Maharaj Singh v. Raja Balwant Singh — 1905 DIGILAW 74 (ALL)

JUDGMENT : STANLEY, J. The suit out of which this appeal has arisen, was brought by the plaintiff to enforce the payment of a large sunt of money due under a mortgage of the 28th of October, 1892, and expressed to be executed by Sheoraj Singh and his brother, the appellant, Maharaj Singh, the sons of the late Raja Shankar Singh, in favour of the Bank of Upper India, Limited, by sale of the mortgaged property. The plaintiff-respondent took an assignment of the mortgage from the Bank and sues as assignee. 2. Raja Shankar Singh was the owner of considerable movable and immovable property, which he inherited from his father, Raja Dilsukh Rai, who was the founder of the family. He was a man of extravagant and dissolute habits and squandered the property which he inherited in the course of a few years. On the 4th of April, 1887, he borrowed one lakh of rupees from the firm of Brij Kishore Rup Kishore, bankers, on the security of a mortgage of his estate, and at the time of his death was indebted to a number of other persons. He died on the 24th of August, 1891, leaving two sons, namely, Sheoraj Singh and the appellant Maharaj Singh. As a reward for services rendered to Government, the title of Raja was conferred upon Dilsukh Rai, and a like honour was paid to his son. The defendant, Sheoraj Singh, however, did not receive this distinction and although he has assumed the title of Raja, he is not entitled to it. It is admitted that on the death of Raja Shankar Singh his two sons became entitled to the property of Raja Dilsukh Rai as the only male members of a joint Hindu family. Sheoraj Singh, however, being ambitious, set up a claim to be Raja and the owner of an impartible estate and entered into possession of all the property, treating his brother Maharaj Singh, who was merely a lad at the time and unquestionably under age, as being only entitled to “Babuai” or maintenance allowance. The mortgage, the subject-matter of the suit is expressed to be made between Sheoraj Singh as mortgagor of the first part, Maharaj Singh of the second part, and the Bank of Upper India of the third part. The mortgage, the subject-matter of the suit is expressed to be made between Sheoraj Singh as mortgagor of the first part, Maharaj Singh of the second part, and the Bank of Upper India of the third part. It contains a recital that the mortgagor, Sheoraj Singh, was the absolute owner of the several villages and lands intended to be mortgaged; that Raja Shankar Singh had incurred debts, namely, a debt of about Rs. 1,60,000 to Brij Kishore and Rup Kishore on the security of a mortgage; a debt of about Rs. 16,500 to Basdeo Sahai, also on the security of a mortgage; also a debt to Seth Pitam Mal of about Rs. 50,000, and to Bishan Lal a debt of about, 9,500; and that Pitam Mal and Bishan Lal held decrees in respect of their debts and had attached and put up for sale the property comprised in the mortgage. Then follows a recital that in order to pay off these mortgages and decrees and other creditors and to consolidate the debts, Sheoraj Singh had applied to the Bank to advance him the sum of three lakhs on the security of the property, and that Maharaj Singh had been made a party to the mortgage in order to testify his consent to and approval of the loan and to the granting of the security therefor. The property was by this mortgage conveyed to the the Bank by Sheoraj Singh and it was executed by Maharaj Singh as well as by the mortgagor. 3. On the 2nd of August, 1897, the Bank transferred their rights under this mortgage to the plaintiff on payment of a sum of Rs. 3,93,862. It was to raise the amount due on foot of this security that this suit was instituted. 4. 3. On the 2nd of August, 1897, the Bank transferred their rights under this mortgage to the plaintiff on payment of a sum of Rs. 3,93,862. It was to raise the amount due on foot of this security that this suit was instituted. 4. In the plaint there is an allegation that the Bank by reason of the payment of the amounts due under the mortgage deeds, dated the 4th of April, 1887, and the 19th of December, 1891, executed in favour of Seth Pitam Mal and Basdeo Sahai, respectively, acquired the rights of the prior mortgagees and, in as much as the Bank had paid off the debts due by Raja Shankar Singh, his sons were under the obligation to pay off these debts, and the Bank had a right to realise the debt due to it from the mortgaged property and that the plaintiff had acquired all these rights as assignee of the Bank. The amount claimed to be due on foot of the mortgage is Rs. 5,67,978-8-0. 5. It is unnecessary for the purposes of this appeal to refer to the defences which were set up by the several defendants other than Sheoraj Singh and Maharaj Singh. The main defence of Maharaj Singh was that at the date of the mortgage of the 28th of October, 1892, he was under the age of 18 years, and consequently that document was as regards him null and void. He also pleaded that the debts contracted by Raja Shankar Singh were contracted for unlawful and immoral purposes, and consequently his sons were not under the Hindu law liable for the same. 6. Sheoraj Singh in his defence set up the untenable defence, which has been abandoned, that the property was granted to his grandfather in recognition of loyal services and therefore was not saleable. He admitted the execution of the mortgage and that he was liable for the amount due thereon. 6. Sheoraj Singh in his defence set up the untenable defence, which has been abandoned, that the property was granted to his grandfather in recognition of loyal services and therefore was not saleable. He admitted the execution of the mortgage and that he was liable for the amount due thereon. In the 8th paragraph of his written statement he referred to services rendered by Raja Shankar Singh to Raja Baldeo Singh, the brother of the plaintiff, and endeavoured to set up a parol agreement modifying the provisions of the mortgage in regard to the payment of the mortgage debt, alleging in the 9th paragraph of the written statement that the plaintiff after purchasing the bond in suit agreed that he would allow credit for money spent by the defendant's father in connection with the affairs of Raja Baldeo Singh and would not charge interest on the mortgage-debt from the date of the purchase of the bond from the Bank, and that in lieu of the balance of the debt he would accept a sale-deed of portion of the defendant's property. 7. The learned Subordinate Judge held that the defendant Sheo-raj Singh was precluded from raising the plea to which we have referred in view of the provisions of section 92 of the Evidence Act. He also held that the plea that the grant made by the Government in favour of Raja Dilsukh Rai was not governed by the provisions of Act XXIII of 1871. He further held that Maharaj Singh was of full age at the date of the execution of the mortgage bond and therefore was bound by it. On the question whether or not the debts of Raja Shankar Singh were incurred for immoral purposes he held that, whatever was the nature of the debts for the payment of which the advance was obtained from the Bank, the Bank having made the advance and the money having been used in discharging prior debts, the grandsons of Raja Shankar Singh could not set up their rights as against the claim of the plaintiff. “The previous debt,” he said, “may have been immoral, yet it was not the Bank's money which helped the immorality. The wrong, if any there was, had been committed. “The previous debt,” he said, “may have been immoral, yet it was not the Bank's money which helped the immorality. The wrong, if any there was, had been committed. The Bank only helped to release the estate from the liability which had already attached to it, and supposing this question of immorality can be inquired into, which I hold cannot, it rests on them (the sons) if they seek to have their share exempted from sale, to establish that the debts discharged by the advance of the Bank were of a nature which it was not their duty as sons of their father to discharge, that is, they were debts tainted with immorality.” He further found that even if Maharaj Singh was a minor at the date of the execution of the mortgage the Bank's loan was “for the benefit of estate,” in as much as “it averted sales in cases in which execution had been taken out and cut off the possibility of the estate being sold by the creditors who with their bonds unpaid threatened to sell it.” 8. From this decision Maharaj Singh has appealed and in his memorandum of appeal has raised a number of objections to the findings of the Court below. It will not be necessary to deal with these objections seriatim. Our attention has been directed by the appellant's learned Counsel to a few only of the main questions raised in the appeal. The first and principal contention is that the evidence clearly established that Maharaj Singh was under age at the date of the execution of the mortgage and that therefore the mortgage was not binding upon him. The second that the oral and documentary evidence conclusively established that the debts contracted by Raja Shankar Singh were tainted with immorality and therefore were not such debts as it was the pious duty of the appellant to discharge. A contention was also raised to the effect that the Court below had wrongly rejected evidence to support the plea set forth in paragraphs 8, 9 and 10 of the written statement of Sheoraj Singh. A contention was also raised to the effect that the Court below had wrongly rejected evidence to support the plea set forth in paragraphs 8, 9 and 10 of the written statement of Sheoraj Singh. The defence that the property was granted by Government to I Raja Dilsukh Rai as a reward for public services and therefore could not be transferred to strangers, as also the plea that the execution of the mortgage by the appellant was procured by fraud and undue influence, were not supported. 9. We have no hesitation in holding that the Court below rightly excluded the evidence sought to be adduced in support of the parol agreement alleged by Sheoraj Singh. The agreement so sought to be Bet up was one which modified the terms of the contract of mortgage in so far as it purported to reduce the amount recoverable under the deed, took away the right of sale and provided for the payment of the reduced debt by a sale of other property. It was not in writing and was, moreover, without consideration. It was also void for uncertainty, as there was no specification of the portion of the defendant's property which it is said he agreed to give in satisfaction of the debt. Under section 48 of the Registration Act (Act III of 1877), the mortgage, the subject-matter of the suit, which is a registered instrument, takes effect against any oral agreement relating to the property comprised in the mortgage, that agreement not having been accompanied or followed by delivery of possession. In view of all these considerations and of the provisions of section 92 of the Indian Evidence Act, we think that the argument addressed to us on behalf of the appellant upon this matter is altogether-untenable. 10. We come now to the really important issue which was decided by the Court below in favour of the plaintiff-respondent, and that is, whether the appellant, Maharaj Singh, was or was not a minor at the date of the execution of the mortgage. If he was of age at that date, he admittedly cannot impeach the mortgage which is the subject-matter of the suit; while if he was under age the Mortgage is as regards him absolutely void. If he was of age at that date, he admittedly cannot impeach the mortgage which is the subject-matter of the suit; while if he was under age the Mortgage is as regards him absolutely void. In the case of Mahori Bibee v. Bharmodas Ghose,[1903] I.L.R., 30 Cal., 539 their Lordships of the Privy Council held after a review of the authorities and the provisions of the Contract Act that a mortgage made by a minor is not merely voidable but absolutely void. In view of this decision if we find upon the evidence that the appellant was a minor at the date of the execution of the mortgage we must hold that he is under no liability to the plaintiff-respondent, unless it be that he (the plaintiff-respondent) is, having regard to the nature of his suit, entitled and is able to show, without relying on the mortgage, that Maharaj Singh is under liability to him on other grounds. If the appellant succeed in his appeal the decree for sale passed by the lower Court will only hold good as regards the moiety of the mortgaged property which belongs to Sheoraj Singh, and the share of Maharaj Singh will be discharged from liability. 11. [His Lordsphip after discussing the evidence, continued thus:—] Upon the whole after careful consideration of all the evidence we have no hesitation in coming to the conclusion that the appellant was under the age of 18 years at the time the mortgage in suit was executed. The Court below was wrong in our judgment in rejecting the mass of evidence which supports this view. Its judgment upon this question contains, as we have pointed out, a number of inaccurate statements and shows a want of appreciation of the due weight to be attached to the evidence laid before it. We therefore hold that it has been satisfactorily established that Maharaj Singh was under age at the date of the execution of the mortgage. 12. Finding then that the appellant was under age at the date of the execution of the mortgage, that instrument is absolutely void as against him. We have therefore to consider what is the effect of this finding upon the appeal. His learned Counsel contends that the suit, being a suit for sale upon the mortgage, ought to be dismissed as against him. We have therefore to consider what is the effect of this finding upon the appeal. His learned Counsel contends that the suit, being a suit for sale upon the mortgage, ought to be dismissed as against him. But on behalf of the plaintiff-respondent it is contended that the suit is not based upon the mortgage alone but also upon the pious duty of Hindu sons to pay their father's debts, and that in as much as the money secured by the mortgage, the subject-matter of the suit, was in part at least advanced and applied in payment of debts of Raja Shankar Singh, the plaintiff-respondent was entitled to the extent of those debts to maintain the suit against the appellant. The reply of the appellant to this contention is that in view of the frame of the suit this contention cannot be allowed, and further that even if the plaintiff-respondent be entitled to fall back upon the rule of Hindu Law, which obliges a Hindu son to pay his father's debts, the debts of Raja Shankar Singh were incurred for illegal and immoral purposes, and consequently the appellant is under no obligation to discharge them. 13. After the arguments had concluded, a possible answer to the alternative case presented by the respondents occurred to one of us. This is that if the appellant was liable for the debts of his father, these debts have been long since statute-barred. The mortgage executed by Raja Shankar Singh in favour of Brij Kishore Rup Kishore was discharged by Sheoraj Singh out of moneys advanced to him by the Bank and this mortgage no longer exists. In any case the suit is not brought upon it. But if the debts of Raja Shankar Singh can be deemed to have been kept alive at all after the execution of the Bank's mortgage, it, appears to us that as against the appellant these debts are statute-barred. The mortgage in favour of Brij Kishore Rup Kishore was executed on the 4th of April, 1887, and by it the parties fixed the 4th of April, 1892, as the due date of payment. Raja Shankar Singh died on the 24th of August, 1891. The right, if any, to recover this debt from the appellant accrued either on the death of Raja Shankar Singh or on the 4th of April, 1892, the due date of payment. Raja Shankar Singh died on the 24th of August, 1891. The right, if any, to recover this debt from the appellant accrued either on the death of Raja Shankar Singh or on the 4th of April, 1892, the due date of payment. The suit being one to which article 120 of schedule II to the Limitation Act of 1877, applies, was therefore barred by limitation several years before the institution of the suit, it not being instituted until the 26th of September, 1901. Narsingh Misra v. Lalji Misra[1901] I.L.R., 23 All., 206. Natasayyan v. Ponnu-sami, [1892] I.L.R., 16 Mad., 199. Ramayya v. Venaktaratnam[1893] I.L.R., 17 Mad., 122. The other mortgage mentioned in the plaint is a mortgage of the 19th of December, 1891. This mortgage was executed by Sheoraj Singh, so may be left out of consideration. This seems to be a complete answer to the alternative case made on behalf of the respondents. We gave an opportunity to the parties to discuss this question. Mr. Sundar Lal on behalf of the respondent relied upon the provisions of section 74 of the Transfer of Property Act as entitling his client to all the rights and powers of the mortgagees whose mortgage was satisfied out of the Bank's loan, but the answer to this contention is that it was not the Bank but Sheoraj Singh who paid off the prior mortgage and the section has therefore no application, and in any case the suit has not been brought on foot of the earlier mortgage. It appears to us that this furnishes a complete answer to the suit so far as the defendant appellant is concerned. 14. We might upon this view dispose of the appeal, but, in view of the possibility that the litigation between the parties may not end in this Court, we think it right to determine the questions which have been argued before us at considerable length, on the assumption that the statute of limitation, the age of the appellant at the date of the mortgage and the frame of the suit offer no obstacle to the plaintiff's success in the appeal. We are asked on behalf of the plaintiff-respondent to Say that if the mortgage is not binding on the appellant, he (the respondent) is independently of the mortgage entitled to a decree for sale of the moiety of the mortgaged property which belongs to Sheoraj Singh for the satisfaction of the mortgage debt incurred by him, and at the same time to a decree against Maharaj Singh for that debt to the extent at least of payments made out of the Bank's advance in satisfaction of debts of Raja Shankar Singh, and that to that extent the debt of the plaintiff is a charge on and should be raised out of the share of the appellant by sale of that share. 15. In the plaint the earlier mortgage of the 4th of April, 1887, executed by Raja Shankar Singh in favour of Brij Kishore and Rup Kishore is stated, and also the indebtedness of Raja Shankar Singh to a number of other persons, and in the ninth paragraph, as we have already pointed out, the claim is put forward that the Bank by reason of the payments of the amounts due under the prior mortgages acquired the rights of prior mortgagees and paid up debts due by Raja Shankar Singh, and that the defendants, as the sons and grandsons of Raja Shankar Singh, were under the Hindu Law under an obligation to pay his debts, and the Bank had a right to realise their debt from the whole mortgage property, and that the plaintiff as the assignee of the Bank had acquired all these rights. In his written statements the appellant set up the case that the debts of Raja Shankar Singh were contracted for illegal and immoral purposes, and an issue upon this allegation was framed. We cannot conceal the fact that if we allow the contention of the plaintiff-respondent, we shall have to extend our enquiry further back than was done in the Court below. When the Court found that Maharaj Singh was of age at the time when the mortgage to the Bank was executed, it was not necessary to determine whether or not the debts of Raja Shankar Singh were incurred for illegal or immoral purposes. Maharaj Singh in that case could not dispute his liability to the Bank, or the Bank's assignee. When the Court found that Maharaj Singh was of age at the time when the mortgage to the Bank was executed, it was not necessary to determine whether or not the debts of Raja Shankar Singh were incurred for illegal or immoral purposes. Maharaj Singh in that case could not dispute his liability to the Bank, or the Bank's assignee. Indeed, the learned Subordinate Judge held that he could not investigate the nature of the debts. Now, however, that we have found that the appellant was under age and that the Bank's mortgage was not binding upon him, if we allow the contention of the plaintiff-respondents to prevail, we shall be obliged to investigate and to determine not the nature of the Bank's debt but the nature of the debts of Raja Shankar Singh which were discharged out of the loan obtained from the Bank. Are we entitled to do so? 16. We have considerable doubt upon this point. If the plaintiff-respondent intended to base an alternative claim upon the pious] duty of the appellant, he ought, we think, to have framed a separate cause of action and asked for alternative relief. He has failed in establishing the case which he made in his plaint as against the appellant, but has succeeded against Sheoraj Singh to the extent of his interest in the mortgaged property. In view, however, of the fact that the appellant in his defence set up the case that the debts of Raja Shankar Singh were immoral and an issue was framed on this question, so that it cannot be said that the appellant was taken by surprise, we do not think that we should be justified in taking a narrow view of the plaint and shutting out the consideration of the important issue in question. Whether we are right or wrong on this question we should feel it our duty in any case to express our opinion upon the question raised as to the nature of the debts of Raja Shankar Singh, a matter which has been discussed before us at great length. 17. Mr. Sundar Lal contended on behalf of the respondent that Maharaj Singh is liable to pay the debts of his father unless he can show that these debts were incurred for immoral purposes, and that the creditors who made the advances did so with the knowledge of the object of the loan. 17. Mr. Sundar Lal contended on behalf of the respondent that Maharaj Singh is liable to pay the debts of his father unless he can show that these debts were incurred for immoral purposes, and that the creditors who made the advances did so with the knowledge of the object of the loan. He further contended that it is the circumstances only of the debt sued on which should be enquired into, and that if any inquiry is directed as to antecedent debts the purposes of the loan and not the application of the money should be the subject of the inquiry. He also asked us to hold that the burden lies upon a Hindu son who is called upon to satisfy the debts of his father to prove not merely that the debts were contracted for immoral purposes, but also that the lender was aware of the immoral purposes for which the money was borrowed. He relied upon a line of authorities, beginning with the case of Girdharee Lal v. Kantoo Lal,[1874] L.R., 1 I.A., 321, establishing the propositions laid down by their Lordships of the Privy Council in the case of Suraj Bunsi Koer v. Sheo Prasad Singh,[1879] L.R., 6 I.A., 88. These propositions are stated at p. 106 of the last mentioned case in the following words: “first, where joint ancestral property has passed out of a joint family either under a conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons by reason of their duly to pay their father's debts cannot recover that property unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted, and, secondly, that the purchasers at an execution sale being strangers to the suit, if they have not notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings”. This Court has in a number of cases adopted in the fullest measure the propositions so enunciated by their Lordships, but the question arises, have they any application to the facts of the present case? This Court has in a number of cases adopted in the fullest measure the propositions so enunciated by their Lordships, but the question arises, have they any application to the facts of the present case? In the first place we may point out that these propositions apply to cases in which joint ancestral property has passed out of a joint family. In the present case the property in dispute has not passed out of the family but is still in the possession of Maharaj Singh and his brother. The object of the suit is to deprive the family of its ancestral property, while the object of Maharaj Singh in this appeal is to retain the possession and enjoyment of his share of it. The debts of Raja Shankar Singh have been discharged by Sheoraj Singh out of the moneys advanced by the Bank and no attempt has ever been made to enforce payment of the earlier mortgage by sale of the mortgaged property. It is difficult, therefore, to understand the right under which the plaintiff respondent as assignee of the Bank can hold up not merely as a shield but as a weapon of attack the earlier mortgage which was so discharged. 18. But let us assume that he can do so and that too in the suit as framed. In such case the appellant clearly can defend his title if he can show that the debts of his father were contracted for illegal or immoral purposes. We have already quoted the language of the learned Subordinate Judge in regard to the nature of these debts. He was of opinion that whatever may have been the nature of the debts for the discharge of which money was borrowed from the Bank, the advance made by the Bank could not be regarded as made for immoral purposes. 19. But it is not the nature of the Bank's debt which we must now consider, seeing that we have held that the appellant is not liable under the Bank's mortgage, but the nature of the debts which were discharged out of the loan made by the Bank for which it is now sought to make the appellant liable. 20. The evidence shows that the Bank placed a sum of Rs. 20. The evidence shows that the Bank placed a sum of Rs. 3,00,009-in their books to the credit of Sheoraj Singh and out of this sum he (Sheoraj Singh) discharged not merely debts of Raja Shankar Singh but a number of debts contracted by himself. It is possibly the case that the Bank took the precaution of seeing that the mortgages executed by Raja Shankar Singh were discharged out of the loan, but it is clear that there was no intention on the part of the Bank to keep those mortgages alive for its protection. The Bank appears to have relied on the security of the mortgage and on that alone. 21. This brings us then to the evidence which has been adduced by the defendant-appellant in support of his allegation that the debts of his father which were discharged out of the loan obtained from the Bank were contracted for immoral purposes. But let us first see what the financial position of Raja Shankar Singh was when he succeeded to the property. His father, Raja Dilsukh Rai, the founder of the family, was a man of humble origin. He had been a patwari, but as a reward for public services rendered by him during the mutiny, the Government gave him a grant of land yielding a yearly income of over Rs. 50,000 and conferred upon him the title of Raja. He was a man of thrifty habits, and at the time of his death on the 11th of March, 1880, had accumulated a large sum of money stated to amount to 1¼ lakhs. On his succession to the property the Government also conferred upon his son, Shankar Singh, the title of Raja. The evidence establishes beyond any question, and indeed it is not denied by the plaintiff-respondent, that Shankar Singh was a man of dissolute and dissipated habits. He squandered in a few years the accumulations of income made by his father, and on the 4th of April, 1887, borrowed no less a sum than Rs. 1,00,000 from the firm of Brij Kishore Rup Kishore, native bankers, and incurred other heavy liabilities. No necessity for the expenditure of moneys which the income of the estate could not satisfy is suggested, other than that which might arise out of a dissolute and extravagant mode of life. 22. 1,00,000 from the firm of Brij Kishore Rup Kishore, native bankers, and incurred other heavy liabilities. No necessity for the expenditure of moneys which the income of the estate could not satisfy is suggested, other than that which might arise out of a dissolute and extravagant mode of life. 22. [His Lordship after discussing the evidence proceeded thus:] Now that a large part of the moneys borrowed by Raja Shankar Singh were borrowed for immoral purposes, there can be no doubt. His income was more than ample to meet his ordinary requirements, and in addition to his income he had the large accumulations amassed by his father. Experience tells us that his licentious mode of life was not and could not have been concealed from his neighbours. It was no doubt the common talk of the bazar. No intending lender could fail to have learnt of it if he had made any inquiry whatever. We know of no express authority for the proposition advanced by Mr. Sunder Lal that a son who disputes his liability to pay his father's debt contracted for immoral purposes must ordinarily prove that the lender was aware of the object for which the money was borrowed, though there is the highest authority that he must do so if he is attempting to recover ancestral property which has already passed out of the family. If the onus of proving such knowledge lies on a son, it would be, we think, next to impossible for him to discharge it. In the proposition laid down in the case of Suraj Bansi Koer v. Sheo Prasad Singh, to which we have already referred, it is laid down that where joint ancestral property has passed out of a joint family under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons cannot recover that property unless they show that the debts were contracted for immoral purposes and the purchasers had notice that they were so contracted; but as we have pointed out this applies to a case in which joint ancestral property has passed out of the family and sons are endeavouring to recover it. That is not the present case. That is not the present case. Here the property has not passed from Maharaj Singh; he is defending his title, he is not a plaintiff seeking to recover property, but a defender of his interest in ancestral property of which he is in possession. 23. [After further considering the evidence, His Lordship proceeded:] We have given, we think, sufficient details of expenditure to show that the indebtedness of Raja Shankar Singh was due to his immoral course of life. The moneys which he borrowed appear to us to have been undoubtedly borrowed for the purposes of his tours of lust and debauchery. The appellant does not profess to give specific proof of the expenditure in immoral pursuits of all the moneys which were borrowed, nor could he possibly do so. All that he professes to have done is to show specific instances of the application of large sums of money in payments made to prostitutes and in the purchase of liquor and to give general evidence from which it may, he contends, reasonably be inferred that the debts were tainted with immorality. 24. [His Lordship further discussed the evidence and then proceeded:] Now we have not the slightest reason to doubt the truthfulness in the main of the witnesses who were examined on behalf of the appellant in support of his case, nor the genuineness of the documents which have been produced in corroboration of their testimony. The witnesses were not shaken in cross-examination and no other explanation than that which they gave of the extravagant expenditure of money by Raja Shankar Singh was suggested. Their evidence in our judgment establishes that the indebtedness which led to the borrowing by him of a 1 lakh of rupees from Brij Kishore Rup Kishore, and Rs. 15,000 from Basdeo Sahai and other sums from other parties, had its origin and was incurred to satisfy his immoral propensities. 25. But it is contended on behalf of the plaintiff-respondent that we are not to regard the origin of the indebtedness, but merely look to the circumstances under which the later loans were made and not to the application of these loans. 25. But it is contended on behalf of the plaintiff-respondent that we are not to regard the origin of the indebtedness, but merely look to the circumstances under which the later loans were made and not to the application of these loans. This we take to mean that if the Court finds that the debts of Raja Shankar Singh, which were satisfied out of the moneys advanced by Brij Kishore Rup Kishore and others, were contracted for immoral purposes, the loan obtained from Brij Kishore Rup Kishore and others to pay off those immoral debts would not be equally tainted with immorality. We know of no authority in the books which supports this proposition, and our attention has not been directed to any. It is broadly laid down that sons are not compellable to pay moneys due by their father for spirituous liquor, for losses at play, for promises made without any consideration, or under the influence of lust, nor generally any debt for a cause repugnant to good morals. 26. It has been repeatedly held in this High Court that where a Hindu son comes into Court to assail either a mortgage made by his father, or a decree passed against his father, or a sale held or threatened in execution of such a decree, it rests upon him to prove that the debt in respect of which the decree was obtained was of such a character that he would not be under a pious obligation to discharge it. Beni Madho v. Basdeo Patak,[1890] I.L.R., 12 All., 99; Bhawani Baksh v. Ram Dai, [1891] I.L.R., 13 All, 216; Pem Singh v. Partab Singh[1892] I.L.R., 14 All., 179. But the appellant in this case is not the assailant, he is defending his title. In the well-known case of Hanooman Persaud Panday v. Mussumat Babooee Munraj Koonweree,[1856] 6 M.I.A., 393 the power of the manager for an infant heir to charge ancestral estates by loan or mortgage is considered. That was the case of a mother managing as guardian for an infant heir; but it has been repeatedly held that the principles laid down in this case apply equally to fathers when, managing property governed by the Mitakshara law. That was the case of a mother managing as guardian for an infant heir; but it has been repeatedly held that the principles laid down in this case apply equally to fathers when, managing property governed by the Mitakshara law. Dealing with the question of the onus of proof in suits of the kind, their Lordships of the Privy Council say that it is “one not capable of a general and inflexible answer. The presumption proper to be made will vary with circumstances and must be regulated by and dependent on them. Thus where the mortgagee himself with whom the transaction took place, is setting up a charge in his favour made by one whose title to alienate he necessarily knew to be limited and qualified, he may be reasonably expected to allege and prove facts presumably better known to him than to the infant heir, namely, those facts which embody the representations made to him of the alleged needs of the estate and the motives influencing his immediate loan.” 27. Later on they say that the power of the Manager for an infant heir to charge an estate not his own “can only be exercised rightly in a case of need, or for the benefit of the estate. But where in the particular instance the charge is one that a prudent owner would make in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in the particular instance, is the thing to be regarded.” And again later on their Lordships express the view that “the lender is bound to inquire into the necessities for the loan and to satisfy himself as well as he can, with reference to the parties with whom he is dealing that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that tinder such circumstances he is bound to see to the application of the money.” The italics are ours. 28. But they think that if he does so inquire and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that tinder such circumstances he is bound to see to the application of the money.” The italics are ours. 28. In the case of Musammat Jannuk Kishoree Koounwar v. Babu Rahgunandan Singh, [1861] S.D.A.L.P., 213 the powers of a father, joint owner with his sons of ancestral property, in regard to alienation of the joint property, was considered and a distinction was drawn between the case in which sales were made by order of the Court in execution of decrees and sales made privately to satisfy decrees and bonds and also sales made simply in order to raise money for some purpose or other. The Court held that in the case of sales which took place through the intervention of the Courts for the payment of debts the sales could not be interfered with, as the Court could not look behind the decrees themselves, but that in regard to sales falling under the two other classes, that is, sales made to satisfy decrees and bond debts and sales made to raise money for other purposes, the sales were not made under circumstances showing any legal necessity for them and were consequently invalid under the Hindu Law. In the course of their judgment the learned Judges say, “Now in sales made without the intervention of a Court of Justice when the vendor is a trustee for others as well as part owner, and the purchaser a stranger, such purchaser is, as contended for by the learned Advocate-General, under an obligation to inquire and see that no breach of trust is by the act of sale to him committed; when, moreover, the purchaser is not a stranger but a person knowing not only the position of the vendor but the circumstances of the family, the obligation is stronger upon him of making such inquiry; and if the transaction, of whatever nature it may be, be afterwards called in question, the onus is clearly upon him of showing what those facts were which were represented to him as raising the necessity which was sufficient to justify it in his mind under the law applicable to the case.” The Judges then say that “after an attentive analysis of all the evidence placed before us by the defendants, we are; unable to say that any such proof of a satisfactory nature has been placed before us by them in this case, but the doctrine has been openly adopted by them, that the sales themselves prove their own necessity. We think that this doctrine is altogether an erroneous one and that on the simple failure by them to prove that they had made any inquiry as to the legal necessity of the sales in either class of cases under consideration, this case might at once be decided against them; but on referring to the evidence of the plaintiff, the nature of all these transactions at once becomes apparent and also the fact that they were all without exception entered into without any legal necessity. Considerable sums in the aggregate were paid over to the debtor for which bonds to a large amount were given and decrees have been obtained on those bonds and the transaction seems to have been part of a system entered into by certain parties, including the principal defendant, to ease plaintiff's father of his ancestral property by supplying his extravagances.” This judgment is, we think, worthy of close attention and consideration. 29. The case of Suraj Bansi Kuar v. Sheo Prasad Singh to which we have already referred, is instructive on this question. 29. The case of Suraj Bansi Kuar v. Sheo Prasad Singh to which we have already referred, is instructive on this question. In that case an ex parte money decree was obtained against a Hindu governed by the Mitakshara law upon a bond whereby he had mortgaged his ancestral immovable estate and the property was attached. Prior to a sale in execution the judgment-debtor: died and his infant sons and co-heirs filed an objection to the sale and were referred to a regular suit. The sale took place and after it a suit was brought by the infants against the execution creditor and the purchasers for the adjudication of their right to and confirmation of possession in the property sold and to have the mortgage bond, the ex parte decree and the execution sale set aside. The case came before the Subordinate Judge of Tirhoot. In his judgment he condemned Bolaki, the judgment-creditor, for lending so large a sum without inquiry as to the necessity for the loan and held the debt legally invalid so far as the surviving joint members of the family were concerned. He then dealt with the question raised that the purchasers were bona fide purchasers and ought not to suffer, and held that they were not innocent purchasers in the proper sense of the term, in as much as notice had been given to them before the sale that the family property advertised for sale could not legally be sold for the debt of one of the members of the joint family. In the course of his judgment he said, “They (the purchasers) are to blame themselves if they suffer for their want of due diligence in instituting inquiry as to the existence of a necessity justifying the debt in satisfaction of which the proposed sale was to take place,” and he quoted the following rulings; 12 Suth. W.R. 446; 14 Suth. W.R. 72; 8 Suth. W.R., 15. He accordingly cancelled the sale unconditionally and unreservedly. On appeal to the High Court, GLOVER and ROMESH CHANDER MITTER, JJ., reversed this decision. W.R. 446; 14 Suth. W.R. 72; 8 Suth. W.R., 15. He accordingly cancelled the sale unconditionally and unreservedly. On appeal to the High Court, GLOVER and ROMESH CHANDER MITTER, JJ., reversed this decision. In the course of their judgment they say, “The Subordinate Judge has decided in the words of the well-known case of Hanmnan Pershad (6 Moore's I.A., 421) that although the creditor would have been justified in advancing his money if he had made such inquiry as was open to him and had satisfied himself as well as he could as to the existence of the necessity, he did not in this case make such inquiry; or rather, perhaps, his words may be taken to mean that the result of any inquiry must have shewn him quite clearly, that the only necessity of Adit Sahai was his own improper and immoral way of life, which craved the expenditure of funds not derivable from his regular income. And this decision would, I think, have been perfectly fair and right were we dealing with Bolaki Chowdhry only; for he appears to have acted as the family Mahajan for a long time previous, and must necessarily have been acquainted with Adit's circumstances and way of life; but it is a different thing when we have to deal with third parties strangers, who have purchased at public auction for valuable consideration, and who bought on the faith that the decree under which the sale was made was a proper decree, and properly obtained.” On appeal their Lordships of the Privy Council deal with the principles of Hindu Law which formed the foundation of the plaintiffs' claim and the right which flowed from them, and state that “all are agreed that the alienation of any portion of the joint estate without such express or implied authority (i.e., of co-parceners) may be impeached by the co-parceners, and that such an authority will be implied at least in the case of minors if it can be shown that the alienation was made by the managing member of the family for legitimate family purposes. It is not so clearly settled whether in order to bind adult co-parceners their express consent is not required.” Their Lordships afterwards refer to the case decided by the late Sadar Dewany Adawlut of Bengal in 1861 which we have already quoted, and observe that “this case recognised the distinction between alienations by conveyance and those made under process of execution. The Court set aside the sales by conveyance because no justifying necessity for them had been established, and it did this although the considerations for the sales were in some instance money raised in order to satisfy either judgment or bond debts. On the other hand it dismissed the suit so far as it sought to recover property which had been sold under decrees of Court on the ground that the son was under an obligation to pay the debts of the father if not contracted for immoral purposes, and that he had failed in this case to prove as against the purchasers under the decrees that they were so contracted.” Their Lordships then refer to the extension of the principle laid down in this case in the later case of Kantoo Lal and applying the principles to be extracted from the authorities to the case before them proceed in these words: “It has been found by both the Indian Courts, and in their Lordships” opinion properly found, that the plaintiffs as between them and Bolaki Chowdhry, the judgment-creditor of Adit Sahai, had established that neither they nor the ancestral immovable estate in their hands were liable for the debt to Bolaki which had been contracted by their father. The two material issues on this point were, first, whether the bond to Bolaki executed by the late father of the minors was legally valid so far as the minors' interest is concerned, and whether the money thus borrowed was devoted to the satisfaction of debts incurred when the minors had no existence; and secondly, what sort of a life did Adit Sahai live; did he spend the money borrowed from Bolaki Chowdhry in immoral purposes? The Subordinate Judge upon a full consideration of the evidence found both these issues in favour of the plaintiffs and granted them the relief sought by their plaint. The judgment of the High Court does not impeach this finding as regards Bolaki Chowdhry. The Subordinate Judge upon a full consideration of the evidence found both these issues in favour of the plaintiffs and granted them the relief sought by their plaint. The judgment of the High Court does not impeach this finding as regards Bolaki Chowdhry. On the contrary the words of the learned Judge who wrote the judgment of the Court are, and this decision would, I think, have been perfectly fair and right were we dealing with Bolaki Chowdhry only.’ There is no doubt a subsequent passage to the effect that the onus was clearly on the plaintiffs of showing against the respondents who purchased at the execution that the decree against Adit Sahai was an improper one and that the evidence was insufficient to prove the fact.” Then their Lordships refer to the decision of their Board in the case of Muddun Thakoor v. Kantoo Lal, namely, that where a Court has passed a decree against a party in favour of a creditor and has ordered property to be set up for sale in execution of the decree, a bona fide purchaser under the execution who has paid the purchase money is not liable to have the property taken from him on the ground that the decree proceeded upon an erroneous view of the law, and observe: “It appears to their Lordships that the present case is clearly distinguishable from that of Muddun Thakoor and does not fall within the principle laid down in the passage just cited. It has been seen that before the respondents purchased, the claim of the plaintiffs was preferred in the Court wherein the execution proceedings were pending in the form of objection to the sale. The Court refused to adjudicate upon the claim in an execution proceeding and accordingly allowed the sale to take place, but made an order referring the’ plaintiffs to a regular suit for the establishment of their rights. Their Lordships think that the respondents must be taken to have had notice, actual or constructive, of the plaintiffs' objections and of the order made upon them and therefore to have purchased with knowledge of the plaintiffs' claim and subject to the result of their suit. Their Lordships think that the respondents must be taken to have had notice, actual or constructive, of the plaintiffs' objections and of the order made upon them and therefore to have purchased with knowledge of the plaintiffs' claim and subject to the result of their suit. It follows that as against them as well as against Bolaki Chowdhry, the plaintiffs have established that by reason of the nature of the debt neither they nor their interests in the joint ancestral estate are liable to satisfy their father's debt.” Now in this case it will be observed that it was never suggested that the minor plaintiffs were bound to show not merely that the money was borrowed for immoral purposes, but that the lender Bulaki had notice of the purpose for which it was borrowed. The issue was, “What sort of a life did Adit Sahai live; did he spend the money borrowed from Bolaki Chowdhary in immoral purposes? “If it was necessary for the minor sons to prove that Bolaki Chowdhry had notice of the purposes of the loan, we should expect to find an issue directed to this; but there was no such issue, nor was it suggested, nor could it well be suggested, that the purchasers had knowledge of the immoral nature of the debt. The utmost that could be said as against them was that they had notice that the sons impeached the debts as being tainted with immorality. In view, however, of the fact that the respondents were purchasers of the property at a sale in execution of a decree upon a mortgage, they would, in accordance with former rulings of the Privy Council, be under ordinary circumstances protected against any claim of the sons, unless the sons could show that the purchasers were not bona fide purchasers. It was therefore necessary to consider whether the respendents were bona fide purchasers. Their Lordships held on this question that having purchased after objections filed by the plaintiffs on the ground that the father's debt had been incurred without justifying necessity, the purchaser must be taken to have had notice and to have purchased with knowledge of the plaintiffs' claim and subject to the result of the suit to which the plaintiffs had been referred. 30. The case before us is quite different. 30. The case before us is quite different. No decrees were obtained upon the mortgage bond executed by Raja Shankar Singh upon which the plaintiff-respondent rests his case against the appellant. There is no purchaser before the Court under any deeree, and the case does not seem to fall within the class of cases to which the proposition as regards notice laid down in the case of Suraj Bansi Koer v. Sheo Prasad Singh applies. The plaintiff-respondent is not in the position of one who has bona fide purchased an estate under an execution and so is protected against the suit of sons seeking to set aside all that has been done under the decree in execution and to recover back the estate as joint ancestral property. The position which he occupies is this:— he has obtained merely a transfer of a mortgage security found to be binding on one only of two brothers jointly entitled to ancestral property, portion of the consideration for the mortgage being applied in the payment of debts of their father. The two positions are very different. 31. The next case to which we would refer is the case of Musammat Nanomi Babuasin v. Modhun Mohan, [1885] L.R., 13 I.A., 1; S.C. I.L.R., 13 Cal, 21 In that case a suit was instituted on the 14th of September, 1878, by Musammat Nanomi on behalf of her minor sons and herself to set aside a sale made in 1872 in execution of a personal decree against Girdhari Singh, the father of the minor plaintiffs, and the husband of Musammat Nanomi, at which the defendant Hirdey Narain had become the purchaser and had as such obtained possession not only of Girdhari Singh's interest but also that of his sons in a certain village. The plaintiffs' contention was that the property was ancestral property of the joint family, and that the defendant purchaser by virtue of his purchase acquired either nothing at all or at most only the interest of Girdhari Singh, and that the plaintiffs were entitled to have the property restored to them. The plaintiffs' contention was that the property was ancestral property of the joint family, and that the defendant purchaser by virtue of his purchase acquired either nothing at all or at most only the interest of Girdhari Singh, and that the plaintiffs were entitled to have the property restored to them. The case ultimately came before the Privy Council when it was held that what passes by such a sale depends upon the nature of the debt (e. g., whether or not it is tainted with immorality) and the intention of the parties; that the co-parceners who were not parties to the sale, or execution proceedings were entitled to try the fact or the nature of the debt in a suit of their own, and that the purchaser, if he has bought the entirety, may defend his title on any ground which would justify the sale. In the course of their judgment their Lordships observe:— “There is no question that considerable difficulty has been found in giving full effect to each of two principles of the Mitakshara law, one being that a son takes a present vested interest jointly with his father in ancestral estate, and the other that he is legally bound to pay his father's debt, not incurred for immoral purposes, to the extent of the property taken by him through his father. It is impossible to say that the decisions on this subject are on all points in harmony either in India or here. But the discrepancies do not cover so wide a ground as was suggested during the argument in this case. “It appears to their Lordships that sufficient care has not always been taken to distinguish between the question how far the entirety of the joint estate is liable to answer the father's debt, and the question how far the sons can be precluded by proceedings taken by or against the father alone from disputing that liability. Destructive as it may be of the principle of independent co-parcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt or against his creditor's remedies for their debts, if not tainted with immorality. Destructive as it may be of the principle of independent co-parcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt or against his creditor's remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate their Lordships think that there is now no conflict of authority.” In this case it will be observed that the ancestral property had passed out of the family and was in the possession of the purchaser and that the suit was one for recovery of that property. It was not a suit by a creditor of a Hindu father to recover the debt of the father from his sons or from ‘ancestral property. 32. The words in the foregoing judgment which we have put in italics, namely or against his creditor's remedies for their debts,” in later cases seem to have been treated as extending the rule laid down in the earlier Privy Council decisions and crystallized in the propositions mentioned in Suraj Bansi Koer's case, and to lend support to the contention that whether a Hindu son is plaintiff in a suit for the recovery of ancestral property or is defending his possession of such property against a creditor of his father, in either case the onus lies upon him of showing that the creditor's claim is in respect of an immoral debt and the creditor is not bound to show that he made any inquiry at the time of the advance as to the necessity for the loan. It seems to us very doubtful whether their Lordships in their judgment intended to lay down this rule. They do not profess to extend the rule previously established but merely adopt that rule. They say, “the decisions have for some time established the principle, et cetera.” It seems to us that their Lordships probably intended no more than the enunciation of the rule laid down in Suraj Bansi Koer's case and used the words ‘creditor's remedies for their debts'; merely to denote the remedies which the law gives to creditors when completed by suit, decree and execution. 33. 33. In the case of Jamna v. Nain Sukh, [1887] I.L.R., 9 All., 493 which came before a Bench of this High Court, in which a mortgagee sought to enforce a mortgage of ancestral property executed by a Hindu father against the sons' shares, it was held by Sir John EDGE, C.J. (MAHMOOD, J., concurring) that “it is good sense and a general rule that a creditor endeavouring to enforce his claim under a bond given by a Hindu father against the estate of a Hindu family in respect of money lent or advanced to the father having only a limited interest, should, if the question is raised, prove either that the money was obtained by the father for a legal necessity, or that he made such reasonable inquiries and obtained such information as would satisfy a prudent man that the loan was contracted to pay off an antecedent debt or for the other legal “necessities of the family” This case has a close bearing upon the case before us. 34. The next ease to which we would refer is one in which a Hindu son assailed a mortgage and deereee passed thereon affecting joint family property against his father only and is not the case of a son defending his possession of ancestral property. This was the case of Beni Madho v. Basdeo Patdk,[1890] I.L.R., 12 All., 99. 34. The next ease to which we would refer is one in which a Hindu son assailed a mortgage and deereee passed thereon affecting joint family property against his father only and is not the case of a son defending his possession of ancestral property. This was the case of Beni Madho v. Basdeo Patdk,[1890] I.L.R., 12 All., 99. In his judgment, STRAIGHT, J. (MAHMOOD, J. concurring) after referring to various rulings on the subject of the liability of a Hindu son to pay his father's debts, stated the deductions to be drawn from them as follows: “These rulings seem to me to have gone somewhat further than the former ones and the outcome of the whole of this body of decisions appears to be this, that where a Hindu son is coming into Court to assail either a mortgage made by his father or a decree passed against his father or a sale held or threatened in execution of such decree, whether it be upon a mortgage security or in respect of a simple money debt, where there is nothing to show any limitation of the extent of interest, sold or threatened with sale or charged in a security or dealt with by a decree, it rests upon him, if he seeks to escape from having his interests affected by the sale, to establish that the debt he desires to be exempted from paying was of such a character that he as the son of a Hindu would not be under a pious obligation to discharge it, or that his interests in the property were not covered by the mortgage or touched by the decree or affected by the sale certificates.” There is nothing said here as to any necessity on the part of a Hindu son to prove that the lender had knowledge of the immoral purpose for which the debt was contracted. We may observe that in the case of Pern Singh v. Partab Singh,[1892] I.L.R., 14 All, 179 a Full Bench of this Court expressed approval of the ruling of STRAIGHT, J., in the case of Beni Madho v. Basdeo Patak, and threw out no suggestion that the onus of proving knowledge on the part of the lender of the immoral purposes of a loan lay on a Hindu son. In the case before the Privy Council of Bhagbut Pershad Singh v. Girja Koer,[1888] I.L.R., 15 Cal., 717 the plaintiffs were sons assailing sales made in execution of decrees passed against their fathers. Under successive sales in 1879, fractional parts of a family estate were sold in execution of decrees obtained by different creditors against three brothers living jointly, each with their families in the same co-parcenary. Three sons of each of the three brothers sued the purchaser of a share for recovery of possession of that share and the plaint alleged that the income of the ancestral estate was sufficient for the family, and, that there was no necessity for the loans contracted by their fathers, and that the latter by dissipation and extravagance had wasted the income, and had taken loans on the security of the ancestral property, the lenders advancing the loans without due inquiry. Their Lordships referred with approval to the principles laid down by the Judicial Committee in the case of Suraj Bunsi Koer v. Sheo Prasad Singh and the proposition stated in the case of Kantoo Lal and reversed the decision of the High Court on the ground that the plaintiffs had failed to show that the debts of their fathers were contracted for illegal or immoral purposes. They observe, “It appears, therefore, from the decisions that in a case like the present, where sons claim against a purchaser of an ancestral estate, under an execution against their father upon a debt contracted by him, it is necessary for the sons to prove that the debt was contracted for an immoral purpose, and it is not necessary for the creditors to show that there was a proper inquiry, or to prove that the money was borrowed in a case of necessity.” In this case it will be seen that ancestral property had passed out of the family by virtue of the sale had in execution of decrees obtained against the fathers. 35. 35. In the case of Ghintaman Rav Mehendale v. Kashi Nath,[1889] I.L.R., 14 Bom., 320, it was held in a suit by a mortgagee for foreclosure brought against the mortgagor's sons, that the burden lay on the defendant of proving that the loan to the father which was secured by the mortgage was for an illegal or immoral purpose, and that the mere proof that the father had been a man of extravagant and immoral habits was not enough for this purpose and therefore the defendant had failed to discharge the burden. In that case it was contended on behalf of the defendant-appellant that the onus of proof was shifted, once general immorality and extravagance were shown, but the Court consisting of SARGENT, C.J., and NANABHAI HARIDAS, J., did not accede to this contention. In the course of his judgment, SARGENT, C.J., dissented from the view expressed by EDGE, C.J., in the case of Jamna v. Nain Sukh, and expressed his agreement with the statement of the law contained in the judgment in the case of Jagabhai Lalubhai v. Vijbhukandas Jagjivandas,[1886] I.L.R., 11 Bom., 37, 41, namely, that the father's disposition of the family estate or a disposal of it under proceedings taken against the father alone, is made to affect the son's as well as the father's interest, except so far as the son can establish in a proceeding taken for that purpose that the voluntary disposal was made under circumstances which deprived the father of the disposing power, or that the enforced disposal was on account of an obligation to which the son was not subject. “The father in fact is made the representative of the family, both in transactions and suits, subject only to the right of the sons of proving an entire dissipation of the estate by particular instances of wrong-doing on the father's part.” The learned Judges then held that the defendant had not shifted the onus which lay upon him when he had established that his father was an extravagant man, who kept a mistress and delighted in nautches, that some connection must be shown between the debt and the father's immoralities and that this evidence was wanting, although it might perhaps be to some extent inferred from the evidence as a whole that the loan was used to minister to the fathers' extravagant habits. This decision was mainly based on the ladings in Suraj Bansi Koers case, Nanomi Babuasin v. Madan Mohun, and in Bhagbut Pershad v. Mt. Girja Koer,[1888] I.L.R., 15 I.A., 105; S.C. I.L.R., 15 Cal., 717, but in these cases joint ancestral property had already passed out of the joint family under sales held in execution of decrees against the father. The suits were brought by or on behalf of sons to recover the property which had passed out of their possession. In adopting the view which they did, the learned Judges seem to us to have extended the principle laid down by their Lordships of the Privy Council in the earlier cases. 36. In the case of Badri Prasad v. Madan Lal,[1893] I.L.R., 15 All., 75, the question for the decision of the Full Bench was—can the sons in a joint Hindu family be sued along with their father upon a mortgage bond given by the father alone after the sons were born which purported to mortgage the joint family property, the consideration having been, with a trifling exception, money advances incidentally made by the mortgagee to him, not as manager of the family or with the authority of the sons or for family purposes, but not for purposes of immorality or for purposes which if the father was dead would exonerate the sons from the pious obligation of paying such debts of the father? The answer was in the affirmative. The judgment was pronounced by EDGE, C.J., and he considered that the question before the Court was concluded by the decisions of their Lordships of the Privy Council in the case of Musammat Nanomi Babuasin v. Madan Mohan. The propriety of the ruling in Jamna v. Nain Sukh was not considered in this case but in the later case of Debi Dat v. Jadu Rai,[1902] I.L.R., 24 All, 459, our brothers, BANERJI and AIKMAN, regarded the decision in the case last’ mentioned as also the ruling in Nanomi Babuasin v. Modhun Mohan as overruling the decision in Jamna v. Nain Sukh. As we have already said we have grave doubts as to whether their Lordships of the Privy Council in the case of Nanomi Babuasin v. Modhun Mohan intended to extend the rules laid down by their Board in the earlier cases. 37. As we have already said we have grave doubts as to whether their Lordships of the Privy Council in the case of Nanomi Babuasin v. Modhun Mohan intended to extend the rules laid down by their Board in the earlier cases. 37. These rules were applicable to cases in which ancestral property had passed out of the possession of a joint Hindu family. According to these later decisions, if they are good law, no obligation lay on the plaintiff to prove that any inquiry was made by the lenders as to the necessity for the loans when money was advanced to Raja Shankar Singh, and also the burden of proving that the debts of Raja Shankar Singh were tainted with immorality lay upon the appellant. We may say in passing that in a case in which a creditor is endeavouring to establish a claim under a simple hypothecation bond given by a Hindu father, having a limited interest only, against his sons, it appears to us to be not unreasonable to require proof on the part of the creditor that before he entered into the transaction he at least made such reasonable inquiries as would satisfy a prudent lender that the money was required to pay off an antecedent debt or for the legal necessities of the family. But it is not at all clear in our opinion that the decision to which we have referred did impliedly overrule the decision in Jamna v. Nain Sukh. Assuming that this decision is still binding, there is no evidence in this case that any such inquiry was made as ought to have been made or that there was any legal necessity for the loans given to Raja Shankar Singh. Assuming, however, that the onus does lie on a Hindu son under such circumstances of proving that the loan made to his father was for an illegal or an immoral purpose, we think that in this case the appellant has satisfied the onus, and we are unable to hold that there is the additional onus thrown upon him of showing that the lender knew of the immoral purpose for which the debts were being contracted. The case would be different if the appellant were endeavouring to recover ancestral property which had already passed out of his possession either upon a sale in execution of a decree obtained against his father or sale carried out by his father in satisfaction of an antecedent debt. In such case we should be bound and prepared to give full effect to the propositions laid down in Suraj Bunsi Koer's case. 38. We next come to the argument that in investigating the nature of the debts in this case, we must look to the debt alone which is the subject-matter of the suit and not to the nature of the debts for the payment of which that debt was contracted: in other words, that if, for example, it be shown that the debt of Seth Lachman Das and the debt of Durga Prasad for the payment of which and other purposes the lakh of rupees was borrowed from Brij Kishore Rup Kishore, were contracted for immoral purposes, the loan from these last mentioned persons obtained to pay off these debts would not be tainted with immorality. If the Court is not entitled to investigate the indebtedness in its inception, it appears to us that the rule of law which protects Hindu sons from the payment of immoral debts of their father would be readily defeated and be in fact illusory. It would be open to a Hindu father to contract a debt from one person to-day for immoral purposes and to borrow tomorrow for another party money to pay off the first loan and so render the claim against the son unassailable. Upon this question SCOTLAND, C.J., aptly observed, “Very slight indeed would be the protection secured to minors if proof of the bare fact of the discharge of pre-existing debts were all that the law required to establish a prima faeie case. If that were so, creditors and purchasers would be enabled to render binding on minors mortgages and sales for advances to pay off debts which at the time they knew or had reason to believe had not been incurred for any proper family purposes.” Saravana Tevan v. Muttayi Ammal,[1871] 6 H.C.R., Mad., 371, 383. If that were so, creditors and purchasers would be enabled to render binding on minors mortgages and sales for advances to pay off debts which at the time they knew or had reason to believe had not been incurred for any proper family purposes.” Saravana Tevan v. Muttayi Ammal,[1871] 6 H.C.R., Mad., 371, 383. HOLLOWAY, J., on the same question said, “It is not enough in my opinion to produce a decree or a mortgage or a bond and show that the money was lent for the discharge of the sums due under one of them. It is necessary to go further and show that those debts themselves were such as to be properly binding upon those who have not personally incurred them. If it were otherwise, the debtor, having first borrowed money for his own purposes and mortgaged family lands for the satisfaction of the debt, would be able by the simple process of admitting the debt, to render the invalid unimpeachable; or by-discharging with borrowed money a previous bond in itself wholly invalid against co-parceners would bind them. It is manifest that the rule of law would be simply illusory if it could be so defeated. The argument that such loans prevent the family estate from being sold in satisfaction of a mortgage and are therefore for a family necessity is a mere fallacy.” We are entirely in accord with the learned Judges in the views so expressed. If Brij Kishore Rup Kishore advanced money to Raja Shankar Singh for the payment of debts which were tainted with immorality, they could not in our judgment stand in any better position so far as regards the son's liability than did the parties whose debts they satisfied. Different considerations might arise if the debts which Raja Shankar Singh satisfied were debts of his father. But this is not the case. Raja Dilsukh Rai, so far from being indebted at the time of his death, left behind him, as we have pointed out, very large accumulations of income. Different considerations might arise if the debts which Raja Shankar Singh satisfied were debts of his father. But this is not the case. Raja Dilsukh Rai, so far from being indebted at the time of his death, left behind him, as we have pointed out, very large accumulations of income. If there were before us any evidence to show circumstances from which the contracting of the debt by Raja Shankar Singh to meet a family necessity might in good faith have been honestly presumed by Brij Kishore Rup Kishore, the case might be different; but there is nothing to show that in making the loan they made the inquiry which prudent men might in the circumstances be reasonably expected to make in order to inform themselves as to the purpose for which the debt was being incurred or indeed any inquiry. If they had made any such inquiry the rule which is embodied in section 38 of the Transfer of Property Act might have been relied upon as rendering the position of the plaintiff-respondent secure. This section provides that “where any person authorised only under circumstances in their nature variable to dispose of immovable property transfers such property for consideration alleging the existence of such circumstances, they shall as between the transferee on the one part and the transferor and other persons (if any) affected by the transfer on the other part be deemed to have existed, if the transferee after using reasonable care to ascertain the existence of such circumstances has acted in good faith.” As we have already said, we cannot but believe that if the parties who made the advances to Raja Shankar Singh had made any inquiry as to the circumstances which rendered necessary the borrowing of money by him, they would have learnt that no family necessity existed. We may further point out that the plaintiff-respondent is obliged to fall back on the earlier debts in view of the fact that the Bank's mortgage is void as against the appellant. If, therefore, he relies on the earlier debts, it is clearly open to the appellant to show that those debts were tainted with immorality. 39. We may also again point out that there has been no transfer of the earlier debts or securities to the plaintiff-respondent. If, therefore, he relies on the earlier debts, it is clearly open to the appellant to show that those debts were tainted with immorality. 39. We may also again point out that there has been no transfer of the earlier debts or securities to the plaintiff-respondent. These debts and securities were discharged by Sheoraj Singh out of the moneys advanced to him by the Bank and were not in any way kept alive for the protection of the Bank. 40. Moreover, in the deed of transfer from the Bank to the plaintiff-respondent the Bank merely transferred the debt secured by the mortgage of the 28th of October, 1892, and the securities for the same. The Bank at the time was not in fact in a position to transfer any additional security. 41. We are of opinion then that the appellant has satisfied the onus of showing that the debts contracted by Raja Shankar Singh were tainted with immorality. The evidence irresistibly leads us to the conclusion that there was no necessity for those debts or any of them other than that which the gratification of his vicious habits created. He had more than ample income for the maintenance in luxury of himself and his family. There is not even a suggestion of the existence of any family necessity for the loans. Under all circumstances we think the appellant has made out his case. 42. The facility with which Hindu fathers can obtain loans from money-lenders on the security of ancestral property has proved disastrous to many respectable and well-to-do families in these provinces. The local legislature has realized the mischief of this and for one part of the Province has passed an Act in the nature of a disburthening ordinance (vide Bundelkhand Act No. 1 of 1903). It is common experience that money-lenders readily advance loans on any class of landed security taking considerable risks but charging high, if not exorbitant, rates of interest. It is common experience that money-lenders readily advance loans on any class of landed security taking considerable risks but charging high, if not exorbitant, rates of interest. It is no easy matter for sons to satisfy the heavy onus which lies upon them in impeaching loans obtained for immoral purposes, but it would, we think, be the death-blow to the rule of Hindu law which gives immunity to sons when defending their title to ancestral property from liability to their father's immoral debts if it were the law that in order to absolve themselves from liability the sons must prove not merely the purpose for which such loans were contracted, but also that the lenders knew of the immoral purpose of the loan. 43. We accordingly allow the appeal, set aside the decree passed against the appellant and his interest in the mortgaged property, and dismiss the suit as against him with costs in both Courts, including fees in this Court on the higher scale.