Baraik Radha Nath Singh and Others vs Thakur Davendra Nath Sahi Deo

Coutts, J.—The facts of this case are not disputed and are shortly as follows. The plaintiffs are the sons of one Baraik Kashinath Singh who had an ancestral Jagir of 8 annas of village Murga. In 1891 he purchased another 5 annas so that in all he had 13 annas of the village. On the 16th June 1904 he mortgaged his entire share to one Lal Jogindra Nath Sah Deo in order to raise money to pay off the debts of one Baraik Paduman Singh, whose estate was at that time being managed by the Manager of the Encumbered Estates. Jogindra Nath subsequently assigned his mortgage to Debendra Nath Sah Deo, the defendant in this case, who brought a mortgage suit, and after obtaining a decree put up the property to sale and purchased it himself. He obtained a delivery of possession on the 29th August 1913. Kashinath is dead and the case of the plaintiffs is that the bond executed by Kashinath was without legal necessity and was immoral and that it was executed by him without any right and they asked that the bond, the sale and the delivery of possession should not bind the plaintiffs'' or their property and that the plaintiffs'' ancestral Jagir right might be declared in the 13 annas which had been sold by Kashinath, that their possession might be confirmed and that of the defendants might be cancelled by declaring it null and void and illegal.

The learned Subordinate Judge who heard the appeal was of opinion that Kashinath expected some benefit from the loan to Baraik Paduman Singh and that the debt not being illegal or immoral it is binding on the plaintiffs who are liable for their deceased father''s debts. In this view he has dismissed the plaintiffs'' suit.

The only question for consideration in this appeal is, whether the plaintiffs are liable for Kashinath''s debt. According to the recital in the mortgage-bond executed by Kashinath, the reason for lending the money is stated as follows: "Now in consideration of the fact that Baraik Paduman Singh aforesaid is connected with us, and is a big Zemindar, and that as it is in every way incumbent on us to save his property we have unanimously decided that in order to help him at this juncture we should arrange for money and pay the same to him, so that his ancestral property may be saved and we too may be benefited in future. The said Baraik will repay our money on getting possession of his properties. "It is clear then that the debt contracted by Kashinath was neither an immoral nor an illegal debt and that he expected to get some benefit from the payment of the money to Baraik Paduman Singh. The question of liability in cases of this kind has been very fully discussed in the ruling reported as Chakouri Mahton v. Ganga Proshad 12 Ind. Cas. 609 : 39 C. 862 : 15 C.L.J. 228. Page of 39 C. -Ed. the texts on the point have been summarised by Mookerjee, J., in the following passage:

The result appears to be that the debts which a son is not under any obligation to pay may be grouped as follows: (i) debts due for ''spirituous liquor, (ii) debts due for lust, (iii) debts due for gambling, (iv) unpaid fines, (v) unpaid tolls, (vi) useless gifts or promises without consideration, or made under the influence of lust or wrath, (vii) suretyship debts, (viii) commercial debts, and (ix) debts that are not Vyavaharika, i. e., debts that are not lawful, usual, or customary, or, if we accept the version of Colebrook, debts for a cause repugnant to good morals.

The only one of these categories under which this particular debt could possibly come would be useless gifts or debts which are not lawful, usual or customary, but it does not in fact come under either of them, because the debt was incurred to help a relative, it was expected that it would be repaid and Kashinath expected that he would get some benefit out of it. The plaintiffs, therefore, cannot escape liability for the debt.

In this view of the case the question of whether the suit can at all lie because Section 47 of the CPC operates as a bar does not arise,

I would dismiss the appeal with costs.

Roe, J.

I agree.