1. This appeal is directed against an order by which the Court below has refused an application for execution of a decree for money. The circumstances under which the order in question was made have not formed the subject of controversy in this Court. On the 23rd March 1908, the appellants before us obtained a decree for money against one Shankar Lall and various other persons as defendants. On appeal to this Court by Shankar Lall and some' of the other defendants, the decree was confirmed on the 27th May 1910. On the 5th August following, the decree-holders made an application for execution of the decree, whereupon an order was made for issue of a writ of attachment of the immovable properties of the judgment-debtors. On the 22nd September the return of the service of the writ of attachment was filed, but it is disputed whether the return gave an accurate version of the facts, and whether the writ was, as a matter of fact, properly served. Shankar Lall, however, entered appearance and took objection to the execution on grounds which are not material for our present purpose. On the 3rd December 1910, it was reported to the Court that Shankar Lall had died on the 13th November. The decree-holders then applied to bring on the record the legal representatives of the deceased judgment-debtor. Notice of the application was served upon them, whereupon they appeared and objected that the decree could not be executed against the properties in their hands, which they had obtained by survivorship. The decree-holders answered, first, that the legal representatives of Shankar Lall as his sons were liable to satisfy the decree as the debt was neither illegal nor immoral, and, secondly, that as the property had been validly attached during the lifetime of the deceased judgment-debtor, his right, title and interest, at any rate, could be seized in execution by the decree-holders. The Subordinate Judge overruled both these contentions and dismissed the application for execution upon the authority of the decision in Darbar Ala v. Khachar Oghad (1908) I.L.R. 32 Bom. 3487; at the same time lie distinguished the cases of Erasala Chetty v. Addepally Chetty (1908) I.L.R. 31 Mad. 472 Prayag Sahu v. Kasi Sahu (1910) 11 C.L.J. 599 and Peari Lal Singh v. Chandi Charan Singh (1906) 5 C.L.J. 80 : 11 C.W.N. 163 The decree-holders have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been challenged*on the ground that the debt was not tainted with illegality or immorality, nor with any such impropriety or infirmity as would remove it from the category of debts incurred Joy a Hindu father which a son is under an obligation to pay. It has been contended further that, in any view, as the attachment had been effected during the lifetime of the deceased judgment-debtor, it was compe, tent to the decree-holders to proceed at least against his right, title and interest in the hands of his sons. In answer to these contentions it has been argued by the respondents that the sum sought to be recovered' was not a debt, as the deceased judgment-debtor was under no contractual obligation to pay it, and that even if it could be treated as a debt, it wras of a character which the sons of the deceased were under to obligation to discharge. Reference has been made by the appellants as well as the respondents to a number of judicial decisions, which, it has been suggested, cannot be easily reconciled. The answers to the questions raised must depend upon the texts as interpreted in the judicial decisions to which I shall presently refer.
2. According to the Institutes of Manu (VIII, 159), ' money due by a surety, or idly promised, or lost at play or due for spirituous liquor or what remains unpaid of a fine and a tax or duty, the son (of the party owing it), shall not be obliged to pay' (Sacred Books of the East, vol. XXV, p. 282).
3. To the same effect is the text in the Institute, of Yajnavalkya (II, 47). The son shall not pay the, paternal (debts) contracted for wines, lust and gambling, or due on account of the unpaid (portion) of a fine or a toll or (on account of) an idle promise (Mandlik p. 205).
4. According to Brihaspati, if the father is no longer alive, the debt must be paid by his son; the father's, debt must be paid first of all, and after that, a man's own debt; but a debt contracted by the paternal grandfather must always be paid before these two even; the father's debt on being proved must be paid by the sons as if it were their own; the grandfather's debt must be paid by his son's sons without interest, but the sons of a grandson need not pay it at all; sons shall not be made to pay a debt incurred by their father for spirituous liquor, for losses at play, for idle gifts, for promises made under the influence of love. or wrath, or for suretyship, nor the balance of a fine or toll liquidated in part by their father (Brihaspati, ch. XI, 47, 48, 49 and 51, Sacred Books of the East, vol. XXXIII, p. 328, Jagannath's Digest I.A. 166, 167 and 201, Mayukha by Mandlik pages 112 and 113.
5. Again the text of Ushanas cited in the Mitakshara (Commentary on Yajnavalkya, book II, verse 47) as also in the Mayukha (p. 113), runs as follows: 'A fine or the balance of a fine, likewise a bribe or a toll or the balance of it are not to be paid by the son, neither shall, he discharge a debt which is not lawful.' The original word which is rendered 'lawful' is vyavaharika. There has been some divergence of opinion as to the precise import of this expression. The Learned Judges of the Bombay High Court in Darbar Ala v. Khachar Oghad (1908) I.L.R. 32 Bom. 348 treat the expression 'not vyavaharika' as equivalent to 'unusual' or 'not sanctioned by law or custom,' and they suggest that this word has crept into our text-books and judicial decisions under the guise or disguise of illegal or immoral. I am not satisfied that the interpretation adopted is quite accurate. On the other hand, I am not prepared to accept the version given by Girish Chandra Tarkalankar, who renders the term 'vyavaharika' by 'necessary for life.' I find that Bohtlingk and Koth, Wilson and Monier Williams all take the expression as equivalent to 'connected with or relating to an action at law or legal process, customary, usual.' Mandlik (p. 113) renders it as 'proper.' Jogendra Nath Bhattacharyya also renders it as 'proper (that is sanctioned by law or custom).' In my opinion, the term 'vyavaharika' may be accurately rendered as equivalent to 'lawful, usual or customary.'
6. Again we have the text of Gautama (Chap. XII, 41) 'money due by a surety, a commercial debt, a fee due to the parents of a bride, debts contracted for spirituous liquor or in gambling, and a fine shall not involve the sons of the debtor' (Sacred Books of the East, vol. II, p. 244, where also an extract from the Commentary of Haradatta is quoted).
7. The text of Vyassa quoted in the Vivada Ratnakar (p. 58) and by Jagannath (1, 5, 203) is substantially to the same effect; 'Neither a fine nor a toll nor the balance due for either shall be necessarily paid by the son of a debtor, nor any debt which is not Vyavaharika' (which is rendered by Colebrooke as equivalent to 'for a cause repugnant to good morals').
8. The text of Katyayana quoted by Jagannath is of similar import: 'A debt of the paternal grandfather, which is proved or which is partly liquidated, must be discharged (by the grandson), but never shall a debt contracted for immoral uses, or which was contested by his father (be paid by the grandson). Bhrigu ordains that a debt devolving from the grandfather which was proved and acknowledged by the father must be discharged by grandsons, if it were not contracted for immoral uses nor already paid by the sons:' Jagannath's Digest, vol. I, p. 307): see also Viramitradoya (Calcutta edition, 1815), p. 100, p. 1, 2, 105, p. 1, 2. 106, p. 1, 109, p. 1, 2, 165, p. 1, 2, 166, p. 1.
9. If the provisions of all these texts are summarised, the result appears to be that the debts which a son is not under any obligation to pay may be grouped as follows: (i) debts due for spirituous liquor, (ii) debts due for lust, (iii) debts due for gambling, (iv) unpaid fines, (v) unpaid tolls, (vi) useless gifts or promises without consideration or made under the influence of lust or wrath, (vii) suretyship debts, (viii) commercial debts, and (ix) debts that are not vyavaharika, i.e., debts that are not lawful, usual, or customary, or, if we accept the version of Colebrooke, debts for a cause repugnant to good morals. This list, it must be conceded, is comprehensive; and as the terms used are not accurately defined there is considerable room for divergence of opinion as is indicated by the extracts from the commentaries, quoted by Jagannath in his Digest. This divergence is faithfully reflected in the judicial decisions to which reference was made in the course of argument, and which I shall now proceed to examine.
10. In one of the most recent cases in this Court, Prayag Sahu v. Kasi Sahu (1910) 11 C.L.J. 599 the question arose whether the cost awarded by a Court against a defeated litigant was 'Danda' within the meaning of the text of Yajuavalkya, 'nor is he bound to pay any unpaid fine or toll, or idle gifts' (Mitakshara, Ch. VI, Section 8, para. 47), or whether it was not vyavaharika within the meaning of the text of Ushanas to which we have already referred. Mr. Justice Chatterjee answered the question in the negative and he relied upon the text of Mann (Ch. VIII, verse 59), which makes the unsuccessful defendant liable not only to satisfy the claim of the plaintiff but also to pay a penalty to the King On the other hand, the decision in Ramaiengar v. The Secretary of State (1909) 20 Mad. L.J. 89 : 6 Mad. L.T. 308 supports the contrary view. There a Hindu father had brought a suit in formed pauperis as next friend of one of his infant sons to establish his adoption, but the suit was dismissed on the ground that, the alleged adoption had never taken place. The father was ordered to pay the Court-fees due to Government under Section 440 of the Code of 1882. The learned Judges held that such costs could not be recovered from the sons, because the liability to pay the costs was imposed as a penalty on the father for his misconduct, namely, the institution of a suit which he must have known to be false; in other words, the liability might be regarded as in the nature of a fine and the debt so incurred be deemed as tainted with immorality. It must be conceded that this decision rests on its own special circumstances, and it cannot be regarded as an authority for the general proposition that the costs awarded against a father in litigation constitutes an immoral debt. This view, indeed, was repudiated in Sumer Singh v. Liladhar (1911) I.L.R. 33 All. 472 : 8 All. L.J. 306 where the learned Judges of the Allahabad High Court held that money borrowed by a Mitakshara father to defend a suit for defamation constitutes a debt for which his son and grandson are liable.
11. The decision in Sitaram Pandit v. Harihar Pandit (1910) 12 Bom. L.R. 910 furnishes an illustration of a somewhat different class of cases. There money had been borrowed by the father of a boy about to be given in adoption to a Hindu lady. The money was paid as a bribe to the adoptive mother to induce her to take the boy in adoption. It was ruled that the debt so contracted by the father would not bind his son, and the decision was based on the intelligible ground that the debt had been contracted for an illegal purpose, because money paid to an adoptive mother as a bribe to secure her consent to an adoption not on the ground of fitness of the boy, but on motives of pecuniary benefit to herself, must be condemned as an illegal payment.
12. There has been a well marked divergence of judicial opinion upon the question, how far a Hindu son is under a pious obligation to discharge a debt of his father when such debt consists of money misappropriated by the latter. The cases of Mohabir Prasad v. Basdeo Singh (1884) I.L.R. 6 All. 234 Pareman Dass v. Bhattu Mahton (1897) I.L.R. 24 Calc. 672 and McDowell v. Ragava Chetty (1903) I.L.R. 27 Mad. 71 seem to negative the liability of the son under such circumstances, while the cases of Natasayyan v. Ponnusami (1892) I.L.R. 16 Mad. 99 Kanemar v. Krishna (1907) I.L.R. 31 Mad. 161 and Erasala Chetty v. Addepally Chetty (1908) I.L.R. 31 Mad. 472 apparently support the liability of the son. These cases, however, may possibly be reconciled if we recognise the distinction between a criminal offence and a breach of civil duty. In the first three cases, the father was guilty of criminal misappropriation as regards sums of money for which he was accountable; while in the second set of three cases, the father merely failed to account for the money received by him, and his failure to do so constituted nothing more than a breach of civil duty. The distinction is real though refined, and was recognised in Medai Tirumalayappa Moodeliar v. Veerabudra (1909) 19 Mad. L.J. 759 where it was ruled that if a debt was incurred by an agent, his son was liable to pay the debt and the liability of the son was not affected by the circumstance that the father subsequently misappropriated the sum or made himself criminally liable. The case last mentioned consequently supports the view that, where the taking of the money itself is not a criminal offence, a subsequent misappropriation by the lather cannot discharge the son from his liability to satisfy the debt; but the position is different if the money has been taken by the father and misappropriated under circumstances which render the taking itself a criminal offence.
13. In Jai Kumar v. Gouri Nath (1906) I.L.R. 28 All. 718 a question was raised as to the nature of a debt contracted by a Mitakshara father who had given a promissory note to satisfy a bondjide decree which another had against him; it was ruled that the debt was neither immoral nor illegal, because the promissory note had not been given to stifle a prosecution against him. In an earlier case in the Punjab Karter Singh v. Harjhimal (1879) P.R. 374 No. 128 of 1879 Lindsay and Plowden, JJ. ruled that it was impossible to hold that a debt created by a decree is a debt contracted for an illegal or immoral purpose, merely because the act from which the obligation to make compensation arose was an illegal or immoral act, or both illegal and immoral. There the father had stolen and converted to his own use certain property belonging to a third person, who sued and obtained a decree against him for the value of the property. The decree was sought to be executed by attachment of ancestral property in which the son was jointly interested with his father. The son objected to the attachment, but his objection was overruled. The learned Judges observed that if the father had voluntarily contracted a debt to compensate the person whom he had, by a criminal offence, deprived of property, the debt could not, without an utter perversion of language, be styled a debt contracted for an illegal or immoral purpose; they added that, on the contrary, the debt might be deemed to have been incurred for a highly moral as well as lawful purpose, and that the liability imposed by the decree created an obligation unwillingly contracted by the father under a lawful compulsion, as indicated in Achhru Ram v. Meherchand S.A. No. 799 of 1875 (Unreported), where a similar view was taken of the liability of the ancestral estate to satisfy a judgment debt founded upon a just cause.
14. In the case of Darbar Ala v. Khachar Oghad (1908) I.L.R. 32 Bom. 348 the learned Judges of the Bombay High Court appeared to have ruled that, under Hindu law, the son is not to be held liable for debts which the father ought not, as a decent and respectable man, to have incurred; he is answerable for the debts legitimately incurred by his father, and not for those attributable to his failings, follies or caprice. As already stated, the learned Judges appear to have deduced this rule from the text of Ushauas in which they interpreted the expression 'not vyavaharika' as equivalent to 'unusual' or not sanctioned by law or 'custom'; this word they suggested, had crept into text-books as 'illegal or immoral.' This clearly is not well-founded. Text writers, as well as judicial decisions, apply the well-known expression illegal or immoral debt to include, not merely debts which are not vyavaharika, but all the debts which are deemed as not payable by the son according to the texts of a Manu, Yajnavalkya, Ushanas, Brihaspati, Gautama and Vyasa. The decision of the Bombay High Court, in my opinion, places too restricted, a construction upon the term 'vyavaJiarika,' and excludes debts for which the son may be held legitimately liable. In the particular case before the learned Judges, the: father had erected a dam which obstructed the passage of water to the land of the plaintiff; the plaintiff obtained a decree for damages against the father, and on the death of the latter, sought to execute the decree against his son to the extent of the ancestral property ill his hand. It was held that, as the result of the suit showed that the act was wrongful, the son could not be held answerable for a liability so incurred. The learned Judges appear to have found that the estate taken by the son had derived no benefit from the wrongful act, but it may be observed that this last reason may possibly be open to the criticism that if the liability of the son depends upon the nature of the act, the test of benefit to the estate becomes immaterial. I am not prepared, however, to hold that because the decision of the suit showed that the act for which the father was held liable in damages was in contravention of the rights of the successful plaintiff, the judgment debt was illegal within the meaning of the texts to which I have referred. I am rather inclined to adopt the view that the liability imposed by the Court upon the father to indemnify the person, with whose property he had improperly interfered, created a debt which might justly be recovered from the ancestral property in the hands of the son. This view may be maintained even if we adopt the distinction suggested by the learned Judges of the Madras High Court between a debt which follows as the result of an offence under the criminal law and a debt for which one is made liable on the ground of a breach of civil duty. The view we take is supported by the observations of this Court in Peari Lal Singh v. Chandi Charan Singh (1906) 5 C.L.J. 80 : 11 C.W.N. 163. In chat case, the son was held answerable to satisfy a decree against his father for mesne profits, and, although it was incidentally suggested that the judgment-debtor had, by unlawful receipt of profits, enriched his own estate which subsequently passed by survivorship into the hands of the son, the decision was based substantially on the ground mentioned in Natasayyan v. Ponnusami (1892) I.L.R. 16 Mad. 99, 104: 'The son is not bound to do anything to relieve his father from the consequence of his own vicious indulgences, but he is surely bound to do that which his father himself would do were it possible, namely, to restore to those lawfully entitled money lie had unlawfully retained. Upon any intelligible principle 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 in any.'
15. Reference was made at the bar to decisions upon the question of the liability of a son to satisfy a suretyship-debt of his father, and mention was made particularly of the cases of Tukarambhat v. Gangaram (1898) I.L.R. 23 Bom. 454 Narayan v. Venkatacharya (1904) I.L.R. 28 Bom. 408 Maharaja of Benares v. Ramkumar Misir (1904) I.L.R. 26 All. 611 Sitaramayya v. Venkatramanna (1888) I.L.R. 11 Mad. 373 and Chettikulam Reddiar v. Chettikulam Reddiar (1905) I.L.R. 28 Mad. 377. It is not necessary, however, to discuss for our present purpose the question of the liability of a Mitakshara son for the suretyship-debt of his father, because the determination of that question depends upon the interpretation of special texts, specially the text of Vishnu, which defines the different kinds of sureties, namely, for appearance, for honesty, for debt and for delivery of the debtor's effect (Jagannath's Digest, Vol. 1, p. 246). But we may observe that the latest decision in this Court Hiralal v. Chandrabali (1908) 25 W.R. 311 may be difficult to reconcile with cases in Bombay, Allahabad and Madras which we have already mentioned; for the reason already stated, however, it is not necessary to examine further this class of cases.
16. Reference was also made to the cases of Shah Wajed Hossein v. Nankoo Singh (1876) 25 W.R. 311 Luchmi Dai Koori v. Asman Sing (1896) I.L.R. 2 Calc. 213 Nanomi Babuasin v. Modhan Mohan (1885) I.L.R. 13 Calc. : L.R. 13 I.A. 1, Khalilul Rahman v. Gobind Pershad (1892) I.L.R. 20 Calc. 328 and Beni Pershad v. Puran Chand (1895) I.L.R. 23 Calc. 262 to shew that when a decree has been made against the father, no question arises as to the nature of the debt for the enforcement of which the decree might have been obtained. The decisions relied upon, however, cannot be treated as authorities for any such sweeping proposition, but they do indicate that debts incurred in transactions, the character of which, as Mr. Justice Pigot puts it in Khalilul Rahman v. Gobind Pershad (1908) I.L.R. 32 Bom. 348 is no more than imprudent or unconscientiously imprudent or unreasonable, are debts to which, a pious duty attaches under the Mitakshara law. This view can hardly be reconciled with the decision of the learned Judges of the Bombay High Court in Darbar Ala v. Khachar Oghad (1908) I.L.R. 32 Bom. 348: see also Sitaram v. Zalim Singh (1886) I.L.R. 8 All. 231 and Narayansami Chetti v. Samidass Mudali (1883) I.L.R. Mad. 293.
17. It has finally been argued that the liability of a Hindu son to pay a debt incurred by his father is restricted to cases in which the debt is the result of a contractual obligation, and in support of this view reference has been made to the observations of the learned Judges who decided the case of Pareman Dass v. Bhattu Mahton (1897) I.L.R. 24 Calc. 672, 676. It may be conceded that the term 'Rina' literally understood implies a debt or loan (see Mitakshara on the Institutes of Yajnavalkya II, 45, 47, 50, 54); but the judicial decisions to which reference has been made indicate that the rule has a much wider application. At any rate, we are not prepared to hold that the rule is inapplicable to cases where, as here, the liability was created by a judicial decision. There is no substantial difference in principle between a case in which a person is under an obligation to repay money which he has actually borrowed and a case in which he is bound to discharge an obligation created by a judgment of Court. It is worthy of note that the dictum in Pareman Dass v. Bhattu Mahton (1897) I.L.R. 24 Calc. 672, 676 is of a very qualified character, and fully recognises that a right to damages might be deemed to create a debt even before the suit is brought for its enforcement. In any event, after a decree has been made in favour of the successful plaintiff, he is entitled to realise from his defeated opponent a sum of money precisely in the same manner as if he had actually advanced to the latter a sum of money by way of loan.
18. The question finally arises, what is the position of the respondents when tested in the light of the principles dedncible from the judicial decisions which interpret the ancient texts. The Subordinate Judge has not reviewed the circumstances of the litigation which ultimately determined the liability of the defendants-appellants. The facts, however, are beyond controversy and are set out in the judgment of this Court in the suit of 1904. It appears that on the 16th May 1904 the present respondents commenced an action against Shankar Lall and thirty-one other persons for establishment of their right of irrigation by means of a certain water course. The case for the plaintiffs was that there were two villages, Rusulpura and Dhangaon, that the maliks of Rusulpura had a right to store water on a certain portion of the village Dhangaon in a reservoir lying to the north of the village and that the maliks of Dhangaon claimed a right to irrigate their village by a water course coming from the south and running with various diversions through their village up to the north-east. The maliks of Dhangaon alleged that this water course was an artificial channel constructed for the purpose of irrigating the lands of Dhangaon. The substantial dispute between the parties was with regard to the area in Dhangaon over which the maliks of Rusulpura were entitled to store water, and with regard to the manner in which the surplus water of the water course was to be discharged. There was an elaborate enquiry by the Court of first instance, and a decree was made in favour of the plaintiff to the effect that the particular water passage which had been obstructed by the defendants might be opened, so that the excess water of Dhangaon might pass off from its grounds. Upon appeal, the Subordinate Judge substantially affirmed this decree with a slight variation so as to entitle the plaintiffs to put up earthwork at a specified point of the channel, and thus prevent the flow of the water towards the reservoir. Upon second appeal to this Court, the matter was re-examined in detail, and, although the decree was affirmed, it was held that it was incomplete; a direction was consequently given that an expert engineer should be employed to ascertain the breadth and level of the opening which the plaintiffs claimed should remain unobstructed. After the plaintiffs had been thus successful, in this litigation, by which their right of irrigation was established, they commenced an action: on the 4th January 1907, against Shankar Lall and the other defendants of the first suit for recovery of damages on account of injury done to their crops by the obstruction of the channel. The proceedings in the original suit including the pleadings and the judgments of all the Courts were produced at the trial, and the Court made a partial decree for damages. On appeal to this Court, that decree was affirmed on the 27th May 1910. This is the decree of which the plaintiffs have taken out execution, and, as already explained they seek to realise the sum decreed from the sons of Shankar Lall who died during the pendency of the proceeding's. It is difficult to appreciate how these latter can successfully resist execution on the ground that the debt is illegal or immoral. Their father, as one of the proprietors of Rusulpura repudiated the claim of the plaintiffs as proprietors of Dhangaon, to exercise the right of irrigation claimed by them. There was substantial matter in controversy between the parties, as is amply indicated by the fact of the protracted investigation in the original court, and even when the litigation terminated after four or five years, an expert was needed to determine the breadth and depth of the channel, so that each of the parties might exercise their right without needless detriment to the other. In no sense could it be said that the act of Shankar Lall was a wanton interference with the proprietary lights of another. The successful plaintiffs undoubtedly claimed too much, even if it be conceded that Shankar Lall went to the opposite extreme and entirely denied their rights. I am clearly of opinion that a liability imposed upon Shankar Lall by an act of this character cannot appropriately be deemed and illegal or immoral debt. Even if I were to adopt the view of the learned Judges of the Bombay High Court in Darbar Ala v. Khachar Oghad (1908) I.L.R. 32 Bom. 348 I could not say that Shankar Lall ought not to have incurred this liability 'as a decent and respectable man.' nor could this liability be attributed to 'his failings, follies or caprices.' In fact what Shankar Lall did would have been done by any ordinary prudent owner of property with a view to prevent the exercise of what was an exaggerated, though not an unfounded, claim by his neighbours. Upon the merits, therefore, I feel no doubt that the debt which the heirs of Shankar Lall are now called upon to satisfy from the ancestral property in their hands cannot be regarded as an illegal or immoral debt.
19. In this view of the matter, it is unnecessary to consider whether the attachment was properly effected during the life-time of Shankar Lall, because that would enable the appellants to proceed only against the rig lit, title and interest of Shankar Lall in the hands of his sons: see the authorities reviewed in Peari Lal Singh v. Chandi Charan Singh (1906) 5 C.L.J. 80 : 11 C.W.N. 163.
20. The result, therefore, is that this appeal must be allowed, the order of the Subordinate Judge discharged and execution directed to proceed against the ancestral property in the hands of the legal representatives of Shankar Lall. The appellants are entitled to their costs in this Court.
21. I agree, and may add that a similar view of what constitutes an 'illegal or immoral debt' was taken in an unreported case recently decided Mr. Justice Woodroffe and myself.