HARI SINGH Vs. SANT PROSAD SINGH

JUDGEMENT

(1.) HARI Singh and Tipan Singh bought an estate at a revenue auction sale in 1895 for Rs. 19,100. That sale was set aside and Tipan Singh became entitled after the reversal of the sale to 13/16ths of the auction purchase-money and HARI Singh to the balance. Tipan Singh eventually drew out the whole of the purchase-money and it was necessary for HARI Singh to sue Tipan Singh. He accordingly instituted a suit and obtained a decree against Tipan Singh for his share of the purchase money. In execution of that decree certain ancestral property belonging to Tipan was sold and purchased by HARI Singh. The suit out of which the present appeal arises was brought by Sant Prosad Singh, son of Tipan Singh, for possession of a half share of the ancestral property which has been purchased by HARI Singh in execution of his decree. The claim is based on the ground that the debt incurred by Tipan Singh was an immoral debt and that, therefore, there was no pious duty on the part of Sant Prosad, his son, to pay that debt and that, the property sold being the joint ancestral property of himself and his father, his half share was not affected by the sale. Both the lower Courts have found in favour of the plaintiff and have decreed the suit. The defendants have appealed to this Court.

(2.) IN the present second appeal, it has been urged that the debt was not an immoral debt and that the plaintiff is not entitled to succeed. It is not necessary to discuss the various decisions which have been placed before us for the purpose of showing that there is a distinction between a taking which is not criminal and a taking which merely imposes a civil liability. It is sufficient for the purposes of this case to say that, upon the facts found by the learned District Judge, the offence of criminal misappropriation within the meaning of the INdian Penal Code has not been made out, and that Tipan Singh did not commit an immoral act in drawing out the money from the Collectorate. If his act was not an immoral one, it was incumbent upon the plaintiff to repay the debt. The plaintiff must, therefore, fail in the present suit. The result is that the appeal is decreed and the plaintiff s suit is dismissed with costs in all Courts.