1. The sixth defendant in O.S. No. 69 of 1985 is the appellant in the second appeal.
2. Originally, the suit was filed by the first and second respondents/minors represented by their mother and natural guardian Annammai. The respondents 3 to 7 herein were the defendants. The said suit was filed for a judgment and decree of partition of the joint family properties comprised in item nos.1 to 4 and for allotment of 1/3rd share to the first respondent and another 1/3rd share to the second respondent in this appeal. The third respondent Narayana Pillai is the father of the first and second respondents and he is entitled to 1/3rd share of the joint family properties. Pending the suit, the sixth defendant viz., the appellant was impleaded on 27.2.86 since she purchased item No. 1 of the suit properties through Court auction held on 28.2.85 and is in possession from August 1985. The suit was decreed by the trial Court in respect of item nos.2 to 4 of the suit properties and the relief of partition in respect of item No. 1 was rejected. Challenging the said judgment and decree, the first and second respondents filed appeal. The lower appellate Court while allowing the appeal decreed the suit for partition in respect of item No. 1 of the suit property also. Aggrieved by the judgment and decree of the lower appellate Court, the appellant has filed the present second appeal.
3. When the second appeal was admitted, the following substantial question of law was framed.
'Whether the judgment of the lower appellate Court is vitiated insofar as it relates to item No. 1 of the suit properties by its erroneous understanding of Hindu Law and failure to consider the relevant evidence on record.'
4. Few facts that are relevant for the disposal of the second appeal are as follows. Prior to the filing of the suit in O.S. No. 69 of 1985 for partition, the respondents 4 to 7 and two others filed O.S. No. 246 of 1972 against the third respondent, Narayana Pillai, the father of the respondents 1 and 2, who are the plaintiffs in O.S. No. 69 of 1985, for recovery of a sum of Rs.12,000/- as damages for malicious prosecution. The said suit was decreed on 29.6.76 directing the third respondent Narayana Pillai to pay a sum of Rs.1,500/- to each of the six respondents. Since the amount decreed was not paid by the third respondent, the property was brought up for auction and the appellant herein purchased the item No. 1 of the suit property through Court auction held on 28.2.85 and the sale certificate was issued on 30.4.85 which is marked as Ex.B-3. In the meantime, the first and second respondents filed O.S. No. 69 of 1985 on 8.2.85 for partition. Before the trial Court it was argued on behalf of the first and second respondents that the liability of the third respondent is a Avyavaharika debt, as the liability to pay damages for malicious prosecution by the father is a personal liability and such liability cannot be enforced on the joint family properties. The said contention was not accepted by the trial Court. However, the lower appellate Court held that the liability of the father as to the payment of damages shall not bind the respondents 1 and 2 to honour the same and consequently decreed the suit for partition in respect of item No. 1 also and insofar as the 2/3rd shares of the respondents 1 and 2 herein.
5. Learned counsel for the appellant once again reiterates the contention that the liability is a Vyavaharika debt and therefore the liability of the third respondent, the father of the respondents 1 and 2 to pay damages can be traced to the joint family properties also in the absence of the third respondent honouring the decree in O.S. No. 246 of 1972. The appellant having purchased the item No. 1 of the suit property through Court auction, question of application of Avyavaharika does not arise on the facts of this case. Hence, the lower appellate Court ought not to have reversed the finding of the trial Court.
6. Learned counsel appearing for the respondents 1 and 2, on the other hand, would contend that the liability of the third respondent as to the payment of damages to the respondents 4 to 7 is a personal one, as the said liability arose out of a suit for damages for malicious prosecution and the decree obtained by the respondents 4 to 7 along with two others against the third respondent is a personal decree and the same cannot be enforced on the joint owners of family properties. Since the said liability for payment of damages is a personal liability of the third respondent, the appellant may be entitled to retain only 1/3rd share belonging to the third respondent and not in the shares belonging to the respondents 1 and 2. Further, the learned counsel submitted that admittedly, the appellant purchased item No. 1 of the suit property on 28.2.85 as she was declared as an auction purchaser on the said date. Much prior to the said purchase, the suit in O.S. No. 69 of 1985 was filed on 8.2.85. Pending the suit, the appellant has purchased item No. 1 of the suit property and therefore, the transaction is hit by Section 52 of the Transfer of Property Act.
7. I have given my anxious consideration to the respective submissions. Insofar as the second submission of the learned counsel for respondents 1 and 2 as to the challenge to the purchase of item No. 1 of the suit property by the appellant is hit by Section 52 of the Transfer of Property Act, it is to be seen that it was not the case of the first and second respondents either before the trial Court or before the lower appellate Court that item No. 1 of the suit property was purchased by the appellant when the suit was pending. No issue was framed both by the trial Court and the lower appellate Court and in the absence of any adjudication as such question was not raised, it cannot now lie in the mouth of the first and second respondents to raise the said question at the appeal stage. Hence, I reject the said contention of the learned counsel for first and second respondents.
8. Insofar as the submission as to the liability of the third respondent to honour the decree for damages made in O.S. No. 246 of 1972, it is to be seen that the said suit was filed by the respondents 4 to 7 along with two others for recovery of a sum of Rs.12,000/- as damages from the third respondent for malicious prosecution. The suit was decreed against the third respondent by directing payment of Rs.1,500/- to each of the plaintiffs therein. The question as to application of the debt arising out of a suit for malicious prosecution came up for consideration before a Division Bench of the Allahabad High Court in 'RAGHUNANDAN SAHU AND OTHERS v. BADRI TELI AND OTHERS : That was also a case where a decree for tortuous act was considered as one of an 'Avyavaharika act'. The relevant portion of the observations of the Division Bench are as follows:-
'In 39 Cal 862, Mookerjee J. after quoting various texts from the Institutes of Manu, Yajnavalkya, Brihaspati, Ushanas, Gautama, Vyassa and Katyayana has summarized the result, and the following debts according to the ancient law givers appear to be immoral debts: (1) Debts due for spirituous liquors, (2) debts due for losses at play or gambling debts, (3) debts contracted under the influence of lust or wrath, (4) debts due for promises made without consideration or useless gifts, (5) debts for being surety for the appearance or for the honesty of another, (6) unpaid fines, (7) unpaid tolls, (8) commercial debts and (9) debts that are avyavaharika. These headings can be deduced from one or other of the ancient texts, and it is also clear that some of them have not been affirmed by judicial decisions, e.g. the test of Gautam, Ch.12,S.41 to the effect that the sons are not liable for their father's commercial debts has long become obsolete, and sons are now liable for debts incurred by the father in the course of business carried on for the benefit of the family, but there can be no doubt that British Indian Courts have recognized that avyavaharika debts of an ancestor are not binding on his descendants, and in various cases difficulty has arisen by reason of an absence of an accurate definition of the term avyavaharika debt. It has been translated in various ways as debts that are not 'lawful,' 'usual,' 'customary,' 'proper,' 'supportable as valid by legal arguments and on which no right could be established by the creditor in a Court of justice,' but the best rendering is perhaps that by Colebrooke as a debt for a cause 'repugnant to good morals'.
In the present case from the materials on the record all that we know is that several persons obtained decrees for damages for malicious prosecution against Khedu Teli. In an action for malicious prosecution the plaintiff must prove: (1) that he was prosecuted by the defendant, (2) that the proceedings complained of terminated in favour of the plaintiff, if from their nature they were capable of so terminating, (3) that the prosecution was instituted against him without any reasonable or probable cause, (4) that the prosecution was instituted with a malicious intention in the mind of the defendant, that is not with the mere intention of carrying the law into effect but with an intention which was wrongful in point of fact, and (5) that he has suffered special damage when the proceedings are other than criminal proceedings, unless the proceedings are such as from their very nature are calculated to injure the credit of the plaintiff.
It is clear that the persons who obtained decrees against Khedu Teli satisfied a Court of law on all the above five points. The act of Khedu Teli in bringing a malicious complaint without reasonable and probable cause was a tortuous act opposed to public policy or decent 'vyavahara' and, as such, an avyavaharika act. We are fortified in the view we have taken by the case in 3 Pat 250. In the absence of any evidence on behalf of the plaintiff to show the circumstances under which the complaint in question was made by Khedu Teli, the only legitimate conclusion to which we can arrive is that Khedu's act was an illegal and an immoral or improper act, and the pecuniary liability arising there from is not binding on his sons and grandsons. This being our view, there is no force in the present appeal.'
In the judgment in 'WIDYA WANTI v. JAI DAYAL AND OTHERS AIR 1932 LAH 541 a Division Bench while considering the liability of the son as to the liability of the father towards criminal misappropriation opined that the sons are not bound to the liability of the father, if the debt result from amounting to a criminal offence.
9. As against the proposition of law laid down in the above judgments, no other judgments were brought to my notice by the learned counsel for appellant. The liability to honour the debt of a Hindu father arises only when the debt is Vyavaharika debt. Otherwise it should be considered as Avyavaharika debt. It is not in dispute in this case that the third respondent/father visited with a decree for damages for malicious prosecution. To judge a debt as one of 'Vyavaharika debt' or 'Avyavaharika debt', the act of the person which lead to the suit and the decree is relevant. Suit was filed against the third respondent for malicious prosecution. Plea of malicious prosecution was found in favour of the plaintiffs and against the defendant and consequently, the third respondent has visited with a decree for his malicious act without there being any reasonable and probable cause amounting to a tortuous act. Such act cannot be considered as 'Vyavaharika act'. Such debt shall not bind the sons namely, the respondents 1 and 2. That apart, the decree in favour of the third respondent for damages is a personal decree and cannot be enforced against the joint family properties. Of course, the lower appellate Court has found that the appellant herein is only entitled to 1/3rd share of the third respondent to honour her debt as decreed by the Court by way of damages. That portion of the finding is not under challenge in this second appeal at the instance of the third respondent. In fact he remained absent even before the lower appellate Court. Insofar as 2/3rd shares of the respondents 1 and 2, the decree against the third respondent in O.S. No. 246 of 1972 dated 29.6.76 cannot be executed. Hence, the purchase of item No. 1 of the suit property entirely by the appellant shall not bind the respondents 1 and 2 insofar as their 2/3rd shares in the said property. This finding arrived by the lower appellate Court, in my considered view, cannot be assailed as the debt of the third respondent, the father is not a Vyavaharika debt.
10. In view of the above finding, I do not find any merit in the substantial question of law raised by the appellant. Accordingly, the second appeal fails and the same is dismissed. No costs. Consequently, C.M.P. No. 14725 of 1992 is also dismissed.