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

2. The appellants are two brothers Amritlal and Mohanlal Nagji and their mother Bai Jakal Arjan. The three appellants and respondent 2 Nagji Govind, the father of appellants 1 and 2 and the husband of appellant 3, constitute an undivided Hindu family. Respondent 2 executed a mortgage-deed in favour of respondent 1 Jayantilal Doshi in respect of the joint family property for Rs. 2,000. This document was executed on February 5, 1943. 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 Rs. 2,000 were payable by respondent4. The claim was resisted by both respondent 1 and respondent 2 who pleaded that the mortgage had been executed for the payment of debts which were binding on the family and that there was no substance in the plea of immoral debts raised by the appellants. It was also alleged by them that the mortgaged property was not the property of the undivided Hindu family5. On these pleadings the trial court framed appropriate issues. It found that the mortgaged property was the coparcenary property of the family, that the mortgage deed in question had been executed to pay off a debt which was immoral and that in consequence the mortgage was not binding against the appellants. According to the trial court the debt contracted by respondent 2 to pay the losses incurred by him in speculative transactions must be held to have been contracted for illegal and immoral purposes and as such the subsequent alienation for the payment of the said debt cannot bind the appellants. The trial court also observed that respondent I had not stepped into the witness box to give evidence to show that he had made any enquires about the existence of any antecedent debts payable by respondent 2In the result the suit filed by the appellants was decreed. Against the said decree respondent 1 preferred an appeal before the District Judge, but the District Judge agreed with all the findings made by the trial Court and dismissed the said appeal. Respondent 1 then took the matter before the High Court of Saurashtra in second appeal. The High Court agreed that the mortgaged property was the property of the joint Hindu family and that respondent 1 had made no attempt to prove any enquiry on his part before he entered into the transaction. The High Court did not think it necessary to consider whether the antecedent debt due to Dharsi Shamji, for the repayment of which the impugned mortgage was created, was in law immoral or illegal it proceeded to deal with the appeal on the assumption that the said debt was illegal or immoral. On that assumption the High Court considered the material principles of Hindu Law and held that it was for the appellants to prove 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 respondent1. On this finding the second appeal preferred by respondent 1 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.

Reasoning:
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.