MAHANTH SHIB NARAIN DAS Vs. PANDEY JAMUNA PRASAD

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge arising out of action on a mortgage bond, dated 1 October 1929. The defendants (father and two sons) were the members of a joint Hindu family. The learned Judge in the Court below has held that the father alone is responsible for the debt, and has therefore given a decree for sale against one-third share of the mortgaged properties. In those circumstances the plaintiff appeals.

(2.) The only question that arises is whether the debt was tainted with immorality or illegality which would release the sons from their obligation to discharge that debt. I repeat that the appeal has been made to depend upon that question and that question alone. The fact was that the father was a vakil appointed on behalf of a certain estate and had been responsible for collection of decretal amounts and rents from tenants. In the course of the business of the estate he employed two karpardaz for the purpose of this collection. It is said that they were not the servants of Mahendra, the father, but the servants of the estate; but that in my judgment makes no difference to the case. It is contended by Mr. Mitter on behalf of the defendant-respondents that the sons were not liable as the debt was incurred by the father Mahendra as surety for the honesty of others. In putting forward that argument Mr. Mitter relies upon the statement in Mulla's Principles on Hindu Law, para. 298(5). It is contended in the first instance, a contention which is based upon the observation of the learned Judge in the Court below, that Mahendra was criminally liable. This contention cannot be supported by the evidence in the case. There may have been a threat against Mahendra, but it was nothing more than a threat, and there is nothing in the evidence of this case upon which this Court could come to the conclusion that Mahendra was criminally liable. That point therefore must be ruled out of the case for the purpose of the conclusion at which we are to arrive. It is perhaps desirable to notice the evidence of the defendants themselves with regard to this question. The first witness for the defence says in the course of his evidence speaking of Mahendra: He was authorized to receive decretal amounts from judgment-debtors and receive money from tenants and was responsible for the money. There were two karpardaz under him for the estate. Mahendra Babu did not remit all the money realized by him to the estate.

(3.) Later the witness says: He was not authorized to keep the decretal amount realized by him as long as he liked.