Perumal vs Devarajan and Others

The plaintiff is the appellant. He filed a suit for the recovery of the sum of Rs. 750/- as and for damages in respect of a transistor. The plaintiff is

a teacher employed in Olagappampalayam. The first defendant is the son of the second defendant and he was studying in the S.S.L.C. class in

Olagappampalayam High School. On 25-5-1965 the first defendant stole the Phillips Model Transistor belonging to the plaintiff, who gave a

complaint to the Thruchengode Police against the first defendant. The police, after investigation charged defendants 1 and 2 for offences u/s 454

and 380, I.P.C. The first defendant also gave a confessional statement. The first defendant was convicted u/s 454 and 380. I.P.C. The second

defendant was also convicted but in the judgment is C.C. No. 1949 of 1965 it is stated that he was convicted u/s 380 or 411, I.P.C. When the

transistor was returned to the plaintiff after the prosecution was over, he found it was not working. He gave it to G.E.C. Company for repairs but

they reported that the transistor was irreparable. Thereupon he failed the suit claiming the Sum of Rs. 750/- as damages. The defendants filed a

written statement in which they contended that they had not stolen the transistor, that they were made victims in the prosecution maliciously

launched by the plaintiff and that they hand nothing to do with the same. Pending the suit, the second defendant died and his wife and another son

were impleaded as the third and the fourth defendants respectively. The trial Court found that the defendants were guilty of wrongful conversion

and as a result of the same the transistor was damaged. He therefore held that the defendants were liable for the suit claim. The learned Additional

District Munsif also held that the cause of action against the second defendant survived even after his death and therefore defendants 3 and 4 were

also liable for the suit claim. It may also be mentioned that the trial Court found the value of the transistor as Rs. 750/-. On appeal by the first and

the third defendants, the lower appellate Court held that the plaintiff had not established satisfactorily that the first defendant or the second

defendant or both were responsible for the theft or the damage to the plaintiff''s transistor and that therefore they are not liable for the suit claim.

Hence the second appeal.

Even at the outset, I want to state that the view of the lower appellate Court that the plaintiff has not established satisfactorily that the first

defendant or the second defendant or both were responsible for the theft is perverse and clearly against the evidence and the legal position. The

lower appellate Court refused to rely on Exhibit A-3 which is a certified copy of the judgment in C.C. No 1949 of 1965. It is true that the

evidence discussed in that judgment and the fact that the first defendant had confessed his guilt in his statement is not admissible in evidence in the

suit. But it is not correct to state that even the factum that the first and the second defendants were charged under Sections 454, and 380, I.P.C.

and they were convicted on those charges could not be admitted. The order of the Criminal Court is, in my opinion, clearly admissible to prove the

conviction of the first defendant and the second defendant and that is the only point which the plaintiff had to establish in this case. The plaintiff had

let in oral evidence apart transistor was in a working condition before it was stolen and it was not in a working condition when it was returned to

him. Clearly therefore he was entitled to the damages.

The view of the lower appellate Court that independently of the conviction, the plaintiff should prove that the first defendant or the second

defendant had stolen the transistor is clearly not sustainable. Though the learned counsel for the respondents attempted to dispute the value of the

transistor, in view of the finding of the trial Court and the case bill produced for the purchase of the transistor, there could be no dispute on the

question of value. In fact it does not appear from the judgment of the lower appellate Court that there was any dispute as to the value.

The only other point that now remains to be considered is the point raised by the respondents that since the second defendant died during the

pendency of the suit and the cause of action being based on the criminal act of the second defendant that cause of action could not survive against

the second defendant''s legal representatives. In this connection, he relied on Section 306 of the Indian Succession Act, 1952 and the decisions

which considered the scope of that section. In the alternative, he relied on the general principles of Hindu Law and contended that the liability of

the second defendant is in the nature of an Avyavaharika debt and as such for his illegal debt they could not be made liable. In RM. P. KP. AR.

Arunachalam Chettiar Vs. V.S. alias S.V.V. Subramanian Chettiar (died) and Veerappa Chettiar brought on record as L.R. of deceased, a

Division Bench of this Court held that Section 306, apart from its limited scope of applicability, does not apply to heirs or their legal representatives

of a deceased but is confined to cases where a right is sought to be claimed against the executor or administrator of the deceased. The Rangoon

High Court in Cassim & Sons v. Sara Bibi, AIR 1936 Ran 17, considered that the maxim action personalis moritur cum persona as part of the law

of India except to the extent modified by Section 306. A view contrary to the decision in RM. P. KP. AR. Arunachalam Chettiar Vs. V.S. alias

S.V.V. Subramanian Chettiar (died) and Veerappa Chettiar brought on record as L.R. of deceased, was taken by the Lahore High Court in

Peoples Bank of Northern India, Limited v. Hargopal, AIR 1936 Lah 268 and it was held in this case that Section 306 was also applicable to the

case of heirs or other legal representatives. The decision in RM. P. KP. AR. Arunachalam Chettiar Vs. V.S. alias S.V.V. Subramanian Chettiar

(died) and Veerappa Chettiar brought on record as L.R. of deceased, is a decision by a Division Bench of this court and I am bound by that

judgment. Section 306 is therefore of no help in considering the question whether the cause of action has survived or not. But I am inclined to

agree with the learned counsel for the respondents that the liability of the second defendant in this case is in the nature of an Avyavahrika debt and

as such the third and the fourth defendants will not be personally liable to pay that debt. In this connection I may refer to the decision in Pareman

Dass v. Bhattu Mahton, ILR (1897) Cal 672, and Govindprasad Vasudevprasad Tiwari Vs. Raghunathprasad Indraprasad Manolikar, ; the

decision in AIR 1939 Bom 289 is very similar to the one on hand. There a person disposed of the property of another wrongfully and deprived the

original owner of that property. In a suit claiming the value against the legal heirs it was held that the son was not liable as the debt incurred by the

father was due to his dishonest conduct in wrongfully disposing of the property of the plaintiff. In ""Hindu Law principles and precedents"" by N. R.

Raghavachariar (Sixth Edition) the learned author has given a summary of what debt could be considered as Avyavaharika debt with element of

criminality, at page 345 and classifies one such debt as ""decree for money obtained by thefts"". The learned author cites, ILR (1897) Cal 672 and

Govindprasad Vasudevprasad Tiwari Vs. Raghunathprasad Indraprasad Manolikar, as authorities for that position. The facts in ILR (1897) Cal

672 were as follows; A decree was passed against one Mangru and Sobha Mahton for damages for theft and misappropriation of paddy. When

this decree was sought to be executed against the sons in respect of the joint family properties it was held that the sons were not in a pious duty to

pay the debt and that therefore the interest of the sons could not be sold in execution. It therefore follows that the third and the fourth defendants

will not be liable personally to pay the decree amount but if they have inherited any property from the second defendant, the decree could be

executed to the extent of the value of that property inherited by them.

The second appeal is therefore allowed and there will be accordingly a decree as against the first defendant and as against the third defendant

and the fourth defendant to the extent mentioned above. There will be no order as to costs. No leave.

Appeal allowed.