part to misappropriate the trust money.' This admission is to be found in a letter addressed to Radhey Lal the head clerk of the Balwant High School, and is certainly of importance. The Judge might also have referred to the fact that on the 13th May, 1922, in applying to the Committee for sanction to get the repairs done at a cost of Rs. 6,000 Dhyan Pal Singh remarked that the Committee had in hand a sum of Rs. 70,000 although we know as a matter of fact that by that date he had entirely exhausted the grant of Rs. 60,000. These, however, are details which will have to be considered later. The final conclusion of the Judge was that there was no evidence sufficient to prove a charge of criminal breach of trust against Dhyan Pal Singh but that there was a balance of money due by him to the Committee which he was bound to account for and the sons must be held to be liable to discharge it.
9. In opening the legal argument on behalf of the appellants Sir Tej Bahadur Sapru remarked in the first place that the plaintiffs had not in their plaint alleged and had not brought evidence to prove that there were any assets of Dhyan Pal Singh's that had come into the hands of the defendants or that there was any joint family property which might be made liable for the debt. Even if the sons would be legally liable to the extent of the joint family property yet the debt would be a personal debt, and before their personal liability could be alleged it was incumbent on the plaintiffs to show the existence of the property out of which the liability would arise. The plaintiffs did, however, allege the existence of joint family property and this was not denied in the written statement nor has it been suggested before us that no such property exists. The plea is a purely technical one and we think that the plaintiffs have done all that was necessary.
10. The exact nature of the debts that must be held to be avyavaharika has given some difficulty to the various High Courts in India, but the necessity for making a pronouncement on the subject has never, we believe, arisen in an appeal before the Privy Council. Their Lordships have in several cases in which this precise issue did not arise referred to debts which were incurred for an immoral or an illegal purpose and in one or two passages to debts which were 'tainted with immorality.' Bat there is nothing in any of their pronouncements be far as we know to show that a debt which is incurred by means of a crime is to be distinguished from a debt which has been incurred in order to spend the money on an immoral object. The difference between these two kinds of debts is obvious on the face of it. But there is authority both in the commentators on Hindu Law and in the decisions of the Courts in India for holding that debts of both kinds are to be considered to be debts which a son is under no pious obligation to discharge on behalf of his father. In the view of Hindu lawyers a debt is not merely an obligation but a sin, the consequences of which follow the debtor into the next world (Mayne's Hindu Law, para. 302). The duty of relieving a debtor from the evil consequences of this sin falls on the male descendants and it is for this reason 'that there is a moral and religious obligation on the son to pay his father's debt. But Mayne remarks that the obligation does not arise in two cages: (1) when the debt is of an immoral character and (2) when it is of a ready money character and the instances of immoral debts given by that learned commentator are sums due for spirituous liquor, for losses at play, for promises made without consideration or under the influence of lust or wrath or sums for which he (the father) was a surety or a fine or a toll or the balance of either and generally any debt for a cause repugnant to good morals. There is a great diversity of opinion among the commentators in regard to the descriptions of debts by which the son is not bound, a diversity which as Mr. Justice Mukerji has remarked, has been faithfully reproduced in the decisions of the Courts. But the early commentators appear to have been unanimous in holding that a fine or a toll or the balance of either is included in such debts. The payment of a fine is a penalty and although it is a penalty for an immoral act, the payment itself is not immoral and it is no doubt for this reason that the Courts in India have been practically unanimous in holding that a debt arising out of a criminal transaction is not binding on the son.
11. The Allahabad High Court in 1884 in the case of Mahabir Prasad v. Basdeo Singh 6 A. 234 : A.W.N. (1884) 47 : 3 Ind. Dec. (N.S.) 852 held that where a father had embezzled money and the debt had arisen on account of that embezzlement it would not be binding on the son. In this case the embezzlement was clearly restablished. In 1906 in the case of Jai Kumar v. Gauri Nath 28 A. 718 : A.W.N. (1906) 212 : 3 A.L.J. 503, the circumstances were such as to suggest an embezzlement but the father executed a promissory note to which his son also attached his name, for the payment of the sum for which he was responsible. In this case the debt was held to be binding on the son, but the issue argued was whether the promissory note had been executed in order to stifle a prosecution and as it was not proved to have been executed for that purpose it was held that the debt could not be considered to be immoral because the pro-note was executed as security for a just claim, In view of the distinction that has been made between a criminal liability and a civil obligation it is worth noticing that in this case the civil liability arose after the transaction which was said to amount to an embezzlement. In 1916 in the case of Niddha Lal v. Collector of Bulandshahr 35 Ind. Cas. 209 : 14 A.L.J. 610, an agent who had realised Rs. 4,000 on account of his principal misappropriated it. The exact circumstances of that case are not before us but it was held that the son would be liable for re-payment of the amount because it was not exactly a case of criminal misappropriation. If it had been definitely proved that there had been an embezzlement or that the amount had been taken to avoid a criminal prosecution the decision might have been different. In 1924 in the case of Chandrika Ram Tiwarl v. Narain Prasad Rai 79 Ind. Cas. 1036 : 46 A. 617 : 22 A.L.J. 468 : A.I.R. 1924 All. 745 : L.R. 5 A. 378 Civ. it was held that the damages on account of trees which had been wrongfully cut by the father constituted a debt binding on the son because it was not an illegal or immoral debt in spite of the fact that the father had done wrong in cutting the trees. The learned Judges who decided this case differentiated it from the case of Durbar Khachar Odha Ala v. Khachar Harsur Oghad 32 B. 348 : 10 Bom. L.R. 297 in which the facts were somewhat similar because in the case before them the family had benefited by the tortuous act of the father. In 1925 it was held in the case of Jagannath Prasad v. Jugul Kishore : AIR1926All89 , that where criminal misappropriation by the father had been admitted in his pleading by the applicant who claimed to bind the son the debt was not binding because on the admission of the applicant the debt was infected with an element of criminality. The father had, as a matter of fact, been acquitted by the Criminal Court. From these decisions the principle may be deduced that where a crime is definitely proved against the father and the debt arises from that transaction it would not be binding on the sons. Where the question whether there was an actual crime or not is doubtful the Court was reluctant to hold that an element of criminality existed even where there was considerable evidence to prove it.
12. In Madras the line has perhaps been more clearly drawn between a criminal act and a civil liability. In the case of Natasayyan v. Ponnusami 16 M. 99 : 3 M.L.J. 1 : 5 Ind. Deo. (N.S.) 776 where the father had dishonestly retained money due to another person though he had not been convicted of a crime it was held that as he had been guilty of a breach of a civil obligation the sons must be bound whereas in the case of McDowell v. Ragava Chetly 27 M. 71. where the evidence showed that the father had been guilty of criminal misappropriation though he had not been convicted by a Criminal Court the sons were held not liable. In the later cases of Kanemar Venkappayya v. Krishnacharya 31 M. 161 : 17 M.L.J. 613 : 3 M.L.T. 353 & 2 M.L.T. 529, Erasala Gurunathan Chetty v. Addipally Reghavalu Chetty 31 M. 472 : 3 M.L.T. 394 : 8 Cr. L.J. 147 and Venkatacharyulu v. Mohana Panda 61 Ind. Cas. 530 : 44 M. 214 : 12 L.W. 380 : (1920) M.W.N. 650 : 39 M.L.J. 586 the same reasoning appears to have been followed. Where the father had been convicted of a crime or where the evidence clearly showed that he had been guilty of criminal misconduct the sons were not bound but where the evidence was only sufficient to show a civil obligation the sons were bound. In Bombay in the case of Durbar Khachar Odha Ala v. Khachar Harsur Oghad 32 B. 348 : 10 Bom. L.R. 297, where the father had been guilty not of a criminal act at all but of an act involving him in civil damages, the son was held to be not liable but the ratio decidendi appears to have been that the sons were not benefited by the tortuous act. If the sons had been benefited it would apparently have been held as it was in the case of Chandrika Ram Tiwari v. Narain Prasad Rai 79 Ind. Cas. 1036 : 46 A. 617 : 22 A.L.J. 468 : A.I.R. 1924 All. 745 : L.R. 5 A. 378 Civ. that the sons were liable. In the case of Hanmant Kashinath Joshi v. Ganesh Annaji Pujari 51 Ind. Cas. 612 : 43 B. 612 : 21 Bom. L.R. 435 the father as trustee committed a breach of civil duty and it was held that the debt was not immoral and was binding on the son.
13. Mr. Justice Mukerji in the case of Chakouri Mahton v. Ganga Prasad 12 Ind. Cas. 609 : 39 C. 862 : 16 C.W.N. 519 : 15 C.L.J. 228, reviews the case-law on the subject and suggests that the distinguishing line must be drawn between a criminal offence and a breach of civil duty and he remarks that where the taking of the money is not in itself a criminal offence, a subsequent misappropriation by the father cannot discharge the son from liability. The learned Judge quotes with approval a passage from the case of Natasayyan v. Ponnusami 16 M. 99 : 3 M.L.J. 1 : 5 Ind. Deo. (N.S.) 776 to the effect that the son is not bound to do anything to relieve the father from the consequence of his own vicious indulgences, but he is surely bound to do that which the father himself would do to discharge a civil obligation if it were possible.
14. We think that we may safely derive the following propositions from the case law. If the liability arises directly from a criminal act, i.e., an act for which the father may or may not have been successfully prosecuted, but which the evidence on the record is sufficient to prove to have been criminal, the son is not bound. On this all Courts are agreed, Secondly, if there is a civil liability and subsequently the transaction becomes a criminal one the son is bound to meet the civil liability to the extent of the family property but he is not concerned with the criminal matter. This is a more doubtful proposition and the decisions of the Courts are not unanimous. But we think that it may be supported by reference to the nature of the religious obligation which arose potentially as soon as the civil liability occurred. If there had been no crime the son would undoubtedly have been responsible on account of the civil liability. The subsequent crime may involve the father in further difficulties in the next world, but these are beyond the control of the son and they are, so far as we know, distinct from the penalties arising from a civil obligation. If this be so the son's obligation to discharge the civil liability is in no way altered by the subsequent crime. In coming to this conclusion we do not think that we are in any way dissenting from the judgment in the case of Jagannatk Prasad v. Jugul Kishore : AIR1926All89 , which is the latest pronouncement of this Court on the subject. There the obligation itself was held to be infected with criminality. But where it is possible to separate the civil liability from a criminal action we consider that the civil liability itself is not so infected.
15. We have already given a summary account of Dhyan Pal Singh's transactions so far as they appear from the evidence on the record. Much that is now obscure might have been made clear if Dhyan Pal Singh had lived and had been able to explain what he did and what his motives were. We know that when the money granted by Government to the Committee was invested in the War Loan the bonds stood in the name of Dhyan Pal Singh because Dhy in Pal Singh was able to realise the amount and to invest it in fixed deposit with the Bank to the extent of Rs. 50,000 and to put Rs. 10,000 in the current aceount. When this was done we do not know but on the lath August, 1920, the current account of Dhyan Pal Singh appears to have been opened (Ex. 48, printed at page 71). The first entry on the credit side is:
16. August the 19th--To Note (Pro) Rs. 10,000 and on the debit side on the same day an item of ten-annas is charged for ten cheques.
17. Dhyan Pal Singh began to draw cheques on the 23rd August, the first cheque being in favour of Mauji Ram for Rs. 1,000. By the end of 1920 he had drawn the whole of Rs. 10,000 except Rs. 549-5-0 with, which his account was balanced.
18. In the meanwhile on the 16th October, 1920, he had made a report to the Committee in the following terms:
A sum of Rs. 60,000 was invested in three years' War Loan. The period of loan has expired. The money is on account of the proposed new school building. The construction is soon to be commenced, but I do hot think we shall need the whole money all at once. It is not deemed advisable that we lose interest on the amount for nothing. I have consequently invested a sum of Rs. 50,000 in fixed deposit with the Bank of Bengal at 4 par cent, per annum for one year and Rs. 10,000 in a current call account. I request the formal sanction of the Committee. I further beg that the Committee may be pleased to authorise me to operate on the account and draw the money when necessary to meet the expenses of the brick kiln and the acquisition of other building materials.' This was sanctioned (Ex. 30, pages 65 to 67). The Committee, therefore, not only authorised Dhyan Pal Singh to operate on this account, which must have been in his name as Secretary of the Committee, buts also to spend the money for making bricks and acquiring other building materials. Dhyan Pal Singh continued to draw cheques in 1921. A list of the cheques is printed on pages 79 to 93 of the paper-book (Exs. 28 and 29) and by October, 1921, the total sums so drawn in cheques amounted to Rs. 60,685. It is not necessary to describe the cheques in detail; many of them are drawn in favour of Mauji, Ram and others in favour of Chhadami Lal. Chhadami Lal is stated in evidence to be a store-keeper, and one of the minor items in the accounts to which the auditor drew attention was the excessive amount of travelling allowance charged by Chhadami Lal, who was not, however, produced as a witness. Mauji Ram was also given money for travelling, but in 1921 he was given large amounts for coal. Other cheques were in favour of the drawer. It does appear, therefore, from the evidence of these cheques, that much of the money was drawn ostensibly for expenses in connection with the school building.
19. On the 19th of August, 1921, the amount of the fixed deposit Rs. 50,000, plus Rs. 2,000 interest was transferred by the' Bank to the credit of Dhyan Pal Singh's overdrawn current account (Ex, 23 printed on page 75 and Ex. 48 printed on page 73). The auditor in his report remarks: 'It is evident that he resorted to this most objectionable practice of crediting school money to his personal account to save himself from financial embarrassment as he had overdrawn the balance of his private account.' It appears, however, that it was the private account on which Dhyan Pal Singh had drawn in accordance with the direction of the Committee to meet the expenses of the building. The position is not quite clear, but at any rate we know the items by which the current account had become overdrawn to the extent of over Rs. 60,000 and we know that many of these itema were ostensibly at any rate connected with the building. However unbusiness like Dhyan Pal Singh may have been, there is nothing to show that he was acting dishonestly in having the amount of the fixed deposit credited to the current account.
20. What the state of the building was at the end of 1921 we do not know, but we do know that Dhyan Pal Singh had spent over Rs. 60,000 under colour of a sanction received from the Committee in October, 1920 'to meet the expenses of the brick kiln and the acquisition of other building materials.' We must remark that the Committee throughout 1920 and 1921 and indeed until Dr. Bennet began to make enquiries at the end of 1922 appears to have been quite apathetic in regard to this building grant. In the Government order conveying the grant it was stated that the money should not be utilised 'till Schemes have been prepared after consultation between the Managing Committee of the School and Government to which the Committee and the Government have assented.' Yet, we find that the Committee gave their Secretary full power to spend Rs. 60,000 for making bricks and acquiring building materials without in any way supervising his expenditure or satisfying themselves that the money was being used in a proper way.
21. Early in 1922, however, something seems to have stirred them to consult the Executive Engineer, for at an extraordinary meeting dated the 13th of May, 1922, the second item on the list of agenda was 'to consider the letter of the Executive Engineer in reply to the request made to him in compliance with para. No. 1 of resolution No. 2 of the Committee meeting held on the 22nd of April, 1922' and on this it was 'resolved unanimously that the Secretary be authorised to put in hand the alterations in the buildings proposed subject to the modifications suggested by the Executive Engineer on the condition that the total amount expended does not exceed Rs. 60,000,' (Ex. 81, page 77 of the printed book). It appears from Appendix F to the auditor's report (page 272 of the printed book) that Dhyan Pal Singh had made a report on which this resolution was passed. This report is on the record, and shows that Dhyan Pal Singh had discussed the plans and estimates with the Executive Engineer, and that as he had found that the building would cost nearly Rs. 80,000 according to the P.W.D. rates, he had asked the Committee for sanction to get the work done himself for Rs. 60,000 adding 'I shall undertake to complete the buildings according to the plan at a cost of Rs. 60,000. The Committee has got in hand a sum of Rs. 70,000.' It is particularly in regard to this report and the position of things at that date that the want of Dhyan Pal Singh's explanation is felt. He had already spent over Rs. 60,000 of the money entrusted to him by the Committee. The work had certainly not been completed, for he talks of an estimate and of getting the entire thing done, so it appears that ithadnot even been planned. The sanction of the Committee had already been given to him for operating on their account to the extent of Rs. 60,000. These considerations all create a suspicion that he was deceiving the Committee and that he was acting dishonestly. On the other hand it was open to the Committee to look into the account and to learn that the whole of the Rs. 60,000 had been spent, and it was open to them to inspect the building and see how much had been done. Finally we have Dhyan Pal Singh's admission in the report that the Committee has in hand a sum of Rs. 70,000. As he was in charge of the account it cannot mean anything except that he was, ready to account to them for Rs. 70,000. It is not clear how he arrived at the figure of Rs. 70,800, for, even with the interest on the fixed deposit, the sum entrusted to him amounted to only Rs. 62,000. Later on, on the 30th March, 1923, in a letter written to the head clerk of the school shortly before his death, Dhyan Pal Singh mentions various items which he had realised from decrees and in other ways amounting in all to Rs. 4,248-9-1, and it may be that this is a partial explanation, but we find it impossible to account for the figures as they stand.
22. Having exhausted the Rs. 60,000 DhyanPal Singh drew cheques against the ordinary school account to a total amount of Rs, '21,597-3-2 between the 15th of May, 1922, and the 30th of January, 1923. He was not able to operate on this account without the counter signature of the President of the Committee, but there Was no difficulty about this apparently until the 7th of November, 1922, when a cheque for Rs. 2,000 'for the building account' was presented for counter-signature to Dr. Bennet. It was then that Dr. Bennet asked for vouchers and told Dhyan Pal Singh that the work must be done on a businesslike basis. Dhyan Pal Singh did not explain to Dr. Bennet or to the Committee that he could no longer draw on the Rs. 60,000 because it had already been spent, and that he had been drawing for some time past on the ordinary school account. In his letter to Dr. Bannet of the 7th November, 1922, (printed at page 103) he wrote: 'The committee of management authorised me by their resolution to get the building work done under my direct supervision and Mr. J.R.W. Bennett allowed me to draw the money on that account by cheques in my name.' It is difficult to interpret this as anything but an attempt to deceive Dr. Bennet, who must not be canfused with Mr. J.R.W. Bennett Dr. BeDnet's predecessor. The resolution of the Committee of management authorised Dhyan Pal Singh to get the building work done, but it did not authorise him to draw on the ordinary school account which he was doing after the Rs. 60,000 had been exhausted. It only authorised him to operate on the account to a limit of Rs. 60,000. It was clearly his duty to explain these matters to Dr. Bonnet. In his letter of the 8th November (page 107) Dhyan Pal Singh implies even more clearly that he is drawing the money against the sum of Rs. 60,000 on which he had been authorised to operate, and he states that the account of the money expended is kept in his office, and promises to submit an account of the last payment and any further detail that should be required. In his letter of the 10th November he remarks that he has to go to his country place in connection with his daughter's marriage and that it will take about a month to get the building account posted up to date, On the 3rd January he writes to Dr. Bennet that he will not submit any further cheques on account of the school building until he has the accounts in order. It is not clear what happened immediately after this, but some sort of accounts or vouchers appear to have been furnished and such as they are they have been put in evidence. Before the matter could be cleared up Dhyan Pal Singh died on the 30th May, 1923. Dr. Bennet was away at the time, but on his return on the 1st of July he took possession of the papers and account books of Dhyan Pal Singh and found that there was only a cash balance of about Rs. 650 which afterwards proved to have nothing to do with the building grant. A letter to which reference has already been made was handed to Dr. Bennet by Radhey Lal, clerk of the Head Master of the School. It is dated the 30th March and is apparently the last statement of Dhyan Pal Singh's that is on record. In it Dhyan Pal Singh asked Radhey Lal to adjust the school building account and informs him that a sum of Rs. 41,206-15-8 is outstanding and that a sum of Rs. 4,248-9 1 is available to meet it. He does not explain where this money is to be found. He sums up 'There is an amount of Rs. 63,975 outstanding against my name. To this amount add Rs. 4,248 received from other source as detailed above. The total amount comes to Rs. 71,223-9-1 out of which deduct the total (?) amount expended, i.e., Rs. 41,206-15-8, thus leaving a balance of Rs. 30,016-9-5. Please show this amount in my hand which I shall account later on.'
23. Dhyan Pal Singh's position, therefore, was that he had spent about Rs. 41,000 on the building and hoped to be able to show that the building he had carried out represented that value. Apart from this he acknowledges' that there is a balance of about Rs. 30,000 due from him for which he has to account. Before us an attempt was made on behalf of the appellants to show that the accounts of Dhyan Pal Singh ought to have been accepted in the lower Court, but as the Subordinate Judge has pointed out the accounts as they stood originally are not forthcoming, at any rate in regard to a large proportion of the money. Exhibit 33 which is printed from pages 123 to 166 is called the brick kiln account, the total charges being represented as Rs. 29,715-5-0, It is simply a list of items said to have been expended. There is no cash book, no muster roils for wages, and what vouchers there are, are not to be relied on. In fact, Inam-ullah who appeared to give evidence for the defence and who apparently worked as a sort of supervisor for Dhyan Pal Singh stated in evidence that there was no register of daily attendance and as far as he knew bahi or register of accounts. Apart from these brick kiln charges, the accounts tendered on behalf of the defendants purported to show expenses amounting to Rs. 32,607-12. This is not, however, a clear account but a tentative estimate of what the account would have been. It is not necessary, however, to examine the various items. The auditor in his report (Ex. 22 at page 253) and the Subordinate Judge have both discarded the so-called accounts as utterly unreliable, and nothing has been said in this Court which would justify us in not accepting these opinions. In fact it seems from the evidence of Radhey Lal, who was the Head Clerk of the High School, that Ex. 23 was written by him at the dictation of Chhadami Lal the store-keeper, a man who earns Rs. 30 per month, from registers which were in Hindi. It is true that a bill or rather a series of bills, showing a total of Rs. 21,597 3 2, appears to have been accepted and passed by Dr. Bennet on the 5th January 1923, and that he even acted on this to the extent of sending a cheque for the balance which Dhyan Pal Singh claimed as due to him up to that date (pages 168 and 169 of the paper-book). In connection with this, however, Dr. Bennet stated in evidence 'The correspondence with Thaknr Dhyan Pal Singh led me to believe that the sum of Rs. 21,597-3-2 represented the total amount expended on the building and everything connected with it. I am not prepared to admit that these receipts (Ex. 49) represent the genuine expenditure.' In other words Dr. Bennet passed these bills under a misapprehension. It is not proved that Dhyan Pal Singh definitely stated to Dr. Bennet that this amount represented the total expenditure of the building up to date, but it dees appear that he took no steps to enlighten Dr. Bennet as to the facts either at this stage or at any other.
24. Although very little effort was made in appeal to support Dhyan Pal Singh's accounts, a much more serious effort was made to demolish or at any rate to criticise the figures provided by the expert Mr. Daly who was employed by the Committee to assess the value of the building work actually done. It has already been said that the Subordinate Judge, failing to find any accounts on which he could rely, accepted the estimate made by Mr. Daly and gave Dhyan Pal Singh credit for having spent an equivalent amount on the buildings. Mr. Daly was asked by the District Judge at theend of February, 1924, to make a valuation of the new buildings, and he worked at this task from the end of February till the 10th of May. The results. at which he arrived are given in detail in his report, which is printed at page 337 and the following pages. In the first place some deductions were made by Mr. Daly for 'cracked work, shallow foundation and bad work,' It is objected that by the time Mr. Daly inspected the buildings there had been two monsoons, and it is argued that much damage may have been done by the weather. These deductions are detailed on page 340 of the printed book, where it is shown that a sum of Rs. 2,757-13-0 was deducted on account of 'insufficient depth of pillars of arches.' The insufficient depth was, it is true, not due to the weather, and Mr. Daly has made an allowance for the bricks. The method of calculation adopted by Mr. Daly might have been accepted if the question for decision had been whether Dhyan Pal Singh had satisfactorily carried out a contract. But the question is whether he actually expended a certain amount of money on the building work or not; and if the work was done, even if it was badly done we are not justified in concluding that the money was not spent and we think, therefore, that this sum of Rs. 2,757-13-0 should not be debited against the appellants. The next point taken is that Mr. Paly reckoned that only 1200 bricks would be used in 100 cubic feet of masonry. The standard books on engineering allow 1400 bricks or more. Mr. Daly when cross-examined on this point did not give any very clear, reason for differing from the standard allowed at the Roorkee College or by the Bombay Government. He said that he had actually taken measurements and found that only 1200 bricks were used in 100 cubic feet of masonry. This cartainly does not mean that Mr. Daly counted all the bricks that had been used, and we are not satisfied from his statement that he was justified in departing from the standard number. We think that in this respect the appellants' objection must be allowed and that the standard number of bricks should be accepted. It has further been objected that Mr. Daly has not allowed a high enough rate for the cost of bricks. Rates were higher in 1921 than in 1922, but we have really no satisfactory evidence to prove exactly when the bricks were made, and we think that the average rate taken by Mr. Daly is the most reasonable one. It must be remembered that the standard rates quoted must allow a margin of profit to the contractor or brick-maker, to which Dhyan Pal Singh in the circumstances would not be entitled. The difference that this would make in the valuation of the buildings has been elaborately calculated by Mr. Iqbal Ahmad on behalf of the appellants, and accepting his argument as regards the number of bricks used we would allow an additional sum of Rs. 2,392 on account of extra bricks. This is calculated on an additional total of 104,194 first class bricks at Rs. 23 per thousand; second and third class bricks are not numerous and have been ignored. The other objections relate to small items. It is said that Mr. Daly has not made a sufficient allowance for supervision charges which he puts down at Rs. 1,000 only. In view of the remarks made by the auditor we have reason to believe that there was a great deal of wastage under this head. The appellants claim that the charges on account of supervision were actually much higher than Rs. 1,000 but if they were, we think that Dhyan Pal Singh as the agent of the Committee must be held to be responsible and we do not consider Mr. Daly's estimate an unreasonable one. Other small objections are made in regard to contingent charges and the absence of any allowance for water, but we do not think that these have any force. A further objection in regard to rolled steel beams appears to have been based on a misunderstanding of the analysis of the rates at the end of Mr. Daly's report. In point of fact we are satisfied that Mr. Daly has allowed reasonable rates for all the rolled steel beams that he found on the spot. The final result of all these objections is that we would add Rs. 2,392 for extra bricks and Rs. 2,757-13-0 in. respect of work rejected by Mr. Daly as defective to the Rs. 35,454-2-0 at which Mr. Daly has valued the buildings provided by Dhyan Pal Singh. The practical effect of this would be that Dhyan Pal Singh is shown to have accounted for Rs. 40, 603-15-0 of the money entrusted to him.
25. To return to the legal aspect of the case and the conduct of Dhyan Pal Singh, we think it is clear that when he applied for and obtained the sanction of the Committee to draw cheques up to the value of Rs. 60,000 in order to provide bricks and other materials for the building, there is nothing to show that he had any dishonest purpose. He assumed the character of an agent to the Committee and from that date, that is to say from the 16th of October, 1920, he became responsible to account to them for this amount. He has failed to do so. It appears to be not unlikely that owing to slack supervision very large sums of money were wasted, but we can find no clear evidence of any deception until the date when having exhausted Rs. 60,000 he began to draw on the ordinary school account for which he had to obtain the counter-signature of the President of the Committee. We think that there can be no 1 doubt that he intentionally misled Mr. J.R.W. Bennett and later on Dr. Bennet in regard to the position. He had spent all the, money with which he had been entrusted, 1 but he still had to go on with the building, and he raised the money in what was most unquestionably an irregular way. It would 1 be difficult to say, however, that in so doing he committed a crime. The argument addressed to us on behalf of the appellants, to show that his actions were infected s with criminality,' was directed to proving I that from the beginning he had acted in a dishonest way. This as we have held is not proved and is not even likely. If he I acted at first in perfect good faith as we t believe to be the case, and subsequently got into difficulties and dishonestly drew on the ordinary school accounts, he may or may not have been guilty of some criminal offence. It is not proved that he was, because the 3 position is not clear and we do not know how. he was able to draw on this ordinary school account or what his ultimate intentions were. It is at any rate clear that he acknowledged liability for about Rs. 30,000 when he wrote in March 1923 to Radhey Lal, and that he knew then that he would have to account for this amount. We can only say that this part of his conduct was suspicious and was probably dishonest, but in the view that we have taken of the law it does not affect the son's liability in regard to the civil obligation which he undertook on the 10th of October, 1920. The position is somewhat complicated by the fact that in drawing these later cheques after the Es. 60,000 Dhyan Pal Singh was drawing money with which he had, so far as we know, not been specifically entrusted by the Committee, but we do not think it is necessary to insist on the distinction. He realised the money under colour of the authority given him by the Committee, and he admitted his responsibility to account for it.
26. The final result is that we modify the decree and order of the lower Court to this extent that the amount of the decree is reduced by a sum of Rs. 5,149-13-0 and will, therefore, be Rs. 42,993-4-2. For the rest the appeal is dismissed and as the appellants have substantially failed in all their grounds of appeal, we direct that they pay the costs of this appeal.