RAMKRISHNA TRIMBAK NADKARNI Vs. NARAYAN SHIVRAO ARAS

JUDGEMENT

(1.) The plaintiff sues to enforce a mortgage effected in his favour by the 1st defendant. The mortgage security consisted of a piece of land, the property of the Ist defendant, and of land which was the property of the family of the 5th defendant and his sons, the present appellants, which was ostensibly burdened with a mortgage debt created by the 5th defendant in respect of certain payments made or liabilities incurred by the Ist defendant at the 5th defendant s request in respect of dealings in a trade in fish instituted by the 5th defendant and carried on largely under the management of the Ist defendant.

(2.) The present appellants pleaded that they were not liable for their father s debt; that they did not admit the bona fides of the mortgage bonds of their father; that they were passed for debts incurred for immoral and illegal purposes; that their father was given to profligate habits and was fond of gambling in speculative transactions recklessly; that they derived no benefit from the transactions; and that they were not liable under the Hindu law to pay off debts incurred by their father so imprudently.

(3.) When the case came to trial issues were raised upon the pleadings. The 2nd issue was whether defendant No. 5 contracted the above debt for illegal or immoral purposes as alleged by defendants Nos. 12 to 14. But during the hearing a further issue was raised in these terms:-Is the mortgage transaction of defendant No. 5 with defendant No. I null and void by reason of its having been entered into in violation of the Government Servants Conduct Rules as prescribed by Government? The point then made was that having been entered into in contravention of Government Servants Conduct Rules, the transactions which resulted in the mortgage debt were null and void under Section 23 of the Contract Act as being agreements forbidden by law or opposed to public policy. The learned Judge held that the transactions were not void under Section 23, but he decided the 2nd issue in favour of the present appellants. It was suggested to him that the whole scheme of business was avyavahara, and therefore, such as could not give rise to a liability in the sons to pay their father s debts, and upon the authority of Durbar Khachar v. Khachar Harsur he decided that the debts in suit came under that class of debts which it is not the bounden duty of the sons to pay as being illegal in the sense in which the Hindu law texts so consider them. Accordingly a decree was passed for the amount claimed, and on default for sale of the father s interest alone in the family properties, and for sale of the property belonging to the first defendant.