PETITIONER: LUHAR AMRIT LAL NAGJI Vs. RESPONDENT: DOSHI JAYANTILAL JETRALAL AND OTHERS. DATE OF JUDGMENT: 04/05/1960 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS CITATION: 1960 AIR 964 CITATOR INFO : R 1967 SC 727 (3) ACT: Hindu Law-Father's anticedent debt-Pious obligation of sons to pay-Onus. HEADNOTE: A Hindu father, speculating in gold and silver, lost heavily and sought to recoup by borrowing on a mortgage. The mort- gagee obtained a decree and sought to execute it by sale of the mortgaged property. The sons and the wife sued for a declaration that the decree was not binding since the debt though antecedent was immoral (avyavaharik). The trial court found in their favour and on appeal the District judge affirmed its decision. On second appeal the High Court held that it was for the plaintiff s to prove not merely that the antecedent debt was immoral but also that the mortgagee had notice of the said character of the debt and since they had led no evidence to discharge that onus, they were not entitled to a decree. The plaintiffs came up on appeal by special leave: Held, that the High Court took the correct view of the law and the appeal must fail. Any attempt to test the correctness of the principles laid down by the Privy Council in the case of Suraj Bunsi Koer, which have held the field for more than three quarters of a century, purely in the light of ancient Sanskrit texts would now not merely be hit by the principle of state decisis, which must inevitably come into operation, but would also be inexpedient and futile. Suraj Bunsi Koer v. Sheo Proshad Singh, (1879)) L.R. 6 I.A. 88 and Brij Narain v. Mangla Prasad (1923) L.k. 51 I.A. 129, applied. The principles laid down in those two cases make no distinc- tion between an alienation made for the payment of the father's antecedent debt and an alienation made in execution of a decree passed against him and in both cases the sons must prove not only the immoral character of the antecedent debt but also the knowledge of the alience. Case-law considered. JUDGMENT:
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 121 of 1956.
Appeal by special leave from the judgment and order a dated
January 29, 1953, of the former Saurashtra High Court in
Civil Second Appeal No. 82 of 1952, arising out of the
judgment and decree dated April 29, 1952, of the District
Judge, Rajkot, in Civil Appeal
No. 4 of 1952.
843
W. S. Barlingay and A. G. Ratnaparkhi, for the appellant.
M. L. Jain, for respondent No. 1.
1960. May 4. The Judgment of the Court was delivered by
GAJENDRAGADKAR, J.-This appeal by special leave raises an
interesting question of Hindu Law. If a Hindu son wants to
challenge an alienation made by his father to pay his
antecedent debt is it necessary for him to prove not only
that the said antecedent debt was immoral but also that the
alienee had notice of the immoral character of the said
debt? The High Court has held that the son must prove both
the immoral character of the debt and notice of it to the
alienee; the correctness of that view is challenged before
us by the appellants in the present appeal.
The appellants are two brothers, Amritlal and Mohanlal
Nagji, and their mother, Bai Jakal Arjan. The three
appellants and respondent 2, Nagji Govind, the father of
appellants 1 and 2 and the husband of appellant 3,
constitute an undivided Hindu family. Respondent 2 executed
a mortgage deed in favour of respondent 1, Jayantilal Doshi,
in respect of the joint family property for Rs. 2,000. This
document was executed on February 5, 1946. In 1950,
respondent 1 sued respondent 2 on his mortgage, obtained a
decree for sale and filed an application for execution for
sale of the mortgaged property. Sale was accordingly
ordered to be held. At that stage the appellants filed the
present suit on April 30, 1951, and claimed a declaration
that the decree passed in the mortgage suit (Civil Suit No.
589 of 1949) in favour of respondent 1 and against
respondent 2 was not binding in respect of the 3/4th share
of the appellants in the mortgaged property; they also asked
for a perpetual injunction restraining respondent 1 from
executing the said decree in respect of their share. To
this suit the mortgagor, respondent 2, was impleaded as a
party.
In their plaint the appellants have stated that respondent 2
had speculated in gold and silver and had thereby lost a
large amount of money which he sought to make up by
borrowing amounts from several creditors. One of such
creditors was Dharsi Shamji
844
to whom Rs. 2,000 were payable by respondent 2. According to
the appellants the impugned mortgage had been executed by
respondent 2 for the payment of the said debt of Rs. 2,000,
and since the said debt was immoral or avyavaharik the
appellants were not bound by it.
The claim was resisted by both respondent 1 and respondent 2
who pleaded that the mortgage had been executed for the
payment of debts which were binding on the family and that
there was no substance in the plea of immoral debts raised
by the appellants. It was also alleged by them that the
mortgaged property was not the property of the undivided
Hindu family.
On these pleadings the trial court framed appropriate
issues. It found that the mortgaged property was the
coparcenary property of the family, that the mortgage-deed
in question had been executed to pay off a debt which was
immoral and that in consequence the mortgage was not binding
against the appellants. According to the trial court the
debt contracted by respondent 2 to pay the losses incurred
by him in speculative transactions must be held to have been
contracted for illegal and immoral purposes and as such the
subsequent alienation for the payment of the said debt
cannot bind the appellants. The trial court also observed
that respondent 1 had not stepped into the witness box to
give evidence to show that he had made any enquiries about
the existence of any antecedent debts payable by respondent
2. In the result the suit filed by the appellants was
decreed. Against the said decree respondent preferred. an
appeal before the District Judge, but the District Judge
agreed with all the findings made by the trial court and
dismissed the said appeal. Respondent then took the matter
before the High Court-of Saurashtra in second appeal. The
High Court agreed that the mortgaged property was the
property of the joint Hindu family and that respondent 1 had
made no attempt to prove any enquiry on his part before he
entered into the transaction. The High Court did not think
it necessary to consider whether the antecedent debt due to
Dharsi Shamji, for the repayment of which the impugned
845
mortgage was created, was in law immoral or illegal, it
proceeded to deal with the appeal on the assumption that the
said debt was illegal or immoral. On that assumption the
High Court considered the material principles of Hindu Law
and held that it was for the appellants to prove not only
that the antecedent debt was immoral or illegal, but also
that respondent 1 had, notice of the said character of the
debt; and since the appellants had led no evidence to
discharge this onus they were not entitled to claim any
relief against respondent 1. On this finding the second
appeal preferred by respondent was allowed and the suit
filed by the appellants was ordered to be dismissed. It is
against this decree that the appellants have come to this
Court by special leave.
On behalf of the appellants Dr. Barlingay has urged that the
principles of Hindu Law do not justify the view taken by the
High Court that the appellants had to prove the alienee’s
knowledge about the immoral character of the antecedent
debt. He concedes that the judicial decisions on this point
are against his contention; but he argues that there is
paucity of case law on the subject, and that, having regard
to the importance of the point raised by him, we should
examine the true legal position by reference to the texts
rather than by reference to judicial decisions. Let us then
set out the appellant’s argument based on the textual
provisions of Hindu Law.
The doctrine of pious obligation under which sons are held
liable to discharge their father’s debts is based solely on
religious considerations; it is thought that if a person’s
debts are not paid and he dies in a state of indebtedness
his soul may have to face evil consequences, and it is the
duty of his sons to save him from such evil consequences.
The basis of the doctrine is thus spiritual and its sole
object is to confer spiritual benefit on the father. It is
not intended in any sense for the benefit of the creditor.
As has been observed by the Privy Council in Sat Narain v.
Das (1) this doctrine ” was not based on any necessity for
the protection of third parties but was based on
(1) (1936) L.R. 63 I.A. 384, 395.
110
846
the pious obligation of the sons to see their father’s debts
paid.”
This doctrine inevitably postulates that the father’s debts
which it is the pious obligation of the sons to repay must
be vyavaharik. If the debts are not vyavaharik or are
a vyavaharik the doctrine of pious obligation cannot be
invoked. The expression ‘avyavaharik’ which is generally
used in judicial decisions has been based on the text of
Usanas which has been quoted by Mitakshara in commenting on
the relevant text of Yajnavalkya (1). According to Usanas,
whatever is not vyavaharik has not to be paid by the son.
‘Na vyavaharikam’ are the words used by Usanas, and
put in a positive form they mean ‘avyavaharik’. Colebrooke
has translated these words as meaning ” debt for a cause
repugnant to good morals “. These words have received
different interpretations in several decisions. Sometimes
they are rendered as meaning “a debt which as a decent and
respectable man the father ought not to have incurred “:
Darbar Khachar v. Khachar Hansar(2); or, “not lawful, usual
or customary”: Chhakauri Mahton v. Ganga Prasad (3) ; or, ”
not supportable as valid by legal arguments and on which no
right could be established in a court of justice in the
creditor’s favour “: Venugopala Naidu v. Ramanathan Chetty
(4). But it appears that in Hemraj v. Khemchand (5) the
Privy Council has, on the whole, preferred to treat
Colebrooke’s translation as making the nearest approach to
the real interpretation of the word used by Usanas; whatever
may be the exact denotation of the word, it is clear that
the debt answering the said description is not such a debt
as the son is bound to pay, and so as soon as it is shown
that the debt is immoral the doctrine of pious obligation
cannot be invoked in support of such a debt.
In this connection, it has also been urged by Dr. Barlingay
that the onus placed on the sons to prove the immoral
character of the debt is already very heavy. In discharging
the said onus the sons are required to prove not merely that
their father who
(1) Yajnavalkya, ii, 47. (2) (1908) I.L.R. 32 Bom. 348,
351
(3) (1911) I.L.R. 39 Cal. 862, 868, 860. (4) (1912) I.L.R.
37 Mad. 458, 460,
(5) I.L.R. [1943] All. 727.
847
contracted the impugned debt lived an extravagant or immoral
life but they are required to establish a direct connection
between the immorality of the father and the impugned debt.
If this onus is made still more onerous by requiring the
sons to prove that the alienee had knowledge of the immoral
character of the antecedent debt, it would virtually make
the sons’ task impossible, and notwithstanding the spirit
underlying the doctrine of pious obligation the sons in fact
would be compelled to pay the immoral or impious antecedent
debt of their father. That is why the rule which requires
that the sons should prove the knowledge of the alienee is
inconsistent with the basis of the doctrine of pious
obligation. Thus presented the argument is no doubt simple
and prima facie attractive. The question which we have to
consider is whether we should attempt the task of examining
the texts and determining the true effect of the original
provisions of Hindu Law in spite of the fact that the point
raised is covered by judicial decisions which have been
treated for many years as laying down the correct law on the
subject.
Before answering this question it is necessary to consider
the relevant judicial decisions. In 1874, the Privy Council
had occasion to consider this branch of Hindu Law in
Girdharee Lal v. Kantoo Lal and Muddun Thakoor v. Kantoo Lal
(1). It appears that Kantoo Lal and his minor cousin had
brought a suit to recover possession of certain properties
belonging to their family which had been sold respectively
by a private sale and at court auction. The private sale
had taken place on July 28, 1856, and the deed had been
executed by the fathers of the two’ plaintiffs. The case of
the plaintiffs was that they were not bound by the impugned
transaction. The Principal Sudder Ameen dismissed the suit
but the High Court set aside that decision and, awarded
Kantoo Lal one-half of his father’s share. The claim made
by the other plaintiff was dismissed on the ground that he
had not been born at the time of the, impugned transaction.
The decree passed, in, favour of Kantoo Lal was challenged
by the alienee before the Privy Council. Evidence showed
that at the
(1) (1874) L.R. 1 I.A. 321.
818
time when the sale deed was executed a decree had been
obtained against Bhikharee Lal, the father of Kantoo Lal,
upon a bond executed by him in favour of his creditor and an
execution had issued against him upon which the right and
share in the property had been attached. It was therefore
thought necessary to raise money to pay the debt of
Bhikharee Lal and get rid of the execution. It was on these
facts that the Privy Council had to consider whether Kantoo
Lal was justified in challenging the binding character of
the sale transaction. In dealing with this point the Privy
Council referred with approval to the rule which had been
enunciated by the Board earlier in the case of Hunooman
Persad Panday v. Mussummat Babooee Munraj Koonweree The rule
of Hindu Law had been thus stated by Lord Justice Knight
Bruce in that judgment : ” The freedom of the son from the
obligation to discharge the father’s debt, has respect to
the nature of the debt, and not to the nature of the estate,
whether ancestral or acquired by the creator of the debt “.
Then the Privy Council held that if the debt of the father
had been contracted for immoral purpose the son might not be
under any pious obligation to pay it; but that was not the
case before the Board. It had not been shown that the bond
upon which the decree was obtained was for immoral purpose;
and on the other band, it appealed that an action bad been
brought on the bond, a decree had been passed on it and
there was nothing whatever to show that the debt was tainted
with immorality. The Privy Council also noticed that Kantoo
Lal had brought the action probably at the instigation of
the father, and, we may add, that is many times the feature
of such litigation. On these facts the Privy Council set
aside the decree passed by the High Court and held that
Kantoo Lal was not entitled to any relief It would thus be
seen that this decision merely shows that where any
alienation has been effected by the father for the payment
of his antecedent debt and the said antecedent debt is not
shown to be immoral the son cannot challenge the validity of
the alienation. Since the antecedent debt was not shown to
be immoral no question arose as to
(1) (1856) 6 M.I.A. 393,421.
849
what would be the nature of the onus which the son would
have to discharge if the antecedent debt is in fact shown to
be immoral.
In regard to the auction sale which the plaintiffs
challenged in that suit the Privy Council held that a
purchaser under an execution is surely not bound to go back
beyond the decree to ascertain whether the court was right
in giving the decree, or having given it, in putting up the
property for sale under an execution upon it. Evidence
showed that the auction purchaser acted bona fide, had made
enquiries and was satisfied that the decree had been
properly passed and purchased the property at auction sale
on payment of valuable consideration. On these facts it was
held that the plaintiffs were not entitled to any relief.
This decision also was not concerned with the position that
would arise if the antecedent debt had in fact been proved
to be immoral.
That question arose before the Privy Council in Suraj Bunsi
Koer v. Sheo Proshad Singh(1). In that case an ex parte
decree for money had been obtained against a Hindu governed
by Mitakshara on a mortgage bond, the property mortgaged
being ancestral immoveable estate. Under the said decree
the mortgaged property was attached and the decree-holder
sought to bring the said property to sale. Prior to the
execution sale, however, the judgment-debtor died and his
infant sons and co-heirs filed a petition of objections; but
they were referred to a regular suit. In the suit which
they filed they challenged the binding character of the debt
and claimed appropriate relief against the execution
creditor and the purchasers. The Privy Council held that as
between the infant sons Of the judgment debtor and the
execution creditor neither the sons nor the ancestral
immoveable properties in their hands was liable for the
father’s debt; and as regards the purchasers, it was held
that, since they had purchased after objections had been
filed by the plaintiffs, they must be taken to have had
notice actual or constructive thereof and therefore to have
purchased with the knowledge of the plaintiffs’ claim and
subject to the result of the suit to which they had been
referred.
(1) (1879) L.R. 6 I.A. 88.
850
The subordinate judge decreed the claim, set aside the
mortgage bond, the decree thereon and the execution sale
thereof By this decision the mortgage, the decree and the
execution sale in regard to the alienor’s share had also
been set aside. The High Court, however, reversed that
judgment and dismissed the suit. The Privy Council partly
allowed the appeal preferred by the plaintiffs, and held
that the shares of the plaintiffs were not bound either by
the mortgage deed, the decree or the execution sale. Thus
it is clear that in that case the Privy Council held that
the antecedent debt was for immoral purposes and that the
auction purchaser had notice of it. But in dealing with the
question of law raised before it the Privy Council had
occasion to examine the relevant provisions of Hindu Law and
the decisions bearing on them. Amongst the decisions
considered by the Privy Council was the case of Kantoo
Lal(1). Sir James Colvile, who delivered the judgment of
the Board, referred to the case of Kantoo La (1) and
observed that ” this case then, which is a decision of this
tribunal, is undoubtedly an authority for these
propositions: 1st that where joint ancestral property has
passed out of a joint family, either under a conveyance
executed by a father in consideration of an antecedent debt,
or in order to raise money to pay off an antecedent debt, or
under a sale in execution of a decree for the father’s debt,
his sons, by reason of their duty to pay their father’s
debts, cannot recover that property, unless they show that
the debts were contracted for immoral purposes, and that the
purchasers had notice that they were so contracted; and
2ndly, that the purchasers at an execution sale, being
strangers to the suit, if they have not notice that the
debts were so contracted, are not bound to make inquiry
beyond what appears on the face of the proceedings “. The
first proposition which has been laid down in this judgment
as deduced from Kantoo Lal’s case (1) is clear and
unambiguous. Where ancestral property has been alienated
either under a conveyance executed by the father in
consideration of an antecedent debt, or in order to raise
money to pay off an antecedent debt, or under a sale in
execution of
(1) (1874) L.R. 1 I.A. 321.
851
a decree for the father’s debt, the sons have to prove not
only that the antecedent debts were immoral but also that
the purchasers had notice that they were so contracted.
With respect, it is open to argument whether the two
propositions inevitably arise from the earlier decision
of the Privy Council in Kantoo Lal’s case but since 1879
when this proposition was thus,enunciated it has apparently
been accepted by all the courts in India as the correct
statement of Hindu Law on the point.
In Sat Narain v. Behari Lal (2) while dealing with the
question as to whether the property of the joint family
consisting of an insolvent Hindu father and his sons does
not, by virtue of the father’s adjudication as insolvent,
became vested in the official assignee, Sir John Edge, has
incidentally referred to these two propositions with
approval. No decision has been cited before us where the
correctness of these propositions has ever been doubted or
questioned.
In this connection it may be relevant to recall that soon
after the Privy Council pronounced its judgment in the case
of Kantoo Lal (1) Bbattacharyya, in his Tagore Law Lectures
on the ” Law relating to Joint Hindu Family ” (pp. 549,
550), examined the said decision and observed that ” many in
the profession think that the case dealt a death-blow to the
institution of Hindu family, that it has done away with the
essential feature of that institution, that it has rendered
the father independent of the control of his sons in dealing
with ancestral property which had all along been looked upon
as a common fund belonging as much to the sons as to the
father”. Having thus expressed his surprise at the decision
Mr. Bhattacharyya also added that ” the shifting of the
burden of proof to the son imposed upon him a difficulty
which is almost practically insuperable “. Nevertheless, he
has not failed to take notice of. the fact that the
promulgation of the principle which was adopted by the Privy
Council had become almost a necessity to put an end to
serious abuse which had become rife in the Mitakshara
districts; and he has added that “in those places the
fathers of families knowing well that ancestral properties
were secure against the claims of their own
(1) (1874) L.R.1 L.A. 321. (2) (1924) L.R. 52 I.A. 22.
852
creditors bad established almost a regular system of
inveigling innocent persons of substance to lend money to
them and when a decree was obtained and properties were
attached they used to put forward their sons to contest the
creditor’s claims “. According to the author the
resuscitation by the Privy Council of the forgotten rule of
Hindu Law ” served as a timely intervention to deal a death-
blow to a revolting practice of systematic fraud These
observations incidentally explain the genesis of the
decision in Kantoo Lal’s case (-) and give us a clear idea
as to the mischief which the Privy Council intended to check
by laying down the said principles.
Whilst we are dealing with this question we may refer to the
decision of the Privy Council in the case of Brij Narain v.
Mangla Prasad (2) where the vexed question about the powers
of the manager and the father to bind the undivided estate
was finally resolved by the Privy Council, and Lord Dunedin,
who delivered the judgment of the Board laid down five pro-
positions in that behalf in these words:
(1)The managing member of a joint undivided estate cannot
alienate or burden the estate qua manager except for
purposes of necessity; but
(2) if be is the father and the other members are the sons,
he may, by incurring debt, so long as it is not for an
immoral purpose, lay the estate open to be taken in
execution proceeding upon a decree for payment of that debt.
(3) If he purports to burden the estate by mortgage, then
unless that mortgage is to discharge an antecedent debt, it
would not bind the estate.
(4)Antecedent debt means antecedent in fact as well as in
time, that is to say, that the debt must be truly
independent and not part of the transaction impeached.
(5) There is no rule that this result is affected by the
question whether the father, who contracted the debt or
burdens the estate, is alive or dead.
Propositions 2, 3 and 4 with which we are concerned in the
present appeal show that a mortgage created by the father
for the payment of his antecedent debt
(1) (1874) L.R. 1 I.A. 321.
(2) (1923) L.R. 51. I.A. 129.
853
would bind his sons; so that, if the sons want to challenge
the validity of the mortgage they would have to show not
only that the antecedent debt was immoral but that the
alienee had notice of the immoral character of the said
debt. That would be the result of the first proposition
laid down in the case of Suraj Bunsi Koer (1).
Now the propositions laid down by the Privy Council in the
case of Brij Narain (2 ) as well as in the case of Suraj
Bunsi Koer (1) may be open to some objections based on
ancient Hindu texts. As Dr. Kane has pointed out, for the
words ” antecedent debt ” which were used for the first time
by the Privy Council in the case of Suraj Bunsi Koer
(1)there is nothing corresponding in the Sanskrit
authorities, and that the distinction made by the Privy
Council in the case of Brij Narain (2) between a simple
personal money debt by the father and the debt secured by
the mortgage is also not borne out by the ancient texts and
the commentaries alike(3). So we go back to the question
with which we began: Would it be expedient at this stage to
consider the question purely in the light of ancient
Sanskrit texts even though for more than three quarters of a
century the decision in Suraj Bunsi Koer’s case (1) has
apparently been followed without a doubt or dissent.
We have carefully considered this matter and we are not
disposed to answer this question in favour of the
appellants. First and foremost in cases of this character
the principle of stare decisis must inevitably come into
operation. For a number of years transactions as to
immovable property belonging to Hindu families have taken
place and titles passed in favour of alienees on the
understanding that the propositions of law laid down by the
Privy Council in the case of Suraj Bunsi Koer (1) correctly
represent the true position under Hindu Law in that behalf
It would, we think, be inexpedient to reopen this question
after such a long lapse of time.
Besides it would not be easy to decide today what ,the
relevant Sanskrit texts really provide in this
(1) (1879) L.R. 6 I.A. 88.
(2) (1973) L.R. 51 I.A. 120.
(3) ” History of Dharmasastra “-By Dr, P. V. Kane, Vol.
III, P. 450.
854
matter. It is well-known that though the Smriti texts are
given a place of pride among the sources of Hindu Law, in
the development of Hindu Law sadachar or approved conduct,
which is another source, has played an important part(1).
The existence of different schools of Hindu law and sub-
schools clearly brings out the fact that during the ages
Hindu Law has made changes so as to absorb varying customs
and usages in different places from time to time. It is a
remarkable feature of the growth of Hindu Law that, by a
skilful adoption of rules of construction, commentators
successfully attempted to bridge the distance between the
letter of the Smriti texts and the existing customs and
usages in different areas and at different times. This
process was arrested under the British Rule; but if we were
to decide to-day what the true position under Hindu Law
texts is on the point with which we are concerned, it would
be very difficult to reconcile the different texts and come
to a definite conclusion. In this branch of the law several
considerations have been introduced by judicial decisions
which have substantially now become a part and parcel of
Hindu Law as it is administered; it would, therefore, not be
easy to disengage the said considerations and seek to ascer-
tain the true effect of the relevant provisions contained in
ancient texts considered by themselves.
It is also well-known that, in dealing with questions of
Hindu Law, the Privy Council introduced considerations of
justice, equity and good conscience and the interpretation
of the relevant texts sometimes was influenced by these
considerations. In fact , the principle about the binding
character of the antecedent debts of the father and the
provisions about the enquiry to be made by the creditor have
all been introduced on considerations of equity and fair-
play. When the Privy Council laid down the two propositions
in the case of Suraj Bunsi Koer (2) what was really intended
was to protect the bona fide alienees
(1)”The Sruti, the Smriti, the approved usage, what is
agreeable to one’s soul (or good conscience) and desire
sprung from due deliberation, are ordained the foundation of
Dharma (law) Yajnavalkya, I. 7.
” Whatever customs, practices and family usages prevail in a
country shall be preserved intact when it comes under
subjection by conquest”-
Yajnavalkya, 1343
(2) (1879) L. R. 6. I.A. 88.
855
against frivolous or collusive claims made by the debtors’
sons challenging the transactions. Since the said
propositions have been laid down with the object of doing
justice to the claims of bonafide alienees, we do not see
any justification for disturbing this well established
position on academic considerations which may perhaps arise
if we were to look for guidance to the ancient texts to-day.
In our opinion, if there are any anomalies in the
administration of this branch of Hindu Law their solution
lies with the legislature and not with the courts. What the
commentators attempted to do in the past can now be
effectively achieved by the adoption of the legislative
process. Therefore, we are not prepared to accede to the
appellants’ argument that we should attempt to decide the
point raised by them purely in the light of ancient Sanskrit
texts.
It now remains to consider some of the decisions to which
our attention was invited. In Pulavarthi Lakshmanaswami &
Ors. v. Srimat Tirumala Peddinti Tiruvengala Raghavacharyulu
(1) the Madras High Court was dealing with the debt
contracted by the father on a promissory note executed by
him for the payment to his concubine for meeting the
expenses of her grand-daughter’s marriage. The sons had no
difficulty in proving that the debt was immoral; but it was
urged on behalf of the creditor that the sons could not
succeed unless the creditor’s knowledge about the immoral
character of the debt had been established, and reliance was
apparently placed upon the two propositions laid down by the
Privy Council in the case of Suraj Bunsi Koer (2 ). This
plea was rejected by the High Court. Patanjali Sastri, J.,
as he then was, who delivered the judgment for the Court
observed that ” the remarks made by the Privy Council had
reference to family property sold in execution of a decree
obtained against the father as to which different
considerations arise, the bona fide purchaser not being
bound to go further back than the decree “. In other words,
this decision shows that the principles which apply to
alienations made by a Hindu father to ,satisfy his
antecedent debts cannot be extended and
(1) A.I.R. 1943 Mad. 292.
(3) (1879) L.R. 6 I.A. 88,
856
invoked to cases where the sons are challenging the binding
character of the debts which are not antecedent and are in
fact immoral.
The Allahabad High Court has had occasion to consider
different aspects of this problem in several cases, and
different, if not somewhat conflicting, views appear to have
been taken in some of the decisions. We will, however,
refer to only two decisions which are directly in point. In
Kishan Lal v. Garuruddhwaja Prasad Singh & Ors. (1),
Burkitt, J., has observed that had it been proved that the
debt had been contracted for immoral purpose and that the
person who advanced the money was aware of the purpose for
which it was being borrowed the son would not have been
liable. This, however, is a bare statement of the law, and
the judgment does not contain any discussion on the merits
of the proposition laid down by the judge nor does it cite
the relevant judicial decisions bearing on the point. In
Maharaj Singh v. Balwant Singh (2) the same High Court was
dealing with a mortgage by Sheoraj Singh to pay the
antecedent debts of the father. Maharaj Singh, the younger
brother, also joined in the execution of the document. It
was, however, found that at the material time Maharaj Singh
was a minor and Bo the mortgage was, as regards his interest
in the mortgaged property, absolutely void. This finding
was enough to reject the mortgagee’s claim against the share
of Maharaj Singh in the mortgaged property; but the High
Court proceeded to consider the alternative ground urged by
Maharaj Singh and held that it was not necessary for Maharaj
Singh to prove notice of the immoral character of the
antecedent debt because the ancestral property in question
had not passed out of the hands of the joint family.
Maharaj Singh was defending his title; he was not a
plaintiff seeking to recover property, but a defender of his
interest in ancestral property of which he was in
possession. These observations show that the High Court
took the view that the propositions laid down in the case of
Suraj Bunsi Koer (3) would not apply to cases of mortgage
but were confined to cases of purchase. We do not think
that the distinction between a purchase and a mortgage made
in this
(1) (1890) I.L.R. 21 All. 238.
(2) (1906) I.L.R.28 All. 508.
(3) L.R.6 I.A.88.
857
decision is well founded. The propositions in question
treated an alienation made for the payment of the father’s
antecedent debt on the same footing as an alienation made in
execution of a decree passed against him and in both cases
the principle enunciated is that in order to succeed in
their challenge the sons must prove the immoral character of
the antecedent debt and the knowledge of the alienee.
Having regard to the broad language used in stating the two
propositions, we do not think that a valid distinction could
be made between a mortgage and a sale particularly after
the decision of the Privy Council in the case of Brij
Narain (1). That is the view taken by the Nagpur High Court
in Udmiram Koroodimal and Anr. v. Balramdas Tularam &
Ors.(2).
In the result the appeal fails, but in the circumstances of
this case there will be no order as to costs.
Appeal dismissed.