Inderjeet Singh and Others vs Krishen Lal and Others

S. Murtaza Fazl Ali, J.—This is a suit by the Plaintiffs who are the sons of Defendant No. 2 for setting aside certain alienations made by their

father Defendant No. 2 on the ground that the debts contracted under those alienations were tarnished with immorality and being neither for legal

necessity nor antecedent debts, were not binding on the Plaintiffs to the extant of their shares in the joint family property. The Plaintiffs Nos. 2 and

3 are the minor sons of Defendant No. 2 and have filed this suit through their next friend Shrimati Durga Devi, who is the mother of the Plaintiffs.

Put briefly the Plaintiffs' case is as follows: The Plaintiffs are the grandsons of Th. Rattan Singh who was a person of substantial means and died

in a state of jointness with Defendant No. 2 Janak Singh the father of the Plaintiffs, leaving behind sufficient income and properties. After the death

of Th. Rattan Singh his widow Mst. Ganga Devi purchased the property in question from Wazir Teju Ram by virtue of a sale deed executed on

17-02-1982 which is Ex. P.W.10/1 in the present case. It appears that Wazir Teju Ram had mortgaged this property to Kashmiri Mal Saraf but

when the property was purchased by Mst. Ganga Devi in the name of Defendant No. 2, she paid off the mortgagee and took possession of the

property from him. The property was purchased by Mst. Ganga Devi for a sum of Rs. 5,000/ - out of which Rs. 2500/ - was kept in deposit with

the vendee for payment of mortgage in favour of Kashmiri Mal Saraf.

The Plaintiffs case further was that this property was purchased with the aid of joint family funds left by Th. Rattan Singh and was, therefore, the

ancestral property of the Plaintiffs. The Plaintiffs further alleged that at the time when the property was purchased the Plaintiff's father Janak Singh

was a minor but when he attained majority he fail into bad habits and started leading an immoral and licentious life. He also indulged in drinking and

gambling and committed acts of wanton waste and extravagance. Defendant No. 1 taking advantage of the weakness of Janak Singh, and being

fully aware of his bad habits, advance various sums of money to him from time to time for immoral purposes, got a number of mortgages executed

in his favour in respect of the property and ultimately purchased these properties from Janak Singh without any legal necessity. The property in suit

consists of two storeyed, situated in Mohalla Jammu.

It appears that on 15.01.2003, Defendant No. 2 executed a mortgage deed in favour of Baisakhi Ram Defendant No. 1 for Rs. 11,000/ - in

respect of the big house. Out of Rs. 11,000/ - Rs. 7,000/ - was kept in deposit with him for payment of a previous mortgage debt due to Mst.

Ram Rakhi and Rs. 4000/ - was paid to Defendant No. 2. On 13-04-2003 the mortgage was renewed for a further sum of Rs. 2500/ - and on the

same security Janak Singh further took an advance of Rs. 1500/ - on 05-09-2003 and 09-09-2003. Ultimately on 03-10-2006 Defendant No. 2

sold the big house to Defendant No. 1 for a sum of Rs. 5000/ - after giving a credit of Rs. 15,000/ - being the previous mortgage debts. Similarly

on 16-01-2004 Defendant No. 2 mortgaged the smaller house to Defendant No. 1 for a sum of Rs. 6500/ - and borrowed a further sum of Rs.

2000/ - and executed Anr. mortgage on 08-08-2005 and ultimately sold the smaller house to Defendant No. 1 on 02-08-2006 for a sum of Rs.

2500/ - after giving credit to the previous mortgage debts taken on the security of the house. The Plaintiffs case is that all these transactions which

came into existence in quick succession were neither for any legal necessity nor for antecedent debts but were tarnished with immorality. The

Plaintiffs further alleged that no consideration was paid under the various transactions and fictitious recitals regarding necessities were incorporated

therein.

On these allegations, the Plaintiffs have filed the present suit for a declaration that the aforesaid alienations are not binding on them and have also

prayed for being put into joint possession with Defendant No. 1 to the extent of their shares in the property in dispute.

Defendant No. 2 appeared in the suit and filed a written statement fully supporting the case of the Plaintiffs.

The suit was, however, contested by Defendant No. 1 who pleaded inter alia that the suit was not maintainable in its present form and that the

properties in question were self - acquired properties of Janak Singh Defendant No. 2 and that the Plaintiffs had, therefore, no locus stand to bring

the present suit.

In this connection Defendant No. 1 pleaded that Rattan Singh father of Defendant No. 2 was not possessed of sufficient means and the property in

question was really acquired by the earnings of and funds in possession of Defendant No. 2 Janak Singh. It was further alleged that as Janak Singh

was a close relation of His Highness Maharaja Bahadur, he used to get huge sums of money from the Raj Mata and it was from this money that the

property in dispute was originally acquired and then built upon. Defendant further denied the allegation regarding want of necessity and antecedent

debts. Defendant No. 1 further averred that the various transactions were entered into by Defendant No. 2 for necessities of the family and other

matters and that the consideration under those transactions was actually paid to Defendant No. 2. Defendant No. 1 also denied the insinuation of

the Plaintiffs that the debts were contracted for immoral purpose.

On the pleadings of the parties, the following issues were framed by me:

Is the property in dispute ancestral and joint family property of the Plaintiffs as alleged by them? O.P.P.

If issue No: 1 is proved are the alienations in dispute valid and for legal necessity? O.P.D.

Are the alienations void as being for immoral purposes? O.P.P.

In case issue No. 1 is not proved is the property in dispute self acquired property of Defendant No. 2? O.P.D.

Is the suit not maintainable in its present form? O.P.D.

To what relief, if any, are the Plaintiffs entitled;

Issue Nos. 1 and 4: As these issues are inter - connected, they may be taken up together. As indicated above the Plaintiff's positive case is that

the property in dispute was acquired with the aid of joint family funds and was the ancestral property of the Plaintiffs and not the self acquired

property of Defendant No. 2. Before I take up the evidence relating to these issues, I might mention certain admitted facts in the case.

It is common case of the parties that the property in dispute was purchased by Mst. Ganga Devi in the name of Janak Singh for a sum of Rs.

5000/ - by virtues of a sale deed dated 17-02-1982. It is also not disputed that the Plaintiffs grand father was a close relation of his Highness

Maharaja Bahadur being his uncle. Further the Plaintiffs have not produced any documentary evidence to show the extent or the nature of the

immovable or moveable property left by Thakur Rattan Singh at the time of his death. Finally, it is also not disputed that Rattan Singh died in a

state of jointness with his son Janak Singh Defendant No. 2.

It is well settled that although there is a presumption under the Hindu Law that a family is joint but there is no such presumption that a joint family

also possesses joint family property. In other words, where the Plaintiffs claim a particular item of property to be Joint family property they must

prove that there was sufficient nucleus in the Joint family from which the property in question could have been or may have been acquired. Once a

Plaintiff proves that the joint family was possessed of sufficient nucleus from which the property in dispute may have been acquired, the onus shifts

on the Defendant to show that the property was not a joint family property.

In a recent decision of the Supreme Court reported in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, , their Lordships while

referring to an earlier decision of the Privy Council reported in Appalaswami v. Suryanarayant Murti AIR 1947 PC 189, observed as follows:

The Hindu Law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property

held by any member of the family is joint and the burden rests upon any one asserting that any item of property was joint to establish the fact. But

where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from

which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the

property was acquired without the aid of the joint family property.

While applying the tests laid down in the store sale Privy Council case, their Lordships pointed out as follows:

On the first question, the argument of the Appellant is that as the family admittedly possessed income producing nucleus in the ancestral Watan

lands of the extent of 58 acre, it must be presumed that the acquisitions standing in the name of Siddopant were made with the aid of Joint family

funds, that the burden fay on the Defendants who claimed that they were self acquisitions to establish that they were made without the aid of joint

family funds, that the evidence adduced by them fell far short of it, and that the presumption in favour of the Plaintiff stood unrebutted. For deciding

whether the contention is well founded, it is necessary to see what the findings of the courts below are regarding the extent of the ancestral

properties, the income they were yielding, the amounts that were invested by Siddopant in the purchase and house constructions and the other

resources that were available to him.

Thus in the present case, the onus lay initially on the Plaintiffs to show that Thakur Rattan Singh had left sufficient properties from which the house

in question could have been acquired. It is the admitted case of the parties that at the time when the property in question was acquired, Defendant

No. 2 was only a minor and therefore, the question of his acquiring these properties with his personal earnings would not arise. But that, however,

would not prevent the Defendant from showing that the property was acquired either from funds which were in possession of Defendant No. 2 or

that Defendant No. 2 got this property by way of a gift from somebody else. The sale deed of the property in question stands in the name of

Defendant No. 2 and it is also established that the property was purchased by Mst. Ganga Devi in the name of Janak Singh. Thus either the

property was acquired with the aid of joint family funds or it was the property of Janak Singh in the sense that he got it from his mother through a

gift by way of advancement. Keeping these facts in mind, I would now approach the evidence led by the parties on these issues. As indicated

above, the Plaintiffs have not produced any documentary evidence to show the extent or the nature of the properties left by Th. Rattan Singh. The

Plaintiffs have contented themselves by producing oral evidence to show that Rattan Singh was a man of substantial means. The witnesses

examined by the Plaintiffs are P.W.1 Wazir Tej Ram, P.W.2 Suram Singh, P.W.3 Lachman Singh, P.W.4 Karnail Singh, P.W.5 Prab Dayal,

P.W.6 Hakumat Roy, P.W.7 Sunder Dass, P.W.8 Bhagat Singh, P.W.9 Sewa Singh and P.W.10 Janak Singh Defendant No. 2 himself.

8-18. (His Lordship discussed the evidence of P.Ws.1 to 10 arid proceeded:)

Thus summing up the evidence of the Plaintiffs the position is that there is only vague and general evidence to show that Rattan Singh was a

man of means. There is no evidence worth the name to show the extent or the nature of the properties left by him and nor is there any evidence to

indicate that Rattan Singh had even left money to the extent of Rs. 5500/ - from which the house in question could have been acquired. On the

other hand, some of the witnesses examined by the Plaintiffs clearly proved that the property was not acquired with the aid of joint family property

but was purchased from the personal fund of the mother of Defendant No. 2. This being the position, the Plaintiffs have miserably failed to prove

that the joint family was possessed of sufficient nucleus from which the property in suit could be acquired.

Before dealing with the witness examined by Defendant No. 1 on these issues I would like to set out a few facts.

The Defendants' positive case in their written statement was that Thakur Rattan Singh the father of Defendant No. 2 was a man of scanty means

who was living from hand to mouth and died in debts without leaving any property worth the name. The Defendants have further averred that the

property in question was purchased originally from the personal earnings of Defendant No. 2 who was running business of tonga and other kinds of

business. It was further averred that Defendant No. 2 being the nephew of Raj Mata used to get huge gifts from her. It may be mentioned here that

the Defendants have not made out any case either that the house was purchased with the money provided by the Raj Mata or that it was Raj Mata

herself who had purchased the house in question for Defendant No. 2. Despite this fact, Defendants have led evidence to show that the purchase

money of the house in question was advanced by the Raj Mata.

D.W.7 Shamboo Nath, who is the son of Wazir Teja Ram, the original owner of the property in dispute, says that the purchase money was paid

by Ammar Nath and that it was sent by Raj Mata. The witness proves the original sale deed Ex. P.W.10/1 but there is no mention in the sale deed

that the money was paid by Raj Mata. Learned Counsel for the Defendants submitted that as Ammar Nath was a servant of the ""Deohri"" and that

the money was paid through him, it should be presumed that Raj Mata must have paid the money. In my opinion, such an inference cannot be

drawn because the evidence of the Plaintiff clearly shows that Ammar Nath also used to work on behalf of the mother of Defendant No. 2.

Furthermore, the witness admits in his cross examination that he had heard the fact that the money was sent by the Raj Mata. The witness further

states that he is unable to name the person from whom he had heard this fact. Thus the evidence of this witness being based on pure hearsay is

valueless. Moreover the witness admits in an answer to a question by the court that he was present when the money was paid to his father and at

that time nobody mentioned the fact that the money came from Raj Mata. In these circumstances, therefore, no reliance can be placed on the

evidence of this witness.

(His Lordships reviewed the evidence of Defendant 2's witnesses and continued:)

It is, therefore clear from a consideration of the evidence of both the parties that Th: Rattan Singh was not a man of substantial means. The only

properties that he had left were Muqrari of Rs. 675/ - per year in which his share being 1/3rd would amount to Rs. 225/ - some lands in village

Malhori which even according to P.W.10 were not yielding good produce and a salary of Rs. 37/ - per month which he started earning from 1965.

The Plaintiffs have not adduced any evidence to show the expenses which used to be incurred by Rattan Singh during his life time - nor is there any

satisfactory evidence regarding the actual, assets left by Rattan Singh at the time of his death.

In these circumstances, therefore, it would be difficult for me to hold that the Plaintiffs have proved that then was sufficient nucleus in the joint

family from which the properties in question could have been acquired. On the other hand, some of the Plaintiff's witnesses as indicate above, have

positively stated that the properties in question were purchased from the personal fund of the mother of Defendant No. 2. It is true that the

Defendants have also not been able to prove that the money for the sale of the houses in question was provided by Raj Mata but as the initial onus

lay on the Plaintiffs and as they have failed to discharge this onus, the properties in question cannot be held to be joint family properties. On the

other hand, the evidence clearly proves that the properties in question were the self - acquired property of Defendant No. 2 in the sense that he got

these properties by way of a gift from his mother. At any rate, it is sufficient to put the Plaintiffs out of court so far these issues are concerned when

we find that the properties in question were not acquired with the aid of joint family funds. Issue Nos. 1 and 4 are answered in favour of

Defendants and against the Plaintiffs.

Issues Nos. 2 and 3. These issues being interconnected will also be taken up together. In view of my finding that the properties in question are

not joint family properties, it would not have been at all necessary for me to go into the question as to whether the various transactions were

justified by legal necessity were tainted with immorality. But as evidence has been led on these issues, and counsel for the parties have addressed

me at length, I propose to give my findings thereon.

So far the transactions are concerned, it is admitted on all hands, that at the time when they were entered into Defendant No. 2 was acting as a

father and Karta of the joint family, his sons being minor members of the coparcenary. It is now well settled that a father as a Karta of Hindu family

possesses wider powers of disposal of joint family properties in order to bind his sons when they are the only coparceners. Whereas a Karta in

order to bind the other coparceners can alienate the property only for less necessity or benefit of the estate, a father can alienate the properties and

bind the share of the sons in such properties even for his antecedent debts so long as these debts are not tarnished with immorality or illegality. In

other words, the father as a Karta can incur debts even for his personal purposes provided the debts contracted are just debts and the son's

liability would still be there even if the debts were not for legal necessity.

In Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, , their Lordships of the Supreme Court while explaining the doctrine

of ""pious obligation"" observed as follows:

This doctrine, as is well known, has its origin in the conception of Smriti writers, who regard non - payment of debt as a positive sin, the evil

consequence of which follow the undischarged debtor even in the after world. It is for the purpose of rescuing the father from his torments in the

next world that an obligation is imposed on the sons it pay their father's debts. The doctrine as formulated in the original texts, has indeed been

modified in some respects by judicial decisions. Under the Law as it now stands, the obligation of the sons is not a personal obligation existing

irrespective of the receipt of any assets, it is a liability confined to the assets received by him in is share of the joint family property or to his interest

in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If these debts have been contracted

by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts.

Similarly in Pannalal and Another Vs. Mst. Naraini and Others, at page 175 their Lordships observed as follows:

The father's power (right?) of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation

which the Hindu'. Law imposed upon the sons; or it may be one of the means of enforcing it, but it is certainly not the measure of the entire

obligation.

It is, therefore, clear that the sons can assail an alienation made by their father only if they show that the debt was contracted for immoral or illegal

purposes. In the instant case, it cannot be argued with any show of force that the transactions in question are not for antecedent debts. There was

some controversy regarding the implication of the term ""Antecedent debt"" which has now been finally settled by a decision of the Privy Council in

Brij Narain Rai v. Mangla Prasad Rai AIR 1924 PC 50, where their Lordships of the Privy Council observed as follows:

Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction

impeached.

This case has been followed by all the Courts in India and it has been held that before a debt can be said to be antecedent two conditions must he

satisfied:

(i) That the debt must be antecedent i.e.; prior to the transaction impeached.

(ii) That the debt should be independent and not part of the transaction impeached.

Once these conditions are satisfied the alienation will be upheld as being for antecedent debt and the sons by virtue of the duty of pious obligation

are bound by such debts. The mere fact that the father sets off one debt in Anr. by a subsequent mortgage in favour of the same mortgagee would

not alter the nature of the antecedent debt. In Ram Rekha Singh and Others Vs. Ganga Prasad Mukaraddhwaj and Others , a Full Bench of the

Allahabad High Court observed as follows:

It is significant that their Lordships do not say that the two debts must be absolutely independent of each other, or wholly unconnected with each

other. All that is said is that the previous debt, in order to be antecedent should be truly independent and not part of the subsequent transaction.

This is quite different from saying that the later debt should be unconnected with the earlier one. Whenever, a previous debt is set off in a

subsequent mortgage deed, the second deed is in one way connected with the first and one might in one sense say that the second is not

independent of the first. But the true test to apply is whether the first one was independent of the second....

xx xx xx xx xx

We do not think that the mere fact that the mortgage is a renewal of the earlier mortgage in favour of the same mortgagee would make any

difference. If that were so then an old debt which would be an antecedent debt, if it were paid off by a deed in favour of a third person would case

to be so if paid off by a deed in favour of the same mortgagee. It is difficult to see how on principle the personality of the subsequent creditor can

necessarily make any difference.

I would now take up the various transactions impeached by the Plaintiffs in order to find out whether the transactions were for antecedent debt.

In the first place, there is the mortgage deed dated 15-01-2003 Ex. D.W.5/C - 1 for a sum of Rs. 11,000/ -. A perusal of the recitals of this

document goes to show that out of the amount of Rs. 11,000/ -. Rs. 7,000/ - was kept in deposit with the mortgagee for payment of a previous

debt of Mst. Ram Rakhi Devi. The debts of Ram Rakhi Devi are evidenced by Ex. P.W.10/B, Ex. P.W.10/B - 1, Ex. P.W.10/B - 2, Ex.

P.W.10/B - 3, Ex. P.W.10/B - 4 and Ex. P.W.10/B - 5. Learned Counsel for the Plaintiffs conceded that so far as the amount of Rs. 7000/ - is

concerned, it cannot be disputed that it was for antecedent debt and that the sons would be bound by it. The mortgage deed further recites that out

of the remaining amount of Rs. 4000/ - Defendant No. 2 received Rs. 400/ - on 11-01-2003 as per receipt Ex. P.W.10/C - 8 and Rs. 3600/ -

before the Sub - Registrar. The receipt of this amount also has not been disputed before me by learned Counsel for Defendant No. 2. It further

mentions that the consideration of the mortgage would go to redeem the previous debt, and to be spent on buying a horse for tonga business

contracted by Defendant No. 2 and other personal business. The Defendants have proved by the evidence of D.W. Nos. 4, 9, 21, 22 and 24 that

Defendant No. 2 used to run a tonga business. Some of the Plaintiffs' witnesses also did not dispute this fact but expressed their ignorance about it.

P.W.10 Defendant No. 2 himself has admitted that he used to run tonga for some time, P.W.10 has further admitted that excepting the houses in

question he had no other properties. The houses in question were not leased out to anybody and were not yielding any income and if, therefore, the

second Defendant borrowed a sum of Rs. 4000/ - for the purpose of contracting tonga business in order to maintain and support his family, it

cannot be said that the necessity was not a legal necessity. At any rate, the debt was a just debt incurred for a valid purpose and would be binding

on the sons. For these reasons, therefore, this mortgage cannot be impeached by the Plaintiffs.

The second mortgage was executed by Defendant No. 2 in favour of Defendant No. 1 on 13-04-2003 for a sum of Rs. 2500/ -. Defendant

No. 2 got Rs. 500/ - before the mortgage deed and Rs. 2000/ - by a cheque before the Sub - Registrar as would appear from the receipt Ex.

P.W.10/C - 9 as also the recitals in the document Ex. D.W.1/A. The necessities mentioned in this document are to maintain the tonga business and

to pay a decree of Kashmir Singh to case Kashmir Singh v. Janak Singh and for payment of pronote of Rs. 400/ - executed by Defendant No. 2 in

favour of Lal Chand Chatri. The pronote has been produced in this case. All these amounts borrowed were for justifying necessities. Similarly the

other two mortgages executed by Defendant No. 2 dated, 05-09-2003 and dated 08-09-2003 for Rs. 900/ - were for the previous debts of

Defendant No. 2. The Plaintiffs have not been able to show that these debts were not just debts. Then comes the sale by Defendant No. 2 in

favour of the first Defendant. By virtue of a deed dated 03-10-2006 which is Ex. DW.4/C Defendant No. 2 sold the equity of redemption to

Baisakhi Ram Defendant No. 1. The consideration of that deed was Rs. 5000/ - after giving a set off for the previous debts incurred as a result of

the mortgages referred to above.

Thus keeping in view the principle laid down by the Privy Council it cannot be said that the sale of the big house was not for antecedent debts.

There can be no doubt that the sale was for liquidating the previous mortgage debts incurred by Defendant No. 2. These debts being prior to the

sale and not forming part of the transaction of the sale would clearly be antecedent debts so as to bind the Plaintiffs.

We may now come to the other mortgages relating to the smaller house. The first document is mortgage deed dated 16-01-2004 for Rs.

5500/ - in favour of Defendant No. 1 regarding the small house. Out of the consideration of Rs. 5500/ - a sum of Rs. 4685/ - was paid by cheque

before the Sub - Registrar and Rs. 815/ - by cash as evidenced by the receipt Ex. P.W.10/C - 3 dated 16-01-2004. Learned Counsel for the

Plaintiffs has not disputed the payment of this consideration to Defendant No. 2. The deed recites that the money was required for a number of

contracts which Defendant No. 2 had taken from the Municipality. The evidence of D.W.24 clearly shows that Defendant No. 2 used to take

small contracts from the Municipality. Thus it cannot be said that this document was without any legal necessity. Similarly on 08-08-2005 Anr.

mortgage was executed for Rs. 2000/ - by Defendant No. 1 which is Ex. P.W.10/B - 9. The consideration of this document has not been

challenged by the learned Counsel for the Plaintiffs. The necessities mentioned in the document are for contract and business. Finally the second

Defendant sold the smaller house also for Rs. 2500/ - with Defendant No. 1 by virtue of a deed Ex. P.W.10/B - 10 dated 02-08-2006 in

liquidation of the previous mortgage debts. Thus the sale also being for liquidation of the previous mortgage debts which did not form part of the

sale transaction would be antecedent debt so as to bind the sons. As the previous mortgage transactions had culminated in a sale and if the sale of

the two houses was for antecedent debts the sale has to be upheld.

I am fortified in my view by AIR 1925 264 (Privy Council) where their Lordships following the previous decision reported in AIR 1924 PC 50

clearly held that the sale of the family property could be effected in order to liquidate antecedent debts of the father. Their Lordships referring to

their previous decision, observed as follows:

The effect of that explanation in their Lordships judgment is to show that in the circumstances of this case both of the mortgages of 1895 were

antecedent debts"" which would justify for their liquidation a sale of family property not otherwise improper. In the present case, however, it is not,

in their Lordship's judgment necessary to invoke any such doctrine in order to counter the objection to the sale now being dealt with. Both

mortgages, as their Lordships observed once more were binding upon the Respondents. A sale of family property otherwise unobjectionable

which resulted in the removal from what remained of it of the burden pro tanto of these encumbrances, cannot be successfully attacked by those so

bound. It follows: that in their Lordships' 'judgment' the sale in question is valid as against the Respondents.

Thus even if the second Defendant sold the entire properties, the sale cannot be assailed, if the sale was for antecedent debts -- a fact which has

been proved beyond any doubt in this case.

Mr. Sharma appearing for the Plaintiffs, however, submitted that in view of the fact that the various mortgages were executed in quick

succession, it would show that Defendant No. 2 was merely wasting the property without any justifying necessity. In the first place, as antecedent

debt has been proved in this case, it will not be necessary to go into the question of legal necessity. Moreover, the admitted position is that these

houses constituted the only properties of the family consisting of Defendant No. 2 and his sons. P.W.10 admitted in his evidence that he had sold

all his landed properties, as they were not giving any substantial produce and that these houses were not yielding any income to the family at all. In

these circumstances, therefore, if Defendant No. 2 took advances of money by mortgaging the houses from time to time in order to support the

family and to contract some business of his, it cannot be said that the transactions were not for just debts.

It was then submitted that as all the mortgages were in favour of the same mortgagee, they cannot be said to be for antecedent debts. This

argument, however, does not appear to be tenable, in view of the observations of the Full Bench of the Allahabad High Court referred to above.

The mere fact that a previous debt is set off by a subsequent mortgage in favour of the same mortgagee would not show that the debt was not a

antecedent debt. Indeed, if it is held that the debt would not be antecedent debt, it would be placing undue limitations on the term ""antecedent

debt"" as defined by the Privy Council in the case referred to above.

This takes us to Anr. point as to whether the debts incurred by Defendant No. 2's (sic) even if antecedent debts were tarnished with

immorality. On the question as to what is ""Avyavaharika"" (immoral or illegal) debt various Courts have expressed their views on the interpretation

of this term. In AIR 1943 142 (Privy Council) , their Lordships of the Privy Council observed as follows:

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 Colebrooke's

translation

and accepted the interpretation put by Colebrooke on the term ""Avyavaharika"" and observed as follows in this connection:

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 son's liability, their Lordships think that the translation of the term Avyavaharika an given by Colebrooke makes

the nearest approach to the true conception of the terms as used in the Smrithi 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.

This view was endorsed by a decision of the Supreme Court in S.M. Jakati and Another Vs. S.M. Borkar and Others, . It follows, therefore, that

where a debt is contracted for indulging in excessive drinking it will certainly be a debt repugnant to social morals as defined by Colebrooke and

would come within the term ""Avyavaharika"". This question, however, need not detain us any further because the Plaintiffs' evidence does not

establish any connection between debts contracted by the second Defendant and the Immoral purpose for which they were alleged to have been

contracted. In this connection the Plaintiffs examined P.W. Nos. 1, 2, 3, 4, 6, 7, 10, 11, 12, 13 and 14 to show that the Defendant No. 2 was

leading a life of immorality inasmuch as he was indulging in excessive drinking and gambling. It is, however, well settled that a general charge of

immorality is not sufficient to show that the debts in question were tarnished with Immorality. The Plaintiffs in order to succeed must show some

connection between the debts contracted and the immoral purposes for which they were so contracted. In AIR 1933 38 (Privy Council) , their

Lordships of the Privy Council while dealing with a finding of a Subordinate Judge mentioning a general charge of immorality and extravagance

levelled against the father, observed as follows:

The learned Judge of the Subordinate Court decided the case in favour of Mr. Subha Row's client, but in doing so he states that he does not find

the evidence sufficient to connect the particular cases of expenditure directly with the acts of immorality alleged. He adds, however, that it was said

for the defence that.

They have succeeded in showing that Defendant 1 was leading a licentious life and living beyond his means, and there being nothing to show that

there was any business on which the loans in question could have been expended they were entitled to the presumption that those loans must have

been expended for licentious purposes and it was not necessary for them to prove that each item was expended on an immoral purpose.' it is

apparently upon that unsatisfactory footing that he held that the case has been made out. When the appeal came up before the High Court the

evidence was subjected to a very close and careful analysis and the result of this analysis was that in the opinion of that Court there had been a

complete failure to establish any connection whatever between the loan in question and the alleged immorality of the borrower.

In subsequent cases like AIR 1948 304 (Nagpur) : Mt. Gainda Kuer Vs. Sradu Ram and Others, ; D. Butchayya v. K. Venkatakrishnayya AIR

1920 Mad 646 ; and Hindustan Ideal Insurance Co. Ltd. and Others Vs. Perla Satteyya Chetty representing himself and other members of his

joint family as father manager, , it has been held that a mere general charge of immorality against the father without any evidence to connect the

debts with such immorality is not sufficient, to discharge the onus which lies on the sons to prove that the debts were contracted for immoral

purposes.

In the Instant case, we do not find any evidence at all to connect the debts evidenced by the various mortgages referred to above, with the

immorality of the second Defendant. It is true that it will be difficult in most cases to prove that the debts in question were in fact incurred for

immoral purposes, nevertheless, this fact can be proved by adducing evidence from which an irresistible inference can be drawn to the fact that the

debt incurred was one for immoral purposes. For instance, where the evidence shows that a young man who has inherited huge properties leads an

openly reckless and licentious life, borrows huge sums of money, without any necessity at all and it is further proved that the money borrowed

could not have been used for any lawful purpose excepting for immoral purposes, an inference may be raised in such a case that the debt was for

an immoral purpose. This does not appear to be the case here.

Although the Defendants have also led evidence to show that Defendant No. 2 never led any immoral life, yet it seems to me that the evidence of

the Plaintiffs on this point is far superior to that of the Defendants. But the evidence adduced by the Plaintiffs also does not show that the various

mortgages were for immoral purposes the only evidence to show the association of Defendant No. 1 with the second Defendant consists of

P.W.12 Jagat Singh and P.W.14 Chabil Singh. P.W.12 only says that he knew Baisakhi Ram Defendant No. 1 and that he had seen Baisakhi

Ram in the company of Janak Singh many times. In answer to a question by the Court he admits that he sad seen Baisakhi Ram in the company of

Janak Singh only once.

31.The witness further admits that he did not mention this fact to the wife of janak Singh. The witness further says that he had met Baisakhi Ram

about 15 to 18 years before this incident. In the first place, even if the evidence of the witness be accepted at its face value, it does not show that

Baisakhi Ram was advancing money to the second Defendant for indulging in excessive drinking. On the other hand, it may be that Baisakhi Ram

may have met Janak Singh for some other purpose in connection with the debts already advanced. Such a vague piece of evidence is hardly

sufficient to show that the debts incurred by the second Defendant were for immoral purposes. The other witness says that he had seen Baisakhi

Ram in the company of the second Defendant who was drunk at that time. The evidence of this witness also does not establish any connection

between the debt and the immoral purpose for which it was contracted. The mere fact that Defendant No. 1 who was a previous creditor of the

second Defendant was seen in the company of second Defendant, cannot lead to an inference that the debt was contracted for Immoral purposes.

The evidence of other witnesses P.Ws. 1, 2, 3, 4, 6, 7, 10, 11, 12, 13 and 14 merely show that the witnesses found the second Defendant in a

highly intoxicated state and would, therefore, only show that the second Defendant was leading more or less a licentious sort of a life. Such a

general evidence of immorality of second Defendant would not be sufficient to hold that any debts that were contracted by the second Defendant

were contracted for immoral purposes and not for any other purpose. As I have already pointed out, Defendant No. 2 had no other source of

income and the houses were not yielding any income by themselves, hence, under these circumstances it cannot be said that the various amounts of

money that the second Defendant borrowed from the first Defendant were spent only for his immoral purposes and not for maintaining the family or

for financing the business of Defendant No. 2.

On a careful consideration of the evidence and the circumstances in the case, I hold that even if the properties in question were Joint family

properties, the Plaintiffs have miserably failed to prove that the debts evidenced by the various transactions referred to above, were incurred for

immoral purposes. These issues are, therefore, decided against the Plaintiffs and in favour of the Defendants.

Issue No. 5: This issue has not been pressed by learned Counsel for the Defendants. It is, therefore, decided in favour of the Plaintiffs and

against the Defendants and it is held that the suit is maintainable in its present form.

Issue No. 6: it follows from my findings given of issue Nos. 1 to 4 that the Plaintiffs are not entitled to any relief. It is rather unfortunate that the

second Defendant has sold away the only properties from which the sons could have been benefited but in the circumstances, as the sons have not

been able to prove either that the properties were Joint family properties or that even if they were joint properties, the debts were incurred for

immoral purposes, they cannot succeed in the present suit.

The result is that the Plaintiffs' suit is dismissed but in the peculiar circumstances of the case without any order as to costs.