1. The main question of law raised in this case is whether a decree for costs passed against a Mitakshara father, who has failed to substantiate a claim made, to some property, is binding on his sons who have succeeded by right of survivorship on his death. It is contended that the debt in this case comes within the word danda or fine in text of Yajnnavalkya quoted in the Mitakshara Chapter VI, Section III, Verse 47, Tarkalankar's Edition, 'Nor is he bound to pay any unpaid fines or tolls or idle gifts' or within the meaning of ryubuharika' in the text of Ushanas which has been translated variously as not 'necessary' (for life) by Pandit Girish Chandra Tarkarlankar, as unusual or not sanctioned by law' by the learned Judges of the Bombay High Court in Durbar Durbar v. Khachar Harsur 32 B. 348 : 10 Bom. L.R. 297, as 'improper' by Syama Charan in Vybastha Tarpon, 3rd Edition, page 129.
2. Words used by Hindu law-givers must be understood in the sense in which the authors may be supposed to have used them. Hindu Courts of Justice did not allow costs to successful litigants but imposed upon the party who took a false plea a fine payable to the King equal to the claim: see Yajnabbalka, Chapter 11, Verse 11.
3. If the defendant denies4he claim of the plaintiff and the latter prove his claim by witnesses then the defendant will pay the plaintiff's claim and an equal penalty to the King.' Also Manu, Chapter VIII, Verse 59 'In the double of that sum, which the defendant falsely denies or on which the complainant falsely declares shall those two men, wilfully offending against justice, be fined by the King.' So that costs awarded against a defeated litigant could not be danda or fine within the meaning of the text.
4. Interpreting the word Vyabaharika the same way, the costs could not come within the exception as the venerable Rishi could not have meant to exclude a thing which had no existence in his time.
5. There is some diversity of opinion as to what liabilities or debts are excepted from the pious duty of the son to pay the debts of his father. The Madras High Court has held that when the liability originates in a breach of civil duty and not in a criminal offence the son is liable; see McDowell v. Ragvad Chetty 27 M. 71, Kanemar Venkapayya v. Krishna Chariya 31 M. 161 : 2 M.L.T. 529 : 17 M.L.J. 613 : 3 M.L.T. 353, Erasala Gurunatham Chetty v. Addepally Raghavalu Chetty 31 M. 472 : 3 M.L.T. 394 : 8 Cr. L.J. 147. The Bombay High Court has in a recent case held that a decree for damages against the father for obstruction of a water passage is not binding on the son as the verdict of the Court in decreeing damages shows that the act of obstruction was wrongful. See Durbar Khachar v. Khachar Harsur 32 B. 348 : 10 Bom. L.R. 297. In the case of Mahabir Prasad v. Basdeo Singh 6 A. 234, the Allahabad High Court held that a decree against a father for money embezzled by him is not binding. In our own Court in the case of Khalilul Rahman v. Gobind Pershad 20 C. 328, Pigott and Rampini, JJ., held that debts incurred for paying the costs of fruitless and imprudent litigation by the father were debts to which the pious duty of sons to pay their father's debts does attach, as such debts could not be said to be illegal or immoral in the sense in which the words had been used for a series of year. The exception 'says the learned Judges has too long been limited to illegal or immoral purposes to justify us in introducing an extension of it, which would include transactions the character of which was no more than imprudent or unconsciously imprudent or unreasonable.' In the case of Pareman Dass v. Bathu Mahton 24 C. 672, a decree against father for damages for crops stolen by him was held to be not binding on the sons.
6. In the present case, the action of the father was successful in the certificate proceedings and was on the defensive in the civil suit. He may have been imprudent or ill advised but it cannot be said that he was guilty of any Criminal offence or even of a breach of Civil duty. Even, therefore, if the Bombay case were rightly decided; it is distinguish, able and there is no reason for following the same. The appeal is, therefore, dismissed with costs.
I agree. In my view it has not been shown that this debt is tainted with any illegality or immorality or (if the texts go further) with any such impropriety or infirmity as would remove it from the category of debts incurred by a Hindu father which a son is compellable to pay.