A decree for damages passed against a Hindu father is an Avyavaharika debt and the sons have no liability under the rule of pious obligation to pay the same if the father's conduct in incurring the debt was grossly unjust, dishonest, and repugnant to good morals.

JUDGMENT :

P.K. Mohanti, J. - The Second Appeal is by the Plaintiffs against a reversing decree. The suit was for a permanent injunction restraining the Defendants from taking possession of a house sold in execution of a decree for damages. The question of law raised in the appeal is whether a decree for damages passed against a Hindu father is an Avyavaharika debt and the sons have no liability under the rule of pious obligation to pay the same.

2. The facts lending to the litigation may be shortly stated as follows:

Dharmu Sabato had three sons named Krushna, Bauri and Dasarathi. The Plaintiffs-Appellants ate the sons of Krushna. Title Suit No 3 of 1950 was filed by Krushna in the Court of the Subordinate Judge of Berhampur against his father and brothers for partition of the joint family properties. A final decree for partition was passed on compromise allotting to each share one or more houses, besides other properties. A particular house was allotted to the share of Dharmu. He gifted away the same to Bauri (Respondent No. 1) by a registered deed of gift dated 15-6-1958. Dasarathi was found in possession of that house and he did not give up possession. Bauri obtained an order for recovery of possession of the house and also filed Money Suit No. 21 of 1961 for recovery of mesne profits from Dasarathi. During the pendency of the suit and the eviction proceeding against Dasarathi, the said house was forcibly occupied by Krushna on 7-2-1960. He was evicted from the house on 15-7-1962 by process of Court. Then Bauri instituted Money Suit No. 84 of 1963 for recovery of damages of Rs. 522/- from Krushna and obtained a decree. In execution of the decree the suit house which is one of the houses allotted to Krushna's branch was purchased by Bauri in Court sale. Thereafter, the Plaintiffs-Appellants filed the suit on the allegation that the decree was not binding on them and that only their father's 1/l0th undivided interest in the property passed by the Court sale.

3. The defence in the suit was that the decree for damages is not Avyavaharika debt and therefore it is binding on the Plaintiffs under the rule of pious obligation.

4. The trial Court relying on a Full Bench decision of the Patna High Court in the ease of Sheodhar Mahton and Others Vs. Sitaram Mahton and Others accepted the contention of the Plaintiffs and granted a decree for permanent injunction as sought for. The appellate Court distinguished the Patna decision on facts and came to hold as follows:

Liabilities such as this arising between parties in disputes of a civil nature, especially between brothers fighting a partition litigation can in no case be regarded as opposed to good morals or unjust or dishonest so as to become Avyavaharika debt....

Upon such findings the appellate Court reversed the decree of the trial Court.

5. The fundamental rule is that a Hindu son is not liable for a debt contracted by his father which is Avyavaharika The question which requires consideration is whether a decree for damages passed against a Hindu father is Avyavaharika debt.

6. In the case at Palanivel Ramasubramania Pillay and Another, by mother Muthammal Vs. Sivakami Ammal a Division Bench took the view that it was not essential for the son to prove criminal liability against the father in respect of the debt in question in order to claim exemption from payment of such debt. It was pointed out that the son can claim immunity only when the father's conduct is utterly repugnant to good morals or is grossly unjust or is flagrantly dishonest.

7. The above decision was referred to in a Full Bench decision of the Bombay High Court in the ease of Govindprasad Vasudevprasad Tiwari Vs. Raghunathprasad Indraprasad Manolikar. In that case, it was held that where a person in possession of property, to which he was not entitled, disposes of that property and deprives the rightful owner of that property, his conduct is dishonest and the son is not liable for the debt arising out of his conduct. Beaumo