Gajadhar vs Jagannath on 8 April, 1924

Allahabad High Court

Gajadhar vs Jagannath on 8 April, 1924
Equivalent citations: 80 Ind Cas 684
Author: Walsh
Bench: Walsh, Piggott, K Lal, Daniels, Mukerji
JUDGMENT Walsh, Acting C.J.

1. The question referred to this Full Bench having been amended during the argument is as follows:
"whether a time-barred debt can constitute a valid antecedent debt as consideration for a sale-deed
given by a father of a joint Hindu family alienating joint ancestral family property?"

2. I entertain no doubt that the question ought to be answered in the affirmative and I do not
propose to add to the reasons given by my brothers.

Piggott, J.

3. This question has been referred to a Full Bench by reason of a conflict in authority, understood to
exist between the decision in Ram Kishan Rai v. Cheddi Rai 68 Ind. Cas. 235 : 20 A.L.J. 577 : 44 A.
628 : (1922) A.I.R. (A) 402 and certain older decisons of this Court, more particularly Dahp Singh v.
Kundan Lal 18 Ind. Cas. 776 : 11 A.L.J. 244 : 35 A. 207. In this later case the learned Judges quoted
with approval, and purported to follow an older decision of a Bench of this Court of which I was
myself a member in the case of Indar Singh v. Suraj Singh 11 Ind. Cas. 737 : 8 A.L.J. 1099, I
apprehend that the result of the decision which we are to-day pronouncing will be to overrule this
case, as also Dalif Singh's case. 1, therefore, feel it incumbent upon me to say a few words in
explanation of my own position; otherwise I should have been content to leave this question to be
decided on the authority of the Hindu Judges who are members of this Bench. As a matter of fact I
should unhesitatingly have concurred with the learned Judges who decided Ram Kishan Rai's 68
Ind. Cas. 235 : 20 A.L.J. 577 : 44 A. 628 : (1922) A.I.R. (A) 402 case. Under Section 25 of the Indian
Contract Act a Hindu father like any other person, can enter into a valid contract by promising to
pay a debt formerly incurred by himself, that payment of which can no longer be enforced by reason
of the law governing the limitation of suits, if a Hindu father enters into a contract of this nature he
in cures a legal liability personal to himself from the date of this new contract. The liability does not,
as it seems to me, differ in principle from that which the father incurred when he contracted the
debt originally. The sons, therefore, can be made liable in a suit upon a promissory note or simple
bond executed by their father the consideration for which was a previous debt which was
statute-barred when the said bond or promissory note was executed. It does not seem to me,
however, that this principle of law suffices to determine the question which this Court had to decide
in Inder Singh v. Sarju Singh 11 Ind. Cas. 737 : 8 A.L.J. 1099. Suppose a Hindu father, instead of
giving a simple money bond in satisfaction of the statute-barred debt, enters into a contract of
mortgage which involves an alienation of joint ancestral property belonging to himself and his sons.
The real meaning of the decision in Indar Singh v. Sarju Singh 11 Ind. Cas. 737 : 8 A.L.J. 1099 is that
in the opinion of the learned Judges who decided that case, the antecedent debt of his own in
satisfaction of which a Hindu father may make an alienation of joint ancestral family property which
his sons cannot question except on the plea that such debt was contracted for immoral purposes

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must be an antecedent liability which is still enforceable against the father on the date on which the
alienation of joint family property is effected. We were really applying the principle laid down by the
majority of the Full Bench of this Court in Chandra Deo's case and subsequently affirmed by their
Lordships of the Privy Council, subject to this that we interpreted the words "antecedent debt" in
that case as equivalent to "a subsisting liability, previously incurred." On the date on which the
Hindu father, in the case which we are supposing, executed the contract of mortgage, he was under
no liability enforceable against him by law; he created a liability enforceable against himself when he
signed the contract of mortgage. That liability we treated as being on the same footing as the liability
which the father might incur by raising a loan on the security of joint family property under the very
contract of mortgage which he was signing. We held, in effect, that a liability against the father
which only came into existence when he signed the contract of mortgage could not be treated as an
antecedent liability validating an alienation of joint family property on the principle laid down in
Chandra Deo's case. I have now had an opportunity of considering the entire question in the light of
the arguments which have been addressed to us and of the opinions expressed by the senior Hindu
Judge who is a member of this Bench, Undoubtedly the pious duty of Hindu sons to discharge their
father's debts, not tainted with immorality, cannot be affected by the usual statute of limitation, in
the case of Raja Bahadur Raja Brij Narain Rai v. Mangai Prasad Rai 77 Ind. Cas. 689 : 46 A. 96 at p.
104 : 21 A.L.J. 984 : 46 M.L.J. 23 : 5 P.L.T. 1 : 28 C.W.N. 253 : (1924) M.W.N. 68 : 19 L.W. 72 : 2
P.L.R. 41 : 10 O. & A.L.R. 82 : 33 M.L.T. 457 : 26 Bom L.R. 500 : 11 O.L.J. 107 (P.C.) their Lordships
of the Privy Council have summed up the law on this question of alienations of co-parcenary
property by the manager of a joint undivided estate. They have expressly laid it down that if such
manager is the father, he may by incurring debt, so long as it is not for an immoral purpose, lay the
estate open to be taken in execution proceedings upon a decree for payment of that debt, it seems to
me to follow that if the father, instead of waiting for a decree to be passed and the estate to be taken
in execution himself sells a portion of that estate in order to satisfy a previous debt of his own not
incurred for immoral purposes, the sons by reason of their pious duty can no more challenge a
voluntary alienation of this sort than they could have done an auction sale in execution of a simple
money decree, in this view of the case it seems to me the principle of the antecedent debt can no
longer be rightly interpreted as it was done by us in the case reported in Indar Singh v. Suraj Singh
11 Ind. Cas. 737 : 8 A.L.J. 1099 as if the expression were equivalent to an existing liability
antecedently incurred. Stress must be laid on the fact that the debt was one incurred by the father
prior to and altogether independently of, the alienation of the Joint family estate by which he
proposes to satisfy it. i concur, therefore, in the answer proposed to the question before us for
decision.

Kanhaiya Lal, J.

4. The question for consideration in this case is whether a time-barred debt can constitute a valid
antecedent debt for the purpose of supporting an alienation, by the father of an ancestral or joint
family property.

5. Under the Hindu law it is well recognised that the father has a larger power of disposal over the
ancestral and joint family property than an ordinary manager, the reason being that this sons ana
grandsons are under a pious obligation to discharge his just and lawful debts which may have

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remained unpaid. Apart from the question of family necessity or common benefit, it is open to the
father to pay such a debt by an alienation of the joint family property, though the debt may have
become barred by limitation, because what can be revived by the father and may be recovered from
him by the attachment and sale of the family property can also be recovered from his sons and
grandsons, that is to say, from the joint family estate in their possession,

6. In the view of the Hindu lawyers a debt due is not merely an obligation but a sin, the
consequences of which follow the debtor in the next life. Vrihaspati says, "He who, having received a
sum lent or the like, does not repay it to the owner will be born hereafter in his creditor's house a
slave, a servant, a woman, or a quadruped " Narada similarly says, "when a devotee or a man who
maintained a sacrificial fire, dies without having discharged his debt, the whole merit of his
devotions or, of his perpetual fire, belongs to his creditors."

7. The duty of relieving a person from the evil consequences of his debts, remaining unpaid,
therefore, lies very heavily upon his sons and grandsons; and the only limitations, which the law
recognizes, are that the debts must not be illegal or immoral and that the obligation would only be
enforceable against the family estate. Narada says that "Fathers desire offspring for their own sake,
reflecting that 'their sons will redeem them from every debt whatsoever due to superior and inferior
beings.' In fact the older the debt the greater the responsibilities on the descendants of the man who
leaves the debt unpaid. Vrihaspati accordingly lays down, " The father's debt must be first paid and
next the debt contracted by the man himself but the debt of the paternal grandfather must even be
paid before either of these." To the same effect is a dictum of Katyayana who declares: "The Judge
shall compel a son to pay the debt of his father, provided he be involved in no distress, be capable of
property and liable to bear the burden, but in no other case shall he compel the son to pay his
father's debt."

8. A further restriction has now been introduced by the law of limitation. A son is not liable for the
payment of a debt due by his father, if it was not legally recoverable from him, had he been alive. But
a time-barred debt may be revived by father, and when so revived, it stands on the same footing as a
debt enforceable against him in his life-time, Under Section 25 of the Indian Contract Act, IX of
1872, it is open to a person against whom a debt has become barred by time to make a promise in
writing to pay that debt, and such a promise would form a good consideration for a sale made to pay
that debt. Under Sections 60 and 61 of that Act, a creditor can law fully appropriate a payment not
made for any specific purpose, towards a debt, barred by time. A contract in writing to pay such a
debt may for certain purposes be treated as an independent contract; but the liability, which it
renews, is a liability, which existed from before, though for the time being it may have ceased to be
enforceable. The Hindu Law did not recognize any rule of limitation for the recovery of debts. Every
debt which was lawful was binding and recoverable from the debtor irrespective of the period which
may have elapsed since the original liability was incurred, and no restriction on its recovery was
recognized beyond this that at no time more than double the amount of the principal money could
be claimed.

9. A debt may become irrecoverable under the law now in force by reason of the lapse of the period
of limitation, but the debt exists all the same, and if a person chooses to pay a time barred debt in

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the manner permitted by Section 25 of the Indian Contract Act, the debt which he chooses to pay
remains the same debt, though by reason of the contract, which he enters into, it assumes a new
garb and gains a fresh vitality.

10. As pointed out in Subramania Aiyar v. Gopala Aiyar 7 Ind. Cas. 896: 33 M. 308 : 20 M.L.J. 633 :
8 M.L.T. 321 a right to receive the payment of a debt, as distinct from a right to enforce its payment,
subsists even after the remedy by auction has become barred by time; and if the debt exists and the
debtor is willing to pay it by an alienation of the family property, such an alienation, if otherwise
valid, can bind his sons and grandsons, to the same extent as if the said debt had been revived by the
debtor, and was sought to be recovered by the creditor by the attachment and sale of the family
estate.

11. In Narayanasami Chetti v. Samidas Mudali 6 M. 293 : 7 Ind. Jur, 357 : 3 Ind. Dec. (N.S.) 483, it
was held that the liability of a Hindu son to pay the money due on a promissory note executed by his
deceased father in consideration of his debt, which had been declared barred by limitation could be
validly enforced against the assets of the father. In Sheoram Pande v. Sheoratan 63. Ind. Cas. 979 :
43 A 604 at p. 606 : 19. A.L.J. 135 it was pointed out that in the matter of the pious obligation, the
Hindu Law made no difference between a time burred debt and a debt which was not so barred: and
in Ram Kishen Rai v. Chedi Rai 68 Ind. Cas. 235 : 20 A.L.J. 577 : 44 A. 628 : (1922) A.I.R. (A) 402, it
was similarly held that in as much as the Hindu Law did not recognise any rule as to the extinction
of claims by the efflux of time, the sons in a joint Hindu family were not exempt from the payment of
bonds executed by their father merely because such bonds were given by way of a renewal of other
bonds, which at the time of the execution of the former were barred by limitation. The same
principle was recognised in Harihar Baksh Singh v. Bharat Prasad 20 Ind. Cas. 590 : 16 O.C. 185 and
Muttuswamy v. Subramanya 14 Ind. Cas. 69 : 11 M.L.T. 142 : (1912) M.W.N. 643. A promise to pay a
barred debt is in fact neither illegal nor immoral and a son cannot escape liability merely because
the debt, which his father had agreed in writing to pay, was one, the payment of which he could have
legally avoided.

12. Our attention has been drawn to the decision in Indar Singh v. Sarju Singh 11 Ind. Cas. 737 : 8
A.L.J. 1099 and Dalip Singh v. Kundan Lal. 18 Ind. Cas. 776 : 11 A.L.J. 244 : 35 A. 207. In the former
case Knox, J., who delivered the judgment of the Bench, after pointing out that he had not been
referred to any text of Hindu Law, or any precedent, bearing upon the point, observed: "There is no
doubt that the Hindu Law did not recognise the principle of limitation with reference to debts; at the
same time the fact remains that if the creditor had tried to sue for the debt at the time that the
mortgage was entered into, or if the father had executed a mortgage on the basis of an
acknowledgment of such time barred debt, the debt could not have been recovered or the mortgage
lien enforced in our Courts." It is difficult to understand the latter observation, because if the father
had executed a mortgage on the basis of such a time-barred debt, or an acknowledgment had been
made before the debt had become barred by time, a suit for the recovery of the debt either on the
foot of that mortgage or on the foot of that acknowledgment could have been easily maintainable. It
may, however, be assumed that the acknowledgment therein referred to was an acknowledgment
made or supposed to have been made after the debt had become barred by time; but even if that was
so, the debt, if revived by a mortgage in writing, would for the purpose of enforcing the pious

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obligation be a good and valid debt, unless it was shown to have been taken for an illegal or immoral
purpose. In the second case, the ground of distinction between cases where legal necessity is proved
and those where an antecedent debt is proved to have existed does not appear to have been
recognized. A debt taken for" legal necessity, whether taken by a father or by any other manager is
binding on all the members of the joint family but an alienation made to pay an antecedent debt, not
so taken by a manager, who is not the father, is not so binding. The rule which enforces an
alienation made to pay an antecedent debt, not shown to have been taken for legal necessity or
common benefit, nor shown to have been taken for an illegal or an immoral purpose, rests entirely
on the theory of pious obligation; and where such a pious obligation exists, an alienation made to
pay such an antecedent debt by a father is held to be binding on his sons and grandsons. 14.
Reference has also been made to the decision in Naro Gopal v. Paragowda 89 Ind. Cas. 23 : 41 B. 347
: 19 Bom. L.R. 89, but in that case a time barred debt was held sufficient to support an alienation by
a father of his interest in the joint family property, and the question now at issue was not definitely
considered.

13. It is argued that a time barred debt is not a Vyavaharik debt within the meaning of the text of
Ushanas, cited in the Mitakshara. But a debt revived by the father cannot be regarded as an
avyavaharik debt, or a debt not recognized by law or usage either under the old Hindu law or under
the law now in force.

14. The case of an alienation effected by a Hindu widow to pay a debt due by her deceased husband,
if barred by time, presents a useful analogy for the purpose of guiding the decision of this question.
It is well settled that a Hindu widow is competent to transfer the property, which she has received
from her husband to pay a debt due by him though it may have been barred by limitation, so as to
bind the reversionary heirs of her husband Udai Chander Chakerbutty v. Asutosh Das 21 C. 190 10
Ind. Dec. (N.S.) 759; Chimnaji Govind v. Dinker 11 B. 8 320 : 11 Ind. gun 842 : 6 Ind. Dec. (N.S.)
209; Kondappa v. Subba 13 M. 189 : 4 Ind. Dec. (N.S.) 844; Bhagwat Bhaskar Karanne v. Nivratti
Sakharam 27 Ind. Cas. 356 : 39 B. 113 : 16 Bom. L.R. 738 and Sheoram Pande v. Sheoratan Pande
63. Ind. Cas. 979 : 43 A 604 at p. 606 : 19. A.L.J. 135. The principle underlying that rule is that she is
under a pious obligation in a reasonable measure to promote the spiritual benefit of her husband
whose estate she has inherited; and one of the ways in which this benefit can be promoted is by
getting him released from the penalty or sin of leaving his debts unpaid. A son is in a more
independent position because he acquires a right in the family property by birth, but he too is under
a pious obligation to save his father from a similar penalty and to pay the debts due by him, if not
illegal or tainted with vice. If a Hindu widow can validly alienate property to pay time-barred debts
due by her husband, a Hindu father can similarly alienate property to pay the time barred debts due
by him in order to release himself from the sin of having left them unpaid, so as to bind his sons and
grandsons. In Shib Nath v. The Alliance Bank of Simla Ltd 25 Ind. Cas. 480 : 110 P.W.R. 1914 : 215
P.L.R. 1914 : 8 P.R. 1915 it was accordingly held that under the Hindu Law the payment of a debt
due by the father, though time-barred, was a pious duty, and such a debt was a good antecedent
debt, however, old it might be. A debt, which was barred by time and has been revived, stands on the
same footing as a debt which is not time barred; and if it is enforceable against the father, it is also
enforceable against his sons and grand-sons, provided it was not taken for an illegal or immoral
purpose. An alienation made to pay such a debt is, therefore, valid and can bind the interests of the

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sons and grandsons of the person making the alienation.

15. The reply to the question is, therefore, in the affirmative.

Daniels, J.

16. The answer to the question referred to us lies in a very brief compa Sections It is settled law that
a father can alienate joint family property in lieu of his own antecedent debt when such debt was
neither illegal nor immoral. Does a debt cease to be a debt because its recovery is barred by the
statute of limitation? Clearly not. Limitation extinguished the remedy, but except in the case covered
by Section 28 of the Limitation Act does not destroy the right. Section 28 applies only to suits for
possession of property and has no application to the case of a debt. Hindu law moreover recognises
no limitation for debts. Even under the Contract Act a time barred debt is still recognised as a valid
consideration for a contract.

17. There is another way of looking at the matter which leads to the same result. The sons' liablity
admittedly arose from the pious obligation which lies on them to pay their father's debt. Now a
pious obligation is necessarily independent of a modern statute of limitations. It may be legal to
evade payment of a just debt by taking shelter under the law of limitation, but such conduct is
generally regarded as dishonest, and this is still more the case under the Hindu system of law under
which the obligations of payment of debts is elevated into a religious duty.

18. For these reasons I concur in answering the question in the affirmative.

Mukerji, J.

19. I also agree in answering the question put to us in the affirmative.

20. I shall add just a few words. According to the Mitakshara law as translated by Colebrook,
Chapter 5, p. 188, a son is asked to relinquish his own share in the property so that the debts of his
father may be paid off. This is really the foundation of the principle that a Hindu father may alienate
the joint family property in order to pay off his own antecedent debts, although such debts may not
have been incurred for the benefit of the family. A debt does not cease to be a debt by being barred
by limitation. Even under Anglo-Indian law a barred debt forms a good consideration for a fresh
contract. Under the Hindu Law, which knew of no rule of limitation for the enforcement of a debt,
the rule would apply with much more force. It, therefore, seems clear to me that a father can
alienate family property in order to pay off his antecedent debts, though such debts cannot be
enforced in British Courts of law on account of the rule of limitation.

21. By the Court: The order of the Court is that the question be answered in the affirmative and the
appeal remitted to Mr. Justice Daniels and Mr. Justice Dalai for final disposal.

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