JUDGMENT
Mullick, J.
1. In this case the pro forma defendants Nos. 5 to 7, the fathers of the plaintiffs Nos. 2 to 4, having been entered in the Record of Rights as in possession of a certain plot of land, defendants Nos. 1 to 3 sued them for declaration of title, recovery of possession and for mesne profits. That suit ended in a decree for defendants Nos. 1 to 3 with mesne profits and costs, and in execution some ancestral property belonging to the joint family consisting of plaintiffs Nos. 2 to 4 and defendants Nos. 5 to 7 was attached.
2. The plaintiffs thereupon preferred a claim, but being unsuccessful they have brought the present suit for declaration of their right to have the property released from! attachment.
3. The Subordinate Judge has found on appeal that the suit was contested by defendants Nos. 5 to 7 bona fide and in the interest of the joint family; in other words that there was legal necessity for incurring the debts which have been created by the decree.
4. In second appeal it is contended on behalf of the plaintiffs that the debt was illegal and immoral inasmuch as defendants Nos. 5 to 7, being perfectly aware that they had no title to the property, committed trespass thereon and thereafter defended the suit when in fact there was no necessity for defending it.
5. Now the balance of opinion seems to favour the view that a debt created by a decree against a father cannot be regarded as an illegal or immoral debt. The authorities are reviewed in the case of Chakouri Mahton v. Ganga Proshad 12 Ind. Cas. 609 : 39 C. 862 : 16 C.W.N. 519 : 15 C.L.J. 228, and their Lord-ships therein cite a decision of the Punjab Court in Kartar Singh v. Harji Mal 128 P.R. 1879. The following passage in the latter case seems to me to put the law very clearly:
If the principle of the decision is applicable to a judgment debt as well as to a debt voluntarily contracted by the father, and the position of the son can be: in no wise bettered by the circumstance that the original liability has merged in a decree, the son can escape liability only upon the ground that the judgment-debt is in the position of a debt contracted for an illegal or immoral purpose. Granting that the son may go behind the decree, it is impossible to hold that the debt created by the 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. It is needless to consider whether a son could be held responsible in a suit against himself to compensate a plaintiff, out of ancestral properly, for the loss occasioned to the plaintiff by the illegal or immoral acts of ‘his father. The most analogous case would be that of a father who had voluntarily contracted to compensate the person whom he had by a criminal offence deprived of property. A debt created by such a contract could not without an utter perversion, of language be styled a debt contracted for an illegal or immoral purpose; on the contrary, it would be a debt contracted for a highly moral as well; as lawful purpose, and the case of a debtor enforcing an obligation to pay an ascertained sum by way of such compensation stands upon at least as sound a basis, though the obligation be unwillingly contracted under lawful compulsion.
6. In Chakouri Mahton’s case 12 Ind. Cas. 609 : 39 C. 862 : 16 C.W.N. 519 : 15 C.L.J. 228 as also in Gadadhar Ramanuj Das v. Ghana Shyam Das 47 Ind. Cas. 212 : 3 P.L.J. 533 the decretal debt was held to be neither illegal nor immoral because no criminal offence involving a moral stigma had been disclosed. It was not necessary in either of these cases to consider the wider question whether the Hindu Law ceases to operate as soon as the debt becomes merged in a decree.
7. But it is clear that even upon the narrower view suggested in Chakouri Mahton’s case 12 Ind. Cas. 609 : 39 C. 862 : 16 C.W.N. 519 : 15 C.L.J. 228 the defendants cannot succeed.
8. The learned Vakil for the appellants, however, contends that assuming that the debt was neither illegal nor immoral and that it was a personal debt incurred by defendants Nos. 5 to 7 which their sons are liable to pay, the attachment in the present case is illegal during the lifetime of these defendants.
9. The answer to this is that the lower Appellate Court has not merely held that the debt was neither illegal nor immoral but has gone further and found that it was incurred for family necessity.
10. The learned Vakil contends that he is entitled to challenge this finding on the ground that it is a mixed question of lave and fact. Admitting that to be so, in ray, opinion the learned Subordinate Judge was perfectly correct in his conclusion. Having regard to the fact that the Record of Bights was in their favour the defendants Nos. 5 to 7 were fully justified in defending their possession; and it is impossible to hold in these circumstances that there was no bona fides either in entering upon the land; or in defending the suit.
11. The result is that the appeal is dismissed with costs.
Atkinson, J.
12. I concur.