SUDHANSU KUMAR SINGH Vs. RAMJHARI KUER

JUDGEMENT

(1.) This appeal under the Letters Patent is brought against a judgment of Choudhary J. dated 5-10-1953, in Second Appeal No. 138 of 1950.

(2.) The history of the case is Important. In the year 1927 Raja Prasad Singh along with his father Jagat Narain Singh and others brought Title Suit No. 69 of 1927 against the respondents and their mother who was the widow of Fouzdar Singh, an agnate of the plaintiffs. In this suit the plaintiffs asked for a declaration that Fouzdar Singh died in a state of jointness and as such his widow was entitled to maintenance only and the inheritance of Fouzdar Singh passed by survivorship to the plaintiffs. On 8-12-1930, the suit was compromised and an admission was made by the plaintiffs in the compromise petition that Fouzdar Singh died as a separate member of the joint family. In the year 1938 the minor son of Misri Singh and two minor sons of Kedarnath Singh brought Title Suit No, 58 of 1938 against the respondents, and in that suit the other plaintiffs of Title Suit No. 69 of 1927, including Raja Prasad Singh, were made defendants second party. In the Title Suit of 1938 the plaintiffs asked that the compromise decree should be set aside on the ground that the leave of the Court under Order 32, Rule 7, Code of Civil Procedure, was not obtained and as such the compromise was not binding on the minors This suit was decreed on 22-9-1939, and it was ordered that the compromise decree in the previous Title No. 69 of 1927 should be set aside and that Title Suit should be heard again on merits. The trial Court thereafter heard the title suit and on 4-2-1942 dismissed that suit. The minor plaintiffs preferred an appeal and the lower appellate Court allowed the appeal and decreed the title suit on 3-9-1943. The Title Suit was decreed not only in favour of the minor appellants but also in favour of the respondents second party, Raja Prasad Singh and others. The other set of respondents preferred a second appeal to the High Court and on 25-10-1945, the High Court allowed the second appeal, set aside the decree of the lower appellate Court and res-tored that of the trial Court. During the pendency of the second appeal In the High Court respondents 1 to 3 of that second appeal applied for delivery of possession of the properties on the strength of the decree passed by the lower appellate Court and obtained actual possession. Thereafter Raja Prasad Singh and others, who were plaintiffs of Title Suit No. 69 of 1927, got their names mutated in register D. When the decree of the lower appellate Court was set aside by the High Court, the present respondents applied for restitution. Raja Prasad Singh objected, but in spite of this objection possession was delivered back to the respondents. Thereafter the respondents applied for mesne profits for the period during which the judgment debtors were in possession by virtue of the decree passed in their favour by the lower appellate court. Raja Prasad Singh objected to his liability for mesne profits, but the objection was dismissed by the Subordinate Judge and his decision was affirmed on appeal by the Additional District Judge. Raja Prasad Singh preferred a second appeal to the High Court. During the pendency of the second appeal Raja Prasad Singh died and his only son, namely. Sudhansu Kumar Singh was substituted in his place.

(3.) It was argued before the learned Judge who heard the second appeal that the liability for . mesne profits On Raja Prasad Singh should not be fastened upon his son Sudhansu Kumar Singh, because the debt was "avyavarika" and, therefore, the share of the appellant cannot be sold in execution of the decree taken out against the father Raja Prasad Singh for the satisfaction of the mesne profits. It was pointed out on behalf of the appellant that in the compromise decree Raja Prasad Singh had admitted that Fouzdar was separate and, therefore, the act of Raja Prasad Singh taking possession of the inheritance was a dishonest act and so the liability for mesne profits was tantamount to an "avyavaharika" debt. This argument was rejected by Choudhary J. on the ground that the nature of the father's debt has to be ascertained with reference to the facts existing at the time the debt was incurred and that an examination of the circumstances before or after the liability was incurred is irrelevant to ascertain the nature and character of debt. In support of this view Choudhary J. relied upon Kirit Singh v. Mt. Chandra Kali, ILR 30 Pat 826 : (AIR 1951 Pat 587) (A) ; Hemraj v Khem Chand, 70 Ind App .171 : (AIR 1943 PC 142) (B). In this Court Mr. Dasu Sinha argued that this view of law was not correct, and in support of his argument learned counsel railed upon Darbesh. wart Singh v. Raghunath Pd Singh. ILR 28 Pat 165 : (AIR 1949 Pat 515) (C); Brij Behari Lal v. Phunni Lal, AIR 1938 All 377 (D); Sunder Lal v. Raghunandan Prasad, ILR 3 Pat 250 : (AIR 1924 Pat 465) (E) and Govind Prasad Vasudeva Prasad Tewari v. Raghunath Prasad Indraprasad, AIR 1939 Bom 286 (FB) (F). We have examined the authorities upon which Mr. Dasu Sinha has relied. We have also examined the cases upon which Choudhary J. has based his decision. We do not think that the decision of the Judicial Committee in 70 Ind App 171 : (AIR 1943 PC 142) (B) lends support to the proposition that the previous history of the transaction cannot be looked at in order to ascertain the nature and character of the father's debt or to find out If it is "avyavaharika". In 70 Did App 142 at p. 177 : (AIR 1943 PC 142 at pp. 145-146) (B), Sir Madhavan Nair no doubt states as follows :