Luhar Amrit Lal Nagji Vs. Doshi
Jayantilal Jetralal & Ors  INSC 105 (4 May 1960)
GUPTA, K.C. DAS
CITATION: 1960 AIR 964
CITATOR INFO :
R 1967 SC 727 (3)
Hindu Law-Father's antecedent debt-Pious
obligation of sons to pay-Onus.
A Hindu father, speculating in gold and
silver, lost heavily and sought to recoup by borrowing on a mortgage. The mortgagee
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 distinction 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.
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
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
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,
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
'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)
37 Mad. 458, 460, (5) I.L.R.  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
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
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 deathblow 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
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 propositions
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
(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.
(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 subschools 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 ascertain 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 fairplay. 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,
" 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.