{"id":216097,"date":"1960-05-04T00:00:00","date_gmt":"1960-05-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/luhar-amrit-lal-nagji-vs-doshi-jayantilal-jetralal-and-on-4-may-1960"},"modified":"2018-11-11T17:38:19","modified_gmt":"2018-11-11T12:08:19","slug":"luhar-amrit-lal-nagji-vs-doshi-jayantilal-jetralal-and-on-4-may-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/luhar-amrit-lal-nagji-vs-doshi-jayantilal-jetralal-and-on-4-may-1960","title":{"rendered":"Luhar Amrit Lal Nagji vs Doshi Jayantilal Jetralal And … on 4 May, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Luhar Amrit Lal Nagji vs Doshi Jayantilal Jetralal And … on 4 May, 1960<\/div>\n
Equivalent citations: 1960 AIR 964<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B.<\/div>\n
           PETITIONER:\nLUHAR AMRIT LAL NAGJI\n\n\tVs.\n\nRESPONDENT:\nDOSHI JAYANTILAL JETRALAL AND OTHERS.\n\nDATE OF JUDGMENT:\n04\/05\/1960\n\nBENCH:\nGAJENDRAGADKAR, P.B.\nBENCH:\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\nGUPTA, K.C. DAS\n\nCITATION:\n 1960 AIR  964\n CITATOR INFO :\n R\t    1967 SC 727\t (3)\n\n\nACT:\nHindu Law-Father's anticedent debt-Pious obligation of sons\nto pay-Onus.\n\n\n\nHEADNOTE:\nA Hindu father, speculating in gold and silver, lost heavily\nand sought to recoup by borrowing on a mortgage.  The  mort-\ngagee obtained a decree and sought to execute it by sale  of\nthe  mortgaged property.  The sons and the wife sued  for  a\ndeclaration  that the decree was not binding since the\tdebt\nthough\tantecedent  was immoral\t (avyavaharik).\t  The  trial\ncourt found in their favour and on appeal the District judge\naffirmed its decision.\tOn second appeal the High Court held\nthat it was for the plaintiff s to prove not merely that the\nantecedent debt was immoral but also that the mortgagee\t had\nnotice of the said character of the debt and since they\t had\nled  no\t evidence  to discharge that  onus,  they  were\t not\nentitled  to a decree.\tThe plaintiffs came up on appeal  by\nspecial leave:\nHeld, that the High Court took the correct view of the law\nand the appeal must fail.\nAny  attempt to test the correctness of the principles\tlaid\ndown  by the Privy Council in the case of Suraj Bunsi  Koer,\nwhich have held the field for more than three quarters of  a\ncentury, purely in the light of ancient Sanskrit texts would\nnow  not  merely be hit by the principle of  state  decisis,\nwhich must inevitably come into operation, but would also be\ninexpedient and futile.\nSuraj Bunsi Koer v. Sheo Proshad Singh, (1879)) L.R. 6\tI.A.\n88 and Brij Narain v. Mangla Prasad (1923) L.k. 51 I.A. 129,\napplied.\nThe principles laid down in those two cases make no distinc-\ntion  between  an  alienation made for the  payment  of\t the\nfather's antecedent debt and an alienation made in execution\nof  a decree passed against him and in both cases  the\tsons\nmust prove not only the immoral character of the  antecedent\ndebt but also the knowledge of the alience.\n   Case-law considered.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 121 of 1956.
\nAppeal by special leave from the judgment and order a  dated
\nJanuary\t 29,  1953, of the former Saurashtra High  Court  in
\nCivil  Second  Appeal  No. 82 of 1952, arising\tout  of\t the
\njudgment  and decree dated April 29, 1952, of  the  District
\nJudge, Rajkot, in Civil Appeal
\nNo. 4 of 1952.\n<\/p>\n
843<\/span><\/p>\n
W.   S. Barlingay and A. G. Ratnaparkhi, for the appellant.
\nM. L. Jain, for respondent No. 1.\n<\/p>\n
1960.  May 4. The Judgment of the Court was delivered by
\nGAJENDRAGADKAR,\t J.-This appeal by special leave  raises  an
\ninteresting question of Hindu Law.  If a Hindu son wants  to
\nchallenge  an  alienation  made by his\tfather\tto  pay\t his
\nantecedent  debt is it necessary for him to prove  not\tonly
\nthat the said antecedent debt was immoral but also that\t the
\nalienee\t had  notice of the immoral character  of  the\tsaid
\ndebt?  The High Court has held that the son must prove\tboth
\nthe  immoral character of the debt and notice of it  to\t the
\nalienee;  the correctness of that view is challenged  before
\nus by the appellants in the present appeal.
\nThe  appellants\t are  two brothers,  Amritlal  and  Mohanlal
\nNagji,\tand  their  mother,  Bai  Jakal\t Arjan.\t  The  three
\nappellants  and\t respondent 2, Nagji Govind, the  father  of
\nappellants  1  and  2  and  the\t husband  of  appellant\t  3,
\nconstitute an undivided Hindu family.  Respondent 2 executed
\na mortgage deed in favour of respondent 1, Jayantilal Doshi,
\nin respect of the joint family property for Rs. 2,000.\tThis
\ndocument  was  executed\t on  February  5,  1946.   In  1950,
\nrespondent  1 sued respondent 2 on his mortgage, obtained  a
\ndecree\tfor sale and filed an application for execution\t for
\nsale  of  the  mortgaged  property.   Sale  was\t accordingly
\nordered to be held.  At that stage the appellants filed\t the
\npresent\t suit on April 30, 1951, and claimed  a\t declaration
\nthat the decree passed in the mortgage suit (Civil Suit\t No.
\n589  of\t 1949)\tin  favour  of\trespondent  1  and   against
\nrespondent  2 was not binding in respect of the 3\/4th  share
\nof the appellants in the mortgaged property; they also asked
\nfor  a\tperpetual injunction restraining respondent  1\tfrom
\nexecuting  the\tsaid decree in respect of their\t share.\t  To
\nthis  suit the mortgagor, respondent 2, was impleaded  as  a
\nparty.\n<\/p>\n
In their plaint the appellants have stated that respondent 2
\nhad  speculated\t in gold and silver and had thereby  lost  a
\nlarge  amount  of  money  which he  sought  to\tmake  up  by
\nborrowing  amounts  from  several creditors.   One  of\tsuch
\ncreditors was Dharsi Shamji
\n844<\/span>
\nto whom Rs. 2,000 were payable by respondent 2. According to
\nthe  appellants the impugned mortgage had been\texecuted  by
\nrespondent 2 for the payment of the said debt of Rs.  2,000,
\nand  since  the\t said debt was immoral\tor  avyavaharik\t the
\nappellants were not bound by it.\n<\/p>\n
The claim was resisted by both respondent 1 and respondent 2
\nwho  pleaded  that the mortgage had been  executed  for\t the
\npayment\t of debts which were binding on the family and\tthat
\nthere  was no substance in the plea of immoral debts  raised
\nby  the\t appellants.  It was also alleged by them  that\t the
\nmortgaged  property  was not the property of  the  undivided
\nHindu family.\n<\/p>\n
On  these  pleadings  the  trial  court\t framed\t appropriate
\nissues.\t  It  found  that the  mortgaged  property  was\t the
\ncoparcenary  property of the family, that the  mortgage-deed
\nin  question had been executed to pay off a debt  which\t was
\nimmoral and that in consequence the mortgage was not binding
\nagainst\t the appellants.  According to the trial  court\t the
\ndebt  contracted by respondent 2 to pay the losses  incurred
\nby him in speculative transactions must be held to have been
\ncontracted for illegal and immoral purposes and as such\t the
\nsubsequent  alienation\tfor  the payment of  the  said\tdebt
\ncannot\tbind the appellants.  The trial court also  observed
\nthat  respondent 1 had not stepped into the witness  box  to
\ngive  evidence to show that he had made any enquiries  about
\nthe existence of any antecedent debts payable by  respondent\n<\/p>\n
2.  In\tthe  result the suit filed  by\tthe  appellants\t was
\ndecreed.  Against the said decree respondent  preferred.  an
\nappeal\tbefore\tthe District Judge, but the  District  Judge
\nagreed\twith  all the findings made by the trial  court\t and
\ndismissed the said appeal.  Respondent\tthen took the matter
\nbefore\tthe High Court-of Saurashtra in second appeal.\t The
\nHigh  Court  agreed  that the  mortgaged  property  was\t the
\nproperty of the joint Hindu family and that respondent 1 had
\nmade  no attempt to prove any enquiry on his part before  he
\nentered into the transaction.  The High Court did not  think
\nit necessary to consider whether the antecedent debt due  to
\nDharsi Shamji, for the repayment of which the impugned
\n845<\/span>
\nmortgage  was  created, was in law immoral  or\tillegal,  it
\nproceeded to deal with the appeal on the assumption that the
\nsaid  debt was illegal or immoral.  On that  assumption\t the
\nHigh  Court considered the material principles of Hindu\t Law
\nand  held that it was for the appellants to prove  not\tonly
\nthat  the antecedent debt was immoral or illegal,  but\talso
\nthat  respondent 1 had, notice of the said character of\t the
\ndebt;  and  since  the appellants had  led  no\tevidence  to
\ndischarge  this\t onus they were not entitled  to  claim\t any
\nrelief\tagainst\t respondent 1. On this\tfinding\t the  second
\nappeal\tpreferred  by respondent  was allowed and  the\tsuit
\nfiled by the appellants was ordered to be dismissed.  It  is
\nagainst\t this decree that the appellants have come  to\tthis
\nCourt by special leave.\n<\/p>\n
On behalf of the appellants Dr. Barlingay has urged that the
\nprinciples of Hindu Law do not justify the view taken by the
\nHigh  Court that the appellants had to prove  the  alienee’s
\nknowledge  about  the immoral character\t of  the  antecedent
\ndebt.  He concedes that the judicial decisions on this point
\nare  against  his contention; but he argues  that  there  is
\npaucity of case law on the subject, and that, having  regard
\nto  the\t importance of the point raised by  him,  we  should
\nexamine\t the true legal position by reference to  the  texts
\nrather than by reference to judicial decisions.\t Let us then
\nset  out  the  appellant’s argument  based  on\tthe  textual
\nprovisions of Hindu Law.\n<\/p>\n
The  doctrine of pious obligation under which sons are\theld
\nliable to discharge their father’s debts is based solely  on
\nreligious  considerations; it is thought that if a  person’s
\ndebts  are not paid and he dies in a state  of\tindebtedness
\nhis  soul may have to face evil consequences, and it is\t the
\nduty  of his sons to save him from such\t evil  consequences.
\nThe  basis  of the doctrine is thus spiritual and  its\tsole
\nobject is to confer spiritual benefit on the father.  It  is
\nnot  intended in any sense for the benefit of the  creditor.
\nAs  has been observed by the Privy Council in Sat Narain  v.
\nDas  (1) this doctrine ” was not based on any necessity\t for
\nthe protection of third parties but was based on
\n(1) (1936) L.R. 63 I.A. 384, 395.\n<\/p>\n
110<\/span>
\n846<\/span><\/p>\n
the pious obligation of the sons to see their father’s debts
\npaid.”\n<\/p>\n
This doctrine inevitably postulates that the father’s  debts
\nwhich  it is the pious obligation of the sons to repay\tmust
\nbe  vyavaharik.\t  If  the debts are not\t vyavaharik  or\t are
\na  vyavaharik  the doctrine of pious  obligation  cannot  be
\ninvoked.   The expression ‘avyavaharik’ which  is  generally
\nused  in  judicial decisions has been based on the  text  of
\nUsanas which has been quoted by Mitakshara in commenting  on
\nthe relevant text of Yajnavalkya (1).  According to  Usanas,
\nwhatever  is not vyavaharik has not to be paid by  the\tson.
\n‘Na  vyavaharikam’  are\t the  words  used  by  Usanas,\t and
\nput in a positive form they mean ‘avyavaharik’.\t  Colebrooke
\nhas  translated\t these words as meaning ” debt for  a  cause
\nrepugnant  to  good  morals “.\tThese  words  have  received
\ndifferent  interpretations in several decisions.   Sometimes
\nthey  are rendered as meaning “a debt which as a decent\t and
\nrespectable  man  the father ought not to have\tincurred  “:
\nDarbar Khachar v. Khachar Hansar(2); or, “not lawful,  usual
\nor customary”: Chhakauri Mahton v. Ganga Prasad (3) ; or,  ”
\nnot supportable as valid by legal arguments and on which  no
\nright  could  be established in a court of  justice  in\t the
\ncreditor’s  favour “: Venugopala Naidu v. Ramanathan  Chetty
\n(4).   But  it appears that in Hemraj v. Khemchand  (5)\t the
\nPrivy  Council\thas,  on  the  whole,  preferred  to   treat
\nColebrooke’s  translation as making the nearest approach  to
\nthe real interpretation of the word used by Usanas; whatever
\nmay  be the exact denotation of the word, it is\t clear\tthat
\nthe  debt answering the said description is not such a\tdebt
\nas  the son is bound to pay, and so as soon as it  is  shown
\nthat  the debt is immoral the doctrine of  pious  obligation
\ncannot be invoked in support of such a debt.
\nIn this connection, it has also been urged by Dr.  Barlingay
\nthat  the  onus\t placed on the sons  to\t prove\tthe  immoral
\ncharacter of the debt is already very heavy.  In discharging
\nthe said onus the sons are required to prove not merely that
\ntheir father who
\n(1) Yajnavalkya, ii, 47.      (2) (1908) I.L.R. 32 Bom. 348,
\n351<\/span>
\n(3)  (1911) I.L.R. 39 Cal. 862, 868, 860. (4) (1912)  I.L.R.
\n37 Mad. 458, 460,
\n(5) I.L.R. [1943] All. 727.\n<\/p>\n
847<\/span><\/p>\n
contracted the impugned debt lived an extravagant or immoral
\nlife but they are required to establish a direct  connection
\nbetween the immorality of the father and the impugned  debt.
\nIf  this  onus is made still more onerous by  requiring\t the
\nsons to prove that the alienee had knowledge of the  immoral
\ncharacter  of the antecedent debt, it would  virtually\tmake
\nthe  sons’ task impossible, and notwithstanding\t the  spirit
\nunderlying the doctrine of pious obligation the sons in fact
\nwould be compelled to pay the immoral or impious  antecedent
\ndebt  of their father.\tThat is why the rule which  requires
\nthat  the sons should prove the knowledge of the alienee  is
\ninconsistent  with  the\t basis\tof  the\t doctrine  of  pious
\nobligation.  Thus presented the argument is no doubt  simple
\nand  prima facie attractive.  The question which we have  to
\nconsider is whether we should attempt the task of  examining
\nthe  texts and determining the true effect of  the  original
\nprovisions of Hindu Law in spite of the fact that the  point
\nraised\tis  covered by judicial decisions  which  have\tbeen
\ntreated for many years as laying down the correct law on the
\nsubject.\n<\/p>\n
Before\tanswering this question it is necessary to  consider
\nthe relevant judicial decisions.  In 1874, the Privy Council
\nhad  occasion  to  consider  this branch  of  Hindu  Law  in
\nGirdharee Lal v. Kantoo Lal and Muddun Thakoor v. Kantoo Lal
\n(1).   It appears that Kantoo Lal and his minor\t cousin\t had
\nbrought\t a suit to recover possession of certain  properties
\nbelonging  to their family which had been sold\trespectively
\nby  a private sale and at court auction.  The  private\tsale
\nhad  taken  place on July 28, 1856, and the  deed  had\tbeen
\nexecuted by the fathers of the two’ plaintiffs.\t The case of
\nthe plaintiffs was that they were not bound by the  impugned
\ntransaction.  The Principal Sudder Ameen dismissed the\tsuit
\nbut  the  High Court set aside that  decision  and,  awarded
\nKantoo\tLal one-half of his father’s share.  The claim\tmade
\nby  the other plaintiff was dismissed on the ground that  he
\nhad not been born at the time of the, impugned\ttransaction.
\nThe  decree passed, in, favour of Kantoo Lal was  challenged
\nby  the alienee before the Privy Council.   Evidence  showed
\nthat at the
\n(1)  (1874) L.R. 1 I.A. 321.\n<\/p>\n
818<\/span><\/p>\n
time  when  the\t sale deed was executed a  decree  had\tbeen
\nobtained  against Bhikharee Lal, the father of\tKantoo\tLal,
\nupon a bond executed by him in favour of his creditor and an
\nexecution  had issued against him upon which the  right\t and
\nshare  in the property had been attached.  It was  therefore
\nthought\t necessary  to\traise  money  to  pay  the  debt  of
\nBhikharee Lal and get rid of the execution.  It was on these
\nfacts that the Privy Council had to consider whether  Kantoo
\nLal  was justified in challenging the binding  character  of
\nthe sale transaction.  In dealing with this point the  Privy
\nCouncil\t referred with approval to the rule which  had\tbeen
\nenunciated  by\tthe Board earlier in the  case\tof  Hunooman
\nPersad Panday v. Mussummat Babooee Munraj Koonweree The rule
\nof  Hindu  Law had been thus stated by Lord  Justice  Knight
\nBruce  in that judgment : ” The freedom of the son from\t the
\nobligation  to discharge the father’s debt, has\t respect  to
\nthe nature of the debt, and not to the nature of the estate,
\nwhether ancestral or acquired by the creator of the debt  “.
\nThen  the Privy Council held that if the debt of the  father
\nhad been contracted for immoral purpose the son might not be
\nunder  any pious obligation to pay it; but that was not\t the
\ncase before the Board.\tIt had not been shown that the\tbond
\nupon which the decree was obtained was for immoral  purpose;
\nand  on the other band, it appealed that an action bad\tbeen
\nbrought\t on  the bond, a decree had been passed\t on  it\t and
\nthere was nothing whatever to show that the debt was tainted
\nwith immorality.  The Privy Council also noticed that Kantoo
\nLal  had brought the action probably at the  instigation  of
\nthe father, and, we may add, that is many times the  feature
\nof  such litigation.  On these facts the Privy\tCouncil\t set
\naside  the  decree passed by the High Court  and  held\tthat
\nKantoo\tLal was not entitled to any relief It would thus  be
\nseen  that  this  decision  merely  shows  that\t where\t any
\nalienation  has been effected by the father for the  payment
\nof  his antecedent debt and the said antecedent debt is\t not
\nshown to be immoral the son cannot challenge the validity of
\nthe alienation.\t Since the antecedent debt was not shown  to
\nbe immoral no question arose as to
\n(1)  (1856) 6 M.I.A. 393,421.\n<\/p>\n
849<\/span><\/p>\n
what  would  be the nature of the onus which the  son  would
\nhave to discharge if the antecedent debt is in fact shown to
\nbe immoral.\n<\/p>\n
In   regard  to\t the  auction  sale  which  the\t  plaintiffs
\nchallenged  in\tthat  suit the Privy  Council  held  that  a
\npurchaser under an execution is surely not bound to go\tback
\nbeyond the decree to ascertain whether the  court  was right
\nin giving the decree, or having given it, in putting up\t the
\nproperty  for  sale under an execution\tupon  it.   Evidence
\nshowed that the auction purchaser acted bona fide, had\tmade
\nenquiries  and\twas  satisfied\tthat  the  decree  had\tbeen
\nproperly  passed and purchased the property at auction\tsale
\non payment of valuable consideration.  On these facts it was
\nheld  that the plaintiffs were not entitled to\tany  relief.
\nThis decision also was not concerned with the position\tthat
\nwould  arise if the antecedent debt had in fact been  proved
\nto be immoral.\n<\/p>\n
That question arose before the Privy Council in Suraj  Bunsi
\nKoer  v.  Sheo Proshad Singh(1).  In that case an  ex  parte
\ndecree for money had been obtained against a Hindu  governed
\nby  Mitakshara\ton a mortgage bond, the\t property  mortgaged
\nbeing  ancestral immoveable estate.  Under the\tsaid  decree
\nthe  mortgaged property was attached and  the  decree-holder
\nsought\tto  bring the said property to sale.  Prior  to\t the
\nexecution  sale, however, the judgment-debtor died  and\t his
\ninfant sons and co-heirs filed a petition of objections; but
\nthey  were  referred to a regular suit.\t In the\t suit  which
\nthey filed they challenged the binding character of the debt
\nand   claimed  appropriate  relief  against  the   execution
\ncreditor and the purchasers.  The Privy Council held that as
\nbetween\t the  infant  sons Of the judgment  debtor  and\t the
\nexecution  creditor  neither  the  sons\t nor  the  ancestral
\nimmoveable  properties\tin their hands was  liable  for\t the
\nfather’s  debt; and as regards the purchasers, it  was\theld
\nthat,  since  they had purchased after objections  had\tbeen
\nfiled  by  the plaintiffs, they must be taken  to  have\t had
\nnotice actual or constructive thereof and therefore to\thave
\npurchased  with the knowledge of the plaintiffs’  claim\t and
\nsubject\t to  the result of the suit to which they  had\tbeen
\nreferred.\n<\/p>\n
(1)  (1879) L.R. 6 I.A. 88.\n<\/p>\n
850<\/span><\/p>\n
The  subordinate  judge\t decreed the claim,  set  aside\t the
\nmortgage  bond,\t the decree thereon and the  execution\tsale
\nthereof\t By this decision the mortgage, the decree  and\t the
\nexecution  sale\t in regard to the alienor’s share  had\talso
\nbeen  set  aside.  The High Court,  however,  reversed\tthat
\njudgment  and dismissed the suit.  The Privy Council  partly
\nallowed\t the  appeal preferred by the plaintiffs,  and\theld
\nthat  the shares of the plaintiffs were not bound either  by
\nthe  mortgage deed, the decree or the execution sale.\tThus
\nit  is clear that in that case the Privy Council  held\tthat
\nthe  antecedent debt was for immoral purposes and  that\t the
\nauction purchaser had notice of it.  But in dealing with the
\nquestion  of  law  raised before it the\t Privy\tCouncil\t had
\noccasion to examine the relevant provisions of Hindu Law and
\nthe  decisions\tbearing\t on  them.   Amongst  the  decisions
\nconsidered  by\tthe  Privy Council was the  case  of  Kantoo
\nLal(1).\t  Sir James Colvile, who delivered the\tjudgment  of
\nthe  Board,  referred  to  the case of\tKantoo\tLa  (1)\t and
\nobserved that ” this case then, which is a decision of\tthis
\ntribunal,   is\t undoubtedly   an   authority\tfor    these
\npropositions:  1st that where joint ancestral  property\t has
\npassed\tout  of a joint family, either\tunder  a  conveyance
\nexecuted by a father in consideration of an antecedent debt,
\nor in order to raise money to pay off an antecedent debt, or
\nunder a sale in execution of a decree for the father’s debt,
\nhis  sons,  by reason of their duty to\tpay  their  father’s
\ndebts,\tcannot recover that property, unless they show\tthat
\nthe debts were contracted for immoral purposes, and that the
\npurchasers  had\t notice that they were\tso  contracted;\t and
\n2ndly,\tthat  the  purchasers at an  execution\tsale,  being
\nstrangers  to  the suit, if they have not  notice  that\t the
\ndebts  were  so contracted, are not bound  to  make  inquiry
\nbeyond\twhat appears on the face of the proceedings  “.\t The
\nfirst proposition which has been laid down in this  judgment
\nas  deduced  from  Kantoo  Lal’s  case\t(1)  is\t clear\t and
\nunambiguous.   Where ancestral property has  been  alienated
\neither\tunder  a  conveyance  executed\tby  the\t father\t  in
\nconsideration  of an antecedent debt, or in order  to  raise
\nmoney  to  pay off an antecedent debt, or under\t a  sale  in
\nexecution of
\n(1)  (1874) L.R. 1 I.A. 321.\n<\/p>\n
851<\/span><\/p>\n
a  decree for the father’s debt, the sons have to prove\t not
\nonly  that the antecedent debts were immoral but  also\tthat
\nthe  purchasers\t had notice that they  were  so\t contracted.
\nWith respect, it is open to argument whether the\t two
\npropositions inevitably arise from the earlier\t  decision
\nof the Privy Council in Kantoo Lal’s case    but since\t1879
\nwhen this proposition was thus,enunciated it has  apparently
\nbeen  accepted\tby all the courts in India  as\tthe  correct
\nstatement of Hindu Law on the point.\n<\/p>\n
In  Sat\t Narain\t v. Behari Lal (2) while  dealing  with\t the
\nquestion  as  to whether the property of  the  joint  family
\nconsisting  of an insolvent Hindu father and his  sons\tdoes
\nnot,  by virtue of the father’s adjudication  as  insolvent,
\nbecame\tvested in the official assignee, Sir John Edge,\t has
\nincidentally   referred\t to  these  two\t propositions\twith
\napproval.   No decision has been cited before us  where\t the
\ncorrectness  of these propositions has ever been doubted  or
\nquestioned.\n<\/p>\n
In  this connection it may be relevant to recall  that\tsoon
\nafter the Privy Council pronounced its judgment in the\tcase
\nof Kantoo Lal (1) Bbattacharyya, in his Tagore Law  Lectures
\non  the\t ” Law relating to Joint Hindu Family  ”  (pp.\t549,\n<\/p>\n
550), examined the said decision and observed that ” many in
\nthe profession think that the case dealt a death-blow to the
\ninstitution of Hindu family, that it has done away with\t the
\nessential feature of that institution, that it has  rendered
\nthe father independent of the control of his sons in dealing
\nwith ancestral property which had all along been looked upon
\nas  a  common fund belonging as much to the sons as  to\t the
\nfather”.  Having thus expressed his surprise at the decision
\nMr.  Bhattacharyya  also added that ” the  shifting  of\t the
\nburden\tof  proof to the son imposed upon him  a  difficulty
\nwhich is almost practically insuperable “. Nevertheless,  he
\nhas  not  failed  to  take notice  of.\tthe  fact  that\t the
\npromulgation of the principle which was adopted by the Privy
\nCouncil\t had  become  almost a necessity to put\t an  end  to
\nserious\t abuse\twhich  had become  rife\t in  the  Mitakshara
\ndistricts;  and\t he  has added that  “in  those\t places\t the
\nfathers\t of families knowing well that ancestral  properties
\nwere secure against the claims of their own
\n(1) (1874) L.R.1 L.A. 321. (2) (1924) L.R. 52 I.A. 22.\n<\/p>\n
852<\/span><\/p>\n
creditors  bad\testablished  almost  a\tregular\t system\t  of
\ninveigling  innocent persons of substance to lend  money  to
\nthem  and  when a decree was obtained  and  properties\twere
\nattached they used to put forward  their sons to contest the
\ncreditor’s   claims   “.  According  to\t  the\tauthor\t the
\nresuscitation by the Privy Council of the forgotten rule  of
\nHindu Law ” served as a timely intervention to deal a death-
\nblow  to  a  revolting practice of  systematic\tfraud  These
\nobservations   incidentally  explain  the  genesis  of\t the
\ndecision  in Kantoo Lal’s case (-) and give us a clear\tidea
\nas to the mischief which the Privy Council intended to check
\nby laying down the said principles.\n<\/p>\n
Whilst we are dealing with this question we may refer to the
\ndecision of the Privy Council in the case of Brij Narain  v.
\nMangla Prasad (2) where the vexed question about the  powers
\nof  the manager and the father to bind the undivided  estate
\nwas finally resolved by the Privy Council, and Lord Dunedin,
\nwho delivered the judgment of the Board laid down five pro-
\npositions in that behalf in these words:\n<\/p>\n
(1)The\tmanaging member of a joint undivided  estate  cannot
\nalienate  or  burden  the  estate  qua\tmanager\t except\t for
\npurposes of necessity; but
\n(2)  if be is the father and the other members are the sons,
\nhe  may,  by  incurring debt, so long as it is\tnot  for  an
\nimmoral\t purpose,  lay\tthe  estate  open  to  be  taken  in
\nexecution proceeding upon a decree for payment of that debt.
\n(3)  If he purports to burden the estate by  mortgage,\tthen
\nunless that mortgage is to discharge an antecedent debt,  it
\nwould not bind the estate.\n<\/p>\n
(4)Antecedent  debt means antecedent in fact as well  as  in
\ntime,  that  is\t to  say,  that\t the  debt  must  be   truly
\nindependent and not part of the transaction impeached.
\n(5)  There  is no rule that this result is affected  by\t the
\nquestion  whether  the father, who contracted  the  debt  or
\nburdens the estate, is alive or dead.\n<\/p>\n
Propositions  2, 3 and 4 with which we are concerned in\t the
\npresent\t appeal show that a mortgage created by\t the  father
\nfor the payment of his antecedent debt
\n(1) (1874) L.R. 1 I.A. 321.\n<\/p>\n
(2) (1923) L.R. 51. I.A. 129.\n<\/p>\n
853<\/span><\/p>\n
would bind his sons; so that, if the sons want to  challenge
\nthe  validity  of the mortgage they would have to  show\t not
\nonly  that  the\t antecedent debt was immoral  but  that\t the
\nalienee\t had  notice of the immoral character  of  the\tsaid
\ndebt.\tThat  would be the result of the  first\t proposition
\nlaid down in the case of Suraj Bunsi Koer (1).
\nNow  the propositions laid down by the Privy Council in\t the
\ncase  of  Brij Narain (2 ) as well as in the case  of  Suraj
\nBunsi  Koer  (1)  may be open to some  objections  based  on
\nancient\t Hindu texts.  As Dr. Kane has pointed out, for\t the
\nwords ” antecedent debt ” which were used for the first time
\nby  the\t Privy\tCouncil\t in the case  of  Suraj\t Bunsi\tKoer
\n(1)there   is\tnothing\t corresponding\t in   the   Sanskrit
\nauthorities,  and  that the distinction made  by  the  Privy
\nCouncil\t in  the case of Brij Narain (2)  between  a  simple
\npersonal  money debt by the father and the debt\t secured  by
\nthe mortgage is also not borne out by the ancient texts\t and
\nthe  commentaries alike(3).  So we go back to  the  question
\nwith which we began: Would it be expedient at this stage  to
\nconsider  the  question\t purely\t in  the  light\t of  ancient
\nSanskrit texts even though for more than three quarters of a
\ncentury\t the  decision in Suraj Bunsi Koer’s  case  (1)\t has
\napparently been followed without a doubt or dissent.
\nWe  have  carefully considered this matter and\twe  are\t not
\ndisposed   to  answer  this  question  in  favour   of\t the
\nappellants.   First and foremost in cases of this  character
\nthe  principle\tof stare decisis must inevitably  come\tinto
\noperation.   For  a  number  of\t years\ttransactions  as  to
\nimmovable  property belonging to Hindu families\t have  taken
\nplace  and  titles  passed  in favour  of  alienees  on\t the
\nunderstanding that the propositions of law laid down by\t the
\nPrivy Council in the case of Suraj Bunsi Koer (1)  correctly
\nrepresent  the true position under Hindu Law in that  behalf
\nIt  would, we think, be inexpedient to reopen this  question
\nafter such a long lapse of time.\n<\/p>\n
Besides\t it  would  not be easy to decide  today  what\t,the
\nrelevant Sanskrit texts really provide in this
\n(1)  (1879) L.R. 6 I.A. 88.\n<\/p>\n
(2)   (1973) L.R. 51 I.A. 120.\n<\/p>\n
(3)  ”\tHistory\t of Dharmasastra “-By Dr, P. V.\t Kane,\tVol.
\nIII, P. 450.\n<\/p>\n
854<\/span><\/p>\n
matter.\t  It is well-known that though the Smriti texts\t are
\ngiven a place of pride among the sources of Hindu Law, in
\nthe  development of Hindu Law sadachar or approved  conduct,
\nwhich  is another source, has played an\t important  part(1).
\nThe  existence\tof different schools of Hindu law  and\tsub-
\nschools\t clearly  brings out the fact that during  the\tages
\nHindu  Law has made changes so as to absorb varying  customs
\nand usages in  different places from time to time.  It is  a
\nremarkable  feature  of the growth of Hindu Law that,  by  a
\nskilful\t adoption  of rules  of\t construction,\tcommentators
\nsuccessfully  attempted to bridge the distance\tbetween\t the
\nletter\tof  the Smriti texts and the  existing\tcustoms\t and
\nusages\tin  different areas and at  different  times.\tThis
\nprocess was arrested under the British Rule; but if we\twere
\nto  decide  to-day what the true position  under  Hindu\t Law
\ntexts is on the point with which we are concerned, it  would
\nbe very difficult to reconcile the different texts and\tcome
\nto a definite conclusion.  In this branch of the law several
\nconsiderations\thave been introduced by\t judicial  decisions
\nwhich  have  substantially now become a part and  parcel  of
\nHindu Law as it is administered; it would, therefore, not be
\neasy to disengage the said considerations and seek to ascer-
\ntain the true effect of the relevant provisions contained in
\nancient texts considered by themselves.\n<\/p>\n
It  is\talso well-known that, in dealing with  questions  of
\nHindu  Law, the Privy Council introduced  considerations  of
\njustice,  equity and good conscience and the  interpretation
\nof  the\t relevant texts sometimes was  influenced  by  these
\nconsiderations.\t  In fact , the principle about the  binding
\ncharacter  of  the antecedent debts of the  father  and\t the
\nprovisions about the enquiry to be made by the creditor have
\nall  been introduced on considerations of equity  and  fair-
\nplay.  When the Privy Council laid down the two propositions
\nin the case of Suraj Bunsi Koer (2) what was really intended
\nwas to protect the bona fide alienees
\n(1)”The\t Sruti,\t the  Smriti, the approved  usage,  what  is
\nagreeable  to  one’s soul (or good  conscience)\t and  desire
\nsprung from due deliberation, are ordained the foundation of
\nDharma (law) Yajnavalkya, I. 7.\n<\/p>\n
” Whatever customs, practices and family usages prevail in a
\ncountry\t shall\tbe  preserved intact  when  it\tcomes  under
\nsubjection by conquest”-\n<\/p>\n
Yajnavalkya, 1343
\n(2) (1879) L. R. 6. I.A. 88.\n<\/p>\n
855<\/span><\/p>\n
against\t frivolous or collusive claims made by the  debtors’
\nsons   challenging   the  transactions.\t  Since\t  the\tsaid
\npropositions  have been laid down with the object  of  doing
\njustice\t to the claims of bonafide alienees, we do  not\t see
\nany  justification  for\t disturbing  this  well\t established
\nposition on academic considerations which may perhaps  arise
\nif we were to look for guidance to the ancient texts to-day.
\nIn   our  opinion,  if\tthere  are  any\t anomalies  in\t the
\nadministration\tof this branch of Hindu Law  their  solution
\nlies with the legislature and not with the courts.  What the
\ncommentators  attempted\t to  do\t in  the  past\tcan  now  be
\neffectively  achieved  by the adoption\tof  the\t legislative
\nprocess.   Therefore, we are not prepared to accede  to\t the
\nappellants’  argument that we should attempt to\t decide\t the
\npoint raised by them purely in the light of ancient Sanskrit
\ntexts.\n<\/p>\n
It  now remains to consider some of the decisions  to  which
\nour  attention was invited.  In Pulavarthi Lakshmanaswami  &
\nOrs. v. Srimat Tirumala Peddinti Tiruvengala Raghavacharyulu
\n(1)  the  Madras  High\tCourt  was  dealing  with  the\tdebt
\ncontracted  by the father on a promissory note\texecuted  by
\nhim  for  the  payment\tto his\tconcubine  for\tmeeting\t the
\nexpenses of her grand-daughter’s marriage.  The sons had  no
\ndifficulty in proving that the debt was immoral; but it\t was
\nurged  on  behalf of the creditor that the  sons  could\t not
\nsucceed\t unless the creditor’s knowledge about\tthe  immoral
\ncharacter of the debt had been established, and reliance was
\napparently placed upon the two propositions laid down by the
\nPrivy  Council\tin the case of Suraj Bunsi Koer (2  ).\tThis
\nplea was rejected by the High Court.  Patanjali Sastri,\t J.,
\nas  he\tthen was, who delivered the judgment for  the  Court
\nobserved  that ” the remarks made by the Privy\tCouncil\t had
\nreference  to family property sold in execution of a  decree
\nobtained   against   the  father  as  to   which   different
\nconsiderations\tarise,\tthe bona fide  purchaser  not  being
\nbound to go further back than the decree “. In other  words,
\nthis  decision\tshows  that the principles  which  apply  to
\nalienations   made  by\ta  Hindu  father  to  ,satisfy\t his
\nantecedent debts cannot be extended and
\n(1) A.I.R. 1943 Mad. 292.\n<\/p>\n
(3) (1879) L.R. 6 I.A. 88,
\n856<\/span>
\ninvoked to cases where the sons are challenging the  binding
\ncharacter  of the debts which are not antecedent and are  in
\nfact immoral.\n<\/p>\n
The  Allahabad\tHigh  Court has\t had  occasion\tto  consider
\ndifferent  aspects  of this problem in\tseveral\t cases,\t and
\ndifferent, if not somewhat conflicting, views appear to have
\nbeen  taken  in some of the decisions.\t We  will,  however,
\nrefer to only two decisions which are directly in point.  In
\nKishan\tLal  v.\t Garuruddhwaja\tPrasad\tSingh  &  Ors.\t(1),
\nBurkitt,  J., has observed that had it been proved that\t the
\ndebt  had been contracted for immoral purpose and  that\t the
\nperson\twho advanced the money was aware of the purpose\t for
\nwhich  it  was being borrowed the son would  not  have\tbeen
\nliable.\t This, however, is a bare statement of the law,\t and
\nthe  judgment does not contain any discussion on the  merits
\nof  the proposition laid down by the judge nor does it\tcite
\nthe  relevant judicial decisions bearing on the\t point.\t  In
\nMaharaj\t Singh v. Balwant Singh<\/a> (2) the same High Court\t was
\ndealing\t with  a  mortgage  by\tSheoraj\t Singh\tto  pay\t the
\nantecedent debts of the father.\t Maharaj Singh, the  younger
\nbrother,  also joined in the execution of the document.\t  It
\nwas, however, found that at the material time Maharaj  Singh
\nwas a minor and Bo the mortgage was, as regards his interest
\nin  the mortgaged property, absolutely void.   This  finding
\nwas enough to reject the mortgagee’s claim against the share
\nof  Maharaj  Singh in the mortgaged property; but  the\tHigh
\nCourt proceeded to consider the alternative ground urged  by
\nMaharaj Singh and held that it was not necessary for Maharaj
\nSingh  to  prove  notice of the\t immoral  character  of\t the
\nantecedent  debt because the ancestral property in  question
\nhad  not  passed  out  of the hands  of\t the  joint  family.
\nMaharaj\t Singh\twas  defending\this  title;  he\t was  not  a
\nplaintiff seeking to recover property, but a defender of his
\ninterest   in  ancestral  property  of\twhich  he   was\t  in
\npossession.   These  observations show that the\t High  Court
\ntook the view that the propositions laid down in the case of
\nSuraj  Bunsi Koer (3) would not apply to cases\tof  mortgage
\nbut  were  confined to cases of purchase.  We do  not  think
\nthat the distinction between a purchase and a mortgage\tmade
\nin this
\n(1) (1890) I.L.R. 21 All. 238.\n<\/p>\n
(2) (1906) I.L.R.28 All. 508.\n<\/p>\n
(3)  L.R.6 I.A.88.\n<\/p>\n
       857<\/span><\/p>\n
 decision  is  well founded.  The  propositions\t in  question
\n treated  an alienation made for the payment of the  father’s
\n antecedent debt on the same footing as an alienation made in
\n execution  of a decree passed against him and in both\tcases
\n the  principle\t enunciated is that in order  to  succeed  in
\n their challenge the sons must prove the immoral character of
\n the  antecedent  debt\t and the  knowledge  of\t the alienee.
\n Having regard to the broad language used in stating the  two
\n propositions, we do not think that a valid distinction could
\n be made between     a mortgage and a sale particularly after
\n the decision\tof  the\t Privy Council in the  case  of\t Brij
\n Narain (1). That is the view taken by the Nagpur High\tCourt
\n in  Udmiram  Koroodimal  and Anr.  v.\tBalramdas  Tularam  &
\n Ors.(2).\n<\/p>\n
 In the result the appeal fails, but in the circumstances  of
\n this case there will be no order as to costs.\n<\/p>\n
\t\t\t\t       Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Luhar Amrit Lal Nagji vs Doshi Jayantilal Jetralal And … on 4 May, 1960 Equivalent citations: 1960 AIR 964 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-216097","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nLuhar Amrit Lal Nagji vs Doshi Jayantilal Jetralal And ... on 4 May, 1960 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/luhar-amrit-lal-nagji-vs-doshi-jayantilal-jetralal-and-on-4-may-1960\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Luhar Amrit Lal Nagji vs Doshi Jayantilal Jetralal And ... on 4 May, 1960 - 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