Madhavan Nair, J.

1. At the hearing of the appeal a preliminary objection was taken on behalf of the respondents, that the appeal to His Majesty in Council is incompetent as the sum involved is below Rs. 10,000, and the case is otherwise not a fit one for appeal under the Civil Procedure Code. This objection has no force, since the appeal was admitted by the special leave granted by His Majesty in Council, and is overruled. Their Lordships will therefore proceed to consider the main question argued in the appeal, namely, whether the judgment debt in question is in the nature of an avyavaharika debt which would exempt the respondents from the pious obligation of discharging their fathers debt. Under the Hindu law a son is under a pious obligation to pay his fathers debts to save him from punishment in a future state for non-payment of his debts. "According to the notions of Smriti writers it is regarded as sinful to remain in debt, and a debtors salvation is deeply imperilled if he dies indebted. According to Vrihaspati, a person who does not repay his debt will be born in his creditors house as a slave or servant or woman or a quadruped. According to other writers a person dying in debt goes to hell. A duty is therefore cast upon every person to discharge debts incurred by him": see Peda Venkanna v. Sreenivasa Deekshatulu (1917) I.L.R. 41 M. 136. 149. Thus, if the father dies without discharging his debts, a Hindu son is obliged to pay his undischarged debts and relieve him from his sins. As observed by this Board in Girdharee Lall v. Kantoo Lall (1874) L.R. 1 I.A. 321, 331: "It being the pious duty of the son to pay his fathers debts, the ancestral property, in which the son as the son of his father acquires an interest by birth, is liable to the fathers debts." But this obligation is not unqualified, for the son is not bound to pay his fathers debts if the debts are avyavaharika. The Smriti texts on which this qualification is based will be found in the learned judgment of Mookerjee J. in Chhakauri Mahton v. Ganga Prasad (1911) I.L. R.39 C. 862. Their Lordships will in this judgment refer only to one text, the text of Usanas (ascribed also to Vyasa), the only text which uses the term avyavaharika (na vyavaharikam in the original). After enumerating certain specific debts, more or less in the same language as used by the other Smriti writers, Usanas adds a supplementary category of debts which the sons need not pay which are avyavaharika. The text of Usanas appears in Vijnaneswaras commentary on ch. II., v. 47, of Yajnavalkya, which lays down exceptions to the general rule relating to sons liability to pay the father s debts contained in v. 50. These verses (see Mandlik, p. 205) are as follows: Ch. II., v. 50. "When the father is abroad, or in difficulties, his debt proved by witnesses if undisputed, should be paid by the son and grandson." Ch. II., v. 47. The son shall not pay the [paternal debts] contracted for wines, lust, gambling, or due on account the unpaid [portion] of a fine or toll or [on account of] an idle promise. In his commentary to this verse, Vijnaneswara refers to the text of Usanas which is: "A fine, the balance of a fine, likewise a bribe, or a toll or the balance of it, are not to be paid by the son, neither shall he discharge a debt which is avyavaharika (na (not) vyavaharikam)."

2. There has been much difference of opinion as regards the precise significance of the term avyavaharika. Colebrooke translates it as meaning "debts for a cause repugnant to good morals"; Mandlik renders it as "not proper," and Sir Dinshaw Mulla in his "Hindu Law" accepts Colebrookes translation. The term has also been interpreted in various judgments by courts in India, but the decisions are not all uniform. The Bombay High Court translates the term as "unusual or not sanctioned by law... Put into simple English, the texts amount to this: that the son is not to be held liable for debts which the father ought not, as a decent and respectable man, to have incurred. He is answerable for debts legitimately incurred by his father: not for those attributable to his failings, follies or caprices": Durbar Khachar v. Khachar Harsur (1908) I.L.R. 32 B. 348, 351. This decision has been disapproved in subsequent decisions in Bombay, and by other High Courts also. Mookerjee J. renders the term as equivalent to "not lawful, usual or customary" (Chhakauri Mahton v. Ganga Prasad (1911) I.L.R. 39 C. 862), while Sadasiva Iyer J. paraphrases it as "a debt which is not supportable as valid by legal arguments, and on which no right could be established in the creditors favour in a court of justice": Venugopala Naidu v. Ramanadhan Chetty (1912) I.L.R. 37 M. 458, 460. Many of the interpretations given to the term have been collected by Patkar and Tyabji JJ. in Bal Rajaram Tukaram v. Maneklal Mansukhbhai (1931) 1. L.R. 56 B. 36. Its meaning has been considered in other decisions also (see Govindprasad v. Raghunathprasad I.L.R. [1939] B. 533; Ramasubramania v. Sivakami Ammal (1925) A.I.R. (Mad.) 841). Their Lordships do not think that any useful purpose will be served by reviewing these and the other decisions brought to their notice, as in their opinion the principles with reference to which the term avyavaharika should be interpreted, and by which this case should be decided, are sufficiently clear and do not conflict with those decisions. They will now refer to those principles.

3. If the doctrine of pious obligation is to be given full effect, there cannot be any doubt that a Hindu son should be held liable for every undischarged debt of his father, for nothing can be nobler than to obtain complete exemption for the father from all penalties which might follow from the non-discharge of his debts; but this position is not maintained. That the doctrine has reference to the nature or character of the debt which creates the liability can hardly be disputed; this appears from the following pronouncement made by Knight Bruce L.J. in Hunoomanpersaud Pandays case (1856) 6 Moo. I.A. 393, 421: "Unless the debt was of such a nature that it was not the duty of the son to pay it, the discharge of it, even though it affected ancestral estate, would still be an act of pious duty in the son. By the Hindu law, the freedom of the son from the obligation to discharge the fathers debt has respect to the nature of the debt, and not to the nature of the estate...." In Girdharee Lall v. Kantoo Lall L.R. 1 I.A. 321, 331, Sir Barnes Peacock quotes the above rule and then proceeds as follows: "It is necessary, therefore, to see what was the nature of the debt for the payment of which it was necessary to raise money by the sale of the property in question. If the debt of the father had been contracted for an immoral purpose, the son might not be under any pious obligation to pay it...." This also makes clear the connexion between the nature of the debt and the liability to pay it. That the duty cast on the son being religious or moral, the character of the debt should be examined from the standpoint of justice and morality appears to be fairly clear from the decisions. In this connexion regard may also be had to the debts mentioned in the texts which the son need not pay, most of which are of an objectionable character. It also appears to be clear on principle, and on authority, that examination of the nature or character of the debt should be made with reference to the time when it originated, in other words, when the liability was first incurred by the father. If on such examination it is found that at its inception the debt was not tarnished or tainted with immorality or illegality, then it must be held that it would be binding on the son. This principle, stated as Rule 1 by Venkatasubba Rao and Madhavan Nair JJ. in Ramasubramania v. Siva Kami Ammal (1925) A.I.R. (Mad.) 845, 852, in language almost identical, is amply borne out by the numerous authorities which they have examined. The rule is not rigid, but has to be applied with reference to the circumstances of each case. These principles, which are implicit in the notion of "pious obligation," and are also deducible from the decisions, should be kept in mind in interpreting the term avyavaharika used in the text. The decisions which their Lordships have examined proceed on the ground common to them all, that debts in the nature of avyavaharika are debts which would be comprised in the expression "illegal or immoral debts." Having regard to the principles underlying the rule of "pious obligation," which forms the foundation for the sons liability, their Lordships think that the translation of the term avyavaharika as given by Colebrooke makes the nearest approach to the true conception of the term as used in the Smriti text, and may well be taken to represent its correct meaning. In their Lordships view, the term does not admit of a more precise definition. When a particular debt is called in question, it will be the duty of the courts to examine its nature in the light of the principles mentioned above, which are not exhaustive but only basic, and to see whether in the circumstances it is of the kind which will give exemption to the son from the liability of paying it, on the ground that it is repugnant to morals. It has now been definitely established by the decision of this Board in Toshanpal Singh v. District Judge of Agra (1934) L.R. 61 I.A. 350, that a son is not liable to pay a debt created by his father which would render the father liable to criminal prosecution.

4. Judged in the light of the above principles, their Lordships have no doubt that the debt in question is not avyavaharika. It had its origin when the promissory note dated November 21, 1924, was allotted to Hemraj by the decree passed in the partition suit. It then became the duty of Danpal to hand over the document to Hemraj in time, and as he did not do so he became responsible for the amount, in other words, he became indebted to Hemraj for the amount due under the promissory note. The position was well described by the trial court which passed the decree in favour of Hemraj, and also by the appellate court which confirmed it. Their Lordships have already drawn attention to their views. The money which the appellants are now seeking to realize by execution from the ancestral property of the defendants is the sum which was rightly due to Hemraj from their father, as he kept back the promissory note without handing it over in time. In Natasayyan v. Ponnusami (1892) I.L.R. 16 M. 99, 104 the learned judges observed: "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 roost 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 vicious indulgences, but he is surely bound to do that which his father himself would do were it possible, namely, to restore to those lawfully entitled money he has unlawfully retained." Their Lordships express their concurrence with this view. The above language may well be used to describe appropriately the nature of obligation of the respondents in this case also, to discharge the debt brought about by the conduct of their father. The principle enunciated in Natasayyan v. Ponnusami (1892) I.L.R. 16 M. 99, 104 was referred to and applied by the learned judges of the Calcutta High Court in Peary Lai Sinha v. Chandi Charan Sinha (1906) 11 C.W. n. 163. The subsequent dishonest conduct of Danpal, which led to the suit and the decree, so much relied upon by the courts in India and made the basis of their decision, cannot, in their Lordships view, affect the nature of the fathers debt, which at its inception was a just and true debt. As no such immorality or illegality in the nature of the original debt as would absolve them from the obligation to discharge it has been shown by the respondents, the debt sought to be realized is not an avyavaharika debt and the appellants are therefore entitled to proceed against the ancestral property in their hands in execution of the decree for payment of that debt.

5. In the result, the decrees of the courts below are set aside. The Subordinate Judge will restore the execution application filed by Hemraj to his file and proceed with it according to law. The appellants will have their costs throughout-before the Board and in the courts in India. Their Lordships will humbly advise His Majesty accordingly.