JUDGMENT Sen, J. - This master comes before this Court in the following circumstances: One Gorakhram Chamria, a member of a joint Mitakshara family, died leaving two sons Ramprotap and Amolakchand. Amolakchand died leaving his widow Surji Sethani. Ramprotap had a son. Matrumall who predeceaed him leaving a son Ratan Lal. Surji Sethani has sued Ratan Lal on the following allegations. She says that in 1928 she had entrusted Ratan Lal's grand-father, Ramprotap, with an ironsafe containing jewellery worth about 50 thousand rupees and Government currency notes worth a lakh of rupees. On the 20th January, 1935, she demanded the return of these articles from Ramprotap but he refused to return them denying that he had ever been entrusted with them. She claimed the return of the articles from the Defendant, and in the alternative their value. The matter was referred to the arbitration of the late Sir Manmatho Nath Mukerji who after taking evidence has stated the award to this Court for its opinion on certain points. Three questions have been formulated by the learned arbi rator for the opinion of this Court. They are as follows: I. Whether the debt or liability of Ram Pratap was, in view of the facts I have found, an Abyabaharika one in Hindu Law? II. Whether for such debt or liability the ancestral property in the hands of the Defendant is liable? III. Whether the Defendant is liable for the same to the extent of the separate or self-acquired property of Ram Pratap which he has inherited? Or, whether the following principle of Hindu Law will apply, namely By the Hindu Law the freedom of the son from the obligation to discharge the father's debt, has respect to the nature of the debt and not to the nature of the estate, whether ancestral or acquired by the creator of the debt' [Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree 6 M.I.A. 393 at p. 421 (1853)]? 2. As regards the first question Mr. Banerjee appearing for the Plaintiff agrees with Mr. Khaitan for the Defendant that the answer should be in the affirmative. Upon the facts found I have no doubt that the debts would come within the definition of an Abyabaharika debts. The finding of the learned arbitrator is that Ram Pratap committed criminal breach of trust with respect to the safe and its contents. Khaitan for the Defendant that the answer should be in the affirmative. Upon the facts found I have no doubt that the debts would come within the definition of an Abyabaharika debts. The finding of the learned arbitrator is that Ram Pratap committed criminal breach of trust with respect to the safe and its contents. The debt has arisen by reason of the criminal act of Ram Pratap; Colebrook defines a debt which is Abyabaharika as a "debt for a cause repugnant to good morals." There can be no doubt that the present debt is such a one. In this connection I would refer to the case of Toshanpal Singh v. District Judge of Agra L.R. 61 IndAp 850, 860: s.c. 39 C.W.N. 145 (1934). 3. There is also no controversy regarding the answer which should be given to the second question. The answer should be in the negative. Under the Mitakshara law the son or grandson has an equal right with his father or grandfather in ancestral property. On the death of the father or grandfather the descendant gets the property not by inheritance from his father or grandfather but by survivorship by reason of the fact that he is a member of the joint Mitakshara family owning the property in co-parcenary. One coparcener cannot therefore burden the co-parcenary with his debt. It is true that his undivided share may be attached in his life-time and thus made liable but if there has been no such attachment during his life-time the creditor has no remedy against the coparcenary or ancestral property. As the Defendant is the grandson of Ram Pratap he would have been liable to pay Ram Pratap's debt out of the ancestral property as the Hindu law imposes this liability as a pious duty upon the son or grandson; but this liability of a son or grandson arising out of a pious duty is confined to debts which are not Abyabaharika and this debt being Abyabaharika the Defendant is not liable to pay it out of the ancestral property. 4. The third question is one in respect of which the parties are at variance. Mr. Khaitan's contention is that the Defendant is not liable to pay the debt of Ram Pratap out of the separate property of Ram Pratap which has devolved on him as that debt is an immoral one. Mr. 4. The third question is one in respect of which the parties are at variance. Mr. Khaitan's contention is that the Defendant is not liable to pay the debt of Ram Pratap out of the separate property of Ram Pratap which has devolved on him as that debt is an immoral one. Mr. Banerjee for the Plaintiff, on the other hand contends that, be the debt moral or immoral, it is a burden on Ram Pratap's separate property and any one taking such property takes with that burden. 5. I shall now examine the arguments of Mr. Khaitan. He points out that the liability of a son or grandson to pay the debt of a father or grandfather depends not on the nature of the property that comes in his hands but on the nature of the debt. If the debt be an immoral one, he argues, the son or grandson is not liable to pay it either out of the ancestral property or out of the separate property inherited by him from his father or grandfather. In support of this argument he relies upon the passage quoted by the learned arbitrator from the decision of the Judicial Committee in Hunooman Persaud Panday v. Mussumat Babooee Munraj Koonweree 6 M.I.A. 393 at p. 421 (1856) which I think it convenient to reproduce again: It is as follows: By the Hindoo Law, the freedom of the son from the obligation to discharge the father's debt, has respect to the nature of the debt and not to the nature of the estate, whether ancestral or acquired by the creator of the debt. 6. He also referred me to two other cases where the above passage is quoted with approval, viz., Girdharee Lall v. Kantoo Lall and Muddun Thakoor v. Kantoo Lall L.R. 1 IndAp 321: s.c. 22 W.R. 56 (1874) and Lachman Das v. Khunu Lal ILR 19 All. 26 (F.B.) (1896). Now, I may say at once that in none of these cases did the question arise as to whether a son or grandson is liable to pay the immoral debt of a father or grandfather out of the separate property obtained by him on the death of his father or grandfather. The observations are therefore obiter dicta so far as this question is concerned. The observations are therefore obiter dicta so far as this question is concerned. I realise that this Court is bound to follow an obiter dictum of the Judicial Committee but it seems to me that these observations when read in their context do not at all support Mr. Khaitan's contention. In the case of Hunooman Persaud Panday v. Mussumat Babooee Munraj Koonweree 6 M.I.A. 393 at p. 421 (1856) a contention was raised that according to the law current in the North Western Provinces an ancestral estate could not be charged, in the hands of the heir, for an ancestor's debt. Their Lordships held that a father could charge the ancestral estate for some purposes against the heir for the father's debt and that 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 the ancestral estate, would still be an act of pious duty in the son. Thereafter their Lordships went to make the observations relied upon. All that was decided was that the liability of a son to pay his father's debt affected ancestral property and was not limited to the separate property left by the ancestor. It was not decided nor was it indicated that the separate property left by a Hindu who had incurred an immoral debt would devolve free of that debt upon his son or grandson. 7. What their Lordships were dealing with was the liability arising out of a pious duty in the son as son to pay his father's debts, and they said that this liability did not depend upon the nature of the property in the hands of the son. There can be no doubt that there is no pious duty upon the son or grandson to pay his father's or grandfather's debts if they are immoral but it does not follow from this that the son or grandson may take his ancestor's separate property free from the liability to pay his debts because the debts are immoral. There can be no doubt that there is no pious duty upon the son or grandson to pay his father's or grandfather's debts if they are immoral but it does not follow from this that the son or grandson may take his ancestor's separate property free from the liability to pay his debts because the debts are immoral. If a person is legally liable to pay a debt that liability would attach to his separate property whether the debt be moral or immoral; and if anyone, be he the son, grandson or anyone else, were to succeed to the separate property of such a debtor he would take such property subject to the liability to discharge the debt out of such property. This seems consistent with justice and equity and this is also the Hindu law. This liability has nothing to do with the pious duty of a son or grandson as such to pay the debt of a father or grandfather. It is based upon the broad equity that he who takes the benefit should take the burden also. This is what Yajnavalkya says: He who has received the estate or the wife of the deceased should be made to pay his debts or failing either, the son who has not an inheritance. (Yajn II, 51). 8. Again Narada says of the successor to the estate, the guardian of the widow or the son, he who takes the estate becomes liable for the debts. (Narada I. 23). 9. The error in Mr. Khaitan's argument is this. He confines the liability of the Defendant who is the grandson of Ram Pratap to the liability under the Hindu law which arises out of the pious obligation of a grandson to pay the debt of his grandfather which is not immoral. He ignores the fact that the grandson may be liable in another capacity, viz., as a person upon whom the separate property of the debtor has devolved. He ignores the fact that the grandson may be liable in another capacity, viz., as a person upon whom the separate property of the debtor has devolved. The liability of a son or grandson as such to pay the debt of his father or grandfather arises not because the son or grandson has inherited anything from the father or grandfather but it arises from a pious duty which is imposed upon a son or grandson to free the soul of his father or grandfather from the evil consequences which it would have to suffer by reason of the fact that the debt remains unpaid. In the view of Hindu lawyers a debt is not only an obligation but a sin, the consequence of which follows the debtor into the next world. Brihaspati says: 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. 10. The Hindu law imposed a pious duty upon the son or grandson of a debtor to save his soul from the consequences of the sin of debt. Under the old law the son or grandson was considered to be bound to pay the debt of his father or grandfather whether he received any assets or not but the later view was that the son or grandson would be liable only to the extent of the assets that have come into his hands on the death of his father or grandfather. But this liability arising out of a pious duty is not the only liability of a son or grandson in respect of the debts of his father or grandfather. Any person upon whom the property of another devolves is bound to meet the debts of that person out of that property. Now if a father's or grandfather's separate property devolves upon his son or grandson that son or grandson is liable to meet his ancestor's debt to the extent of the property obtained by him. As this liability is not based on any pious duty it does not matter whether the debt is an immoral one or not. Now if a father's or grandfather's separate property devolves upon his son or grandson that son or grandson is liable to meet his ancestor's debt to the extent of the property obtained by him. As this liability is not based on any pious duty it does not matter whether the debt is an immoral one or not. If it is a debt which the debtor is bound under the law to pay then the person upon whom the debtor's property has devolved is liable to pay it to the extent of such property. It is this liability which Mr. Khaitan ignores. When the separate property of a father or grandfather devolves upon a son or grandson in a joint Mitakshara family this liability co-exists with the other liability based on a pious duty to pay those debts of an ancestor which are not immoral. Mayne in his treatise on Hindu law has dealt with this matter very fully and clearly. This is what he says at page 405: The liability of one person to pay debts contracted by another arises from three different sources. These are: first, the religious duty of discharging the debtor from the sin of his debts; secondly, the moral duty of paying a debt contracted by one whose assets have passed into the possession of another; thirdly, the legal duty of paying a debt contracted by one person as the agent, express or implied, of another, or as having an authority conferred by Hindu law to act on behalf of another. Cases may often occur in which more than one of those grounds of liability are found co-existing; but any one is sufficient. The first ground of liability only arises in the case of a a debtor and his own sons and grandsons. 11. At page 441 the learned author continues: Secondly, the obligation to pay the debts of the person whose estate a man has taken is expressly declared. It does not rest, as in the case of sons, upon any duty to relieve the deceased at any cost, but upon the broad equity that he who takes the benefit should take the burden also. 12. It does not rest, as in the case of sons, upon any duty to relieve the deceased at any cost, but upon the broad equity that he who takes the benefit should take the burden also. 12. The very question raised in this matter is dealt with by Mayne at p. 417 where he says: As the liability of the sons, grandsons, and great-grandsons to pay their ancestor's debts out of ancestral property in their hands depends upon the nature of the debt, if it is immoral or illegal they are not liable to pay it to the extent of that property. But their liability to pay the debts of the ancestor out of his separate property in their hands is the same liability as that of the ancestor himself and the son, grandson or great-grandson, just like any other heir who takes the assets, is not entitled to claim an exemption on the ground that the debts are immoral or illegal. 13. I respectfully agree with this view. Mr. Khaitan referred me to certain passages in Shastri's Hindu Law which declared that a son acquired an interest in his father's separate property by birth and took such property by survivorship. He contended that, this being so, ancestral property and separate property in the hands of a son or grandson stand on the same footing as regards the liability to discharge a debt of the deceased owner. It is not necessary to decide the vexed question whether a son takes his father's separate property by right of survivorship or by inheritance. There has been considerable conflict of opinion on this point and it is neither necessary nor profitable to discuss this question in the present case. The son may have some right by birth in the self-acquired property of his father but if he has any such right it is an imperfect right incapable of being enforced at law [Baney Madhub Ghose v. Thakoor Doss Mundal 6 W.R. (Act X Rulings) 71 (1866)]. 14. This slender right in separate property is something quite different from the equal ownership which a son has in the ancestral property. As regards separate property the owner has for all practical purposes an absolute right in it. 14. This slender right in separate property is something quite different from the equal ownership which a son has in the ancestral property. As regards separate property the owner has for all practical purposes an absolute right in it. He may dispose of it by will [Muhammad Husain Khan v. Babu Kishva Nandan Sahai L.R. 64 I.A. 250: s.c. 41 C.W.N. 1029 (1937)] or he may alienate it in any way he likes without the consent of his son or other coparceners. The son or other co-parceners cannot enforce partition of such property as they have neither community of interest nor unity of possession therein [Katama Natchiar v. The Raja of Sivagunga 9 M.I.A. 539, 543, 615 (1803)]. If the owner of such separate property incurs a debt which he is legally bound to pay it seems to me to be only just and equitable that such property should be made liable for the debt. The attaching of this liability to the separate property of the debtor does not impinge upon the rights of any other member of the joint family as none of them has any right which is enforceable at law in respect of such property. 15. I hold, therefore, that the Defendant is liable to pay to the Plaintiff out of the self-acquired property of Ram Pratap the sum of Rs. 49,838 with interest at 6 per cent. till realisation. This is the amount which the learned arbitrator was prepared to award. 16. Mr. Khaitan raised an objection to the learned arbitrator stating the award for the opinion of the Court. He refers me to paragraph 11 of the second Schedule of the CPC which says that the award may be stated for the opinion of the Court with the leave of the Court and points out that no leave was taken before the award was stated. Mr. Banerjee admits that there was an accidental omission to take leave but he says that as soon as this omission was noticed leave was applied for and granted by the Court. In these circumstances I am of opinion that Mr. Khaitan's objection cannot prevail. There is nothing in paragraph 11 which would indicate that the omission to take leave cannot be rectified by the subsequent grant of leave. In these circumstances I am of opinion that Mr. Khaitan's objection cannot prevail. There is nothing in paragraph 11 which would indicate that the omission to take leave cannot be rectified by the subsequent grant of leave. I order that the opinion given by me do form part of the award and that the Defendant do pay the costs of the proceeding before this Court out of the aforesaid separate property. I hereby pass judgment in accordance with the award. Solicitors: G.C. Mitter for the Plaintiff; Khaitan & Co. for the Defendant.