Case: Luhar Amrit Lal Nagji Vs. Doshi Jayantilal Jetralal And Others

in dealing with questions of Hindu Law, the Privy Council introducted considerations of justice, equity and good conscience and the interpretation of the relevant texts sometimes was influenced by these considerations. In fact, the principle about the binding character of the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have all been introduced on considerations of equity and fair play. When the Privy Council laid down the two propositions in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), what was really intended was to protect the bona fide alienees, against frivolous or collusive claims made by the debtors sons challenging the transaction. Since the said propositions have been laid down with the object of doing justice to the claims of bona fide 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 today. 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 should attempt to decide the point raised by them purely in the light of ancient Sanskrit texts. 20. It now remains to consider some of the decisions to which our attention was invited. In P. Lakshmanaswami v. T. P. T. Raghavacharyulu, AIR 1943 Mad 292 , the Madras High Court was dealing with the debt contracted by the father on a promissory note executed by him for the payment to his concubine for meeting the expenses of her grand-daughters marriage. The sons had no difficulty in proving that the debt was immoral; but it was urged on behalf of the creditor that the sons could not succeed unless the creditors knowledge about the immoral character of the debt had been established, and reliance was apparently placed upon the two propositions laid down by the Privy Council in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC). This plea was rejected by the High Court. Patanjali Sastri, J., as he then was, who delivered the judgment for the Court observed that"the remarks made by the Privy Council had reference to family property sold in execution of a decree obtained against the father as to which different considerations arise, the bona fide purchaser not being bound to go further back than the decree." In other words, this decision shows that the principles which apply to alienations made by a Hindu father to satisfy his antecedent debts cannot be extended and invoked to cases where the sons are challenging the binding character of the debts which are not antecedent and are in fact immoral. 21. The Allahabad High Court has had occasion to consider different aspects of this problem in several cases, and different, if not somewhat conflicting, views appear to have been taken in some of the decisions. We will, however, refer to only two decisions which are directly in point. In Kishan Lal v. Garuruddhwaja Prasad Singh, ILR 21 All 238, Burkitt J., has observed that had it been proved that the debt had been contracted for immoral purpose and that the person who advanced the money was aware of the purpose for which it was being borrowed the son would not have been liable. This, however, is a bare statement of the law, and the judgment does not contain any discussion on the merits of the proposition laid down by the judge nor does it cite the relevant judicial decisions bearing on the point. In Maharaj Singh v. Balwant Singh, ILR 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 so the mortgage was, as regards his interest in the mortgaged property, absolutely void. This finding was enough to reject the mortgagees 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 propositions laid down in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), would not apply to cases of mortgage but were confined to cases of purchase.We do not think that the distinction between a purchase and a mortgage made in this decision is well founded. The propositions in question treated an alienation made for the payment of the fathers antecedent debt on the same footing as an alienation made in execution of a decree passed against him and in both cases the principle enunciated is that in order to succeed in their challenge the sons must prove the immoral character of the antecedent debt and the knowledge of the alienee.Having regard to the broad language used in stating the two propositions we do not think that a valid distinction could be made between a mortgage and a sale particularly after the decision of the Privy Council in the case of Brij Narain, 51 Ind App 129: (AIR 1924 PC 50. That is the view taken by the Nagpur High Court in Udmiram Koroodimal v. Balramdas Tularam, AIR 1956 Nag 76.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. The doctrine of pious obligation under which sons are held liable to discharge their fathers debts is based solely on religious considerations; it is thought that if a persons debts are not paid and he dies in a state of indebtedness his soul may have to face evil consequences, and it is the duty of his sons to save him from such evil consequences. The basis of the doctrine is thus spiritual and its sole object is to confer spiritual benefits on the father. It is not intended in any sense for the benefit of the creditor17. 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 families have taken place and titles passed in favour of alienees on the understanding that the proposition of law laid down by the Privy Council in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), correctly represent the true position under Hindu Law in that behalf. It would, we think, be inexpedient to reopen this question after such a long lapse of time18. Besides it would not be easy to decide today what the relevant Sanskrit texts really provide in this matter. It is well-known that though the Smriti texts are given a place of pride among the sources of Hindu Law, in the development of Hindu Law sadachar or approved conduct, which is another source has played an important part*. The existence of different schools of Hindu Law and sub-schools clearly brings out the fact that during the ages Hindu Law has made changes so as to absorb varying customs and usages in different places from time to time. It is a remarkable feature of the growth of Hindu Law that, by a skilful adoption of rules of construction, commentators successfully attempted to bridge the distance between the letter of the Smriti texts and the existing customs and usages in different areas and at different times. This process was arrested under the British Rule; but if we were to decide today what the true position under Hindu Law texts is on the point with which we are concerned, it would be very difficult to reconcile the different texts and come to a definite conclusion. In this branch of the law several considerations have been introduced by judicial decisions which have substantially now become a part and parcel of Hindu Law as it is administered;it would, therefore not be easy to disengage the said considerations and seek to ascertain the true effect of the relevant provisions contained in ancient texts considered by themselves19. It is also well known that, in dealing with questions of Hindu Law, the Privy Council introducted considerations of justice, equity and good conscience and the interpretation of the relevant texts sometimes was influenced by these considerations. In fact, the principle about the binding character of the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have all been introduced on considerations of equity and fair play. When the Privy Council laid down the two propositions in the case of Suraj Bunsi Koer, 6 Ind App 88 (PC), what was really intended was to protect the bona fide alienees, against frivolous or collusive claims made by the debtors sons challenging the transaction. Since the said propositions have been laid down with the object of doing justice to the claims of bona fide 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 today. 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 should attempt to decide the point raised by them purely in the light of ancient Sanskrit texts.