LexLUHAR AMRIT LAL NAGJI versus DOSHI JYANTILAL JETHALAL AND OTHERS.
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1\.fay 4. 842 SUPREME COURT REPORTS LUHAR AMRIT LAL NAGJI v. . [1960] DOSHI J A YANTILAL JETHALAL AND OTHERS. (P. B. GAJENDRAGADKAR, K. N. W ANCHOO and K. c. DAS GUPTA, JJ.) Hindu Law-Father's anticedent debt-Pious obligation of sons to pay-Onus. A Hindu father, speculating in gold and silver, lost heavily and sought to recoup by borrowing on a mortgage. The mort- gagee obtained a decree and sought to execute it by sale of the mortgaged property. The sons and the wife sued for a declara- tion that the decree was not binding since the debt though antecedent was immoral (avyavaharik). The trial court found in their favour and on appeal the District Judge affirmed its decision. On second appeal the High Court held that it was for the plaintiffs to prove not merely that the antecedent debt was immoral but also that the mortgagee had notice of the said character of the debt and since they had led no evidence to dis- charge that onus, they were not entitled to a decree. The plain- tiffs came up on appeal by special leave : Held, that the High Court took the correct view of the law and the appeal must fail. • Any attempt to test the correctness of the principles laid down by the Privy Council in the case of Suraj Bunsi Koer, which have held the field for more than three quarters of a century, purely in the light of ancient Sanskrit texts would now not merely be hit by the principle of stare decisis, which must inevitably come into operation, bnt would also be inexpedient and futile. Suraj Bunsi Koer v. Sheo Proshad Singh, (r879) L.R. 6 I.A. 88 and Brij Narain v. M angla Prasad (r923) L.R. SI I.A. r29, applied. The principles laid down in those two cases make no distinc- tion between an alienation made for the payment of the father's antecedent debt and an alienation made in execution of a decree passed against him and in both cases the sons must j>rove not only the immoral character of the antecedent debt but also the know ledge of the alienee. Case-law considered. CrVIL APPELLATE JURISDICTION: Civil Appeal No. 121 of 1956. Appeal by special leave from the judgment and order dated January 29, 1953, of the former Saurashtra High Court in Civil Second Appeal No. 82 of 1952, arising out of the judgment and decree dated April 29, 1952, of the District Judge, Rajkot, in Civil Appeal No. 4 of 1952. · • I -· - 3 S.C.R. SUPREME COURT REPORTS 843 W. S. Barlingay and A.G. Ratnaparkhi, for the 1960 appellant. · · Luhar A111ritlal M. L. Jain, for respondent No. 1. Nag;i 1960. May 4. The Judgment of the Court was v. delivered by Doshi ]ayantilal j ethalal GAJENDRAGADKAR, J.-This appeal by special _ leave raises an interesting q 11 uestion of H 1 . ind~ Law. dif Gajendragadkar J., a Hindu son wants to cha enge an a ienatwn ma e by his father to pay his antecedent debt is it necessary for him to prove not only that the said antecedent debt was immoral but also that the alienee had notice of the immoral character of the said debt ? The High Court has held that the son must prove both the immoral character of the debt and notice of it to the alienee; the correctness of that view is challenged before us by the appellants in the present appeal. The appellants are two brothers, Amritlal and Mohanlal Nagji, and their mother, Bai Jakal Arjan. The three appellants and respondent 2, Nagji Govind, the father of appellants 1 and 2 and the husband of appellant 3, constitute an undivided Hindu family. Repondent 2 executed a mortgage deed in favour of ·respondent 1, Jayantilal Doshi, in respect of the joint. famil:y property for Rs. 2,000. This document was executed on February 5, 1946. In 1950, respondent 1 sued respondent 2 on his mortgage, obtained a decree for sale and filed an application for execution' for sale of the mortgaged property. Sale was accord- ingly ordered to be held. At that stage the appellants filed the present suit on April 30, 1951, and claimed a. declaration that the decree passed in the mortgage suit (Civil Suit No. 589 of 1949) in favour of respon- dent 1 and against respondent 2 was not. binding in respect of the 3/4th share of the appellants in the mortgaged property ; they also asked for a perpetual injunction restraining respondent I from executing the said decree in respect of their share. To this suit the mortgagor, respondent 2, was impleaded as a party. In their plaint the appellants have stated that respondent 2 had spec
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