1. The principal point for decision in the present case is whether a certain debt contracted by the father of the contesting defendant is of the nature of an avyavaharika debt that is a debt which a Bon is under no legal obligation to pay. It appears that one Churanji Lal was unable to account for certain sums of money which came into his hands in his capacity as the treasurer of the Small Town Committee of Dharamkot. The Committee brought a suit against him for the recovery of the moneys which were said to have been misappropriated and obtained a decree in a sum of Rs. 8663-5-0 on account of principal and Rs. 1088-14-0 on account of costs. This was on 28th August 1939. The house of Churanji Lai was attached on 31st May 1941 and his land was attached on 13th June 1941. Mul Chand a son of Churanji Lai thereupon preferred an objection to the attachment on the ground that the property in dispute had been bequeathed to him by his grandfather Daya Ram and consequently that he and not his father Churanji Lai was the owner thereof. This objection was allowed and the property released from attachment on 20th December 1942. The Committee were dissatisfied with the order and brought the present suit for a declaration that the house and the land in dispute are liable to attachment and sale in the execution of their decree against Churanji Lal.
2. The Committee alleged that Daya Ram, his two sons Churanji Lai and Kishori Lal and his grandson Mul Chand were the members of a joint Hindu family, that the property in dispute along with certain other property belonged to the members of this joint family, that though Daya Ram had died some time ago the remaining three persons continued to be members of the said family, and that the Committee were entitled to proceed against the undivided interest of Churanji Lai in the property held jointly by him, his brother and his son. The defendants controverter these allegations by stating that Day a Ram and the members of his family were governed by custom; that they were not members of a joint Hindu family; that even if they were members of a joint Hindu family at one time, Churanji Lai had been separated several years before and Kishori Lal in the year 1939; that the property had been bequeathed to Mul Chand by his grandfather Daya Ram that the debt in respect of which a decree had been passed against Churanji Lal was illegal and immoral and consequently that the rule of pious obligation of a son to pay his father's debts does not apply in the present case. The trial Court found in favour of the Committee and granted the decree prayed for. This decision was affirmed by the Additional District Judge in appeal. Mul Chand has come to this Court in second appeal and the question for this Court is whether the Courts below have come to a correct determination in point of law.
3. The first point of law arising in the present case is whether the defendants who are Brahmins of Dharamkot are governed by custom in matters of succession. The initial presumption in the case of Brahmins is that they are governed by their personal law, and the burden of proving that they are regulated by custom lies heavily upon them. The defendants have sought to rebut this presumption by stating, (a) that the family depends almost exclusively on agriculture and (b) that the village in which the land is situate has a Brahmin lambardar. These two facts are, in my opinion, wholly insufficient to establish that the defendants are governed by custom. As many as twelve tests have been laid down for determining whether a tribe not primarily agricultural follows custom or personal law and one of the most important tests to be applied in such cases is whether the particular caste does or does not form a compact village community. The defendants in this case have fulfilled only two conditions. Not a single instance has been cited in support of the allegation that this family is governed by custom. It is true that in the case of Ram Ditto v. Bishen 123 P.R. 1879 which relates to this family, certain observations were made that agricultural Brahmins in the Punjab are not governed by strict Hindu law, but this judgment cannot be regarded as binding on this Court. The Courts below have come to the conclusion, with which I find myself in complete agreement, that the defendants are governed by Hindu law. Assuming for the sake of argument that the Customary law is applicable to the facts of the case, it seems to me that even under the provisions of that law Daya Ram had no power-to transfer the property to Mul Chand by means-of a testamentary disposition.
4. The next point for decision is whether Churanji Lai had separated from the other members of the joint Hindu family before the property in suit was attached at the instance of the plaintiff Committee. It is said that some 17 years prior to the institution of this suit Daya Ram gave a sum of Rs. 3000 to Churanji Lai who was a man of bad character and separated him from the rest of the family. On 11th July 1938 Daya Ram filed a written statement in the case brought by the Small Town Committee for the recovery of monies from Churanji Lal in which he stated clearly that separation had taken-place between Churanji Lal and the other members of the family several years before. On 23rd October 1939 Kishori Lal, a brother of Churanji Lal, executed a deed of relinquishment by which he separated from his father and brother by taking a house and some land and relinquished his claim to the rest of the property. On 10th December 1910 Daya Ram executed a will by which he bequeathed his property to his grandson Mul Chand.
5. The oral evidence which has been produced in support of the separation consists of the testimony of five witnesses, namely, Milkhi Ram, Rala Ram and Ganga Ram, who testified to the fact that some 17 years before Daya Ram had separated Churanji Lal on payment of a sum Rs. 3000 as Churanji Lai was a man of bad character and was given to dissipation. Their evidence is supported by that of Churanji Lai and his brother Kishori Lal The other evidence consists of averments in the written statement-filed on 11th July 1938, the statements contained in the deed of relinquishment dated 23rd October 1939 and the dispositions made in the will executed by Daya Ram on 10th December 1940. The Courts below have come to the conclusion that the oral evidence is worthless, that no partition took place between Churanji Lal and the other members of his family and that the entire evidence that has been produced in this case has been produced with the object of preventing the Small Town Committee from executing its decree. This finding is fully borne out by the facts and circumstances of the case. It will be seen in the first place that Churanji Lai was separated from the other members of the joint family as he was given to drink and other evil habits. If BO it is somewhat strange that Daya Ram did not execute a deed of separation and did not ask Churanji Lal to execute a deed of relinquishment. This fact assumes particular importance in view of the fact that he did not hesitate to ask his other son Kishori Lal, who was not a man of bad character, to execute such a document. Secondly, it is admitted that Churanji Lal's share in the property of the family was not calculated. No reasonable explanation has been given as to why this was not done. I am clearly of the opinion that no separation took place between Churanji Lal and the other members of his family. What appears to have happened is that when the Committee brought a suit for the recovery of money against Churanji Lal, the members of the family put their heads together and decided to prevent the Committee from executing the decree if and when the decree was passed. Daya Ram and Churanji Lal accordingly stated in the written statement, which was filed in the case, that a separation had taken place several years before. The suit was decreed on 28th August 1939 and it was naturally apprehended that execution proceedings would be initiated in due course. Within two months of the decision of this case, i.e., on 23rd October 1939, Kishori Lal executed the deed of relinquishment in order to prepare the ground for the allegation that he too had separated from the family like his brother Churanji Lai. A year later, i.e., on 10th December 1940, Daya Ram executed a will bequeathing the house to his grandson Mul Chand to the exclusion of his sons, Churanji Lai and Kishori Lal. All these devices were obviously resorted to with the object of defeating the legitimate claims of the Small Town Committee. In the course of his judgment the Additional District Judge observed as follows:
The oral evidence' of separation is unreliable and has been rightly disbelieved by the learned Sub-Judge. It is said that Churanji Lal was a debauch and, therefore, his father separated him. Had such been the case, a writing must have been secured from him to protect the interests of the other members, just as a deed of relinquishment (Ex. D-2), was obtained from Kishori Lal. The earliest reference to the alleged separation occurs in the written statement (copy Ex. D/4), after the plaintiff had instituted the suit, for recovery of Rs. 8663-5-0. Again, this separation is mentioned in the will, Ex. D-1, dated 10th December 1940, while the suit had been decreed in August 1939. No argument is needed to show that these belated attempts to protect the joint family property were intended to defraud the creditor. The deed of relinquishment, Ex. D-2, dated 23rd October 1939, falls in the same category.
The learned Sub-Judge was right in finding this issue also against the defendants.
6. Mr. Roop Chand, who appears for the defendants in this ease, contends that even though it has not been established to the satisfaction of the Courts below that a partition was effected between Churanji Lai and the other members of the family 15 or 17 years before the institution of the suit, it has been established as a fact that on 11th July 1938 Daya Ram filed a written statement in which he alleged that partition had taken place between Churanji Lal and the other members of his family. Even if no separation took place 15 or 17 years before, a separation took place on nth July 1938 as soon as the intention to separate was manifested by Daya Ram. Again it is said that a deed of relinquishment was executed by Kishori Lal on 23rd October 1939. It is argued that as soon as one of the members of the joint Hindu family evinced his intention of separating from the other members of the said family there was a complete disruption of the family and re-union must be proved before the property belonging to the family can be proceeded against. My attention has been invited to Section 325 (at P. 408) of Mulla's Principles of Hindu Law. In this compilation the learned author observes that once a member of a joint family has clearly and unequivocally intimated to the other members his desire to sever himself from the joint family, his right to obtain and possess his share 13 unimpeachable whether or not they agree to a separation, and there is an immediate severance of the joint status. It is argued that the remark of the learned author to the effect that there is an immediate severance of the joint status means that there is a complete separation not only between the member who has asked for partition and the other members of the family but also between all the other members of the family inter se. This view appears to me to be wholly misconceived. In Mayne's treatise on Hindu Law the learned author observes as follows:
Separation in status, with all the legal consequence resulting therefrom, is quite distinct from de facto division into specific shares of the property held until then jointly. The former is a matter of individual decision, and is effected by the unequivocal expression of a desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined and unspecified share separately from the others, without being subject to the obligations which arise from the joint status. The latter is the natural resultant from his decision, the division and separation of his share, which may be arrived at either by private agreement of the parties or, on failure of that, by intervention of the Court. Once the decision has been unequivocally expressed, and clearly intimated to his co-sharers his right to obtain and possess the share to which he admittedly is entitled, is unimpeachable; neither the co-sharera can question it, nor can the Court examine his conscience to find out whether his reasons for separation are well founded or sufficient. The Court has simply to give effect to his right to have his share allocated separately from the others.
7. When a person evinces his intention to separate, a separation takes place between him. I self and the other members of his family. The other members of the family, however, continue to remain joint. Since sham declarations are sometimes made by coparceners for ulterior motives it is always open to a Court to find if there was a genuine disruption. I am inclined to think that although separation may possibly have taken place between Kishori Lai and the other members of the family, I am not at all certain that it did) no separation took place between Daya Ram, Churanji Lal and Mul Chand. They continued to remain joint. After the death of Daya Ram, the property came into the hands of Churanji Lal and Mool Chand. Daya Ram had obviously no power to execute a will in respect of this property.
8. The main point which has been somewhat obscured by the raising of a number of subsidiary issues is whether the debt incurred by Churanji Lal is tainted with illegality or immorality. The Hindu law is based on principles of religion and morality. The ancient Hindus seemed to think that if a person dies without paying his debts he commits a heinous crime the evil consequences of which follow him into the next world. The only persons who can rescue him from the evil consequences of his acts are his sons and grandsons and a religious obligation accordingly devolves upon them to discharge the debts incurred by him unless the debts are of such a character as to fall within one or other of the exceptions recognised in the ancient Smritis. One of the categories of debts which the son was not liable to pay were debts that are not vyavaharika or debts which are avyavaharika. The expression 'avyavaharika' is not capable of a precise definition. One commentator translates it as 'any debt for a cause repugnant to good morals,' another renders it as not 'lawful, usual or customary,' another as 'excluded from usual causes.' It may perhaps be stated that a 'debt which is contracted for some civil purpose consistent with prescriptive usage of good men must be paid by sons and the rest; but if it be the reverse, it need not be discharged.' The expression 'avyavaharika' has fallen into disuse and the debts of the father for which the son is not liable are now described as 'illegal or immoral,' Some debts are clearly moral; for example, where a father is under a civil liability to account for money received by him and he fails to account for it. Some debts are clearly immoral. If, for example, a father obtains money by committing, a criminal offence such as theft, and a decree is passed against him for the money so retained by him the sons must obviously be absolved from the responsibility of paying the same: Pareman Das v. Phathu Mahton (1897) 24 Cal. 672. There is another category of debts however which may be regarded as moral if viewed from one angle and immoral if viewed from another. In the case of Natasayyan v. Ponnuswami (1893) 16 Mad. 99 a decree was passed, against a Hindu for money dishonestly retained by him from the plaintiff's family to which he was accountable in respect of it. The judgment-debtor having died, the decree-holder sought to attach the property of the family which had passed into the hands of his sons by survivorship. The sons objected to the attachment, and the decree-holder accordingly brought the usual declaratory suit against them. A Division Bench of the Madras High Court held that the judgment-debt was not of an illegal or immoral nature so as to exclude the pious obligation of the sons to discharge it. In the course of their judgment the learned Judges observed as follows:
Upon any intelligible principles of morality a debt due by the father by reason of his having retained for himself money which he was bound to pay to another would be a debt of the most sacred obligation, and for the non-discharge of which punishment in a future state might be expected to be inflicted if any. The son is not bound to do anything to relieve his father from the consequences of his own vicious indulgences, but he is surely bound to do that which his father himself would do were it possible viz., to restore to those lawfully entitled money he has unlawfully retained.
9. This ruling held the field for a long period and was cited with approval in several cases. In 1925, however, the Madras High Court doubted the correctness of the proposition that the son was in every case 'bound to do that which his father himself would do were it possible.' In the case of Ramasubramania Pillay v. Sivakami Ammal A.I.R.1925 Mad. 841 Venkatasubba Rao, J. expressed the view that the test was too widely stated. He observed as follows:
Every debt that is justly due, is not necessarily a debt not tainted with illegality or immorality. On this principle, if a father steals money, is it not equally incumbent upon the sons to pay it-back? It is not, however, disputed that the son is under no such obligation. The question is, did the father contract the debt for an immoral purpose? And the question is not: does not morality demand that the debt should be paid back? The mistake, if I may say so with respect, arises from a confusion of standpoints. There is hardly any debt of which it can be said that it is not just that it should be repaid. But the Hindu law in dealing with the pious obligation of the son does not look at the question from this point of view.
The learned Judge then examined the authorities bearing on the point and deduced the principle that the sons are liable where the debt was not immoral in its origin even though a dishonest act of the father later supervened, but that the sons are not liable where the monies were originally obtained by the father by the commission of an offence. He accordingly propounded the follwing propositions, that is to say-(1) If the debt is in its inception not immoral, subsequent dishonesty of the father does not exempt the son; (2) It is not every impropriety or every lapse from right conduct that stamps the debt as immoral. The son can claim immunity only when the father's conduct is utterly repugnant to good morals, or is grossly unjust or flagrantly dishonest.
10. These propositions came up for consideration in the case of Alapati Anandrao v. The President of the Co-operative Society Pedatadepalli A.I.R.1940 Mad. 828 and were fully endorsed by Division Bench of the Madras High Court. The learned Judges held that a Hindu son is bound under the rule of pious obligation in Hindu law to discharge the liabilities of his father. The fact that the father subsequently misappropriates the monies will not change the character of the debt and the son's liability therefore is not affected by the supervening dishonest act of the father. The son is not liable in cases where the monies are originally obtained by the father by the commission of an offence. It was strongly urged upon the Judges that the decision of the Privy Council in Toshanpal Singh v. District Judge of Agra had in effect overruled the decisions of the Madras High Court. The learned Judges repelled this contention. In that case the Hindu Secretary of a School Committee was in-charge of a fund deposited at a Bank and was authorised to draw upon, it only for specified purposes connected with the school. He drew it for his own purposes and thereby committed criminal breach of trust. The Privy Council held that as the father had committed a crime the sons were not responsible for the resultant loss. Here the Secretary after having properly lodged the money in the Bank drew it out for his own purposes. Similarly, in the case of Mo Dowell and Co. v. Ragava Chetty (1903) 27 Mad. 71 the cashier took for his own purposes money out of the cash chest of his employer. In these cases the original taking or the receipt of the money amounted in itself to a criminal offence and the sons were not bound. (The same reasoning would apply in cases such as Mahabir Prasad v. Basdeo Singh (1884) 6 All. 234; Jagannath Prasad v. Jugul Kishore : AIR1926All89 ; Mami Bai v. Usafali Bhudar : AIR1931Bom229 and Gursaran Das v. Mohan Lal A.I.R.1923 Lah. 399. Krishnaswamy Ayyangar, J. observed as follows:
The position will be different where the father is guilty of no misconduct or crime in receiving or withdrawing the money in the first instance, though he might be civilly liable to account for it. The civil liability will attach the moment the money is received without any impropriety and, with it, will also attach the liability of the sons to relieve the father from the burden of the debt. The pious obligation which thus springs into existence simultaneously with the receipt or withdrawal subsists so long as the debt itself subsists. Once the liability is thus established, it 13 irrelevant to consider whether the money received or retained by the father lawfully in the first instance was subsequently misappropriated by him. The subsequent misconduct of the father will not be allowed to prejudice the rights already accrued in favour of the third parties on the receipt of their money by the father.
11. The Madras authorities to which a reference has already been made are clear enough, but if any doubt can be entertained in regard to their correctness that doubt has been dispelled by a recent authority of the Privy Council reported as Hem Raj v. Khemchand . In that case the father withheld a promissory note allotted in a partition decree to the opposite party which he was directed to deposit in Court. His conduct in first filing a forged note and then filing the real note after it was barred could not save the son's liability under the decree passed against the father for the loss. Dealing with the nature of the debt and the liability to pay, Sir Madhavan Nair observed as follows:
That the duty cast upon the son being religious or moral, the character of the debt should be examined from the standpoint of justice and morality appears to be fairly clear from the decisions. In this connection regard may also be had to the debts mentioned in the texts which the son need not pay, most of which are of an objectionable character. It also appears to be clear on principle, and on authority, that examination of the nature or character of the debt should be made with reference to the time when it originated, in other words, when the liability was first incurred by the father. If on such examination, it is found that at its inception the debt was not tarnished or tainted with immorality or illegality then it must be held that it would be binding on the son.
12. Judged in the light of these decisions, it seems to me that the debt incurred by Churanji Lal cannot be said to be illegal or immoral. Uhuranji Lal was validly appointed a treasurer in the Small Town Committee. He received monies on behalf of the Committee and the debt due from him cannot be said to have. been tainted with immorality or illegality in its origin. A civil liability came into being as soon as the money was received and it continued to subsist as long as the debt itself subsisted. Here the debt was not immoral in its origin and it was the pious duty of the sons to repay it. The fact that the money was later misappropriated is a wholly irrelevant circumstance. There is not an iota of evidence to justify the conclusion that the retention of the money amounts to the offence of criminal misappropriation or criminal breach of trust. It is true that when the losses were discovered the Committee suspected that the Secretary, the treasurer (Churanji Lal) and the clerk had embezzled the money. They decided, however, to prosecute the Secretary alone no action was taken against the others. The Secretary was convicted by the trial Court but was acquitted by the Sessions Judge.
13. The judgment of the Sessions Judge has not been placed on the file and there is nothing to show that a criminal offence was committed either by the Secretary or by the treasurer or by the clerk. In the civil suit which was filed by the Committee for the recovery of monies wrongfully retained, the Court framed no issue with the object of ascertaining whether a criminal offence had or had not been committed. It may be that the word 'gaiuan' (misappropriation), appears in the plaint but all that it means is that Churanji Lal retained the monies unlawfully. Again at page 3 of the paper book (line 60) the word 'embezzlement' appears. This expression too appears to have been loosely employed. I am unable to hold from the evidence on record or from the other facts and circumstances of the case that Churanji Lal's act in failing to account for the monies received by him amounted to criminal misappropriation. Nor has it been proved that Churanji Lal's conduct is utterly repugnant to good morals or is grossly unjust, or flagrantly dishonest. Even if Churanji Lal had been convicted of a criminal offence it seems to me that the Committee would have been justified in proceeding against the property of his son. In this case the receipt of the money was lawful at the time of the receipt and the subsequent commission of the offence by Churanji Lal could not save the son's liability to pay the debt.
14. For these reasons I would uphold the order of the Courts below and dismiss the appeal with costs.
15. I agree that this appeal must be dismissed with costs.