Basil Scott, Kt., C.J.
1. The plaintiff in this suit prays for his half share in certain ancestral properties upon a partition and claims a declaration that in cumbrances created by his father, the first defendant, by way of mortgage in favour of two sets of defendants, namely, the Rodes and Risbud, are not binding as against him and on his share in the properties.
2. The learned Subordinate Judge has held that the plaintiff is entitled to have his half share in the properties described in the plaint, partitioned and put into his possession but subject to the mortgages created by Exhibit 42, a mortgage of the 14th of November 1898 for Rs. 12,000 in favour of the Rodes, and Exhibits 25 and 36 being mortgages of the 20th of June 1889 and the 21st of June 1896 in favour of Risbud for Rs. 9,712.
3. The mortgagees in each case have filed suits to enforce their mortgages in consequence of the institution of this partition suit and by consent the evidence recorded in this suit is to be taken as evidence in the mortgage suits.
4. The plaintiff's case is put in this way: he says that the annual profits of the family properties amount to nearly Rs. 3,000 on the average and that the family expenses only absorb about one half of that income, and that any sums borrowed by the first defendant upon mortgage cannot have been for family necessities but must have been for immoral purposes such as the support of prostitutes and the expenses of natches and other tamashas.
5. The learned Judge who has discussed the evidence with great care and thoroughness has come to the conclusion that certain sums were spent by the first defendant upon the support of a prostitute named Jivi and her household and on jewelry and clothes for her and in the expenses of tamashas and other revelry, but he is unable to arrive at any conclusion as to the amounts which were borrowed from the different creditors for these purposes, The amounts due upon the mortgages of the Rodes and Risbuds above referred to amount to upwards of Rs. 20,000 but there is no evidence to show that anything like that sum was spent upon such immoral purposes as have been described.
6. One witness Ramchandra Vishnu Bhagwat goes so far as to say that Rs. 6,000 was borrowed from Rode and a similar sum from Risbud and handed over to Jivi. But the learned Judge does not believe his evidence and we think there is good ground for the strictures which he passed upon it. Another witness Vishvanath Gokhale says that money was borrowed from Rode in small sums from time to time for Jivi, and the money was expended in the purchase of clothes from one or other of the mortgagees. The learned Judge, however, characterizes his evidence as palpably false and we are not prepared to dissent from this estimate.
7. The conclusion arrived at by the lower Court is that Jivi the prostitute was in the keeping of Vishnu for seventeen or eighteen years, that her sister Baji was also a prostitute and lived with her for about six or seven years, and that during the whole period of intimacy between Vishnu and Jivi he maintained her household at an expenditure which cannot have been less than Rs. 400 a year, that it is also established that Vishnu was fond of tamashas and indulged in them at Jivi's house at his own expense. As is pointed out by counsel for the appellant an expenditure of Rs. 400 a year for seventeen years with simple interest at six per cent. would amount to half the sum due upon the mortgages. The difficulty, however, which lies in his way is that we have two sets of mortgagees and that it is impossible upon the evidence to ascertain whose advances were applied for the benefit of Jivi and the tamashas. There is no documentary evidence to show that any sums were consciously advanced by either of the mortgagees for immoral purposes and there is evidence that a considerable amount of money amounting in the judgment of the Subordinate Judge to not less than Rs. 12,000 was borrowed for family ceremonies. It is also proved that the first defendant was a man in a leading position in the small town in which he lived who was obliged to indulge in the certain amount of hospitality. The plaintiff and his father have greatly added to the difficulty of ascertaining the objects of the various loans taken from the Rodes and Risbuds by suppressing the account books relating to the family affairs which it is conclusively established were in existence prior to the date of the suit. If all this money had been borrowed from one money lender upon mortgage it might be possible to give some relief to the plaintiff. But in the circumstances of this case we do not think that he has been able to establish more than was established in other reported cases in which it has been proved to the satisfaction of the Court that the father who has executed the mortgages was addicted to immorality and extravagance, without any evidence being forthcoming of connection between the particular loan and. the immoral expenditure. As examples we may refer to the case of Chintamanrav v. Kashinath ILR (1889) 14 Bom. 320 and Bhagbut Pershad v. Mussumat Girja Koer .
8. It has however, been argued on behalf of the plaintiff that where property is transferred by way of mortgage to secure a present advance it is not an alienation for an antecedent debt and that therefore, the creditor cannot claim that the interest of the son shall be applied to satisfy the debt of the father unless that debt is shown to have been incurred for family necessities.
9. In our opinion, however, this question was finally decided so far as this Court is concerned in the case of Chintamanrav v. Kashinath ILR (1889) 14 Bom. 320 already referred to. In that case the plaintiff brought a suit against the son of the deceased mortgagor to recover the balance of a debt due on a mortgage bond by sale or foreclosure. The defendant pleaded that the loan was contracted without his knowledge and for immoral purposes and that his share in the mortgaged property could not be held answerable for the debt. The Subordinate Judge awarded the plaintiff's claim and directed that the mortgaged property be sold. The decree was confirmed in appeal to the High Court. Sir Charles Sargent in delivering the judgment said: 'In Luchmun Dass v. Giridhur Chowdhry ILR (1880) CAL. 855 the effects of the decisions in Kantoo Lall's case (1874) L.R. 1 I. A. 321 and Suraj Bunsi v. Sheo Proshad were considered by a Full Bench of the Calcutta High Court, and the Court held that the loan for which the bond was passed by the father, as stated by the reference, was an antecedent debt within the contemplation of the proposition set out in Suraj Bunsi's case and that (as shown by the first question referred) although ' on the one hand it was not proved that there was any necessity for raising the money, nor on the other that the money was raised or expended for immoral or illegal purposes,' the mortgagee was at any rate entitled to a decree directing the debt to be raised out of the whole ancestral property, including the mortgaged property.' He then referred to the well-known passage in Mussamat Nanomi Babuasin v. Modun Mohun . '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 creditors' remedies for their debts, if not tainted with immorality.' Sir Charles Sargent then said that the Court agreed with the statement of the Court in Jagabhai v. Vijbhukandas ILR (1886) 11 Bom. 41 that the effect of the Privy Council decision in Nanomi Babuasin's case was '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 sons' 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.'
10. The passage in Nanomi Babuasin's case above referred to does not in terms lay down a rule for cases in which the joint ancestral property has become the subject of a claim under a mortgage by the father. It is regarded by the Privy Council in Bhagbut Pershad v. Mussumat Girja Koer as adopting the principle laid down in Suraj Bunsi Koer v. Sheo Proshad Singh where the Court deduced from Girdharee Lall v. Kantoo Lall (1874) L.R. 1 IndAp 321 the proposition that when joint ancestral property has passed out of the family either under a conveyance executed by a father in consideration of an antecedent debt or under a sale in execution of a decree for the father's debt his sons by reason of their duty to pay their father's debt 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.
11. It is pointed out in Kishun Pershad v. Tipan Pershad ILR (1907) Cal. 743 that the cases of Mussamat Nanomi Babuasin v. Modun Mohun and Bhagbut Pershad v. Mussamat Girja Koer do not lay down any rule inconsistent with or materially different in principle from earlier decisions of the Judicial Committee which were cited in argument before the Full Bench in Luchmun Dass v. Giridhur Chowdhry ILR (1880) Cal. 855 and that the decision of the Full Bench has been uniformly treated as binding in Calcutta in spite of the later Privy Council cases. The same remarks apply to Bombay except in so far as the relief awarded to the plaintiff mortgagee has not been confined to a mortgage decree against the father and a simple money-decree against the sons for the balance unsatisfied on the sale under the mortgage decree. As observed in Khalilul v. Gobind ILR (1892) Cal. 328 the result of the Full Bench case seems to be that 'debt' in the case of a proceeding by suit means 'debt antecedent to the institution of the suit' if it is necessary to have recourse to the canon in Suraj Bunsi's case . It is now established that a decree for a personal debt of the father not illegal or immoral may be enforced by sale in execution in his life-time of the entire family estate ', Meenakshi Naidu v. Immudi Kanaka .
12. The only difference between this and the Calcutta Court is one of practice. Shall the mortgaged estate be sold as a whole in order that the proceeds may be applied in satisfaction of the debt or shall it be sold piece-meal, first the interest of the father and then if the proceeds are insufficient the interest of the sons 1 The advantage of the parties would, in most cases, we think, be best attained by a single sale. There may, however, be cases in which the Calcutta practice would be the best.
13. We confirm the decree of the lower Court and dismiss the appeal with costs.
14. In appeals Nos. 126, 156 and 127 of 1906, Mr. Coyaji on behalf of his client Dattatraya Vishnu Dhamankar undertaking that if on his father's interest in the family properties being put up for sale the bids do not reach an amount sufficient to satisfy the claims of the mortgagees, he will agree that the interest of his client, as well as that of his father, shall be put up for sale, we order that in the first instance the mortgages are entitled to an order for sale of the interest of the mortgagor in the family properties, in default of the satisfaction of the decree within three months. The mortgagees are entitled to interest at the rate of six per cent. Per annum on the mortgage up to the date of realization. With the above modification we confirm the decree of the lower Court.
15. The mortgagees are entitled to add their costs of the appeals to the mortgage-debt.
16. In appeal No. 128 of 1906 we modify the decree of the lower Court by awarding to the plaintiff interest at the rate of six per cent. per annum on Rs. 4,508-9-9 out of the amount decreed up to the date of realization and otherwise confirm the, decree. Respondents 1 to 4 to get their costs of the appeal.