VENUGOPAL NAIDU Vs. ARAMANADHAN CHETTY

JUDGEMENT

(1.) The defendants 8 and 11 to 14 (5 of the legal representatives of the 3rd defendant who died pending the suit) are the appellants in the above second appeal. The suit was brought by plaintiff, one of the five members of a temple committee, for contribution from the other four committee members in respect of moneys which had been recovered from the plaintiff above in execution of the decree obtained by the trustee of the Madura Menakshi temple against the members of the committee (inclusive of plaintiff and 3rd defendant) for moneys which they had spent out of the temple funds in previous litigation carried on by them in the High Court, the High Court, having in that previous litigation directed that committee members should pay such costs out of their private funds and not out of the Devasthanam funds. (See the last sentence of the judgment in Alagiri Swami Naicker v. Sunder eswara Iyer (1898) I.L.R. 21 M. 278 at p. 287)

(2.) The lower courts decided that the 3rd defendant s legal representatives (sons and grand sons) are liable to discharge 3rd defendant s debt to plaintiff, the debt being based on 3rd defendant s liability to contribute his quota of the amount paid by plaintiff alone to discharge the joint decree against plaintiff and his fellow committee members in the temple manager s suit. the only ground argued before us in this second appeal is the 4th ground in the special appeal memorandum. That ground is to the effect that 3rd defendant s sons and grandsons are not legally bound to discharge the debt incurred by 3rd defendant, to the Devestanam whose funds were spent without due authority by 3rd defendant and the other members of the committee, as 3rd defendant s descendants are not under a pious obligation to discharge such a debt.

(3.) Reliance is strongly placed by the learned vakil for the appellants in the case Darbar Khachar v. Khachar Harrur (1908) I.L.R. 32 B. 348 where it was held that under the Hindu Law Texts, a son is not liable for his father s "Avyavaharika" debts, the term being interpreted by the learned judges who decided that case, as meaning "Unusual "or "not sanctioned by law or custom. The learned Judges ruled in effect that the son is not liable for debts which the father ought not, "as a decent and respectable man "to have incurred. That very learned judge, Mr. Justice Mookerjee of the Calcutta High Court has elaborately considered the whole question in a case Ghakowri Mahton v. Ganga Pershad (1912) 15 C.L.J. 228 and I cannot usefully add anything to the observations found in the lucid judgment in that case. The learned Judge virtually dissents from the decision in Darbar Khachar v. Khachar Harrur (1908) 1. L.R. 32 B. 348. Learned Sanskrit scholars have differed from one another as to the meaning of the expression "Avyavaharika "debt (see the first paragraph in page 231 of the judgment in 15 Calcutta Law Journal case.) I am inclined to accept Colebrooke s paraphrase namely "debt incurred for a cause repugnant to good morals "as more nearly approaching the true import of the expression than any of the meanings given by the other authorities. If I might venture upon giving my own translation of the expression "Avyavaharika "I would paraphrase an Avyavaharika debt as a debt which is not supportable as valid by legal arguments and on which no right could be established in the creditor s favour in a court of justice (compare the use of the word "Vyavahara "in such expressions as Vyavahara Mayukha, Vyavahara Darpana, etc.)