1. This is an appeal from a decree of the First Class Subordinate Judge of Satara dismissing the plaintiff's suit for partition against his, father, defendant No, 1, his grand-mother defendant No. 14 and twelve others to whom the ancestral properties were alienated by his father. He claimed to have those alienations set aside on the ground that they were not supported by any legal necessity nor were they for the benefit of the family and that they were due to the immorality of his father. A preliminary objection was raised in the lower Court that the suit was bad for misjoinder of parties and causes of action, but that objection was overruled and the suit was tried on its merits. As the alleged misjoinder has not affected the merits of the case or the jurisdiction of the Court, the decree of the lower Court cannot be reversed or altered in appeal on that ground by reason of the provisions of Section 99 of the Civil Procedure Code, and the appeal has to be disposed of on the merits.
2. Defendant No. 1 was born in 1895 and he married the mother of the plaintiff in 1910 when he was about fifteen years of age. Thereafter he went to live with his father-in-law, Govind Ganesh Riswadkar, who was serving in the Police Department. In his absence and during his minority the family property was managed by his mother, defendant No. 14, with the help of her brother, defendant No. 2. Defendant No. 1 lived with his father-in-law till 1914 when he was transferred to Goghav. Thereafter he began to visit his village Ped off and on, and being dissatisfied with the management of the estate carried on by his mother and her brother (defendant No. 2), he filed a suit against them to recover possession of his property (suit No. 109 of 1914). The suit was eventually compromised on November 5, 1914, and by the consent decree (exhibit 78) two lands were given by way of gift to defendant No. 2 as remuneration for his having managed his property during his minority. Two other properties had already been sold to defendant No. 2 and that sale also was confirmed by the consent decree. Two lands and a portion of the ancestral house were given to defendant No. 14 for her maintenance and residence. Even thereafter defendant No. 1 lived for some time with his father-in-law at Goghav, and finally returned to his village Ped in 1917. It is alleged that he then fell into bad company and began to dissipate the property. It appears that between the years 1917 and 1930 he alienated the bulk of his ancestral property. The plaintiff was born on February 2, 1918, and this suit was filed during his minority by his mother's father, Govind Ganesh Riswadkar, as his next friend, who has challenged all the alienations effected by defendant No. 1 both before and after the birth of the plaintiff. The major portion of the monies realized by defendant No. 1 from the sale or mortgage of the ancestral lands is said to have been taken by him for building a house, constructing wells in two fields called Bhutoba's field and Palashacha Mali, for purchasing an engine for pumping water, and for domestic needs. Though a good deal of oral evidence is adduced on behalf of the plaintiff to prove that his father was leading a dissolute life, was addicted to drink, ganja and women, and was dissipating the property, no attempt has been made to connect any of the alienations directly with his acts of immorality. An attempt is made to prove that as a matter of fact no house was built by defendant No. 1 nor was any engine for pumping water actually purchased. It is also pointed out that so much money must not have been spent in sinking or constructing the wells.
3. The principles of Hindu law as to how far a son is bound by his father's alienations of the ancestral property are well settled. A son is under a pious obligation to pay his father's debt which is not immoral, illegal or avyava-harika. But this does not empower the father to alienate his son's share in the ancestral property except for a legal necessity or for the benefit of the family or for the payment of an antecedent debt not incurred for immoral or illegal purposes : Asman v. Ganpat : Ganpat v. Asman (1938) 40 L.R. 946. Once it is proved that there was an antecedent debt, genuinely independent of the subsequent transaction of alienation, or that the alienee inquired and believed in good faith that such a debt existed, and that the alienation was made for satisfying that debt, then the burden of proving that the antecedent debt was incurred for immoral or illegal purposes lies on the son who impugns the alienation. That burden is not discharged by merely showing that the father was leading an extravagant and dissolute life, but it must be proved that the particular antecedent debt was incurred for immoral purposes or was connected with some act of immorality. Bal v. Maneklal (1931) 34 Bom. L.R. 55 and Shyam Narain v. Suraj Narain (1932) 35 Bom. L.R. 301 If this is not proved by the son, then it is not necessary to consider whether the antecedent debt was incurred for any legal necessity or for the benefit of the family Shankar v. Tukaram : AIR1932Bom438 . If the alienation challenged be a sale, it would not be set aside if a substantial portion of its consideration was required for a legal necessity or for the benefit of the family or to pay off an antecedent debt which was not immoral or illegal, although the remaining portion was not so required. As observed by the Privy Council in Ram Sunder Lal v. Lachmi Ndrain : (1929)31BOMLR803 the material question to be considered in such cases is whether the sale itself was justified. If so, the sale will be upheld as a whole. But the case of a mortgage stands on a different footing. If a part of its consideration is for legal necessity or for the benefit of the family or for the payment of such an antecedent debt as to justify the alienation, and the other part is not so, yet not being borrowed for an immoral or illegal purpose, is such that the son is under a pious obligation to pay it, then the former alone will be a charge on the son's interest in the property, while the latter is not binding on the son as a mortgage debt, but only as an unsecured debt of the father Gulamkhaja v. Shivlal (1937) 40 Bom. L.R. 381 I will now proceed to consider the different alienations in this suit in the light of these principles.
4. The property in suit in which the plaintiff claims a half share by partition consists of twenty-three lands and one house described in the schedule attached to the plaint. It is not disputed that the plaintiff is entitled to one-half share in the joint family property. The lower Court has inadvertently dismissed the entire suit in spite of the fact that the first five lands described in the schedule are not alleged to have been alienated to anybody and are presumably still in the possession of defendant No. 1. The land at serial No. 7 (survey No. 494) and a portion of the ancestral house described at serial No. 24 are given to defendant No. 1's mother (defendant No. 14) for her maintenance and residence by the consent decree in suit No. 109 of 1914 (exhibit 78). The plaintiff is entitled to his half share in these properties subject to the rights of defendant No. 14. Certain lands were alienated before the birth of the plaintiff and it is conceded in this Court that he is not entitled to challenge those alienations. Thus the only transactions which are impugned in this Court are those represented by exhibits 80, 83, 89, 95, 97, 99 and 88 and I will now consider how far each of them is binding on the plaintiff. After considering the evidence in respect of these transactions his Lordship proceeded:
5. The other alienations mentioned in the plaint are not now challenged, and the result is that the appeal will have to be partially allowed and the paintiff awarded his share in the light of the above findings.
6. For these reasons we partially allow the appeal and declare that the plaintiff-appellant is not bound by the alienations effected by defendant No. 1 in favour of defendant No. 2 under the sale-deed, exhibit 80, dated April 8, 1922, in favour of defendants Nos. 5 and 6 under the sale deed, exhibit 83, dated February 6, 1918, and in favour of defendants Nos. 11 and 12 under the sale deed, exhibit 88, dated April 1, 1924. The lands alienated by these documents and the lands described at serial Nos. 1 to 5 in the schedule attached to the plaint should be partitioned by metes and bounds and the plaintiff-appellant should recover possession of his one-half share in them. The plaintiff-appellant is also entitled to his one-half share in survey No. 494 described at aerial No. 7 in the schedule attached to the plaint and the ancestral house described at serial No. 24 in the said schedule, subject to the rights of defendant No. 14 under the consent decree in Suit No. 109 of 1914. As regards the mortgage in favour of defendant No. 13 under exhibit 99, dated August 1, 1930, we declare that the plaintiff-appellant is bound by the mortgage to the extent of Rs. 4,900, but the remaining consideration of Rs. 1,100 will not be a charge on the plaintiff-appellant's share in the mortgaged property. We declare that the plaintiff-appellant is entitled to one-half share in the equity of redemption in respect of that property. The rest of the plaintiff-appellant's claim is rejected. A preliminary decree for partition should be drawn up accordingly.
7. The plaintiff-appellant shall pay the costs in both the Courts of defendants Nos. 2, 3, 4, 7, 8, 9, 10, 12 and 13 in proportion to the claim disallowed, and recover his costs in both the Courts from defendants Nos. 2, 5, 6 and 11 in proportion to the claim awarded. Defendants Nos. 1 and 14 shall bear their own costs, if any.