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Hari Charan Bajoria Vs. Manakmall Lodha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 234 of 1963
Reported inAIR1964Cal562
ActsCode of Civil Procedure (CPC) , 1908 - Section 53; ;Hindu Law
AppellantHari Charan Bajoria
RespondentManakmall Lodha and ors.
Appellant AdvocateA.K. Basu, Adv.
Respondent AdvocateR.C. Deb, Adv.
DispositionAppeal dismissed
Cases ReferredHemraj v. Khem Chand
- mitter, j.1. this is an appeal from an order dismissing an application by the appellant for release of certain shares in a joint stock company from attachment at the instance of one manakmall lodha who obtained an award for rs. 1,41,000.00 against kedarnath bajoria, father of the appellant. thisaward was amended after the death of kedarnath bajoria so as to be effective against the appellant and respondents other than manakmall lodha as heirs and legal representatives of the said deceased.2. the facts leading to the making of the application are as follows: manakmall lodba and kedarnath bajoria entered into an agreement of partnership in 1947 for an enterprise in purchase and sale of certain timber. the parties were to advance equal amounts by way of capital and have equal shares in.....

Mitter, J.

1. This is an appeal from an order dismissing an application by the appellant for release of certain shares in a joint stock company from attachment at the instance of one Manakmall Lodha who obtained an award for Rs. 1,41,000.00 against Kedarnath Bajoria, father of the appellant. Thisaward was amended after the death of Kedarnath Bajoria so as to be effective against the appellant and respondents other than Manakmall Lodha as heirs and legal representatives of the said deceased.

2. The facts leading to the making of the application are as follows: Manakmall Lodba and Kedarnath Bajoria entered into an agreement of partnership in 1947 for an enterprise in purchase and sale of certain timber. The parties were to advance equal amounts by way of capital and have equal shares in profits and losses. Lodha filed a suit in this Court in the year 1951 claiming a dissolution of the partnership business, a decree for Rs. 51,186/- being his contribution of the capital amount of Rs. 50,000/- plus interest less the amounts paid from time to time, accounts and enquiries as to his share of the profits in respect of the partnership as also accounts and enquiries of the dissolved partnership. Kedarnath Bajoria filed his written statement on August 16, 1951 denying the correctness of the particulars set out in the plaint and stating that a sum of Rs. 1003/8/3 was due and payable from him to Lodha in respect of the said partnership business. Annexed to the written statement was a statement of account showing how that figure was arrived at. The defendant further stated that pre-per accounts in respect of the business had been tendered to the plaintiff. The suit was compromised on the basis of terms of settlement put in on February 17, 1959. By this the parties were declared to have eight annas shares each in the profits and losses of the business and Mr. D.C. Sethia, a member of the Bar, was appointed special referee to take the accounts and decide the issues included in the terms. Issue 5(a) was whether Rs. 1003-8-3 was the only sum due and payable by the defendant to the plaintiff and issue 5(b) was whether Rs. 51,186-8-0 was due and payable as claimed by the plaintiff. By an order dated March 3, 1960 this reference was superseded and one Pannalal Bafna was appointed the sole arbitrator to adjudicate upon the disputes. Bafna made his award on August 17, 1960 whereby he directed Bajoria to pay Rs. 1,41,000/-in full and final settlement of all the partnership dealings arid accounts between the parties. Bajoria preferred an application for setting aside the award in November 1960. Before that application could be disposed of he died on February 4, 1961 leaving a will executed on the same date whereby he appointed his sons Biswanath Bajoria and Haricharan Bajoria (appellant herein) as his executors, Biswanath and Haricharan made an application for substitution of their names in place of Kedarnath in the proceedings for setting aside the award on April 4, 1961. The award holder Manakmall Lodha made a similar application for substitution of the widow and all the sons and daughters of Kedarnath Bajoria. On July 3, 1961 an order was made by this Court substituting the widow and all the sons and daughters as heirs and legal representatives of Kedarnath Bainria, Haricharan and Biswanath were further described as 'alleged executors and trustees to the estate of the deceased.' On August 1, 1961 Haricharan and Biswanath filed an affidavit of assets alleged to have been left by the deceased. A copy of the same forms annexure 'B' to the petition. According to this the total assets of the deceased was Rs. 3868.02 nP. against liabilities shown at Rs. 10,310.35 nP. The application for setting aside the award was dismissed on May 11, 1962 and simultaneously therewith a decree was passed in Suit No. 2528 of 1951 in terms of the award. On May 14, 1963 the decree-holder levied attachment on certain furniture and 200 shares of Shiva Jute Bailing Private Limited numbering 14001 to 14100 and 14901 to 15000 standing in the name of Haricharan Bajoria.

3. On May 21, 1963 the appellant took outsummons supported by a petition for investigation of the claim put forward by him to the properties attached and release of the same from the said attachment. The case of the appellant made out in the petition is as follows: -- There was a partition between Kedarnath Bajoria and other members of his family including the appellant in the year 1959. The properties allotted to the various members of the family are shown in annexure 'A' to the petition (deed of partition). The shares which form the subject-matter of the attachmentare included in the sixth schedule to the deed of partition which contains a list of properties allotted to the appellant Haricharan Bajoria and others described as fifth parties to the deed. Kedarnath Bajoria died leaving a will of which probate was taken by the Appellant and Biswanath Bajoria on March 30, 1962. As the partition preceded the award, the shares of the Joint Stock Company could not be attached in the hands of the appellant.

4. According to the deed of partition: --

(a) The parties numbering nine constituted a Hindu Mitakshara joint family of which Kedarnath Bajoria was the Karta upto July, 7, 1959.

(b) The joint family owned various properties including shares in different companies and carried on business under the name and style of Kedarnath Mohanlal and Hindusthan Tobacco Company.

(c) Prior to the execution of the deed the ornaments, jewellery, furniture, utensils and other moveable properties of the joint family had been divided between the parties and made over to them in their respective shares.

(d) Immoveable properties belonging to the joint family were set out in Part I of the First Schedule and the shares in the different companies owned by the joint family were mentioned in Part II of the First Schedule, the book debts and outgoings due and payable to the joint family and its business being set out in Part III and liabilities of the joint family being particularised in Part IV of the First Schedule.

(e) The properties described in Parts I, II and III of the First Schedule had been valued at Rs. 11,43,826.47 nP. and the liabilities mentioned in Part IV amounted to Rs. 2,43,826.47 nP. Thus the net assets divisible between the parties came to Rs. 9,00,000/- and each of the parties was entitled to properties worth Rs. 1,00,000/- only.

(f) The parties agreed that Kedarnath Bajoria alone should bear and pay the joint family debts amounting to Rs. 2,43,826.47 nP. and he should be entitled to get properties worth the said amount over and above his share to meet the said liabilities.

(g) The owelty moneys equalising the shares of the respective parties had been paid to them in exclusion of the deed of partition.

5. Clause 12 of the deed expressly provided that Kedarnath Bajoria alone was to pay liabilities of the joint family and it was in consideration of his undertaking to bear and pay the same that properties in excess of his just share were being allotted to him. The value of the immoveable properties so allotted was Rs. 1,60,384/-, that of the shares and securities Rs. 371,130.87 nP. while cash in hand and banks allotted to him amounted to Rs. 17,8,50.70 nP. The debts and liabilities of the joint family set out in Part IV of the First Schedule total Rs. 2,43,826.47 nP. including petty sums like Rs. 160.88 nP. owing to Shree Ganeshjee Maharaj, Rs. 491.28 nP. owing to Shree Hanumanjee Maharaj, Rs. 250.00 to Rawatmalji Nopany and Rs. 443.00 as tenants' deposit. Counsel for the respondent drew our attention to the fact that although in his written statement filed in the year 1952 Kedarnath Bajoria had admitted that a sum of Rs. 1,003/8/3 was due and payable by him to the respondent Manakmall Lodha the said liability for the admitted debt was not mentioned in part IV. He also pointed out that the second schedule to the deed which enumerated the properties allotted to Kedarnath Bajoria and the liabilities which fell in his share clearly showed that no provision was made for this indebtedness. The total value of the assets allotted to Kedarnath Bajoria was Rs. 5,73,905.87 nP. Deducting therefrom the debts and liabilities of the joint family set out in part IV of the First Schedule the value of the assets falling to the share of Kedarnath Bajoria amounted to Rs. 3,30 079.40 nP. The amount of the owelty moneys due to the other persons as appearing from the other parts of the second schedule came up to Rs. 2,30,079.40 nP. If this amount be deducted from the amount mentioned above (the difference between the total value of the assets and the debts and liabilities of the joint family) a sum of Rs. 1,00,000/- only was left to Kedarnath Bajoria -- an amount equal to that allotted to each of the other eight persons constituting the joint family. In other words, counsel argued Kedarnath Bajoria was getting no more than Rs. 1,00,000/- for himself out of which liabilities of the joint family not taken into account in part IV of the First Schedule had to be repaid. Counsel for the appellant relied on the clause in the deed to the effect that owelty moneys had been paid in exclusion of the amounts mentioned in the document. From this he wanted us to infer that Kedarnath Bajoria had paid the owelty moneys to his coparceners out of jewellery, ornaments etc. which according to the deed of partition had been 'distributed amongst the co-sharers prior to the partition of the properties mentioned in the deed and that the sum of Rs. 2,30,079.40 nP., the total of the owelty moneys payable, was in the hands of Kedarnath Bajoria to meet the joint family debts not mentioned in the deed. I find it somewhat difficult to accept this if the partition is to be treated as a fair and bona fide arrangement providing for payment of all just debts of thejoint family and the distribution of net assets left taking the same into account. Even if it be held that Kedarnath Bajoria had paid the owelty moneys before execution of the deed of partition by selling ornaments, jewellery, etc. which had already been divided; he was taking care to recoup himself by the allotment of sufficient properties at the partition for his outgoings in respect of the owelty moneys. It cannot therefore, be said that Rs. 2,30,079.40 nP. which he was getting in excess of his share of Rs. 1,00,000/- plus Rs. 3,30,079.40 nP. to meet the joint family debts enumerated in part IV of the First Schedule was being given to him for payment of other joint family debts.

6. From the affidavits it is not clear as to what Kedarnath did with the properties allotted to him on partition. If the affidavit of assets filed by the executors gives a true picture of his affairs at the date of his death, the total movable assets came to Rs. 5868.02 nP. and his debts overtopped that amount by Rs. 4432.33 nP. By his will he bequeathed all his properties movable and immovable wherever situate to his wife and three of his sons -- Haricharan, Biswanath and Kashinath in equal shares. It was hardly necessary for him to take the trouble of executing the will on his death-bed.

7. In the affidavit-in-opposition a charge is made that Kedarnath Bajoria had made systematic efforts in his life time to deprive the respondent Manakmall Lodha of the fruits of the decree which he might eventually get by transferring assets to others. This is contradicted in the affidavit-in-reply.

8. Before the learned trial Judge it was argued on behalf of the appellant that (i) there was no debt at all until the making of the award or the passing of the decree and (2) the sons were not liable for the debts, if any, incurred by the father. These were turned down by the learned Judge who held that (a) the deed of partition did not provide for the payment of this particular debt, (b) it was a pre-partition debt, (c) that it was a debt incurred by Kedarnath Bajoria and (d) that it was immaterial whether the debt was incurred for his own purpose or for the purpose of the joint family and (e) the shares of joint Stock Companies allotted on partition were ancestral properties.

9. Before us only two contentions were raised on behalf of the appellant. First that at the date of the partition there was no debt as it was not known until the accounts in the suit by Manakmall Lodha were taken as to whether any money would at all be due from Kedarnath Bajoria and secondly as by the partition of the assets of the joint family ample provision had been made for payment of the debts of the joint family, the sons were under no further obligation to repay the father's debt out of properties allotted to them on partition. It was further contended that as the decree was so right to be executed against the appellant as a legal representative he was liable only to the extent of the properties of the deceased which had come in to his hands and had not been duly disposed of as mentioned in Section 50 of the Code of Civil Procedure. It was also argued that as the appellant's case is that no property belonging to Kedarnath Bajoria has come into his hands there must first be an investigation and the production of accounts as envisaged by Section 50 of the Code of Civil Procedure. It may be noted here that although the decree as drawn up is against the defendants as legal representatives of Kedarnath Bajoria it is not limited to the assets in their hands received from the said deceased. But even if the decree had expressly, pro-vided that the legal representatives' liability would be to the extent of assets received from the deceased their position would not have been any better. Under Section 53 of the Code of Civil Procedure property in the hands of the appellant is to be deemed to be property of the deceased if the appellant be found to be liable under Hindu law for the payment of the debts of the deceased. Here, assuming that there was a debt it was one due from the rather not contracted for illegal or immoral purposes and as such one which the son was under a pious obligation to pay. It is now settled as a result of the decision of the Supreme Court in Pannalal v. Naraini : [1952]1SCR544 that if the sons are made parties to a suit against the father as his legal representatives and a decree is passed against them limited to the assets of the deceased a proceeding for execution of such decree would attract the operation of Section 47 of the Code of Civil Procedure and no separate suit would be necessary to be filed against the sons The facts in this case were as follows. One Baldev Das, the father of the appellants, who was at one time the Manager of a joint Hindu family consisting of himself and his sons, executed a mortgage bond in favour of Mt. Naraini and another person hypothecating certain movable properties belonging to the joint family to secure loan of Rs. 16,000/-. Thereafter the appellants along with a minor brother filed a suit for partition against their father in Shahjahanpur. A final decree for partition was made and the joint family properties were divided by metes and bounds and separate possession was taken by the father and the sons; Thereafter Mt. Naraini filed a suit for recovery of a sum of Rs. 12,500/- on the basis of the mortgage bond alleging that the money was borrowed for joint family purposes. The appellants applied before the Subordinate Judge under Order 1 Rule 10 and Order 34 Rule 1 of the Civil Procedure Code for being added as parties. They asserted that Baldev Das was not the Manager of the joint family and the properties had been partitioned and that which was the subject-matter 08 the mortgage was allotted to the petitioners. Thereupon counsel for the plaintiff gave up the claim for a mortgage decree: and amended the plaint accordingly deleting all reference to the joint family. Upon this the appellants withdrew their application for being added as parties. Thereafter Baldev Das died and the appellants and their mother were brought on the record as legal representatives of Beldev Das. They filed a written statement pleading inter alia that the debt was illegal and immoral. The parties eventually arrived at a compromise by which a simple money decree was passed in favour of the plaintiff for the full amount against the estate of Baldev Das in the hands of his legal representatives. After certain unsuccessful attempts at execution the decree-holder levied attachment on certain immovable properties in the possession Of the appellant. Objections were filed under Section 47 of the Civil Procedure Code on the ground that these properties were the separate and exclusive properties of the objectors which they obtained on partition with their father long before the decree was passed. It was asserted that these properties could not be made liable for the satisfaction of the decretal dues which had to be realised under the terms of the decree itself from the estate left by Baldev Das. The Subordinate Judge held that the decree sought to be executed was obtained after the partition but was in respect of a debt which was contracted by the father prior to it and consequently the separate share of the sons which they received on partition was liable under the Hindu Law for the pre-partition debt of their father if it was not immoral and under Section 53 of the Civil Procedure Code the decree-holder was entitled to execute the decree against such properties. The appellants lost two appeals successively filed in the Punjab High Court. Before the Supreme Court it was contended on their behalf, inter alia, that the decree being obtained after the partition in respect of a pre-partition debt could not be executed against the separate property of the sons. It was further argued that in any event, if there was a pious obligation en the part of the sons to pay the father's debt incurred before partition the same could be enforced only in a properly constituted suit. 'This was turned down by the Supreme Court. Referring to certain texts in the Smritis Mukherjea, J. observed that a debt was not merely a legal obligation but non-payment of debt was a sin, theconsequences of which followed the debtor even after his death. The propositions of law which the Supreme Court found to be well settled are as fellows: --

(1) Although the son, grand-son and great-grandson are under an obligation to pay the debts of the ancestor, none of them has any personal liability in the matter irrespective of receiving any assets. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice.

(2) The pious liability of the sons to pay the debts of his father exists whether the father is alive or dead. It is open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. If the sons are not made parties they cannot resist the sale unless they succeed in establish:ng that the debts were contracted for immoral purposes.

(3) So long as the family remains undivided, the father is entitled to alienate, for satisfying his own personal debts not tained with immorality, the whole of the ancestral estate.

A creditor is entitled to proceed against the entire estate for recovery of a debt taken by the father. The position is somewhat altered when there is a disruption of the joint family by a partition between the father and sons. As regards the debts contracted by the father after partition the sons are not liable for the same. The share which the father receives on partition and which after his death comes to his sons, may be available to thecrerditors of the father, but the shares allotted on partition to the sons can never be made liable for the post-partition debts of the father. Mayae's Hindu Law, 11th Edition page 430.

4. Although there was divergence of judicial opinion as to whether the sons can be made liable for an unsecured debt of the father incurred before partition in respect of which the creditor filed his suit and obtained a decree after the partition.

'the view of the Hindu Law givers undoubtedly is that the binding debts on the family property would have to be satisfied or provided for before the coparceners can divide the property.'

5. The sons are liable to pay the pre-partition debts of the father even after partition unless there was an arrangement for payment of these debts at the time of the partition. An arrangement for payment of debt did not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets were divided or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of the creditors. Whether there was a proper arrangement for payment of the debts or not would have to be decided on the facts and circumstances of each individual case. According to Mukherjea, J:

'After all the primary liability to pay his debts is upon the father himself and the sons should not be made liable if the property is the hands of the father is more than adequate for the purpose. If the arrangement made at the time of partition is reasonable and proper, an unsecured creditor cannot have any reason to complain'.

10. Counsel on both sides referred to this judgment and while counsel for the appellant con-tended that the deed of partition indicated that a comprehensive arrangement had been made the payment of the debts of the joint family factored by the father as Karta, Counsel for the respondent contended to the contrary. The latter argued that in the face of the admission in the written statement that at least Rs. 1,003/8/3 was payable to the respondent Manakmall Lodha aw) in view of the fact that a liability exceeding Rs. 51,000/- was to be the subject of enquiry by the special referee the deed of partition cannot be said to have made adequate provision for the payment of the debts of the father.

11. In my opinion, the deed of partitiondid not make sufficient provision for the paymentof all preparation debts. It is impossible to holdthat the omission of the name of the respondentin Part IV of the First Schedule to the deed wasthrough inadvertence although an admission ofliability had been first made as far back as 1951.Kedarnath Bajoria could not possibly have forgotten all about it in July 1959 when only four orfive months prior thereto he had adjusted thesuit of Manakmall Lodha by referring the matterof his liability to a special referee to take theaccounts.

12. It was argued on behalf of the appellant that there was no pre-partition debt in this case as unless the account between the partnerswas taken, one partner could not be said to be indebted to the other. In support of this our attention was drawn to a passage in Halsbury's Laws of England, Volume 28, 3rd Edition page 563 Article 1076. As against this it was contended on behalf of the respondents that the pious obligation of a Hindu son to discharge the liabilities incurred by his father is not limited strictly to what are known as debts in English law. The original texts of the Hindu law-givers are quoted in the judgment of Mookerjee, J. in Chhakauri Mahton v. Ganga Prasad, ILR 39 Cal 862. There the question arose whether the sons were liable to pay a decree for damages on account of injuries done to the decree-holder's crops by the father. It was argued that the liability of a Hindu son to pay a debt incurred by his father was restricted to cases in which the debt was the result of a contractual obligation, the word used in the Hindu texts being 'Rina'. Mookherjee, J. observed (p. 877)

'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. 5. 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 is 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, ILR 24 Cal 672 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.'

13. In my opinion, once the partnership business comes to an end one or other of the parties incurs a 'rina' to the other within the meaning of the Hindu texts if not at once certainly when the suit for accounts or dissolution is instituted although it may be that the quantification of the 'rina' takes place at a later point of time. The liability arises ex contractu.

14. This identical question as to whether liability was covered by the doctrine of pious obligation when the father had entered into a contract of partnership with another came up forelaborate discussion in the case of NachimuthuGoundan v. Balasubramania Goundan, AIR 1939 Mad 450. There the facts were as follows: -- Two brothers who had started a mill business and carried it on for some years, were obliged to take in a new partner in the year 1925 so that the capital brought in by the new partner would enable them to meet the debts owing and to continue the business. The new partner paid a sum of Rs. 20,000/- towards his share of the capital, an equal sum represented by the value of the business premises and the plant and machinery therein belonging to the brothers being treated as their contribution. The partnership was to run for five years and the profits and losses were to be shared equally between the new partner on the one handand the two brothers on the other. The new partner died within four months of advancing themoney and the partnership stood dissolved. Hisson being a minor the widow decided not to continue the partnership and desired that accounts ofthe partnership should be taken. This was doneand a sum of Rs. 30,294/13/4 was found due.For a portion of this amount namely Ra. 14,732/13/4 out standings of the business were assigned toher and for the balance of Rs 15,562/- the suitmortgage was executed. Both these documents werein fact parts of one transaction and were broughtinto existence close upon the settlement of thepartnership accounts. Subsequent thereto one ofthe brothers died within a few months leaving foursons, defendants 2 to 5, and a grandson, defendant7. The other brother Vellai Goundas, wasdefendant I and his son was defendant 6. Thedefence to the suit pleaded by the sons and grandson was that the mortgage as such could not affecttheir shares as until the settlement of the partnership accounts which was practically simultaneouswith the mortgage, there was no debt as such inlaw, but merely a duty to account. It was therefore argued that the requisite conditions of antecedent debt were not present in this case as themortgage was not really or sufficiently disconnected from the precedent debt in point of fact ortime. Before the High Court the main pointtaken was that the liability to account of a partner or partners in a running or even a dissolvedpartnership did not amount in law to a debt inbeing, but was merely the possibility or contingency of a debt to arise in the future and beforeit was known how the accounts stood, there couldbe no debt and no partner liable for it. Thelearned Judges referred to the definition of debtin well known treatises of English Law includingAnson's Law of Contract and Pollock's Principlesof Contract that.

'the action of debt lay for liquidated or ascertained claims arising either from breach of covenant or from non-payment of a sum certain due for goods supplied, work done, or money lent'.

Krishnaswami Ayyangar, J. remarked.

'with that technical narrow meaning of the word we are not here concerned. For we are not considering a proposition of English law or the provisions of a statute based on that law. We have on the contrary to deal with a totally different subject and a totally different system of law. We have in fact to assign a meaning to the word 'rina' according to the sense in which that word has been used in the texts of Hindu law. To such, a word and in such a context are we to apply the English Common Law meaning of the word of are we to go back to those texts themselves and to the language in which they have been clothed, in order to ascertain the true meaning of the word 'rina' indifferently rendered as debt in English and occurring in the modern text-books and in the decisions of the Courts when defining the obligation of a Hindu son to relieve his father front the sin of the undischarged debt?'

His Lordship went on to add

'The narrow interpretation will at once lead to obvious and startling consequences. The larger and more numerous obligations arising out of contracts and quasi-contracts, trusts and other fiduciary relationships though leading to monetary liability and without the slightest taint of immorality or illegality in any of them, will fall outside the pious duty. And yet we find the tests full of passages, Sanyassayya v. Murthamma, AIR 1919 Mad 943 and the reports full of cases, in which obligations which are far removed from debt in the narrow sense have been clearly recognised'

After referring to Chhakauri Mahton's case, ILK 39 Mad 862 his Lordship went on to remark.

'If 'dhana' includes in its connotation all varieties of property and assets, we see no reason why 'rina' should not be held to include all varieties of obligations and debts as well'.

After referring to decided cases his Lordship said (p. 454).

'These authorities are sufficient to negativethe appellant's contention. It may, however, beobserved that even if the word 'rina' in Sanskritis to be understood as meaning a debt, there is nowarrant for importing into it the technical sensein which it has become wrapped up by the peculiarities of the old English Common Law and procedure. . ...

But whatever may be the meaning which a layman or a lawyer speaking the English language may attach to it, we are unable to say that the word 'debt' is the exact equivalent of 'rina' in Sanskrit at any rate with all the technical import that that word carries, x x x x x We must accordingly hold that the unascertained liability of the two brothers was a debt according to Hindu Law incurred by them in favour of the plaintiff's father from the time when the latter brought into the partnership the sum of Rs. 20,000/- subject to its being returned with a reduction in case of loss or an addition on account of profit.'

15. With respect I entirely agree. The fact that a mortgage had been created in that case and the suit was based on a mortgage makes no difference to the principle involved. There it was necessary to establish an antecedent debt; a debt antecedent to the mortgage. The learned Judges of the Madras High Court came to the conclusion that the 'rina' or 'debt' was antecedent in point of fact and time to the creation of the mortgage.

16. In Natasayyan v. Ponnusami, ILR 16 Mad 99 the question arose about the son's obligation to pay the amount of the decree obtained against their father 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 in execution property of the family which had passed into the hands of his sons by survivorship. In the course of the judgment it was observed.

'that there can be no question that debts of the nature of those found by the decree against defendants' father to be justly due by him to plaintiff are not of an unmoral or illegal nature, upon any reasonable view of the meaning of those words as used in the rule of Hindu law under consideration. That rule, as we understand it, is that sons are under a pious obligation to discharge the just debts of their father because otherwise he would be liable to be punished in a future state for non-discharge of these debts. 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 in any. The son is not bound to do anything to relieve his father from the consequence of his vicious indulgences, but he is bound to do that which the father himself would do were it possible, viz., to restore to those lawfully entitled money he has unlawfully retained.'

This dictum was approved of by the Judicial Committee of the Privy Council in Hemraj v. Khem Chand .

17. In the result, the appeal fails and must be dismissed with costs. All interim orders are vacated.

Bose, C.J.

18. I agree.

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