Authored By : Lancelot Sanderson, Asutosh Mookerjee

Lancelot Sanderson, C.J.

1. In this case I am of opinion that this Rule should bemade absolute.

2. The suit was brought by the plaintiff to recover hisshare of certain property. It appears that the plaintiffs father Tipan Pershadand a man called Hari Singh had bought an estate for about Rs. 19,000 odd. Thesale having been set aside, these two became entitled to get the money back,and it was Tipan Pershad who through the hand of his servant drew out thepurchase-money which had been deposited; and, instead of handing over the sharewhich belonged to Hari Singh, he converted the whole of it to his own use. HariSingh then instituted a suit and obtained a decree against Tipan Pershad, andin execution of that decree purchased the property in question. Consequently,the plaintiff brought the present action against Hari Singh.

3. The first Court and the second Court decreed the suit onthe ground that the act of Tipan Pershad in appropriating the money to his ownuse was a criminal act, and rendered him liable to prosecution under Section403 of the Indian Penal Code, and consequently the share of the son in theproperty was not bound. The point is stated clearly in the judgment of thelearned District Judge, which is as follows: "If Tipan Pershad took themoney under circumstances which would justify his conviction under Section 403of the Indian Penal Code, the family is not liable. This was the view taken bythe lower Court of the law and it is, in my opinion, a sound and correct view.The only question for decision by this Court is:--Was the money taken by TipanPershad with the intention of causing wrongful loss to Hari Singh and othersThe lower Court has found that it was so." Then the learned District Judgegoes on to review the facts, and comes to this conclusion, "I find on thefacts that Tipan Pershad took this money under circumstances rendering himliable to conviction under Section 403 of the Indian Penal Code and thattherefore, the family property is not liable to satisfy the decree in respectof it."

4. Upon the matter coming to this Court the learned Judgeswho constituted the Court came to the conclusion that upon the facts TipanPershad would not have been liable to conviction under Section 403, and thatconsequently the family were bound to restore the money. I am of opinion thatit was not open to the learned Judges of this Court to go behind the finding offact of the learned District Judge; and that they ought to have adopted thatfinding of fact, and as they agreed as to the point of law, they ought to havedismissed the appeal.

5. But it has been argued by the learned Vakil who has showncause to-day, that even if the finding of fact by the learned District Judgewas to be accepted, the plaintiff ought not to succeed in this case, becausethere has been a decree in respect of the debt from the father to Hari Singh,and he says the plaintiff cannot go behind that decree, in execution of whichthe property was sold. In my judgment, that is not correct for this reason. Ifthat contention were to be upheld, in many cases this doctrine of the familyproperty not being liable for the criminal acts of the father would disappearaltogether, because it is obvious, as it was pointed out by my learned brotherin the course of the argument, that as between the creditor and the wrong-doer,the latter would have no defence whatsoever. The more criminal the act was, theless defence he would have and the creditor must get a decree.

6. I should also add that when the learned Vakil was invitedto produce authority for the proposition he propounded, no authority wasforthcoming. In my judgment, therefore, that contention ought not to prevail.

7. For these reasons, we make the Rule absolute with costs(hearing fee two gold mohurs), and dismiss the appeal with costs of bothhearings in this Court.

Asutosh Mookerjee, J.

8. I agree.

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Sant Prasad Singh vs.Babu Hari Singh and Ors. (20.12.1916 -CALHC)