1. These are two appeals from a preliminary decree passed by Mr. Sanjana, Joint Judge of Thana, and a final decree passed by the same Judge as District Judge of Thana in suit No. 7 of 1927 brought by the plaintiff to recover the principal and interest on a mortgage deed, Exhibit 42, passed by defendant No. 1 Rajaram Tukaram, his wife Lakshmibai, defendant No. 2, and by defendant No. 1 as guardian of his two sons Bal and Chimu, defendants Nos. 3 and 4.
2. Defendant No. 1 Rajaram carried on large import business in saffron, piece-goods and other commodities in the name of S. Narayan & Co. S. Narayan & Co. was an old firm and had four partners, Defendant No. 1 Rajaram's father Tukaram Tataya, one of the partners, had six and a half annas share. At the end of 1897 Tukaram Tatya left the company and Rajaram, defendant No. 1, became a partner the next day with a share of two annas and a half, Out of a large balance standing to the credit of Tukaram Tatya, As. 25,000 were transferred to the new account opened in the name of Rajaram as his capital, In 1899 Tukaram Tatya died, and Rajaram separated from his only brother, soon afterwards. Rajaram continued to be one of the partners of S. Narayan & Co. and bought off the other partners, and from 1914 continued as the sole owner of the firm. Bal, the eldest of his son, is stated in the judgment of the lower Court to have been burn in 1918, but according to the appellant he was born on June 22, 1914. On April 23, 1923, the mortgage in suit, Exhibit 42, was passed by Rajaram, defendant No. 1, for himself and as guardian of his two minor sons Bal and Chimu, defendants Nos. 3 and 4, then stated to be six and two years of age, and by his wife Lakshmibai, defendant No. 2. It is not clear why Lakshmibai was joined as a party to the mortgage.
3. The recital in the mortgage-deed as to the purpose of borrowing the loan is as follows:-
Whereas the said Rajuram Tukaram is carrying on business in the name of S. Narayan and Co. and the said business has been and is being carried on by him with ancestral funds on behalf of the joint and undivided family consisting of himself and his wife and his sons, the said Bal and Chimu both minors aged (6) and (2) years, and whereas in the coarse of the said business of S. Narayan and Co. the said Rajaram Tukaram as the manager of the said joint family has become indebted to several banks in Bombay on account of a heavy fall in the price of goods imported by the firm resulting in the constituents of the firm of S. Narayan and Co. refusing to take delivery, and it has become necessary to raise immediately a sum of rupees two lacs to pay off these banks who hold largestock of goods of the said firm of S. Narayan and Co. against accepted bills which they are threatening to sell involving the firm in heavy losses....
4. Defendants Nos. 1 and 2 admitted execution of the mortgage and contended that the interest was excessive and the provision for payment of compound interest was penal, The only contending parties in the lower Court were the sons, defendants Nos. 3 and 4. The principal contention on their behalf was that the mortgage was not of such a nature as would justify a Hindu father in mortgaging his sons' share in the ancestral property.
5. On October 3, 1925, the plaint was filed in the First Class Subordinate Judge's Court and the suit was numbered 387 of 1925. In August 1927, the suit was transferred to the District Court and was numbered as suit No. 7 of 1927. A preliminary decree was passed by the Joint Judge on September 30, 1927, and Appeal No. 546 of 1927 was filed against that decree. A final decree was passed by the District Judge on September 22, 1928, and Appeal No. 104 of 1929 was filed against the final decree. After the filing of the two appeals defendant No. 4 died on May 27, 1929. The present appeals are conducted by defendant No. 3.
6. At the outset it is necessary to mention that the learned trial Judge excluded certain evidence proposed to be adduced on behalf of the appellant. It appears that after the deposition ofAmthalal, Exhibit 365, was taken, the learned trial Judge ordered that the question whether S. Narayan & Co. was the business of Raja-ram alone or of the joint family did not arise in the case, for in either event the debt of the father would be binding on the shares of the sons in the family property. He, therefore, ruled out, once for all, all inquiry on the subject whether or not S.Narayan & Co. was or was not the joint family business. Another order of the learned trial Judge excluding evidence on behalf of the minor defendants appears at Exhibit 375 and was passed on September 16, 1927. Counsel appearing on behalf of defendants Nos. 3 and 4 proposed to lead at considerable length evidence as to the nature of the various dealings carried on by Rajaram from 1914 to 1925 in order to satisfy the Court as to the highly speculative nature of his transactions in general and by inference to establish the similar character of the particular transactions leading to the mortgage in suit and prepared certain statements with that view. The learned trial Judge by his order excluded evidence as to the nature and details of the other dealings of Rajaram which were wholly irrelevant, and intimated that he was prepared to accept the statements at their face value and have the question argued out on the assumption of their general correctness.
7. The view of the learned Judge was that whether S. Narayan & Co. was the ancestral business of the family or not, defendant Nos. 3 and 4, as sons of Rajaram, were under the pious obligation to pay their father's debts, and if the mortgage in suit was passed in order to pay the antecedent debts of the father, which were neither illegal nor immoral, the mortgage would be binding on defendants Nos. 3 and 4 and it would not be necessary to go into the question as to whether S. Narayan & Co. was an ancestral family business. Further, he excluded detailed evidence as to the allegation that defendant No. 1 carried on speculative transactions from 1914 to 1925. He was prepared to accept the statements produced by the learned Counsel on behalf of the minor defendants at their face value, but though he excluded evidence as to other dealings of Rajaram, he did not exclude any evidence as to the nature of the particular transactions which led to the mortgage in suit. We must, therefore, for the purpose of this appeal, proceed on the assumption that the firm of S. Narayan & Co. was not the ancestral firm of the family but was the self-acquisition of defendant No. 1, and for the purposes of this appeal we must also assume that the statements produced on behalf of the minor defendants are correct.
8. It is urged on behalf of appellant No. 3, first, that the circumstances under which the mortgage-bond, Exhibit 42, was effected show want of good faith on the part of the plaintiff, the mortgagee secondly, that the plaintiff has not proved that there was any debt of the father antecedent to the one created by the mortgage-deed; thirdly, even if there was an antecedent debt it was avyavaharika and fell within the text of Ushanas dealt with in the case of Durbar Khachar v. Khachar Haraur I.L.R. (1908) Bom. 348 : 10 Bom. L.R. 297 fourthly, that compound interest with quarterly rests ought not to be allowed, and, lastly, the appellant being an agriculturist ought to be allowed the benefits of the Dekkhan Agriculturists' Relief Act.
9. Before dealing with the several points stated above, it is necessary to ascertain the real facts in the case. Having regard to the way in which the case was dealt with by the lower Court, we have to proceed on the assumption that the business of S.Narayan & Co. was not an ancestral business. The learned Judge held that the business earned profits till 1919 but from 1920 onwards it sustained serious losses, that the goods ordered and received in 1919 and 1920 were far in excess of the average quantity of the previous five years, that some new lines were opened in 1919 and 1920, as sugar, rice, machinery and motors, of which sugar and rice resulted in considerable profits, and that the. loss sustained was the heaviest in the piece goods line which was the old commodity in which the firm of S. Narayan & Co. dealt It appears, however, that defendant No. 1, though he dealt in piece-goods, carried on business on a limited scale on behalf of himself and his constituents, but since l920 he carried on the business of piece-goods on a huge scale on his own account. It also appears that defendant No. 1 speculated in lands and shares to a certain extent. The loss in shares was less than Rs. 30,000 while the loss in land speculation was Rs. 13,500, and that out of the loss of Rs. 15,00,000 at the end of 1924, deducting the loss of Rs. 64,000 incurred in land and shares and insurance transactions, most of the balance of the loss was in piece-goods business. It appears from statement No. 3, Exhibit 204, that from 19i4 to 19l9 the business was carried on principally in saffron and piece goods and resulted in profit. In i920 the transactions in sugar brought in a profit of Rs. 68,148-5-10 and the loss in the two lines, saffron and piece-goods, 5n which the company always dealt was Rs. 60,880-3-6 and Rs. 65,508-11-0. In 1921, there was a profit in saffron and the new lines of sugar and rice to the total of about Rs. 39,814-4-7 and the loss was incurred largely in the piece-goods or indent business to the extent of Rs. 10,219-13-11, and on account of interest paid and office charges in connection with the indent business. In 1922 there was n profit in saffron to the extent of Ra 67,322-4-1 and also in the new line of sugar, and there was a loss of about Rs. 93,378-4 1 in the piece-goods business and interest and office charges in connection therewith. In 1923 there was a profit in saffron and there was a loss of about Rs. 1,03,784-13-9 in the piece-goods business and on account of interest and office charges in connection therewith. In 1924 there was a profit in saffron of Rs. 12,278 9 5 and a loss of Rs. 23,932-1-10 in piece-goods business and a loss in China Mutual Trading Co. of Rs. 92,970-2-0 which was subsequent to the date of the mortgage, and loss on account of interest and office charges.
10. It would thus appear from the statements which the learned trial Judge has accepted at their face value that in connection With the old lines of business, namely, saffron and piece-goods, there was a considerable profit in saffron and huge losses in the indent, i.e., the piece-goods business. The other lines either brought a profit or a negligible loss except in the case of China Mutual Trading Co. which brought a loss of Ra. 92,000 in the year 1924 after the date of the mortgage. The principal business which brought losses was the old line of piece-goods in which S. Narayan & Co. dealt from the beginning. It appears from Exhibit 207 that there was a loss to defendant No. 1 to the extent of Rs. 1,31,500 on account of speculation in land transactions from 1918 to 1925, and from Exhibit 208 that the loss in shares was Rs. 28,900. It appears from Exhibit 220 that from 1914 to 1913 defendant No. 1 dealt moderately on his own account and also on account of his constituents, but in 1919 he ordered on his own account goods of 62,816, and in 1920 of 272,927, far in excess of his previous commitments, but in 1921 1922, and 1923 he ordered goods on his own account to the extent of 10,229, 3,189 and 5,005 respectively much less than in the years 1916 and 1917 in which he earned profits.
11. It is clear that all the liabilities incurred by defendant No. 1 ware on account of trade transactions except those in shares and land, and even with regard to the piece-goods business it appears that from 1919 and 1920 business so far as it was conducted on behalf of S. Narayan & Co. apart from the business of the constituents was intended to be carried on for the purpose of securing huge profits. It appears from the evidence that while the exchange ranged from Rs. 7-8-0 to Rs. 8 per pound, that is, an exchange at the rate of 2s. 6d. it fell down soon afterwards before the goods arrived and the rate was Rs. 15 to Rs. 16 per pound or at one shilling four pence or even a little less. It is clear from the evidence that there was no wagering and no element of gambling in the transactions entered into by defendant No. 1. Defendant No. 1 when examined stated: ' I did no Satta. I ordered goods with a view to take delivery and obtain profits by sale of the said goods. I could not fulfil my land contracts as I had no money and then prices of land went down.' It appears from Exhibit 56, an application made on behalf of the minor defendants for change in the frame of issue No. 2, that it was not the contention of defendants Nos. 3 and 4 that their father, defendant No. 1, engaged in the business which was purely Satta as such, and their contention was that the said business was not done by their father for the benefit of the family and was done on an unlimited scale in a foolish manner with-out proper circumspection, and that the debt incurred in respect of the same was avyavaharika.
12. It is contended on behalf of the appellant that defendant No. 1 took objection to the statement in the draft of the mortgage-deed that S. Narayan & Co. was an ancestral firm but that he subsequently waived the objection in order to secure the loan from the plaintiff. It is contended on the other hand that the solicitors of defendant No. 1 were mistaken as to the instructions from defendant No. 1 when they objected to the draft of the mortgage-deed, It is not necessary in these appeals to go into this question as the claim of the plaintiff is not based on the ancestral character of the business of S. Narayan & Co., and the case has proceeded on the assumption that it was the self-acquisition of defendant No. 1. The appellant is sought to be held liable on the mortgage effected by his father on the ground that it Was for payment of an antecedent debt which is not shown to be illegal or immoral. The decision, therefore, in Raghunathji Tarachand v. The Bank of Bombay I.L.R. (1909) Bom. 72 : 11 Bom. L.R. 255 would be of no avail to the plaintiff-mortgagee, for the business of S. Narayan & Co. must be assumed for the purposes of this case to be not an ancestral business but the separate property of the father, defendant No. 1. Similarly, the decision of the Privy Council in Ram Krishna Muraji v. Ratan Chand would not be applicable to the present case. It was held in that case that where an ancestral business of aMitakshara joint family has been carried on in partnership with another person, and upon his retiring there has been a dissolution and winding up of the partnership, the business carried on immediately thereafter on behalf of the joint family in the same commodities and upon the same premises, though under a new firm name and with new books, is not a new business, but a continuation of the ancestral business; that the fact that speculative transactions were entered into later does not make the business a new one so as to support the view that the managers could not bind the property of minor members; and that a mortgage of property of the joint family for the purpose of discharging debts incurred in carrying on the business is binding upon the joint family, including the minor member, if the mortgagee acting honestly and with due diligence has made reasonable inquiry as to the necessity of the loan.
13. The law applicable to the facts of the present case has been laid down by the Privy Council in Brij Narain v. Mangla Prasad where a distinction is made between a managing member of a joint family and a managing member who is the father of the other members of the family, and it was held that the managing member of a joint undivided family cannot alienate or burden the estate except for the purpose of necessity, but if he is the father and the other members are his sons, he may by incurring debt so long as it is not for an immoral purpose lay the estate open to be taken in execution proceedings upon a decree for payment of that debt and that if be purports to burden the estate by a mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate. It was also held that 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, and that the liability of the son arises during the lifetime of the father.
14. Considerable stress is laid on behalf of the appellant on the remark of the Privy Council in the case of Sahu RamChandra v. Bhup Singh (1917) L.R. 44 IndAp 126 : 19 Bom. L.R. 498 where their Lordships observed that the law on the question of antecedent debt has arisen from the necessity of protecting the rights of third parties, say the purchasers of the property who have taken their title for onerous consideration and in good faith. The authority of Sahu Ram Chandra's case has been weakened by the decision of the Full Court of the Privy Council in Brij Narain v. Mangla Prasad in which the decision in Sahu Ram Chandra's case is overruled at least on two points, namely, that there can be an antecedent debt even if it was incurred on the security of the joint family property, and, secondly, that the liability of the son to pay the debt of his father arises during his lifetime.
15. It is not disputed in this case that the mortgage sued upon is for consideration, and it appears that the mortgagee when he advanced the loan took a declaration, Exhibit 170, from Rajaram in which Rajaram admitted that he had become indebted to several banks in Bombay on account of a heavy fall in the price of goods imported by his firm resulting in the constituents of the said firm refusing to take delivery, and that it had become absolutely necessary to raise a sum of rupees two lacs immediately to pay off the banks who held large stock of goods of his firm against accepted bills which they were threatening to sell involving his firm in heavy losses. It appears that defendant No. 1 also wrote a letter Exhibit 169, enclosing six accompaniments which were letters from the banks making demands for payment of overdue bills and which were handed over to the plaintiff as evidence of the existence and urgency of the debts for whose payment the loan was taken from the plaintiff. The total amount of the debts due on account of accepted bills as disclosed from the letters from the banks amounted to 1.7,441-15. The letters from the banks are dated from August 14, 1922, to March 192?, and the mortgage, Exhibit 42, was executed on April 23,1923. There is no allegation of fraud against the plaintiff in the written statement, and even if it is necessary for the plaintiff to prove good faith, I am not prepared to say on the evidence on the record that there is any evidence which would justify the suggestion that the mortgage was entered into by the plaintiff otherwise than in good faith.
16. The principal points, therefore, arising in the appeal are whether the debts incurred by the father on the accepted bills, in respect of which the banks wore demanding payment, were antecedent debts and whether the sons have shown that they were illegal or immoral or avyavaharika.
17. It is contended on behalf of the appellant that there were no antecedent debts because there was no ascertained sum of money which could be demanded from the father and that time was given by the banks to make the payments. The question as to whether unascertained claims against the father would amount to a debt was raised in a recent Privy Council decision in the case of K.B. Mian Karim. Bakhsh v. Dargah Pir Rattan Nath (1931) P.C. App. 121 of 1929, decided on June 11, 1931 but the point was not decided in that case. The contention has not been accepted by the Madras High Court in Venkatacharyulu v. Mohana Panda I.L.R. (1920) Mad. 214 In the present case, however, there is no allegation that the contracts in this case were of a wagering character, for as a matter of fact the goods had arrived in Bombay and were in the custody of the banks and defendant No. 1 had accepted bills to the extent of the value of the goods, and the banks were demanding payment of the amount due on those bills as agents of the manufacturers of the goods. The debt of an ascertained sum was due by the father on the accepted bills, and even though the banks gave time to defendant No. 1 to pay the debts, it did not cease to be an antecedent debt. In Damodaram Chetty v. Bansilal Abeerchand I.L.R. (1226) Mad. 711 it was hold that when a Hindu father purchases goods on credit for a period, there is a debt due and payable by him even within the credit period, though the debt may not be demandable by the creditor during that period, and that such a debt constitutes an antecedent debt and that the father is competent during that period to sell or otherwise alienate the joint family property to pay off such debt so as to bind the share of the son in such property.
18. We must assume for the purposes of the present case that S. Narayan & Co. was the separate property of the father defendant No. 1 and was not the joint ancestral business of the family, and even so, the trade debts incurred by the father would be binding upon the sons, and the sons under the Hindu law are liable to pay the debts incurred by the father in respect of trade transactions even though the trade may be started by the father himself. See Annabhat Shankarbhat v. Shivapaa Dundappa I.L.R. (1928) Bom. 376 : 30 Bom. L.R. 539 and Achutaramayya v. Ratnajee Bhootaji I.L.R. (1925) Mad. 211
19. It is clear from the authorities that the liability of the appel-lant would arise during the lifetime of the father : see Govind v. Sakharam I.L.R. (1904) Bom. 383 : 6 Bom. L.R. 344 Hanmamt Kashinath v. Ganesh Annaji I.L.R. (1918) Bom. 612 : 21 Bom. L.R. 435 and Brij Narain v. Mangla Prasad
20. The next question that arises for consideration is whether the sons have shown that the debt which was incurred by the father by acceptance of the bills in respect of the goods ordered by him was illegal or immoral or avyavaharika. It cannot be said to be illegal or immoral, but it is contended on behalf of the appellant that it is avyavaharika. In Durbar Khachar v. Khachar Harsur I.L.R. (1908) Bom. 348 : 10 Bom. L.R. 297 it was held that the son is not to be held liable for the debts which the father ought not, as a decent and respectable man, to have incurred, and that he is answerable for the debts legitimately incurred by his father and not for those attributable to his failings, follies or caprices, and it is contended that as the father increased his business in other lines and also sent orders for goods on his own account in excess of the usual trend of the business in former years in respect of piece-goods, the debts must be attributed to his failings, follies or caprices The decision is based upon the meaning of the word avyavaharika((sic) na vyavaharikam in the original) in the text of Ushanas referred to in the Mitakshara in the commentary of Yajnavalkya, verse 47, and in Mayukha, Ch. 5, Section 4, pl. 15, The word 'na vyavaharikam' was translated in Bhattacharya's Hindu Law as ' improper,' which, according to the view of Knight J. in Durbar Khachar's case, might perhaps be better rendered as 'unusual' or 'not sanctioned by law or custom.'
21. There is a conflict of judicial decisions as to the exact meaning of the word 'na vyavaharikam' in Ushanas's text. The case of Durbar Khachar was considered by this Court in the subsequent cases of Ramkrishna Trimbak v. Narayan I.L.R. (1915) Bom. 126 : 17 Bom. L.R. 955 and Hanmant Eashinath v. Ganesh Annaji I.L.R. (1918) Bom. 612 : 21 Bom. LR. 435 The decision in Durbar Khachar's case related to the liability of a son to pay damages on account of tort committed by his father, and the meaning of the word 'na vyavaharikam' was rendered by Knight J. as a debt which the father ought not, as a decent and respectable man, to have incurred, and a debt which was not legitimately incurred by the father and which may be attributable to his failings, follies or caprices. In Ramkrishna Trimbak v. Narayan it was held that the sons could, not escape liability for payment of the debts of their father contracted in a fishing trade which was started by the father in contravention of the Government Servants' Conduct Rules, and the decision in Durbar Khachar's case was held to amount to this that the civil penalty imposed by way of damages upon a father for a civil wrong committed by him does not give rise to the moral obligation of the son to discharge his debt, and that immorality or impropriety as between the father and the person with whom he traded is the crucial test in the case. In Hanmant Kashinath v. Ganesh Annaji I.L.R. (1918) Bom. 612 : 21 Bom. L.R. 435 it was held that the decretal debt of the father for breach of a civil duty as a trustee was not avyavaharika.
22. The decision in the case of Durbar Khachar v. Khachar Harsur has not met with approval in the decisions of other High Courts, in Chhakauri Mahton v. Ganga Prasad I.L.R. (1911) Cal. 862Venugopala Naidu v. Ramanadhan Chetty I.L.R. (1912) Mad. 458 and Gursarn Das v. Mohan Lal I.L.R. (1922) Lah. 93 In Bai Mani v. Usafali (1939) 33 Bom. L.R. 130 I have referred to the conflict of opinion as to the exact meaning of the word 'avyavaharika' in judical decisions and also in the commentaries. Avyavaharika (sic)' na vyavaharikam' in the original) has been translated in Durbar Khachar's case by Knight J. as 'unusual' or 'not sanctioned by law or custom,' by Mookerjee J. in Chhakauri'a case as not 'lawful, usual or customary,' and by Sadasiva Ayyar, J. in Venugopala'a case as 'not supportable as valid by legal arguments and on which no right could be established in the creditor's favour in a Court of Justice.' There is a similar conflict of opinion in the commentaries and translations, Viramitrodaya and Smriti Chandrika describe it as ' incurred for drinking,' Vivadachintamani explains it ' as excluded by Vyavahara.' Apararka explains it as not righteous or proper, and Balambhatti as not for the benefit of the family. Mandlik, p. 113, translates it as ' not proper,' Mookerjee J. has referred in Chhkauri's case at p. 868 to the version of ' Vyavaharika' by Girish Chandra Tarkalankar as ' necessary for life,' and by Bohtlingk and Roth, Wilson, and Monier Williams as ' connected with or relating to an action at law or legal process, customary or usual.' Colebrooke translates it as ' debts for a cause repugnant to good morals,' and Gharpure as ' not legal or capable of being recovered by a suit.'
23. The verse of Ushanas is cited in the commentary by Mitakshara on Yajnavalkya's verse 47 which lays down the exception to the general rule regarding the pious obligation to pay the father's debts laid down in Yajnavalkya'g verse 50. Verse 47 deals with the exception and lays down that the son should not pay the paternal debt which was contracted for the purposes of spirituous liquor, lust or gambling, or which is due as the balances of an unpaid fine or toll as also a gift without any consideration, and though Mitakshara has referred to the text of Ushanas not as defining the nature of the debt but in support of his argument that a son should pay not only the balance of the debt but also the entire amount due on account of a fine or toll, Mayukha in chapter 5, Section 4, Clause 15, however, deals with the text of Ushanas as laying down the description of the debt which a son is not liable to pay. Mayukha, chapter 5, Section 4, pl, 15, first refers to Yajnavalkya's verse 47 referred to above, then refers to the text of Brihaspati that a son shall not be made to pay (a debt incurred by the father) for spirituous liquors, for losses at play, for idle gifts, for promises made under the influence of lust and wrath, or for suretyship, and the balance of a fine or toll, and then refers to the text of Ushanas. In Stokes' Hindu Law, page 128, the text of Ushanas is translated as follows :-
A fine or the balance of a fine as also a bribe (or toll, shulka) or the balance of it, are not to be paid by the son, neither ahall he discharge debts improper (not sanctioned by law or custom).
24. Gharpure in his translation of Mitakshara at page 74, and Mayukha p. 155 translates it as follows :-
A son need not pay a fine, or the balance of it, a toll or its balance, and also whatever is not legal or capable of being recovered by a suit.
25. This conflict arises from the different meanings of the word 'vyavahara'. The dictionary meaning of 'vyavahara' is, first, ' commerce or trade,' second, 'usage or custom,' and third, 'judicial proceedings, trial or investigation of a case and administration of justice.' The first meaning ' commerce or trade ' has been accepted by Gautama in his text (Adhyaya 12, Sutras 38 and 41) in which sons are declared as not liable for the trade debts of the father, but according to the decision in Achutara-mayya v. Ratnajee Bhootaji I.L.R. (1925) Mad. 211 the text of Gautama to the effect that the undivided sons of a Hindu are not liable for their father's commercial debts has long become obsolete, and since Girdharee Lall v. Kantoo Lall (1874) L.R. 1 IndAp 321 sons are liable for all debts of their father which are neither illegal nor immoral. See Mayne's Hindu Law, 9th Ed., p. 404, and the decision in the case of Anna-bhat Shankarbhat v. Shivappa Dundappa I.L.R. (1928) Bom. 376 : 30 Bom. L.R. 539 The second meaning of vyavahara 'usage or custom' has probably been the basis of the definition accepted by Mookerjee J. in Chhakauri's case, and the hird meaning of vyavahara 'judicial proceeding or trial or investigation of a case' has been accepted by Sadasiva Ayyar, J. in Venugopala's case and by Mr. Gharpure in his translation of Vyavahara Mayukha and the Mitakshara.
26. Though I am prepared to accept the meaning of Knight J. as 'not sanctioned by law or custom,' or of Mookerjee J. as 'not lawful, usual or customary,' or of Sadasiva Ayyar, J. as ' not supportable as valid by legal arguments and on which no right could be established in the creditor's favour in a Court of Justice,' I find it difficult to accept the definition of Knight J, as 'unusual' or the wide interpretation put by him in his judgment that it means a debt which the father ought not, as a decent and respectable man, to have incurred, or which can be attributable to his failings, follies or caprices.
27. The judicial decisions have in many cases accepted the comprehensive term illegal or immoral as including avyavaharika and laid down that the illegality or immorality must relate to the particular transaction and not to the course of other transactions of the father who has incurred the debt. Though evidence was rightly excluded by the lower Court as to the nature of the other transactions entered into by defendant No. 1 from 1914 to 1919, the learned trial Judge did not in his order, Exhibit 375, exclude the evidence as to the illegality or immorality affecting the transactions mentioned in Exhibit 169, the letter with the accompaniments sent by defendant No. 1 to the plaintiff at the time of entering into the transaction of the mortgage in suit. The evidence of the father's immorality or extravagance or profligacy, without any evidence of the connection between the particular loan and the immoral expenditure, is not pertinent and relevant. I may refer in this connection to Chintamanrav Mehendale v.Kashinath I.L.R. (1889) Bom. 320 Bhagbut Pershad v. Massumat Girja Koer and Datta-traya Vishnu v. Vishnu Narayan I.L.R. (1911) Bom. 68 : 13 Bom. L.R. 1161
28. I am not, therefore, satisfied on the evidence on the record that though defendant No. 1 may have acted recklessly or imprudently in the management of his business, the debts which he incurred in accepting the bills in respect of the goods he had ordered were either illegal or immoral or avyavaharika. The contracts were not gambling or wagering transactions as the goods ordered by defendant No. 1 had arrived in Bombay and were in the custody of the banks who were pressing defendant No. 1 to pay the amount of the bills accepted by defendant No. 1 to the extent of the value of the goods. There is no element of moral turpitude involved in these transactions. The debt cannot be said to be one ' not sanctioned by law or custom ', or ' not lawful, or customary', or one ' in which no right could be established in the creditor's favour in a Court of Justice.' The debts incurred by the father were antecedent debts and were dissociated in point of fact as well as in time from the mortgage sued upon, and the appellant would be bound by the mortgage according to the decision of the Privy Council in Brij Narain v. Mangla Prasad
29. It is next urged on behalf of the appellant that the interest charged in the mortgage-deed is penal and extortionate, and that it should be reduced. According to the bond the interest charged is one per cent. compound interest with quarterly rests. It is further urged that the plaintiff agreed not to charge compound interest and in his account charged only simple interest. I do not think that defendant No. 1 can be allowed in his evidence to vary the terms of the registered deed of mortgage. It is doubtful whether the charging of simple interest by the plaintiff in his account was provisional and made under the impression that the interest would be regularly paid within time so as not to attract the condition of compound interest. In Nazir Begam v. Rao Raghunath Singh it was held that those who support a mortgage of joint family property made by its manager must prove not only that there was necessity to borrow the principal, but that it was not unreasonable to borrow at such high rate and upon such terms as were provided in the mortgage, and that if the rate of interest is exorbitantly high although the security is ample, the Court can properly infer that it was unnecessarily high, and can make a mortgage decree allowing a reduced rate. It was observed at page 150 that the allegation that the condition with regard to interest was hard, unconscionable and inequitable was considered not to have been intended as a substantive plea in itself, but rather as introductory to a plea of undue influence, and their Lordships refrained from resting their decision upon a supposed discretion in the Court, but they held that the question was one of the authority of a manager of a joint Hindu family, and, therefore, agreed with the conclusion of the High Court reducing the rate of interest. That case related to a manager of a joint family who mortgaged the property, and it was, therefore, necessary for the mortgagee to prove not only that there was necessity for the mortgage but also to prove that it was necessary to borrow at the high rate agreed upon.
30. In Raghunath Prasad v. Sarju Prasad (1928) 26 Bom. L.R. 595 where the rate of interest agreed upon was compound interest at two per cent, per mensem, i.e., twenty-four per cent. per annum, it was held that in the absence of any evidence that the lender was in a position to dominate the borrower's will, the case did not come under Section 16 of the Indian Contract Act, and the decree of the lower Court was varied by allowing compound interest at the rate of two per cent, per mensem. That was a case deciding the question between a borrower and a lender, and did not relate to an alienation of joint family property for an antecedent debt. To the same effect is the judgment in Jewan Lal Daga v. NilmaniChaudhuri (1927) 30 Bom. L.R. 305
31. The present is not a case simply between a lender and a borrower, but a mortgage passed by defendant No. 3's father is sought to be enforced against the joint family property not only with regard to the antecedent debt but also to the extent of the compound interest with quarterly rests agreed to between the father and the creditor at the time of the mortgage. In Ram Bujhawan Prasad Singh v. Nathu Ram (1922) L.R. 60 IndAp 14 : 25 Bom. L.R. 568 where the father of a joint family effected a mortgage as the head and karta of the joint family which was sought to be enforced against a son and also other members of the family and the agreement was to pay compound interest at thirty-six per cent. per annum with quarterly rests, their Lordships of the Privy Council held that there was no legal necessity for the high rate of interest charged and reduced the interest to twelve par cent. simple interest. The question of undue influence under Section 16 of the Indian Contract Act would not arise in the present case where defendant No. 3 was a minor at the date of the mortgage and was incapable of contracting. In the present case the mortgage was not passed by the sons on attaining majority, but is sought to be enforced against the interest of the appellant in the joint family property by reason of his pious duty to pay the antecedent debts of the father. The antecedent debt of the father occupies the same place as necessity in the case of an alienation by the father of joint family property. If the antecedent debt does not carry compound interest at quarterly rests, the question as to the power of the father to alienate joint family property not only to the extent of the antecedent debt but also to the extent of compound interest with annual rests, will, I think, resolve itself into the question whether it was necessary for the father to stipulate for compound interest with annual rests while encumbering the joint family property for an antecedent debt. If I am right in holding that the question of necessity falls to be considered to a limited extent in the manner indicated above, the onus is on the lender to prove that the necessity demanded borrowing on such terms. In the absence of evidence that the money could not be raised at less interest, and if it appears that the interest charged is in excess of commercial rates, the lender must be considered to have not discharged the onus: see Radha Kishun v. Jag Sahu I think the principles laid down by the Privy Council in Ram Bujhawan Prasad Singh v. Nathu Ram can be applied to the present case, and that under the circumstances of the present case the interest ought to be reduced from twelve per cent. compound interest with quarterly rests to twelve per cent. per annum simple interest.
32. The father defendant No. 1 acted with unnecessary extravagance in agreeing to the rate of interest which was excessive and to that extent the mortgage of joint family property was outside the authority of the father as karta or manager of the family, I have reached the conclusion that the interests of the father and sons in the joint family property are liable to satisfy the mortgage so far as antecedent debt with reasonable rate of interest is concerned, and in the circumstances of the present case I think that the joint family property including the interest of the father and sons should be relieved from the burden of excessive rate of interest. It is not contended before us that the liability of the father defendant No. 1 as regards his share in the joint property should be distinguished from the liability of the sons as to excessive rate of interest. I do not think it necessary to go into that question under the circumstances of the present case.
33. The last point taken on behalf of the appellant is that he is an agriculturist and that he should be given the benefit of theDekkhan Agriculturists' Relief Act, Similarly, defendant No. 1 has filed cross-objections alleging that he is an agriculturist and should be given all the advantages of the Dekkhan Agriculturists Relief Act. The point with regard to the status of the agriculturist was not taken in the lower Court except on the last day on which the final decree was passed. The learned Judge declined at the last stage of the case to raise an issue whether the defendant is an agriculturist. Defendant No. 1 could not file cross-objections against co-respondents except in a proper case. No reasons have been shown why defendant No. 1 did not appeal against the decree of the lower Court, Assuming that the cross-objections of defendant No. 1 are admissible, it is clear that defendant No. 1 did notraise the contention that he was an agriculturist on September 30, 1927, when the preliminary decree was passed. The learned advocate on behalf of defendant No. 1 stated that he must have acquired the status of an agriculturist after the date of the preliminary decree, but was unable to state the precise time when there was a change in the status of defendant No. 1 who was a trader on a large scale. The mortgage deed describes him as a trader, and no issue was raised in the lower Court on the question of his status as an agriculturist. According to the decision in Devu v. Revappa : (1922)24BOMLR370 , a person who at the time the decree was passed was not but has since become an agriculturist cannot avail himself of the provisions of Section 15B of the Dekkhan Agriculturists' Relief Act,XVII of 1879. At the date of the preliminary decree defendant No. 1 was admittedly not an agriculturist. I think, therefore, that the learned Judge was right in not allowing the plea to be raised at the time of the final decree so as to undo what had already been done in the suit and open up a fresh inquiry as to the amount due to the plaintiff. I do not think that defendant No. 1 is entitled to the indulgence, asked for at the very last stage of the case, to prove that he is an agriculturist to avail himself of the benefit of Section 15B of the Dekkhan Agriculturists' Relief Act.
34. As regards the appellant defendant No. 3, the father defendant No. 1 Rajaram in his deposition Exhibit 157 given on January 18, 1927, stated that his sons and his wife were joint with him and that he was the manager of the joint family. Defendant No. 8 could not, therefore, have acquired the status of an agriculturist before the date of the deposition of defendant No. 1 as alleged before us, Further, the minor son of an agriculturist who is staying with his father cannot be an agriculturist according to the decisions in the cases of Dagdu v. Mirasaheb I.L.R. (1912) Bom. 496 : 14 Bom. L.R. 385 and Gadadhar v. Gangaram : (1931)33BOMLR825 .
35. I would, therefore, dismiss both the appeals with costs subject to the variation as to the compound interest with quarterly rests and allow the claim on the mortgage at twelve per cent simple interest from the date of the mortgage up to March 22, 1929, and six per cent, simple interest from that date till the date of payment.
36. Cross-objections by defendant No. 1 are dismissed with costs payable to the plaintiff.
37. The Receiver to continue till he is discharged by the lower Court.
38. The substantial question in the appeals is, whether there is such an antecedent debt as will support the mortgage, so far as the interest of the minor defendants, or the surviving minor defendant, in the mortgaged property is concerned.
39. I address myself to the question-adopting the language of the second and third propositions laid down by their Lordships of the Privy Council in Brij Narain v. Mangla Prasad -whether the mortgage is to discharge an antecedent debt, incurred by the father, not for an immoral purpose. This question involves the consideration, in view of the arguments addressed to us, of, first, whether there was an antecedent debt, and, secondly, whether that debt was 'immoral,' or, to use the language of the texts,'avyavaharika.'
40. The effort to argue that there was no debt was desperate, as there were bills of exchange accepted by defendant No. 1 on whiche could have been summarily sued. There were documents of title relating to goods in the possession of the banks to whom the debts were due, securing them to the extent of the price that may be obtained by the sale of the goods. This fact was relied upon as making some difference. The answer is plain : The security possessed by the banks made their position similar to that of mortgagees, without the trammels usually placed on mortgagees, who wish to sell the mortgaged property, or to proceed against the mortgagor personally without selling the mortgaged property.
41. The real contest, however, lay on the debatable ground as to the meaning of the word 'avyavaharika,' as applied to debts.
42. The word appears in a text of Usanas, cited in the Mitakshara, in the course of the comment on the 47th verse ofYajnavalkya Smriti. That verse deals with those debts which need not be paid by the sons. The substantive provision that debts should be paid by sons is contained in verse 50 of Yajnavalkya. Mr. Gharpure's translation of the Mitakshara (p. 73) is as follows:-
(Yujnavalkya Verse 47;-) The son should not pay the paternal debt which was contracted for the purposes of spirituous liquor, lust or gambling, or which is due as the balance of an unpaid fine, or toll, as also a gift without any consideration.
43. The comment of the Mitakshara consists, first, of an explanation of the phrase 'debt which was contracted for drinking spirituous liquor,' secondly of glosses on the terms 'lust,' 'gamblings,' 'idle gifts', and finally it is said that from the use of the word 'balance' byYajnavalkya'a balance of an unpaid fine or toll,'-it should not be supposed that the entire amount is to be paid.
44. And, apparently in this last connection, the Mitakshara continues:
As Ausanasa has said : 'A son should not pay a fine, or the balance of it, the (amount of the) toll or its balance, and also whatever is not legal or capable of being recovered by a suit (avyavaharika).'
45. The commentary proceeds to cite a dictum of Gautama covering the whole ground of Yajnavalkya's 47 the verse, and then concludes :
By this (text) a debt which should not be paid has been mentioned.
46. On the other hand, in the Mayukha, as translated by Mandlik, pp 112, 113, the subject is introduced by two statements of the general rule:-
(1) Brihaspati says :- The sons should pay the debt of their father when proved, as [though it were] their own;...
(2) Yajnavalkya [ch. ii, v. 50] ;-' When the father is... immersed indifficulties, his debt, proved by witnesses if disputed, should be paid by the son and the grandson
47. Thirdly, follows an exception to the general rule which is subdivided under three heads : (a) 'Yajnavalkya [ch. ii, v. 47]: The son shall not pay the paternal [debts] contracted for wines, lust and gambling, or due on account of the unpaid [portion] of a fine or a toll, or [on account of] an idle promise.' (b) A citation from Brihaspati adds to the excepted debts those made under the influence of anger and suretyship: and (c) 'Usanas [says]:-The son need not pay the fine, or the balance of a fine, a toll or the balance of a toll, or [any debt of the father] which is not proper (avyavaharika).'
48. Therefore, according to the Mayukha, it would appear that a ' debt which is'avyavaharika'' is added as an exception to the rule that sons (and grandsons) should pay the debts of their fathers (and grandfathers),-an exception standing on the same footing as the exception relating to 'debts contracted for wine lust, gambling &c.;,' and to ' debts made under the influence of anger and for suretyship.'
49. It is interesting to compare with this the statement of the law made seventy-five years ago, by their Lordships of the Privy Council, their attention being then divided between the nature of the property affected and of the debt (p. 421) :-
Unless the debt was of such a nature that it was not the duty of the son to pay it, the discharge of it, even though it affected ancestral estate, would still be an act ofpious duty in the son. By the Hindoo law, the freedom of the son from the obligation to discharge the father's debt, has respect to the nature of the debt, and not to the nature of the estate, whether ancestral or acquired by the creator of the debt.' Hunoomanpersaud Panday v. Mussamat Babooee Munraj Koonwaree (1836) 6 M.I.A. 393.
50. The meaning to be assigned to the word 'avyavaharika' or to its contrary, 'vyavaharika' has been the subject of frequent consideration. The meaning given in Apte's Sanskrit Dictionary is as follows:-
Vyavaharika-1 Relating to business. 2 Engaged in business, practical. 3 Judicial, legal. 4 Litigant. 5 Usual, customary, Vyavahara-1 Conduct, behaviour, action. 2 Affair, business, work. 3 Profession, occupation, 4 Dealing, transaction. 5 Commerce, trade, traffic 6 Dealing inmoney, usury. 7 Usage, custom, an established rule or practice. 8 Relation, connection, 9 Judicial procedure, trial or investigation of a case, administration of justice. 10 A legal dispute,complaint, suit, law-suit, litigation. 11 A title of legal procedure, any occasion of litigation.
51. The Vyavahara Mayukha, as translated by Mandlik, contains the following definition :-
Vyavahara, [or] a judicial proceeding, is a transaction which inculcates [the rules] whereby the determination of [the party who has committed] the unrecognized wrong [as] between the disputing parties is made known.
52. Other translations of the word 'avyavaharika' are as follows :-
-unusual, or not sanctioned by law or custom: Durbar Khachar v. Khachar Harsur I.L.R. (1908) Bom. 348 : 10 Bom. L.R. 297
-not necessary for life : Girish Chandra Tarkalankar.
-not connected with or relating to an action at law or legal process, not customary, not usual: Bohtlingk and Roth, Wilson and Monier Williams.
-which is not proper : Mandlik.
-improper (that is not sanctioned by law or custom): Jogendra Nath Bhattacharya, p. 247.
-not lawful, usual or customary : Ashutosh Mookerjee J. in Chhakauri Mahton v. Ganga Prasad I.L.R. (1911) Cal. 862
-nor any debt for a cause repugnant to good morals : Cole-brooke, Vol. I, p. 214.
-not supportable as valid by legal arguments and on which no right could be established in the creditor's favour in a Court of justice: Sadasiva Ayyar, J. in Venugopala Naidu v. Ramana-dhan Chetty I.L.R. (1912) Mad. 458
-not righteous or proper: (Commentary Apararka), Bai Mani v. Usefali (1930) 33 Bom. L.R.130
-not for the benefit of the family : Balambhatti.
-not legal, or capable of being recovered by a suit: Gharpure, p. 74.
53. But even if the widest effect be given to the word 'avyavaharika', it is difficult to see how, or on what principle, the debts due by defendant No. 1 to the banks can be excepted from those which a son's pious duty makes it incumbent on him to discharge. The debts in question before us consisted of a great number of items, each separate in itself, each covered by an accepted bill of exchange; in connection with each of these debts, one of the great and reputed banks of Bombay held the documents of title relating to certain goods ; each debt was contracted to pay the price of those goods. On what basis could the sons have contended against the banks that good morals forbade the son to acknowledge the validity of these debts What was there reprehensible about them? In what way were they'avyavaharika',-as3uming that we are to judge by a high standard of morality ?
54. That the transactions were at all blameworthy on the part of defendant No. 1 was not conceded by the learned District Judge. I am inclined to think that, for the purposes of argument, the incurring of these debts may be conceded to be such conduct as a careful and prudent merchant would not have entered into; though, as it has been pointed out, it is easy to be wise after the event, and the times when these losses occurred were very exceptional. I will, nevertheless, assume that the transactions were blameworthy, on the ground that defendant No. 1 should have been more moderate in the extent of his dealings, that he should not have dabbled in so many different kinds of transactions and should have borne in mind that they might result in losses, though he hoped that they would bring gain. Still, it must not be overlooked, that each individual item, taken by itself, was free from any such criticism. Each item referred to a comparatively moderate quantity ofgoods. Supposing the individual creditors had sought relief, appealing to the pious duty owed as Hindu sons, could the sons have said to each of them in turn: 'True, your own individual claim is based on an ordinary commercial transaction. But we find that our father entered into a very large number of such transactions. It is also true that you could not have known of the other transactions. But the whole body of transactions, taken in the bulk, became 'avyavaharika,' and our moral sense being shocked, we are absolved from paying the debts relating to these transactions ?'
55. We here reach a point where a distinction emerges that has somewhat disturbed me. Is a debt to be considered 'avyavaharika' on the basis of the conduct of the fathar when he made himself liable to it or the conduct, of the creditor when he comes forward to enforce it Or are both persons and times to be considered Or is the test to be the piety of the act on the part of the son in discharging the father's liabilities? If so, then the fact that the father became liable to the debt because he followed a reprehensible course of conduct may not settle the matter. The question may become, whether the transaction was of such a tainted character that the Court will have nothing to do with the enforcement of agreements entered into, or liabilities incurred, for the purpose of carrying it through; that no respectable creditor would seek to enforce those agreements; that no respectable and dutiful son would feel it a duty to discharge the liabilities arising out of those agreements. Such are debts that arise out of illegal and immoral transactions, in which the conduct of the creditor no less than the debtor is immoral. But such are not the liabilities incurred by the father when, for instance, he culpably inflicts a loss upon an innocent person; loss, for which, on principles of good morals, a pious son would feel it his duty to compensate the sufferer. I have referred to this doubt, but as I have already said, the present case does not depend upon itssolution. Our decision can be on the broad lines I have already mentioned.
56. It seems to me, that, however extensive a meaning be given to the word 'avyavaharika,' these debts do not fall within that meaning.
57. In connection with the interest which the mortgage deed provides, viz., at twelve per cent, per annum, with three monthly rests, it was argued that we should grant relief against the stipulation; that our decree should provide for a lower rate of interest and disallow compound interest. The respondent, however, contended that we have no authority to make a new contract for the parties, and that it was not the case of the appellants in the lower Court that this was an unconscionable bargain which ought to be set aside.
58. Our attention was drawn to Nazir Begam v. Rao Raghunath Singh (1919) L.R. 48 IndAp 145 where interest was stipulated at the rate of two and a half per cent per month, and it was reduced to twelve per cent. simple interest per year. In that case their Lordships referred (p. 149) to the questions, ' what the particular rate of interest, should be, and whether the money could have been borrowed at simple, instead of compound, interest,' as ' matters of detail upon which the High Court with its local knowledge can well be left to decide, and their Lordships were not disposed to interfere with the decision upon points such as these.' Then they proceeded to offer some observations on the following passage in the judgment of the High Court. The learned Judges of the High Court had said :-
We have a discretion in the matter, and, we think, we should be justified in reducing the rate of interest to a reasonable figure. In view of the security given to the mortgagee, and also of the fact that unusually long delay has been made in bringing the suit, we think that simple interest at the rate of twelve per cent. per annum, would be amply sufficient to compensate the mortgagee, or his representative, for the interest which he should get on the principal amount of the loan.
59. The observations of their Lordships on the remarks of the High Court, fall under three heads :-
First, as to the following allegation in the defendants' pleadings: 'The condition relating to interest was very hard, unconscionable, and inequitable,'-they remark that 'that allegation does not seem to have been intended as a substantive plea is itself, but rather as introductory to a plea of undue influence which failed.
Secondly, their Lordships disapproved of the passage above cited from the judgment of the High Court, saying, 'However this may be, their Lordships do not think it safe to rest their decision upon a supposed discretion in the Court, or an inference by the Judges as to the sum which would be sufficient to compensate the mortgagee.
And, finally, they laid down that 'the question is one of authority of a manager of a joint Hindu family, and it is because their Lordships agree with the High Court that this authority was exceeded, to the extent already stated, that they concur in the conclusion at which that Court arrived.
Their Lordships, it will be observed, demurred to the soundness of a decision resting on a supposed discretion in the Court, or an inference by the Judges as to the sum which would be sufficient to compensate the mortgagee, and based their decision on the principle that the authority of a manager of a joint Hindu family, in so far as it is purported to be exercised in excess of the necessity, must be inoperative, and must be deemed to be 'unnecessary extravagance.
60. In the ease before us, there is no question of measuring the hardship of the terms by the necessity, as the father's authority is not dependent on necessity. My learned brother, however, has drawn my attention to Ram Bujhawan Prasad Singh v. Nathu Ram where their Lordships follow Nazir Begam v. Rao Raghunath Singh and refer to it in the following terms (p.22):-
It is not possible to say, after the decision of the Board in the case of Nazir Begam v. Rao Raghunath Singh, already referred to, that a plea of no legal necessity for a loan, and that the property is not at all liable for the payment of the amount claimed, does not open the door for a defendant to say that the rate of interest is excessive, and place on the plaintiff the onus of proving that the rate of interest is not excessive, having regard to all the circumstances which prevailed when the loan was made. The defendant in such a casa does not lose his right to raise this defence by adding the additional plea that, apart from the conditions which attach when a karta mortgagees the joint property, the stipulation in the bond for payment of interest, and compound interest, is in itself penal and unconscionable. In view, however, of the recent decision of this Board, the matter is concluded and no longer open to question.
61. If, then the plea of legal necessity places on the plaintiff the onus of proving that the rate ofinterest,-having regard to all the circumstances which prevailed when the loan was made,-is not excessive; it seems to me that this furnishes an analogy for the case where we have to measure the liability of a pious son in regard to a mortgage executed by his father ; since that liability is to rest on the foundation of an antecedent debt, and the superstructure cannot extend beyond the limits or strength of the foundation.
62. In other words, since the father, by a mortgage, may bind his son's interest in ancestral property, provided this is done to discharge an antecedent debt; if it is found (as we find in this case) that the father has purported to mortgage ancestral property, ostensibly for discharging an antecedent debt, but, in reality, he has acted in a manner, which, having regard to all the circumstances that prevailed when the mortgage was made, must be deemed to be unnecessary extravagance, to that extent the son may well claim to be relieved of his pious duty.
63. In the present case the claim is against ancestral property, in which the sons and the father are jointly interested. It is not argued before us, and indeed it would be extremely inconvenient to hold, that the property is subject to mortgages on different terms in regard to the different coparceners.
64. As the basis of our decision is, that the necessity of the father was not such as to make the extremely hard term of compound interest with three monthly rests justifiable, and as there is an issue specially directed to the question ' whether the clause as regards interest is unreasonable and penal,' the most reasonable course seems to me to hold that the ancestral property, as a whole, is not subject to a greater burden than I have indicated; and that we may declare that the joint family property shall not be bound to discharge the liability undertaken by the father under the mortgage deed, except to the extent of the principal mortgage debt, with simple interest at twelve per cent. per annum.
65. I proceed to consider the contention that the minor defendants were agriculturists, and that, therefore, the provisions of the Dekkhan Agriculturists' Relief Act, Section 15B, should be brought into operation.
66. It has been held that the definition of an agriculturist is such that persons who do not earn their own livelihood do not fall within it; and minors do not ordinarily earn their own livelihood : Gudadhar v. Gangaram : (1931)33BOMLR825 . The argument for the appellant was, however, that he is no more a minor, and that the learned Judge erred in disallowing the plea; which can be taken at any stage of the proceedings,-even in execution : Annabhat Shankarbhat v. Shivappa Dundappa I.L.R. (1928) Bom. 376 : 30 Bom. L.R. 539
67. The circumstances of this case leave no doubt in my mind that this plea was raised at an extremely late stage for the purposes of delay. The learned Judge was entitled to refuse the application. Had he entertained it, and permitted the applicants to show that they were agriculturists, he would merely have been clothed with a discretionary power to make the decree payable by instalments. He could have exercised this discretion against the applicants, and refused to make the decree payable by instalments. In the circumstances I think he would hardly have been justified in exercising his discretion otherwise than against the applicants. I think, therefore, that his order in this respect ought not to be interfered with by us.
68. With one more argument I must deal, which was pressed be-fore us on more occasions than one during the arguments, with all the weight that the learned Counsel who appeared for the appellants is entitled to carry. It was said that the learned Judge had shut out evidence on a great number of points, unduly hampering, at several stages, the presentation of the defendants case. On examination, it appears that this grievance is based on rulings of the learned District Judge holding the following to be irrelevant to the suit: (1) the question whether the business of S. Narayan & Co. was the ancestral or separateproperty of defendant No. 1; (2) the details of the transactions of S. Narayan & Co. prior to the creation of the alleged antecedent debts. In both these decisions we have agreed with the view of the learned Judge. On the former point there was no room for doubt, in view of Annabhat Shankarbhat v. Shivappa Dundappa I.L.R. (1928) Bom. 376 : 30 Bom. L.R. 539and Achutaramayya v. Ratnajee Bhootaji I.L.R. (1925) Mad. 211 and the latter was a question whichbecomes equally clear, without any authority, when its real significance is understood.
69. But I shall not have dealt with the arguments that were addressed to us, unless I express my agreement with the attitude and procedure adopted by the' learned District Judge.
70. It is, in my opinion, incumbent upon Judges of the first instance to exercise their judgment on such questions, and to take the responsibility for their decisions. It is, no doubt, possible that the trial Judge might give an erroneous ruling. The decisions of their Lordships of the Privy Council show that it is not only Courts of first instance that fall into errors. It is, in any case, the Judge's duty to exercise a careful discretion, and considering the possibility of error on his part, he may in his discretion allow evidence to be placed on the record provisionally, and subject to objection, in cases where that course would ultimately save time. But this is to be decided by the learned Judge, albeit after he has given the counsel an opportunity to address him on the questions involved.
71. Here, the learned Judge acted in an unexceptionable manner, Without wavering from his decision, he allowed the defendants to put on the record every allegation they wished to support by the evidence which was disallowed. In this manner the defendants had no grievance left. It was possible for them to argue their case just as if the excluded evidence had b9en adduced. Had it ultimately been found that the evidence was wrongly ruled out, that erroneous ruling could have been corrected, if necessary, by a remand.
72. The suggestion that the learned Judge should, in any case, have deferred to the eminent advocate who appeared before him, invites a word as to the duty and the privilege of counsel appearing on behalf of the party whose evidence has been excluded. The Court is entitled to expect a loyal acceptance of its ruling on the part of the counsel, without any attempt to get behind the ruling, or to raise the question again and again, after it has once been decided. It may be advisable for counsel to put in a statement in writing showing clearly the matters on which he desires to adduce evidence, and the nature of the evidence that is being excluded. But, though, as I have already said, we are all apt to err, counsel cannot directly or indirectly force the hands of the Court by suggesting, in whatever disguise, that a Court of Appeal might take a different view, and insinuating that the Court is taking undue responsibility upon itself by shuttingout any evidence. It is, in my opinion, a responsibility that the Court must take upon itself, though it must do so with care and caution. It may, no doubt, happen, where the effect of such a ruling is far-reaching, that the Judge, on further consideration, and on becoming acquainted with fresh aspects of the case, and fresh pieces of evidence, may find that he is wiser to-day than he was yesterday, and may wish to correct his previous ruling, and admit a piece of evidence whose relevance he had not previously appreciated. I have known this being done, without any sacrifice of judicial dignity, but the reverse. It may be suggested by counsel to the Court in a proper case without any disrespect.
73. That the learned Judge was, in my opinion, right not only in the decisions he gave, but in the procedure he followed, I have already said. I have only to add that I feel confident that the learned and experienced advocate was able to urge everything he had to urge on behalf of his minor clients. We have certainly not felt in the least embarrassed in considering adequately any of the arguments presented to us.
74. I agree that the appeal should be dismissed with costs, subject to the variation mentioned by my learned brother.