Venkatasubba Rao, J.

1. The question that is raised by this appeal is whether in execution of a decree for mesne profits, the shares of the sons of the judgment-debtor, in the joint family property, are liable to be attached and sold. It is contended for the sons, that the obligation, recognised by the decree, is in respect of a debt, which it is not the pious duty of the sons, under the Hindu Law, to discharge.

2. In regard to the application of the rule enunciated in the ancient Hindu Law Texts, the Courts were confronted, from time to time, with great difficulty. The bare statement of the rule is simple enough. But it was found inadequate, when it had to be applied to different and various sets of facts. The result has been want of uniformity in the interpretations, as well as the application of the rule. The large body of case-law on the subject, will show that the Judges, while theoretically seeming to accept the rule itself, have had to decide each case, on grounds, as far as possible, of equity, justice and good conscience.

3. A very full, able and careful argument was addressed to us by Mr. Venkatasubramania Iyer, the learned Counsel for the appellants and he strongly contended that the son is not bound to satisfy a decree for mesne profits, passed against the father.

4. I shall first cite the texts, which have a bearing on this question. (See Ghoses Hindu Law, Third Edition, Vol. I, p. 531 Et. Seq.)

(1) That son alone, on whom he throws his debt and through whom he obtains immortality, is begotten for the fulfilment of the law.

(2) But money due by a surety or idly promised, or lost by play, or due for spirituous liquor, or what remains unpaid of a fine and a tax or duty, the son, (of the party owing it) shall not be obliged to pay.

Manu.

5. Money due by a surety, a commercial debt, a fee due to the parents of the bride, debts contracted for spirituous liquor, or in gambling, and a fine shall not involve the I sons of the debtor.

Gautama.

(1) If a father has gone abroad, or been subdued by calamity, his debt shall be paid by his sons and grandsons; on their denial, the debt must be proved by witnesses.

(2) A son has not to pay, in this world, his fathers debt, incurred for spirituous liquor, for gratification of lust, or in gambling, nor a fine or what remains unpaid of a toll : nor (shall he make good) idle gifts.

Yagnavalkya.

6. A son must pay a debt, contracted by his father, excepting those debts which have been contracted from love, anger for spirituous liquor, games or bailments.

(The words in the text translated as "contracted from love, anger" are kama krodha keritam.)

Narada.

7. Sons shall not be made to pay (a debt incurred by their father) for spirituous liquor, for idle gifts, for promises made under the influence of love or wrath or for suretyship; nor balance of fine or toll (liquidated in part by their father).

8. (Promises made "under the influence of love or wrath" is the translation of kama krodha Pratisrutham.)

Brihaspathi.

9. The son has not to pay a fine, or the balance of a fine or tax (or toll) or its balance (due by the father) nor (Avyavaharika or not Vyavaharika) that which is not proper.

10. (Vyasa according to the Ratnakara but Usanas according to the Mitakshara.)

11. Subject to the following exceptions, the texts mention certain specific debts as those, which the son is not bound to pay. In this connection, these debts specially enumerated present no difficulty. The exceptions are the following : Narada and Brihaspati use a general expression, "debts of love or anger." Usanas uses the word "Avyavaharika." It is the exact import of these general expressions that requires careful examination. I shall, at once, deal with the expression Avyavaharika and postpone the discussion of the words "debts of love or anger," to a later part of my judgment. There has been a conflict of opinion, as regards what this word means.

12. In Durbar Khachar v. Khachar Harsur (1908) 32 Bom. 348, Knight and Chandararkar, JJ., sa