Ghulam Hasan and Kaul, JJ.@mdashAt the hearing of these appeals only one question of law was raised, and as this is common to all the three appeals, they may well be disposed of by one common judgment.
2. The material facts are as follows:
Dharamraj was a landlord who applied u/s 4 of the Encumbered Estates Act. Among his creditors were Syed Munsif Jahan, (Appellant in appeal No. 29 of 1942) Mst. Sunder Dei (who filed appeal No. 30 of 1942 and being dead is now represented by her legal representatives) and Babu Raja Mohan Manucba and three others who are Appellants in appeal No. 151 of 1942. The Appellants in these appeals put forward their claims against Dharamraj on the basis of money decrees held by them against him. It was averred on their behalf that Dharamraj formed a joint family with his four sons who bad not joined their father in making the application u/s 4, and they prayed that u/s 9(4) of the Encumbered Estates Act the debt payable by Dharamraj should be apportioned between him and his sons-the liability of Dhararrraj be limited to one-fifth and the remaining four-fifths be made payable by his sons. It was found as a fact that the debts in question were not incurred for joint family purposes, and were the personal debts of Dharamraj. They were not proved to be debts incurred for illegal or immoral purposes. It was contended on these facts that inasmuch as the entire joint property could be attached and sold for satisfaction of the decrees held by these creditors against Dharamraj, there was a case for apportionment u/s 9(4) of the Encumbered Estates Act. It was argued in reply on behalf of Dharamraj''s sons that u/s 9(4) It is only the "debts due by the joint family" which could be apportioned and not any other debts. These debts not having been borrowed for the joint family could not be said to be debts due by the joint family, and accordingly could not be apportioned in proceedings under the Encumbered Estates Act. The creditor''s contention was accepted by the learned Special Judge and he apportioned the debts. On appeal this decision was reversed by the first appellate Court. Dissatisfied therefrom the three present appeals have been preferred.
2. The question turns upon the interpretation of the expression "debts due by the joint family". It was contended on behalf of the Appellants that as the entire joint family property can be attached and sold for satisfactions of these debts, they must be held to be debts payable by the family and accordingly due by the joint family. Having given the argument of the Learned Counsel for the Appellants our best consideration, we are unable to accept his contention. It was pointed out by the learned District Judge in his appellate judgment that such a contention could obviously not be put forward in a case where the joint family consisted of not only the father and his sons, but of uncles, nephews and other relations. Being alive to the difficulty thus presented, the Learned Counsel for the Appellants argued that even if in a case such as was mentioned by the District Judge the debt could not be said to be due by the joint family, it would be different when the joint family consisted only of the debtor and his sons.
3. The Appellant''s argument assumes that if the property belonging to a joint family can under the law be attached and sold for satisfaction of certain debts it necessarily follows that the debt was due "by" or "payable" by the joint family. It was argued that under the law property cannot be attached and sold for satisfaction of a debt which was not payable by the person owning the property, and if a debt can be said to be payable by a person or a joint family, it must be a debt due by such person or family. The last branch of this argument rests upon an unwarranted assumption that "due" and "payable" are convertible terms. This is not so. A debt is said to be due the instant that it has existence as a debt, though it may be payable at a future time see Wharton''s Law Lexicon, 14, end. page 355. ft is true that generally speaking the law makes a person pay only such debts as are'' incurred by him and can be said to be due from him. These debts may be incurred by him personally or by some one on his behalf. But the case of a Hindu son whose interest in the joint family property is under his personal law liable to attachment and sale for satisfaction of a debt incurred by his father is an exception to this general rule. According to Hindu law-givers a person who borrows a debt and does not discharge it incurs a sin. Brihaspati says that 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. According to Narada
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.
4. Therefore the Hindu Law casts upon a son the religious duty of relieving his father from the sin of his debts. This liability or obligation of a Hindu son to discharge the debts of his father is wholly unconnected with any idea of his being himself a party to the loan transaction. The obligation to discharge the debt falls upon him though he did not incur it either personally or through any agent. This is a peculiar feature of Hindu Jurisprudence which must be borne in mind in determining the question which arises for consideration in these appeals.
5. The debts in question were not incurred for the joint family. They were the personal debts of Dharamraj. Accordingly, though the entire joint family property could be attached and Sold in execution of the decrees obtained for these debts against Dharamraj, in proceedings under the Encumbered Estates Act there could be apportionment of only such debts as can be held to be "due by the joint family." We are clear that on a proper construction of this expression as used in Section 9(4) of the Act, the debts in question cannot be said to be debts due by the joint family whereof Dharamraj and his sons Were members.
6. We accordingly hold that the learned District Judge came to a correct conclusion and the appeals are dismissed with costs.
