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TMI Blog1960 (5) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... divided Hindu family. Respondent 2 executed a mortgage deed in favour of respondent 1, Jayantilal Doshi, in respect of the joint family property for ₹ 2,000. This document was executed on February 5, 1946. In 1950, respondent 1 sued respondent 2 on his mortgage, obtained a decree for sale and filed an application for execution for sale of the mortgaged property. Sale was accordingly ordered to be held. At that stage the appellants filed the present suit on April 30, 1951, and claimed a declaration that the decree passed in the mortgage suit (Civil Suit No. 589 of 1949) in favour of respondent 1 and against respondent 2 was not binding in respect of the 3/4th share of the appellants in the mortgaged property; they also asked for a perpetual injunction restraining respondent 1 from executing the said decree in respect of their share. To this suit the mortgagor, respondent 2, was impleaded as a party. In their plaint the appellants have stated that respondent 2 had speculated in gold and silver and had thereby lost a large amount of money which he sought to make up by borrowing amounts from several creditors. One of such creditors was Dharsi Shamji to whom ₹ 2,000 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove not only that the antecedent debt was immoral or illegal, but also that respondent 1 had, notice of the said character of the debt; and since the appellants had led no evidence to discharge this onus they were not entitled to claim any relief against respondent 1. On this finding the second appeal preferred by respondent was allowed and the suit filed by the appellants was ordered to be dismissed. It is against this decree that the appellants have come to this Court by special leave. On behalf of the appellants Dr. Barlingay has urged that the principles of Hindu Law do not justify the view taken by the High Court that the appellants had to prove the alienee's knowledge about the immoral character of the antecedent debt. He concedes that the judicial decisions on this point are against his contention; but he argues that there is paucity of case law on the subject, and that, having regard to the importance of the point raised by him, we should examine the true legal position by reference to the texts rather than by reference to judicial decisions. Let us then set out the appellant's argument based on the textual provisions of Hindu Law. The doctrine of pious obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the debt answering the said description is not such a debt as the son is bound to pay, and so as soon as it is shown that the debt is immoral the doctrine of pious obligation cannot be invoked in support of such a debt. In this connection, it has also been urged by Dr. Barlingay that the onus placed on the sons to prove the immoral character of the debt is already very heavy. In discharging the said onus the sons are required to prove not merely that their father who contracted the impugned debt lived an extravagant or immoral life but they are required to establish a direct connection between the immorality of the father and the impugned debt. If this onus is made still more onerous by requiring the sons to prove that the alienee had knowledge of the immoral character of the antecedent debt, it would virtually make the sons' task impossible, and notwithstanding the spirit underlying the doctrine of pious obligation the sons in fact would be compelled to pay the immoral or impious antecedent debt of their father. That is why the rule which requires that the sons should prove the knowledge of the alienee is inconsistent with the basis of the doctrine of pious obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bligation to discharge the father's debt, has respect to the nature of the debt, and not to the nature of the estate, whether ancestral or acquired by the creator of the debt . Then the Privy Council held that if the debt of the father had been contracted for immoral purpose the son might not be under any pious obligation to pay it; but that was not the case before the Board. It had not been shown that the bond upon which the decree was obtained was for immoral purpose; and on the other band, it appealed that an action bad been brought on the bond, a decree had been passed on it and there was nothing whatever to show that the debt was tainted with immorality. The Privy Council also noticed that Kantoo Lal had brought the action probably at the instigation of the father, and, we may add, that is many times the feature of such litigation. On these facts the Privy Council set aside the decree passed by the High Court and held that Kantoo Lal was not entitled to any relief It would thus be seen that this decision merely shows that where any alienation has been effected by the father for the payment of his antecedent debt and the said antecedent debt is not shown to be immoral the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, the decree thereon and the execution sale thereof By this decision the mortgage, the decree and the execution sale in regard to the alienor's share had also been set aside. The High Court, however, reversed that judgment and dismissed the suit. The Privy Council partly allowed the appeal preferred by the plaintiffs, and held that the shares of the plaintiffs were not bound either by the mortgage deed, the decree or the execution sale. Thus it is clear that in that case the Privy Council held that the antecedent debt was for immoral purposes and that the auction purchaser had notice of it. But in dealing with the question of law raised before it the Privy Council had occasion to examine the relevant provisions of Hindu Law and the decisions bearing on them. Amongst the decisions considered by the Privy Council was the case of Kantoo Lal (1874) L.R. 1 I.A. 321. Sir James Colvile, who delivered the judgment of the Board, referred to the case of Kantoo Lal (1874) L.R. 1 I.A. 321 and observed that this case then, which is a decision of this tribunal, is undoubtedly an authority for these propositions: 1st that where joint ancestral property has passed out of a joint family, ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of Hindu family, that it has done away with the essential feature of that institution, that it has rendered the father independent of the control of his sons in dealing with ancestral property which had all along been looked upon as a common fund belonging as much to the sons as to the father . Having thus expressed his surprise at the decision Mr. Bhattacharyya also added that the shifting of the burden of proof to the son imposed upon him a difficulty which is almost practically insuperable . Nevertheless, he has not failed to take notice of. the fact that the promulgation of the principle which was adopted by the Privy Council had become almost a necessity to put an end to serious abuse which had become rife in the Mitakshara districts; and he has added that in those places the fathers of families knowing well that ancestral properties were secure against the claims of their own creditors bad established almost a regular system of inveigling innocent persons of substance to lend money to them and when a decree was obtained and properties were attached they used to put forward their sons to contest the creditor's claims . According to the author the resuscitation b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kane has pointed out, for the words antecedent debt which were used for the first time by the Privy Council in the case of Suraj Bunsi Koer (1879) L.R. 6 I.A. 88 there is nothing corresponding in the Sanskrit authorities, and that the distinction made by the Privy Council in the case of Brij Narain (1973) L.R. 51 I.A. 120 between a simple personal money debt by the father and the debt secured by the mortgage is also not borne out by the ancient texts and the commentaries alike History of Dharmasastra -By Dr, P. V. Kane, Vol. III, P. 450. So we go back to the question with which we began: Would it be expedient at this stage to consider the question purely in the light of ancient Sanskrit texts even though for more than three quarters of a century the decision in Suraj Bunsi Koer's case (1879) L.R. 6 I.A. 88 has apparently been followed without a doubt or dissent. We have carefully considered this matter and we are not disposed to answer this question in favour of the appellants. First and foremost in cases of this character the principle of stare decisis must inevitably come into operation. For a number of years transactions as to immovable property belonging to Hindu f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 879) L.R. 6 I.A. 88 what was really intended was to protect the bona fide alienees The Sruti, the Smriti, the approved usage, what is agreeable to one's soul (or good conscience) and desire sprung from due deliberation, are ordained the foundation of Dharma (law) Yajnavalkya, I. 7. Whatever customs, practices and family usages prevail in a country shall be preserved intact when it comes under subjection by conquest -against frivolous or collusive claims made by the debtors' sons challenging the transactions. Since the said propositions have been laid down with the object of doing justice to the claims of bonafide alienees, we do not see any justification for disturbing this well established position on academic considerations which may perhaps arise if we were to look for guidance to the ancient texts to-day. In our opinion, if there are any anomalies in the administration of this branch of Hindu Law their solution lies with the legislature and not with the courts. What the commentators attempted to do in the past can now be effectively achieved by the adoption of the legislative process. Therefore, we are not prepared to accede to the appellants' argument that we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Maharaj Singh v. Balwant Singh (1906) I.L.R.28 All. 508 the same High Court was dealing with a mortgage by Sheoraj Singh to pay the antecedent debts of the father. Maharaj Singh, the younger brother, also joined in the execution of the document. It was, however, found that at the material time Maharaj Singh was a minor and Bo the mortgage was, as regards his interest in the mortgaged property, absolutely void. This finding was enough to reject the mortgagee's claim against the share of Maharaj Singh in the mortgaged property; but the High Court proceeded to consider the alternative ground urged by Maharaj Singh and held that it was not necessary for Maharaj Singh to prove notice of the immoral character of the antecedent debt because the ancestral property in question had not passed out of the hands of the joint family. Maharaj Singh was defending his title; he was not a plaintiff seeking to recover property, but a defender of his interest in ancestral property of which he was in possession. These observations show that the High Court took the view that the propositions laid down in the case of Suraj Bunsi Koer L.R.6 I.A.88 would not apply to cases of mortgage but were confin ..... 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