MUSSUMAT GIRJA KOER Vs. BHAGBUT PERSHAD

JUDGEMENT

(1.) THIS is an appeal from a decree of the High Court in a suit brought by the widows of Babu Jhaller Singh, Babu Pertdb Narain Singh, and Babu Roghuberdyal Singh, on behalf of themselves and the infant children of their respective husbands, to recover possession of property which had been purchased by the first Defendant, Babu Punnu Singh, under certain writs of execution against the three husbands. The property which was the subject of this suit, namely, a five annas four pies share of Bazidpore Dhanki, was ancestral property governed by the Mitakshara. The husbands by four bonds had charged the five annas four pies share with certain debts. One of those bonds was given by one of the husbands alone, namely, Jhaller. The decree under which the first sale in execution took place was on a judgment upon a bond given by the three husbands to secure a certain sum for money lent to them and by which they charged by way of mortgage, as security for the amount lent, the five annas four pies share. They were sued, not only to recover the money out of their general assets, but in the first place to have it realised out of the five annas four pies share. The decree was that the money should be recovered out of the property charged, and the five annas four pies share was attached in execution of the decree, and was sold in execution. The sale was confirmed by the Court, and the confirmation recites that the action had been brought for the recovery of a certain amount, and "as the right and interest of Balm Jhaller Singh, and Babu Pertab Narain Singh, and Roghvhurdyal Singh, judgment debtors, in the under-mentioned land, or immoveable property, were sold on the 6th of October, 1879, in execution of this decree through the bailiff of the Court of the Judge of Patna; and as seven days have elapsed and no objection is filed, it is ordered that the said auction sale be confirmed, and the said sale is confirmed by this order." Then at the foot of the certificate of confirmation the property is stated to be the five annas four pies share of the mouzah Bazidpore Bhanhi, so that there can be no doubt that by the bond under which the sale took place that property was charged; the debt was decreed to be recovered out of the property; the property was attached; the property was sold, and the sale was confirmed as to the property itself. Therefore it was not a mere sale of the right, title, and interest of the debtors. It was the sale of the property being the right, title, and interest of the debtors.

(2.) THE suit was brought by the widows on behalf of themselves and the children to set aside the sale entirely; and they also prayed that possession might be awarded in respect of the whole five annas four pies share; and secondly : "In case the purchase of Defendant No. 1, - "that is the purchase of Punnu - "in respect of the right and interest of Defendants Nos. 3 to 5 (that is the three husbands), be held valid, then your Petitioners might be put in possession of their legal share by partition."

(3.) UPON that, there was an appeal to the High Court, and the Court gave their judgment on the 21st of June, 1883. For their reasons they referred to a judgment they had given in another suit. The effect of the judgment was, that although the Defendants had failed to prove that the loans in respect of which the bonds were executed were required for family necessities, still the Plaintiffs had equally failed to establish that they were" applied to immoral purposes." That the lenders did not make any proper inquiry which a prudent lender would make to satisfy himself as to the necessity of the loans. As to the evidence of immoral and extravagant conduct of the husbands the High Court said, "although the witnesses examined by the Plaintiffs give a somewhat exaggerated account of it, yet we are on the whole satisfied that these persons were leading a life of debauchery and sensuality; and if the lenders had made proper inquiry they would have found that the necessities of the loan arose from their improper and immoral way of life. The Lower Court seems also to be of this opinion. The Subordinate Judge in one portion of his judgment says: ' The mere bad conduct of Jhaller, Chiler, and Boghubur, is not sufficient to resume the property.' But the Lower Court thinks that the evidence adduced is lot sufficient to establish that the amounts borrowed under the aforesaid bonds were actually applied to immoral purposes. In this opinion we also concur." It therefore appears that the High Court thought that although the bonds were not proved to have been given for moneys advanced for improper purposes, still the lenders of the money who had sued and recovered their judgments had not made proper inquiries to ascertain whether there was an actual necessity for the loans. But it must be borne in mind that this was not a case of a joint family consisting of brothers but it was one consisting of fathers and children; and it has been held that sons are liable to pay the debts of their fathers, unless incurred for immoral or illegal purposes.