M.B. Shah, J.
1. Being aggrieved and dissatisfied by the judgment and order dated January 16, 1982 passed by the Civil Judge, Senior Division, Narol in Civil Miscellaneous Application No. 292 of 1977, the original applicants have filed this appeal. Applicant No. 1 is the son of Respondents No. 2 and brother of Respondent No. 3. Applicants Nos. 2 and 4 to 6 are the wife, sons and daughter of applicant No. 1. Applicant No. 3 is the other son of respondent No. 2. Applicants No. 7 to 10 are the sons and daughter of respondent No. 3. Applicant No. 11 is the mother of applicant No. 1 and respondent No. 2 and wife of respondent No. 2.
2. Respondent No. 1, Food Corporation of India had kept on rent a property belonging to respondents Nos. 2 and 3 for storing food-grains and particularly wheat. A criminal complaint was filed by the Food Corporation against respondents Nos. 2 and 3 for theft of the wheat on large scale. It was their contention that after committing theft the wheat bags were sold by respondents Nos. 2 and 3. In the criminal case respondents Nos. 2 and 3 were convicted and their conviction was upheld finally by the Supreme Court. Thereafter respondent No. 1 filed Special Civil Suit No. 33 of 1970 for recovering damages against respondents Nos. 2 and 3 for wrongful conversion of the wheat belonging to the Food Corporation of India.
3. In the suit, decree for Rs. 2,07,000/- with costs and interest was passed on March 22, 1977. Against the said decree, First Appeal No. 1224 of 1977 is filed by respondents Nos. 2 and 3 and Cross First Appeal No. 924 of 1977 is filed by the Food Corporation of India. Both the appeals are pending before this Court. It is an admitted fact that the Court has not stayed execution of the decree.
4. Respondent No. 1, Food Corporation had, therefore, filed Execution Application No. 20 of 1977 on August 1, 1977. In the Execution Application, an application for attachment of the agricultural lands belonging to respondents Nos. 2 and 3 was filed. The Joint Civil Judge, Senior Division Narol, by his order dated August 19, 1977 had passed an order of attachment of the agricultural lands. Thereafter the applicants had filed the aforesaid Miscellaneous Civil Application No. 292 of 1977 under Order 21, Rule 58 of the Civil Procedure Code for raising attachment on the ground that the attached properties were undivided Hindu joint family properties and, therefore, they were not liable to be attached. It was further contended that applicants 2, 7 and 11 were entitled to have a right of maintenance out of the said properties and, therefore, the said properties were not liable to be attached.
5. The learned Judge, after recording evidence, dismissed the said objection application by holding that under Hindu Law it is the pious obligation of the sons to pay the debt of their father unless it is contracted for an immoral or an illegal purpose and, therefore, the entire joint Hindu family property can be attached and sold for the debt of their father. He further held that as the decree was passed against respondents Nos. 2 and 3 for the civil wrong committed by them, it cannot be said that the debt of respondents 2 and 3 was for any illegal or immoral purpose. With regard to block No. 179 he held that there was no evidence on record to show that it was joint family property.
6. At the time of hearing of this appeal, learned advocate for the appellant submitted that the finding of the learned Judge that the debt contracted by respondent No. 2 was not for illegal or immoral purpose is on the face of it illegal and that there is no pious obligation of the applicant No. 1 to pay the said debt and, therefore, joint Hindu family properties cannot be attached. He further submitted that the learned Judge materially erred in holding that block No. 179 was not the property of appellant No. 1 Himatlal Jivabhai. According to his submission all the other properties were joint Hindu family properties and there was no evidence on record to the contrary to show that the property standing in the name of respondent No. 2 Jivabhai Madhabhai was his self-acquired property.
7. At the outset it must be stated that the finding of the learned Judge that the debt contracted by respondents Nos. 2 and 3 cannot be said to be for immoral or illegal purpose is erroneous and it cannot be sustained. Admittedly the Food Corporation of India has filed suit for recovering money from respondents Nos. 2 and 3 on the ground that they have committed criminal offence of theft of wheat bags stored in the godown of rice mill and thereby for wrongful conversion of the goods belonging to the Food Corporation of India they were liable to pay the price of 2326 bags of wheat. In a civilised society, by any moral standard, commission of theft cannot be considered as lawful and a debt arising out of it as Vyavaharika debt. This debt, therefore, cannot be said to be for legal purpose.
8. In the case of S.M. Jakati v. S.M. Borkar : [1959]1SCR1384 the Supreme Court has considered the concept of Avyavaharika debt and the pious obligation of the son with regard to the other debts of the father. In paragraphs 9 and 10 the Court has relied upon the decision of the Privy Council and has held that if the debt is not lawful or just or what is not admissible under law or under normal conditions it would be Avyavaharika debt. It would be worthwhile to reproduce paragraphs 9 and 10 of the said Judgment.
(9) The first question for decisions whether the debt of the father was Avyavaharika. This term has been variously translated as being that which is not lawful' or what is not just or what is not admissible under the law or under normal conditions. Colebrooke translated it as 'a debt for a cause repugnant to good morals'.There is another track of decision which has translated it as meaning 'a debt which is not supported as valid by legal arguments'. The Judicial Committee of the Privy Council in Hem Raj v. Khem Chand held that the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the term used in the 'Smrithis' texts and may well be taken to represent its correct meaning and that it did not admit of a more precise definition.
(10) In Toshanpal Singh v. District Judge Agra the Judicial Committee held that drawings of monies for unauthorised purposes, which amounted to criminal breach of trust under Section 405 of the Indian Penal Code, were not binding on the sons, but a civil debt arising on account of the receipt of monies by the father which were not accounted for could not be termed 'Avyavaharika'.
9. As early as in 1897 the Calcutta High Court, in the case of Pariman Das v. Bhattu Mahton reported in XXIV I.L.R. (1897) Calcutta Page 672, where a money decree was passed for damages for theft or misappropriation of paddy, had held that the debt was tainted with illegality or immorality and the sons were not under a pious duty to pay the debt. The Division Bench of the Bombay High Court, in the case of Bai Mani v. Usafali reported in XXXIII B.L.R. 130, has held that the son is not liable to pay the debt of his father when such debt consists of money misappropriated by the father. It has further been held that if the liability arises directly from a criminal act, i. e. an act for which the father may or may not have been successfully prosecuted but which can be presumed or proved to be criminal on the evidence on the record, the son would not be bound to pay the father's debt. A son, though under a pious obligation to pay the lawful debts of his father, is not bound to pay debts due to certain specific causes specified in the texts, and in particular is not bound to pay such debts as are termed Avyavaharika. An Avyavaharika debt is considered to be equivalent to 'such debt as his father as a decent and respectable man ought not to have incurred'. In the case of Widya Wanti v. Jai Dayal A.I.R. 1932 Lahore P. 541, the Division Bench of the Lahore High Court has held that the sons of a Hindu father are not liable to pay his debts which are the result of a criminal act viz. criminal breach of trust, because such debts are Avyavaharika debts.
10. In this view of the matter, the finding of the learned Judge that the appellant No. 1 who is the son of respondent No. 2 is liable to pay the decretal amount cannot be sustained as the said debt arises out of a criminal act of theft committed by respondents 2 and 3. By no standard such debt can be said to be a debt incurred by a decent and respectable man.
11. However, the learned advocate for respondent No. 1, Food Corporation of India, submitted that there is no evidence to show that the attached properties were properties belonging to a joint Hindu family of respondent No. 2 and that the appellants have not led necessary evidence on record to prove that the properties which stand in the name of respondent No. 1 are joint Hindu family properties. He submitted that presuming that appellants and respondent Nos. 2 and 3 constituted joint Hindu family, yet no presumption can be raised that the joint family is possessed of joint properties or that any property is joint family property. Mr. Vin, learned advocate appearing on behalf of the appellants also agrees that no such presumption can be raised that a particular property is joint Hindu family property. But according to his submission, the evidence of appellant No. 1 clearly established that the attached properties are joint Hindu family properties and there is no evidence on record to falsify this say of appellant No. 1.
12. Now in this case the evidence which has been led on behalf of the appellants is that of appellant No. 1 Himatlal Jivabhai and respondent No. 2, father of appellant No. 1. In his deposition Himatlal has stated that Jivabhai was managing the properties of the family and the attached properties were of Joint Hindu family. It was his say that block No. 179 belongs to him as he had purchased it by paying Rs. 3500/- to respondent No. 2 in 1965. In his cross-examination in paragraphs 8 and 9 he admits that Jivabhai, respondent No. 2 got the said property under the Tenancy Act and that he had never filed any application for mutating the said block No. 179 in his name. He was serving as a teacher at Ahmedabad. In paragraph 10 of the deposition he says that he was not knowing what were the properties of deceased Madhabhai (his grandfather) when he expired. Jivabhai Madhabhai in his deposition states that the disputed properties are not of his ownership but he is the co-owner (Sahiyari). It is his say that block No. 44 of village Laxmipura is owned by Babarbhai Jivanlal Khamar and other persons; Block No. 50 of Laxmipura belongs to Shankerbhai Nathabhai and himself as co-owners; other lands mentioned in the application were not of his sole ownership. It is his say that the applicants were not residing with him. In the cross-examination he admits that block No. 44 of Laxmipura belongs to him and other two persons. With regard to Block No. 179 also he admits that he got it under the Tenancy Act. In his evidence Jivabhai has nowhere stated that appellants and respondents 2 and 3 are the members of the joint Hindu family and that the properties mentioned in the application are joint Hindu family properties. He has merely stated that the properties are of co-ownership. Therefore, from this evidence by no stretch of imagination it can be said that respondent No. 2 is the manager of the joint Hindu family properties and that the properties are joint Hindu family properties. With regard to the evidence of Himatlal also the same is the position because Himatlal has admitted that he was not knowing how much properties were left by Madhabhai that is, his grandfather when he expired. He has not pointed out any nucleus to prove that his father had acquired property from the joint Hindu family funds. The appellants or respondents 2 and 3 have not led evidence to prove that the family was possessed of some property with the income of which other properties were acquired by respondent No. 2. There is no evidence to show that there was some ancestral property and by the sale proceeds of the said property respondent No. 2 had acquired any of the properties. In this view of the matter it can be said that there is no evidence on record to show that the attached properties are joint Hindu family properties.
13. With regard to Block No. 179, it is an admitted fact that respondent No. 2 got it under the provisions of the Tenancy Act. Therefore, by no stretch of imagination it can be said that it was joint Hindu family property. On the contrary, it is the contention of appellant No. 1 that the said block belongs to him exclusively because he had paid Rs. 3500/- to respondent No. 2 to purchase the said property. In this set of circumstances it is not the case of the appellants or respondents 2 and 3 that the said block belongs to joint Hindu family of respondent No. 2. With regard to block Nos. 44 and 50 of village Laxmipura, the same is the position. Respondent No. 2, Jivabhai, in his deposition admits that block No. 44 is of the co-ownership of himself and Babubhai Jivanlal Khamar and other persons while block No. 50 is of his co-ownership along with Shankarbhai Nathabhai. Jivabhai was not cross-examined by the appellants. Appellants never suggested to him that the said lands are of joint Hindu family.
14. However, the learned advocate for the appellants submitted that in the cross-examination of Himatlal it is suggested by the learned advocate for respondent No. 1 that the rice mill wherein the Food Corporation has stored the wheat was of joint Hindu family and, therefore, there is implied admission on the part of the Food Corporation of India that all the properties are of joint Hindu family. In my view this contention of the learned advocate deserves no further discussion. It is totally misconceived and requires to be rejected. As such no such inference can be drawn from cross-examination by the learned advocate for respondent No. 1. In the cross-examination in paragraph 6 it is the say of appellant No. 1 that as a member of the joint Hindu family he was having share in the rice mill wherein the Food Corporation had stored the wheat. In paragraph 7 it is his say that in the village the joint Hindu family was having houses and agricultural lands. From this it cannot be held that the attached properties are joint Hindu family properties. There is nothing on record to show that the attached properties were either ancestral properties or were acquired out of joint Hindu family property fund.
15. In the above view of the matter, the learned judge has rightly rejected the application filed by the appellants.
In the result, the appeal is dismissed with costs.