JUDGMENT Iqbal Ahmad, J.
1. The question of law that arises in the present appeal is whether the sons (which expression in this judgment includes sons' sons and son's son's sons) of a Hindu, who is the manager of a joint Hindu family consisting of himself, his sons and his nephews and grandnephews, are under a pious obligation to pay the debt incurred by him, when the debt was incurred neither to meet family necessities nor was tainted with illegality or immorality, and on the answer to that question depends the fate of this appeal. The defendants-appellants are the sons and grandsons of Raj Kumar Lal who was also a defendant in the Court below and is a proforma respondent in the present appeal. The suit giving rise to the appeal was for recovery of the amount due on the basis of a simple money bond dated 6th April 1923, executed by Raj Kumar Lal in favour of the plaintiff-respondent. The plaintiff originally filed a suit against Raj Kumar Lal alone but, on an application dated 19th December 1927, being made by the plaintiff, the present defendant-appellant and Debi Prasad and Chandi Prasad the nephew and grandnephew respectively of Raj Kumar Lal, were also impleaded as defendants to the suit.
2. The bond in suit was for a sum of Rs. 11,000 out of which a sum of Rs. 1,272 was advanced in cash by the plaintiff to Raj Kumar Lal and the balance of Rs. 9,728 was acknowledged by Raj Kumar Lal to be due to the plaintiff on five earlier bonds and promissory notes, three of which were executed by Raj Kumar Lal and two by Lalta Prasad, one of the sons of Raj Kumar Lal, and one of the appellants before us. The plaintiff alleged that the debt evidenced by the bond had been incurred by Raj Kumar Lal as the head and karta of the family to meet family necessities and that all the defendants were liable to pay the same. Debi Prasad and Chandi Prasad contested the suit on the ground that they were separate from Raj Kumar Lal, who had nothing to do with their branch of the family, and that Raj Kumar Lal was not the karta or the manager, and that the bond in suit was not for consideration and, in any case, the debt evidenced by the bond was not incurred for family necessity. They also pleaded limitation. Three separate written statements embodying identical pleas were filed on behalf of the defendants-appellants. They asserted that they had separated from Raj Kumar Lal and Raj Kumar Lal was not a member of a joint family along with them, nor was he the karta of the family. They further denied that the bond in suit was for consideration, or that the debt in suit was contracted for family necessity, or that they had in any way benefited by the same. They also pleaded limitation in bar of the plaintiff's claim.
3.The Court below, on a consideration, of the evidence in the case, found that Raj Kumar Lal and all the defendants were members of a joint Hindu family and that Raj Kumar Lal was the karta of that family and the partition decree, on which reliance was placed on behalf of the defendants in support of the plea of separation, was fraudulent. It held that the bond in suit was for consideration, but that no legal necessity for the debt had been proved and that the plaintiff did not make proper and bona fide inquiries as to the existence of the alleged necessities. It further held that the debts were not tainted with immorality or illegality and, that the suit was not barred by limitation. As a result of its findings it exempted Debi Prasad and Chandi Prasad from the claim and dismissed the suit against them. It is however held that the defendants-appellants, being the sons and grandsons of Raj Kumar Lal, were under a pious obligation to pay the debt in suit, as the debt was not raised for any immoral purpose, and accordingly, decreed the suit ex parte against Raj Kumar Lal and passed a decree for the amount claimed against the defendant-appellants, restricting it in its operation to the extent of the joint family property in their hands.
4. The decree dismissing the suit against Debi Prasad and Chandi Prasad has become final and, in the present appeal, we are only concerned with the question whether the Court below was right in passing a decree against the defendants-appellants, who are the sons and grandsons of Raj Kumar Lal. The correctness of the findings on the questions of fact recorded by the Court below has not been questioned before us and the counsel for the parties stated that they accepted the accuracy of those findings. In other words, the learned Counsel for the appellants refused to place any reliance on the partition decree referred to above and stated that he accepted the position that the defendant-appellants, Debi Prasad and Chandi Prasad were the members of a joint Hindu family with Raj Kumar Lal, and that Raj Kumar Lal was the manager of the family. and that the debt in suit was not tainted with immorality. On the other hand, the counsel for the respondent stated that he does not challenge the finding that the debt in suit was not proved to have been incurred for family necessity and that no bona fide inquiries were made by the plaintiff as to the existence of such necessity.
5. The question for consideration in the present appeal therefore is whether, having regard to the constitution of the family of which Raj Kumar Lal was the manager, the defendants-appellants were under a pious obligation to pay the debt incurred by Raj Kumar Lal, when the debt was raised neither for family necessity nor was tainted with immorality. It is not disputed that the sons are under a pious obligation to pay the pre-partition debts of the father, provided the debts are not tainted with illegality or immorality and, further, it is well settled that this pious obligation is enforceable only to the extent of the joint family property in the hands of the sons and, that the father's creditor is not entitled to proceed against the persons or separate properties of the sons. But it is contended by the learned Counsel for the appellants that the pious obligation of the son is restricted only to those cases in which the family consists only of the father and his sons and that, a son does not labour under any such obligation if persons other than the father and the son, e.g., the brother or nephew of the father, are also members of the joint family. He further argues that the pious obligation of the son is confined only to the debt incurred by a father who is also a manager of the family and that the sons of the junior members of the family, who are not the managers of the family, are under no pious obligation to pay the debts incurred by their respective fathers. In other words, the argument is that there-is no pious obligation on Hindu sons to pay the debts, of the class mentioned above, incurred by the father either (1) if the father was not the manager of the joint family, or (2) if, besides the father and sons, there are also other male members constituting the joint family, on whom there is no such pious obligation.
6. As it is now admitted that Raj Kumar Lal was also the manager of the joint family, it is not necessary for the decision of the appeal before us to decide whether it is essential for the application of the doctrine of pious obligation that the debt must be of a father who is also the manager of the joint family, and therefore the expression of opinion on the point must necessarily be in the nature of an obiter dictum, but as the point has been argued at length before us, I do not feel justified in not giving expression to my views on the subject. It is conceded by the learned Counsel that there is no direct authority in support of the propositions propounded by him, but he maintains that his contention is countenanced by the decision of their Lordships of the Privy Council in Brij Narain v. Mangla Prasad AIR 1924 P.C. 50 and by certain observations contained in the judgment of this Court in Binda Prasad v. Raj Ballabh Sahai AIR 1926 All 220 and in the Full Bench decision of this Court in Bankey Lal v. Durga Prasad AIR 1931 All 512. He has further in justification of his contentions noted above, drawn our attention to the observations of Coutts-Trotter, C.J., in the Full Bench decision of the Madras High Court in Subramania Ayyar v. Sabapathy Ayyar AIR 1928 Mad 657, that the doctrine of pious obligation is an illogical relic of antiquity unsuited to any but a primitive and patriarchal society and that it is not to be extended beyond the limits made binding by decisions of unquestionable authority. I am unable to agree with the contentions of the learned Counsel for the appellants. I am not aware of any Hindu law text that circumscribes the pious obligation of a son within the limits contended for by the learned Counsel for the appellants. Indeed the pious obligation of the sons, as recognized by original texts, was irrespective of any assets being received by them. No doubt judicial decisions have, in various respects, modified the obligation of the sons with respect to the payments of debts of their father as recognized by original texts but, it is manifest that the obligation rests on the religious duty of the son to discharge the father's debts and, I can discover no justification for holding that the sons of a father, who is not the manager of the joint family, are under no such religious obligation or that, if the joint family consists of members over and above the father and the son, there is no such obligation on the sons. To put it in another way, every Hindu son is under a religious obligation to discharge his father's debts of the class mentioned above, irrespective of the fact whether the father is or is not the manager of the joint family, or whether the joint family is or is not composed of persons other than the father and the sons.
7. I find it difficult to understand and impossible to appreciate why the sons of the junior members of a joint Hindu family, or the sons of a manager of the family which also comprises brothers and nephews of the manager, should be absolved from the pious obligation which, so far as the Hindu law texts go, is imposed on every Hindu son irrespective of the limitations contended for by the learned Counsel for the appellants. It is to be remembered that the law is not always a logical code, and where the law is clear, it is not permissible to attempt to widen or to abridge its scope. simply to bring it into line with what, according to one's conception, the law should have been, The law as to the pious obligation of the Hindu sons as evolved by judicial decisions, is not free from confusion and, to introduce further refinements of the nature that the learned Counsel for the appellants advocates, would be to make that confusion worse confounded, and therefore unless judicial decisions, that are binding upon me, lend support to his contentions. I am not prepared to introduce, into this branch of the law, exceptions which practically have the effect of nullifying the rule itself. With all respect to the observations of Coutts-Trottcr, C.J., noted above, I find myself unable to hold that the rule as to the pious obligation of the Hindu sons is unadapted to a progressive state of society and is therefore to be confined within the strictest possible limits .
8. So far as I can see, this rule was introduced as a sort of corrective to the rule that every male member of a joint Hindu family acquires an interest in the joint family property from the moment of his birth, and therefore no member of such a family can predicate the extent of his share or can alienate the same. If by the mere fact of his birth the newly born son acquires an interest in the joint family property, and thus automatically reduces the extent of this father's interest in the same, it is but fair and just that he should shoulder along with the father the liabilities of the father. To make provision for the payment of debts due to a creditor far from being "unsuited to any but a primitive and patriarchal society" is in consonance with common honesty and is, I should think, the recognized practice of the civilized world. The liability imposed on a son, to pay the just debts of his father is not a gratuitous obligation thrust on him by Hindu law but is a necessary corollary if not a salutary counter-balancing proviso, to the principle that the son from the moment of his birth acquires, along with the father, an interest in joint family property. In Brij Narain's case AIR 1924 P.C. 50 the proposition as to the pious obligation of the son was formulated by their Lordships of the Judicial Committee in the following words:
If he is the father and the other members are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.
9. It is argued that their Lordships intended to lay down that the pious obligation of the son extends only to the debt incurred by a father who is also the manager of the family, and to confine the pious obligation only to cases in which the family consisted of the father and the sons. In the case before their Lordships the debt, that formed the subject matter of consideration, was incurred by the manager of the family and the family consisted only of that manager and of his sons and the above mentioned proposition was laid down by their Lordships with reference to the fact of the case that they had to decide. To give effect to the contention of the learned Counsel for the appellants would be to read after the word "father" in the above quotation some such words as "who is also the manager of the family" and after the word "sons" words to the effect "and no others" for which I find no justification. Indeed the proposition is couched by their Lordships in words that are of general application and is uncircumscribed by limitations of the nature contended for by the learned Counsel for the appellants. All that is necessary to bring into play the pious obligation of the sons is that the debt must have been incurred by their father and must not have been raised for an immoral purpose. In the case of Binda Prasad v. Raj Ballabh Sahai AIR 1926 All 220, the questions now under consideration did not arise for decision, but reliance is placed by the learned Counsel on certain observations made by Mukerji, J., in the course of his judgment. The learned Judge observed that:
the liability of the sons to pay their father's debt not tainted with immorality is the same whether the liability is enforced through the Court or it is taken advantage of by the father in paying off his antecedent debts by private treaty. In my opinion the lest is that the property which the father could sell in his lifetime is the only property that could be pursued by his creditor on his death in the hands of his sons....It is therefore only such property as was under the control of the father in his lifetime in order to pay his antecedent debts that can be followed in execution.
10. On the basis of these observations, it is argued that the pious obligation of the sons is co-extensive with the right of the father to dispose of the family property in order to liquidate his debts and that, where the father is not competent to utilize the family property for the payment of his debts the alienating the same, there is no pious obligation on the sons. It is said that as in the case before us there was no obligation on Debi Prasad and Chandi Prasad to pay the debts of Rai Kumar Lal, Raj Kumar Lal could not alienate the family property for the discharge of his debts, and therefore there was no obligation on the defendants-appellants to pay the debts of Raj Kumar Lal, nor could such obligation be enforced by sale of their interest in the joint family property.
11. If the learned Judges who decided Bind a Prasad's case AIR 1926 All 220, had affirmed the propositions advanced by the learned Counsel for the appellants, I would not have taken the contrary view without considerable hesitation, but the learned Judges in that case had to deal with a different set of affairs and there was no pronouncement in that case on the questions before us. In that case the family consisted of one Bihari Lal, his son Tapeshwari Dayal and of the sons of Tapeshwari Dayal. During the lifetime of Bihari Lal, Tapeshwari Dayal incurred some debts and then died leaving him surviving Bihari Lal and his own sons. The creditor obtained a simple money decree against Tapeshwari Dayal and, after the death of Bihari Lal, wanted to execute the same by attachment and sale of the family property in the hands of the sons of Tapeshwari Dayal, and the question for consideration arose whether he could do so in ac ordance with the provisions of Section 53, Civil P.C., and it was decided by this Court that he was not entitled to do so. It is clear from the facts stated above that the facts in Binda Prasad's case AIR 1926 All 220 were essentially different from the facts of the case before us and the decision in that case can be of no avail to the defendants-appellants. I may note in passing that, in considering the question of the pious obligation of the sons, care must always be taken not to confuse two distinct but well settled propositions of Hindu law: (1) The father's power to alienate the sons' share during the lifetime for debts incurred by him which were raised neither for family necessities nor tainted with immorality, and (2) the creditor's remedy for the recovery of such debt by sale of the sons' shares.
12. The father can exercise the right to alienate the family property to discharge his debts only if the family consists of the father and the sons and of no other male members, for the simple reason that those other members are under no pious obligation to pay the debts of the father, but the creditor's right to recover the debt by sale of the sons' interests in the family property is untrammelled by any such limitations, for the obvious reason that his right is based not on the father's right to alienate the family property but on the pious obligation of the sons and is independent of the father to alienate the sons' interest. In other words, the creditor can pursue his remedy by sale of the sons' interest in the family property even though the father having regard to the constitution of the family, cannot alienate the same. It is well settled that the undivided interest of a coparcener in a joint Hindu family, governed by the Mitakshara law, can be attached and sold in execution of a decree against him for his personal debt, even though the co-parcener is incompetent to sell his interest for the payment of his debts and the purchaser can, after purchasing the same, have that interest defined and separated by a suit for partition. That being so, I fail to see why a creditor of a father cannot similarly enforce the pious obligation of the sons by attachment and sale of their interest in the family property, even though the father had no right to alienate the same. In my judgment, the measure of the creditor's right, to recover the father's debt by attachment and sale of the interest of the sons in the family properties, is not the father's right to sell that interest for the payment of his debt, but is the pious obligation of the sons, which is controlled, not by the father's power to alienate that interest, but only by the conditions that the debt should not be tainted with immorality and that it can be realized only from the joint ancestral property in the hands of the son and not from his separate property.
13. I therefore cannot agree with the argument that, when a creditor wants to sell the interest of the sons in the family property in execution of a decree for the debt of the father, he exercises the right of the father to alienate the interest of the sons. I do not find any observations in the Full Bench decision of this Court in Bankey Lal v. Durga Prasad AIR 1931 All 512, which are inconsistent with the view that I have expressed above. On the contrary the following questions from the judgment of Sulairnan, Ag. C.J., with which three out of the remaining four learned Judges constituting the Bench agreed, lend support to my view. At p. 922 of 1931 A.L.J. Bankey Lal v. Durga Prasad AIR 1931 All 512 the learned Ag. C.J., is reported to have observed that if the debt is contracted by the father then whether he is the manager or not, the Courts (below) have recognized that there is a pious obligation on his sons to pay the debt, even though the debt is a separate debt, taken by the father for his own personal purpose and while dealing at p. 929 with the decision in Ajodhya Prasad v. Data Ram AIR 1931 All 131, he observed that we however went on to observe, which was in the nature of an obiter dietum that as the father was not the manager the case did not come within the scope of any of the propositions laid down by their Lordships of the Privy Council in Brij Narain v. Mangala prasad AIR 1924 P.C. 50. We thought that in principle it seemed to follow that, in the absence of any express authority to the contrary, the interest of the minor grandsons could not be held liable for the personal debt of the father when the grandfather was alive and was the manager. I must confess that on a reconsideration I now think that this observation was incorrect. My learned brother Young, J. concurs in this view. The propositions laid down by their Lordships of the Privy Council relate to joint families and cannot be considered as giving an exhaustive list so as to exclude the liability of a separated son.
14. These quotions from the judgment of the learned Ag. C.J., put it beyond doubt that the pious obligation of the son is not dependent on the father being also the manager of the joint family. Similarly the following observations of the learned Ag. C.J., support the view that the creditor's right to enforce the pious obligation of the sons is independent and irrespective of the father's right to alienate the family property. He observed that the liability of the sons for the payment of such debts cannot rest on the power of the manager to bind the family. It must rest solely on the pious obligation of the sons to pay their father's debts and further while dealing with the Full Bench decision of the Madras High Court in Subramania Ayyar v. Sabapathy Ayyar AIR 1928 Mad 657, his Lordships observed that on the other hand, Ayyar, J. proceeded on the supposition that it was not a pious obligation of the Hindu son to pay his father's debt, but rather the power of the father to sell the family property in payment of his debts, which should he made the basis of the liability. The learned Judge concluded, though the father's power of alienation and the creditor's right to proceed against the son's share are both based on the pious obligation of the son, still on a partition, what is put an end to is only the right of the father to alienate and not the right of the creditor. The reply may be that the Hindu law texts based the liability on the pious obligation itself and not on the father's power to tell the sons' share, and that their Lordships of the Privy Council also in all their pronouncements have put the liability on the same basis.
15. I similarly find nothing in the judgment delivered by Mukerji, J., in the Full Bench case to lead me to hold that the contentions advanced by the learned Counsel for the appellants are well founded. It is true that at one or two places in his judgment the learned Judge has made reference to the father's right to alienate the family property for the payment of his debts that were not tainted with immorality, but he has nowhere held that the father's right to alienate the family property is co-extensive with the creditor's right to sell the son's interest in the family property in execution of a decree for such debt. For the reasons given above I hold that the learned Judge of the Court below was right in decreeing the plaintiff's suit against the defendants-appellants.
16. It is further argued on behalf of the appellants that the case that the appellants were under a pious obligation to pay the debt in suit was not formulated in the plaint, and therefore they had no opportunity to meet that case and we are asked therefore to give the defendant-appellants an opportunity to adduce evidence on the point. I am not at all impressed by this argument. It was no doubt alleged in the plaint that the debt was contracted by Raj Kumar Lal as the head and the karta of the family and that all the defendants derived benefit therefrom, but these allegations did not exclude the possibility of the defendant-appellants being made liable for the payment of the debt on the basis of their pious obligation, provided the debt was not proved to have been incurred for an immoral purpose. In order to exonerate themselves from the plaintiff's claim, the defendant-appellants had to prove not only that the debt was not incurred for family necessity but also to prove affirmatively that it was tainted with immorality. It they did not load any evidence on the point, it was their own fault, and I am not prepared to hold that, because of the absence of an express allegation in the plaint that the appellants were under a pious obligation to pay the debts, the appellants have in any way been prejudiced. The last contention of the learned Counsel for 1hc appellants was on the question of limitation. One of the five earlier bond, that formed the consideration of the bond in suit, and to which reference has been made in the inception of this judgment, was a bond dated 17th August 1919, executed by Raj Kumar Lal for a sum of Rupees 4000. Raj Kumar Lal stipulated to pay the debt in four years and to pay interest on the amount advanced every sixth month and the bond went on to provide that if I fail to pay the interest in six months the said amount of interest shall be treated as principal and I shall continue to pay interest thereon at the rate aforesaid and in case of default in payment of interest of any six monthly period or the amount of principal, the creditor aforesaid, has power to realize in any way he like, his entire amount....
17. It is common ground that the default was made in the payment of interest from the very outset and it is therefore argued that the time for the recovery of the debt began to run from the date of the first default and, on the date that the bond in suit was executed, the debt evidenced by the bond dated 17th August 1919, was barred by limitation, and that any acknowledgment of that debt by Raj Kumar Lal is not binding on the defendant-appellants. The learned judge of the Court below, on the authority of the Full Bench decision of this Court in Gajadhar v. Jagunnath AIR 1924 All 551, overruled this contention on the ground that the sons are under a pious obligation to pay the time-barred debts acknowledged by their father. Apart from the reason assigned by the learned Judge of the Court below, there is another reason for not giving effect to the contention of the defendants-appellants on the point.
18. In my opinion the covenant in the bond, entitling the creditor to sue for the amount due on the bond before the expiry of the stipulated period of four years, was for the benefit of the creditor, and it was open to him to waive that option, and to wait for the full period of four years before putting the bond into suit. It the creditor waived that option, as he undoubtedly did in the present case, the bond did not become payable till after the expiry of four years, and therefore a claim on the basis of the same would have been within time on the date that the bond in suit was executed. Their Lordships of the Privy Council in the recent case of Lasadin v. Gulab Kunwar AIR 1932 P.C. 207, similarly interpreted a similar stipulation in a mortgage-deed giving the mortgagee an option to bring a claim for the recovery of the mortgage debt without waiting for the full term of the mortgage, and the reasons contained in the judgment of their Lordships apply with full force to the case of a simple money debt. I hold therefore that none of the previous debts acknowledged by Raj Kumar Lal in the bond in suit was barred by limitation. All the contentions urged on behalf of the defendants-appellants fail and, accordingly, I would dismiss this appeal with costs.
Kisch, J.
19. I concur.