PANDARAM ALIAS K P K SHANMUGAM Vs. SUBBAMMAL

JUDGEMENT

(1.) THE question raised by the learned counsel for the appellants is that a decree for mesne profits on the basis of a trespass committed by the defendant is an Avyavaharika debt within the meaning of the Hindu Law and the sons of the defendant are not liable under the doctrine of pious obligation to discharge the said debt. It must be pointed out at the outset that the learned counsel's argument has not been put forward in that form before the courts below. Consequently, the facts which are relevant for the purpose of deciding whether the decree for mesne profits is based upon a criminal act of trespass or a civil trespass have not been established. Without the relevant facts it is not possible to accept the argument of counsel that in the present case the decree is based upon a criminal trespass. Learned counsel places reliance on the judgment of V. Ramaswami, J. in Perumal v. Devarajan and others 1 . That was a case of theft and the father was directed to return the money which he was found to have stolen. THE Court held that the debt was Avyaharika and the sons were not liable. Referring to the judgments of the Calcutta High Court and Bombay High Court, the learned Judge observed thus: ?In this connection I may refer to the decision in Poreman Dass v. Bhattu Mahton 2 and Govindaprasad v. Raghunathprasad 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 and Precedents by M.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 (1897) I.L.R. 24 Cal. 672 and AIR 1939 Bom. 289 as authorities for that position. THE facts in I.L.R. 24 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.? Learned counsel submits that the translation of Avyavaharika debts as given by Colebrooks, has been accepted by Mulla in his book on Hindu Law and also by the Supreme Court in S.M. Jakati v. S.M. Borkar 1 . Colebrooks has translated Ayyavaharika debts as debts for a cause repugnant to good morals. Learned counsel draws my attention to a passage in the judgment of Justice C.M. Lodha in State of Rajasthan v. Mohan Lal 2 which reads as follows: