Ross, J.This is an appeal by the Bank of Benares against an order passed by the Subordinate Judge of Bhagalpur, allowing an objection by the respondents, judgment-debtors, to the execution of a decree by sale of their property. The respondents, Jagdip Narayan Pandey and Kuldip Narayan Pandey, are the sons of one Bisseswar Pandey, deceased. Bisseswar was the cousin of the wife of Gajadhar Upadhya, who was Nazir in the Court of the District, Judge of Bhagalpur. This Gajadhar being in need of money, a promissory note for Rs. 12,000 was executed by Bisseswar and other relations of Gajadhar in favour of one Siva Sankar Sahay. The latter assigned this note to the Bank of Benares. The Bank paid the money to Bisseswar and others, who in return paid the money to Gajadhar by whom it was required The Bank of Benares sued therespondents after their fathers death and obtained a decree against them to the extent of the assets of their father coming to their hands. The question involved in this case is, whether the debt incurred by Bisseswar bound the joint family property, in the sense that the sons are under a pious obligation to pay it out of that property.

2. In their present objection the respondents dispute their liability on the ground that the money borrowed by their father was taken to enable Gajadhar Upadhya to repay money belonging to certain wards estates in his hands which he had embezzled and thus to escape a criminal prosecution with which he was threatened, Now the original petition of objection contained no such allegation; and I do not agree with the learned Subordinate Judge that any such ground was indicated therein. So far as any definite objection to the binding character of the debt was taken, it was only this, that the debt was incurred without legal necessity : and it was not until after the case had been remanded by the High Court for the determination of the question whether the ancestral property was bound, that this suggestion of illegality at the root of the transaction was made. One witness was examined in support of the objection. His evidence is as follows:

I knew Gajadhar Upadhya, He was the Nazir here. As Nazir he was appointed by the District Judge guardian of all the minors. He used to collect money on behalf of the minors. He misappropriated all this money for his own private purposes, He was suspended by the District Judge. He had to return the misappropriated money...Upadhya spent the misappropriated money in drinks and over public women." 3. In cross examination the witness said:--" [ did not join Upadhya in his drinks and other vices, but I used to hear of that.... What I have said about misappropriation is on hearsay.

3. The evidence of this witness is wholly inadmissible, The only other evidence indicating the nature of the debt is the judgment in the original suit. The finding in as follows:

From the evidence produced on behalf of the defendants it appears that the executants did not require the money for their pergonal use, but some money was required for the use of one Gajadhar Upadhya who was the Nazir in the District Judges Court here.

4. All that is available as evidence in this proceeding is this finding in the judgment; bat on this evidence it is not possible to hold that the money was lent to stills a criminal prosecution or to compound a crime, There is nothing to show that there was any idea of prosecuting Gajadhar Upadhya, The most that can be said is that the money was advanced to enable Gajadhar Upadhya to refund the money of others which ho had misappropriated. Now unquestionably Bissesswar Pandey owed this money to the Bank, He had borrowed it from the Bank and was bound to repay. The only question is whether a debt incurred in these circumstances is a debt of that peculiar character which a Hindu son is not under a pious duty to pay. The Subordinate Judge found that the debt was illegal, immoral and not ryavaharika, that it was without any benefit to the father, without any consideration, and an useless gift so far she was concerned, and that it was a debt to refund the money criminally misappropriated. There is no suggestion anywhere that this money was a gift by Bieseswar to Gajadhar. It has already been shown that there is no legal evidence to support the finding that this was a case of criminal misappropriation, The real question in the case is whether this is a debt which was not "lawful, usual or customary" or was repugnant to good morals." The Subordinate Judge has relied upon the cases of Mahabir Prasad v. Basdeo Singh 6 A. 234 : A.W.N. (1884) 47 : 3 Ind. Dec. (N.S.) 852; Pareman Bass v. Bhattu Mahton 24 C. 672 : 12 Ind. Dec. (N.S.) 1117 and Sant Prasad Singh v. Hari Singh 38 Ind. Cas. 161 . The first of these was a case where money had been embezzled by the father himself and the debt had, therefore, clearly an illegal origin. In the second case the origin of the debt was a theft committed by the father. The third is also a case of criminal misappropriation by the father. These decisions, therefore, throw no light on the present question. The principle laid down in Notasoyyan v. Ponnusami 16 M. 99 : 3 M.L.J. 1 : 5 Ind. Dec. (N.S.) 776 seems applicable to the present case: "Upon any intelligible principles of morality a debt due by the father, by reason of his having retained for himself money which he was bound to pay to another, would be a debt of the most sacred obligation, and for the non discharge of which punishment in a future state might be expected to be inflicted, if in any, The son is not bound to do anything to relieve his father from the consequences of his own vicious indulgences, but he is surely bound to do that which his father himself would do were it possible, viz., to restore to those lawfully entitled money he has unlawfully retained, In our opinion the contention of the appellants on this point is opposed to all the principles upon which the Rule of Hindu Law rests, and we agree with the lower Court that no such immorality or illegality in the nature of the original debts has been shown as would absolve defendants from their obligation to pay them out of the family property." It may be mentioned that the debts in that case were sums collected by the defendants father on account of the plaintiffs family but never paid to, or accounted for, to the family. That case is, therefore, a much stronger case than the present, where there is nothing even remotely illegal or immoral or repugnant to good morals in the action of the respondents father in borrowing money to enable his relation to repay money which he had misappropriated or could not account for. So far from this being an illegal or immoral Act on the part of the respondents father, it seems to me to have been a meritorious Act and I can see no possible reason for bringing this debt within the limits of the exception to a Hindu sons pious duties.

5. It was suggested on behalf of the respondents that Bisseswar was really indemnifying Siva Sanker Sahay; but the contract on its face is a contract in which Bieseswar is primarily liable. There is, therefore, nothing in this contention. the result is that the appeal must be decreed with costs and the order of the Subordinate Judge set aside and the objection overruled. The execution will proceed.

Das, J.

6. I agree.