Decided on May 07,1900

GOLAB CHAND Respondents


Ghose, J - (1.) This appeal arises out of a suit by a Mitakshara son, a minor, and his step-mother, the object of the suit being to have it declared that, in execution of a mortgage decree obtained by the creditor, the defendant, against the father, the shares of the plaintiffs in the ancestral property could not be made liable for the satisfaction of such decree. The Court below has dismissed the suit, and hence this appeal by the plaintiffs.
(2.) It appears that Lala Chandra Koylas Saran alias Lachhanji, father of the minor plaintiff, and the husband of the other plaintiff, was the son of one Lalla Chamroo Lall. The latter died in the year 1875 or 1876. At that time Lachhanji was a minor, and his mother, Mussamut Tapeswar Koer, was appointed his guardian by an order of the District Judge of the 20th November 1876. In November 1890, Lachhanji arrived at majority, and took over charge of the estate left by his father. On the 12 of February 1891, he executed a mortgage bond in favour of Golab Chand, defendant No. 1 and Lall Chand, for the sum of Rupees five thousand, it being stated in the bond that the money was required for the purpose of instituting a suit upon a certain ekrarnamah, and for meeting his own marriage and other necessary expenses. It would appear that during his minority, Lachhanji had been married, and a son was born to him; who is the plaintiff No. 1; but he lost his wife; and it is said that the marriage expenses referred to in this bond related to a second marriage which he was then about to contract. On the 10 of August 1891, he borrowed Rupees eight hundred from Golab Chand upon a bond on account of a certain alleged necessity; and this was followed by a mortgage bond, dated the 9 October 1891, for Rupees three thousand in favour of the same individual. This amount included the sum of rupees eight hundred covered by the bond of the 10 August 1891, the necessity recited in this mortgage bond being (so far as the amount then received was concerned) the payment of certain petty debts due to certain individuals. On the 1 of May 1892, Lachhanji executed another mortgage bond for Rupees fifteen hundred to Golab Chand, the necessity mentioned in this bond being the payment of Putni rent due in respect of a certain taluk, the interest due upon the mortgage bond of the 9 of October 1891, and other necessary expenses. On the 4 of April 1893, he executed another mortgage bond for Rs. 6,900 to the same individual Golab Chand. This amount included the sum of Rs. 3,000 covered by the mortgage bond of the 9 of October 1891, and the interest due upon the mortgage bond of the 1 of May 1892, the necessity recited in this bond being (so far as the additional amount then received was concerned) the payment of two decrees due to Ram Bux Mull and Sant Prosad for Rs. 1,000 and Rs. 1,700. respectively, and certain petty debts amounting to Rs. 1,146-12-0. A suit was instituted upon this last-mentioned bond, on the 31st of August 1893, against Lachhanji, and a mortgage decree was obtained on the 20 of February 1894. In the meantime, i.e., on the 28 September 1893, the minor plaintiff, through his grandmother as guardian, instituted a suit against his father for a partition of the joint ancestral property. The creditor Golab Chand was not made a party to this suit, and a degree for partition was obtained on the 12 of March 1894. In the next year, that is to say on the 23 July 1894, the father Lachhanji died; and when in September 1894 the decree- holder Golab Chand, defendant No. 1, applied for execution of his decree against the minor plaintiff as the legal representative and heir of his father, it was objected to on his behalf on the ground that the debts contracted by the father having been for illegal and immoral purposes, and he, the plaintiff, not having been made a party to the suit in which the decree was obtained, the family property could not be sold. This objection was overruled, the plaintiff being referred to a separate suit for the purpose of having such a question determined; and the present suit was accordingly instituted. The main grounds upon which the action is based are: first, that the plaintiffs having not been made parties to the suit instituted by the creditor Golab Chand upon the mortgage bond of the 4 of April 1893, the properties allotted to their share under the partition decree, could not be made liable; secondly, that the money covered by the said mortgage bond having been spent in immoral and illegal purposes, the shares of the plaintiffs could not be taken in execution of the decree obtained by the creditor; and thirdly, that a large portion of the money covered by the mortgage bond in question was deducted by the creditor on account of compensation, salami, &c. In answer to this, the creditor Golab Chand pleaded that the mortgage was given, and the decree obtained, at a time when the plaintiff No. 1 was a minor, and the father was the manager and kurta of the family, and therefore they were binding on him; that the other plaintiff had no right in the property; that the debt was incurred by the father for necessary purposes of the family, and not for any immoral purpose; that no portion of the money covered by the mortgage bond was deducted by way of compensation and salami; and that the partition decree of the 12 of March 1894, relied upon by the plaintiffs, could not be binding upon him, and it was collusive.
(3.) The Subordinate Judge, in the course of his judgment in this case, has fully discussed the Mitakshara law on the subject, as expounded by the Privy Council, and by this Court in different cases, and has held that, though there is evidence in proof of general extravagance and immoral conduct on the part of the father Lachhanji, and though he would be inclined to infer from such evidence that the money borrowed by Lachhanji was used to satisfy his sensual habits, yet this is not sufficient, there being no proof that the money was actually applied to immoral purposes; that the whole of the debt covered by the bond of the 4 of April 1893 should be regarded as an antecedent debt minus a small amount of Rs. 180, which was twice charged as interest; and that there being a pious duty in the son to pay the debt of his father, the plaintiffs are not entitled to succeed. He has further held that the partition decree is not binding upon the creditor-defendant.;

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