Judgement

Appeal (No. 55 of 1931) from a decree of the High Court (July 25, 1928) modifying a decree of the Subordinate Judge of Agra (August 14, 1925).

The appellants father, who died in 1923, had been secretary to a school committee; in that capacity he had been in charge of a fund deposited at a bank, and had authority to draw upon it for purposes connected with building operations. After his death, the respondents (representing the committee) instituted a suit against the appellants claiming from them, out of property of their father which had come to them or out of the property of their Hindu joint family, an alleged deficiency in the fund.

The facts appear fully from the judgment of the Judicial Committee.

The trial judge found that the deficiency amounted to Rs.48,143, and made a decree for that sum. In his opinion the father had not been guilty of criminal breach of trust in respect of the deficiency.

Upon appeal to the High Court the learned judges (Kendall and Niamut -ullah JJ.) found that the deficiency was Rs.42,993 only, and modified the decree by reducing it to that amount. They were of opinion that where a father had been civilly liable in respect of money in his hands, his sons were liable even if the father had subsequently misappropriated it. They were further of opinion that in the present case no criminality upon the part of the father was proved. The appeal is reported at I. L. R. 51 A. 386.

1934. Feb. 8, 9, 12, 13, 15. De Gruyther K.C. and Mockett for the appellants. The deficiency in the fund was due to drawings by the appellants father for his own purposes, or at any rate for unauthorized purposes, and were criminal breaches of trust within the Indian Penal Code, s. 405. The plaintiffs principal witness stated in terms that the appellants father had acted criminally. But even if the drawings were not criminal acts within the Penal Code, the debts resulting from them were illegal or immoral debts, and the appellants therefore were not liable under Hindu law. The Hindu texts as to the liability of sons for their fathers debts were elaborately considered in Bal Rajaram Tukaram v. Maneklal Mansukhbhai (( 1931) I. L. R. 56 B. 36.) and in Chhakauri Mahton v. Ganga Prasad (( 1911) I. L. R. 39 C. 862.), and the learned judges translated " avyavaharika " in a manner not materially differing from Colebrooke, namely " debts for a cause repugnant to good morals." The High Court, relying upon a statement in the judgment of Mookerjee J. in the last named case, were of opinion that if the father had been originally under a civil liability the sons continued liable although there had been a subsequent misappropriation by him. That statement however was obiter and, it is submitted, not correct. Mookerjee J. in an examination of the cases merely mentions it as a view adopted in some of them. [Reference was also made to Chandra Sen v. Ganga Ram (( 1880) I. L. R. 2 A. 899.); Mahabir Prasad v. Basdeo Singh (( 1884) I. L. R. 6 A. 234.) ; Natasayyan v. Ponnu-sami (( 1892) I. L. R. 16 M. 99.) ; Pareman Dass v. Bhattu Mahton (( 1897)

I. L. R. 24 C. 672.); McDowell & Co. v. Ragava Chetty (( 1903) I. L. R. 27 M. 71.) ; Kanemar Venkappayya v. Krishna Chariya (( 1907) I. L. R. 31 M. 161.) ; Gurunatham Chetty v. Raghavalu Chetty (( 1908) I. L. R. 31 M. 472.); Durbar Khachar v. Khachar Harsur (( 1908) I. L. R, 32 B. 348.) ; Medai Tirumalayappa Moodeliar v. Veerabudra (( 1909) 19 Mad. L. J. 759.) ; Venugopala Naidu v. Ramanadhan Chetty (( 1912) I. L. R. 37 M. 458.) ; Hanmant Kashinath v. Ganesh Annaji (( 1918) I. L. R. 43 B. 612.) ; Chandrika Ram Tiwari v. Narain Prasad Rai (( 1924) I. L. R. 46 A. 617.) ; Jagannath Prasad v. Jugal Kishore (( 1925) I. L. R. 48 A. 9.) ; Brijnath Shargha v. Lakshmi Narain Kaul (( 1932) I. L. R. 8 Luck . 35.); Maynes Hindu Law, 9th ed., para. 303.]

Upjohn K.C. and Wallach for the respondents. There were concurrent findings that the debt of the appellants father was not tainted by immorality, and those fin