Lancelot Sanderson, C.J.
1. In this case I am of opinion that this Rule should be made absolute.
2. The suit was brought by the plaintiff to recover his share of certain property. It appears that the plaintiff's father Tipan Pershad and a man called Hari Singh had bought an estate for about Rs. 19,000 odd. The sale having been set aside, these two became entitled to get the money back, and it was Tipan Pershad who through the hand of his servant drew out the purchase-money which had been deposited; and, instead of handing over the share which belonged to Hari Singh, he converted the whole of it to his own use. Hari Singh then instituted a suit and obtained a decree against Tipan Pershad, and in execution of that decree purchased the property in question. Consequently, the plaintiff brought the present action against Hari Singh.
3. The first Court and the second Court decreed the suit on the ground that the act of Tipan Pershad in appropriating the money to his own use was a criminal act, and rendered him liable to prosecution under Section 403 of the Indian Penal Code, and consequently the share of the son in the property was not bound. The point is stated clearly in the judgment of the learned District Judge, which is as follows: 'If Tipan Pershad took the money under circumstances which would justify his conviction under Section 403 of the Indian Penal Code, the family is not liable. This was the view taken by the lower Court of the law and it is, in my opinion, a sound and correct view. The only question for decision by this Court is:--Was the money taken by Tipan Pershad with the intention of causing wrongful loss to Hari Singh and others? The lower Court has found that it was so.' Then the learned District Judge goes on to review the facts, and comes to this conclusion, 'I find on the facts that Tipan Pershad took this money under circumstances rendering him liable to conviction under Section 403 of the Indian Penal Code and that therefore, the family property is not liable to satisfy the decree in respect of it.'
4. Upon the matter coming to this Court the learned Judges who constituted the Court came to the conclusion that upon the facts Tipan Pershad would not have been liable to conviction under Section 403, and that consequently the family were bound to restore the money. I am of opinion that it was not open to the learned Judges of this Court to go behind the finding of fact of the learned District Judge; and that they ought to have adopted that finding of fact, and as they agreed as to the point of law, they ought to have dismissed the appeal.
5. But it has been argued by the learned Vakil who has shown cause to-day, that even if the finding of fact by the learned District Judge was to be accepted, the plaintiff ought not to succeed in this ease, because there has been a decree in respect of the debt from the father to Hari Singh, and he says the plaintiff cannot go behind that decree, in execution of which the property was sold. In my judgment, that is not correct for this reason. If that contention were to be upheld, in many cases this doctrine of the family property not being liable for the criminal acts of the father would disappear altogether, because it is obvious, as it was pointed out by my learned brother in the course of the argument, that as between the creditor and the wrong-doer, the latter would have no defence whatsoever. The more criminal the act was, the less defence he would have and the creditor must get a decree.
6. I should also add that when the learned Vakil was invited to produce authority for the proposition he propounded, no authority was forthcoming. In my judgment, therefore, that contention ought not to prevail.
7. For these reasons, we make the Rule absolute with costs (hearing fee two gold mohurs), and dismiss the appeal with costs of both hearings in this Court.
Asutosh Mookerjee, J.
8. I agree.