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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.