C.M. Lodha, J.
1. The only point for decision in this second appeal is whether the amount which is being recovered from the plaintiff-respondent was an immoral debt due from his father Harak Chand, and, therefore, the same cannot be recovered from the respondent.
2. It appears that the plaintiff-respondent's father Harakchand sold some opium during the period S. 1972 to Section 1980 without maintaining proper accounts and consequently in accordance with the Circular No. 1368 of S. 1973, issued by the former State of Mewar he was held liable to pay a sum of Rs. 5,456/15/-, by the Mahendrai Sabha by its iudgment dated 24-12-1933 as 'Chori Mehsul'. A fine of Rs. 500/- was also imposed upon him by the Sessions Judge, Bhilwara by his order dated 17-2-1933, and the same was upheld by the Mahendraj Sabha by the same order dated 2442-1933. An amount of Rs. 5,456/6/- remained due from Harakchand at the time of his death, and this was sought to be recovered from the property in the hands of the plaintiff.
A certificate under the Rajasthan Public Demands Recovery Act (No. 5 of 1952) was issued against the plaintiff and since his objection under Section 8 of the said Act was dismissed on 12-8-1960, he brought the present suit on 7 3-1961 for cancellation of the certificate inter alia on the ground that the debt was 'avyavaharika', and he was not liable to pay the same. A number of issues were framed by the learned Civil Judge but he took issue No. 4 as a preliminary issue besides some other issues and held that the debt which was being recovered from the plaintiff was an 'avyavaharika' debt of his father. Consequently he decreed the plaintiff's suit.
3. In the appeal filed by the State of Rajasthan before the District Judge, Udaipur two points were pressed : In the first instance it was argued that the suit was barred by limitation, and in the second place the finding of the learned Civil Judge that the debt was 'avyavaharika' was also challenged. The learned District Judge held the suit to be within time under Article 120 of the Limitation Act, and also agreed with the learned Civil Judge that the debt in question was 'avyavaharika'. Consequently the State of Rajasthan has come in second appeal to this Court.
4. The learned Deputy Government Advocate has pressed only one point in support of this appeal. He has urged that, the amount of fine of Rupees 500/- was no doubt an immoral debt which had already been recovered during the lifetime of Harakchand but as regards the amount of Rs. 5,456/6 it is urged that it was not an immoral debt but an excise duty legally due from Harakchand, and should not have been adjudged as an immoral debt. He has submitted that no concession had been made on behalf of the State of Rajasthan before the trial court that the debt in question was 'avyavaharika'. In the alternative he has also argued that the State was not bound by such a concession inasmuch as whether the debt was 'avyavaharika' is a mixed question of fact and law and the State is not bound by such an admission made by its counsel.
5. On examining the record of the trial court I have found that issue No. 4, which is regarding the nature of the debt was heard as a preliminary issue without recording evidence on it. This, in my opinion, was not proper. But none of the parties raised any objection on this score either before the trial court or before the first appellate court. On the other hand it is stated in clear and unequivocal terms in the judgment of the trial court that the counsel for the defendant had frankly conceded on the point of fact that the debt was undoubtedly 'avyavaharika' and on this concession the learned Civil Judge recorded a finding against the defendants. No affidavit was filed on behalf of the State in the Court of the learned District Judge that the aforesaid statement in the judgment of the trial court was erroneous and no such concession had been made by the counsel for the State. In these circumstances, I find it difficult to hold that the statement contained in the judgment of the learned trial court about the concession made on behalf of the State of Rajasthan is erroneous.
6. At one stage I thought of sending the case back to the trial court for recording the evidence on the question as to the nature of the levy of Rs. 5,456/6/-. But after perusing the judgment of the Sessions Judge, Bhilwara dated 17-2-1933 and that of the Mahendraj Sabha dated 24-12-1933 imposing the impugned levy, I have come to the conclusion that no useful purpose would be served by sending the case back to the trial court now at this late stage for recording the evidence of the parties on this question especially when the learned counsel for both the parties submitted that it had not been possible for them to lay their hands on the Circular No. 1368 of S. 1973 issued by the former State of Mewar under which the plaintiff's father Harakchand was made liable to pay the impugned amount of Rs. 5,456/15/- as 'Dan' or 'Chori Mehsul'. It has been observed in the judgment of the Mahendraj Sabha, the final court of appeal, that an argument had been advanced before it that the defaulter Harakchand had sold opium only to the residents of Deogarh and nearby villages within the territory of former State of Mewar only, and had not done any act so as to incur the liability for payment of 'Chori Mehsul'.
In the ultimate analysis the Mahendraj Sabha found that the defaulter Harakchand had illegally exported opium outside the territory of Mewar State and was consequently liable to pay 'Chori Mehsul' amounting to Rupees 5,456/15/- under the aforesaid circular for his illegal act. The judgment of the Mahendraj Sabha thus makes it reasonably clear that a levy of Rupees 5,456/15/- was imposed upon the plaintiff's father Harakchand for a cause re-pufinant to good morals. It is well settled that a debt for a cause repugnant to good morals is immoral or 'avyavaharika'. As stated by Mulla in his Book on Hindu Law, 13th Edition Colebrooke, translates 'avyavaharika' debts as debts for a cause repugnant to good morals. In S. M. Jakati v. S. M. Borkar, AIR 1959 SC 282 it was observed by their Lordships of the Supreme Court that the translation of the term given by Colebrooke may well be taken to represent its correct meaning, and that the term did not admit of a more precise definition. In this view of the matter there is no escape from the conclusion that the debt in question is 'avyavaharika', and was rightly found to be so by the learned District Judge, Udaipur.
7. In the result I dismiss this appeal, but without any order as to costs.