Chandra Reddy, C.J.
(1) This Letters Patent Appeal is filed against the judgment of Justice Seshachalapati in S. A. No. 575 of 1959 with the learned Judge's leave.
(2) The facts giving rise to this appeal may be shortly stated. The appellant's father borrowed a sum of Rs. 950 on the 25th September 1950 and executed a promissory note for that sum on the same date. Sometime later a suit was instituted on behalf of the appellant that his father was leading an immoral life and was wasting away the family properties. This suit was not opposed by the father (he remaining ex parte), with the result that a preliminary decree was passed on the 28th of August 1953. On the same date, the father executed a promissory note in renewal of the debt for Rs. 1,117-1-10 and made an endorsement on the back of the promissory note which amounted to an acknowledgment of the debt. The final decree in the partition suit was passed on the 25th of August 1955. Meanwhile the respondent filed a suit for the recovery of the amount under the promissory notes impleading the father as well as the son as defendants to the suit.
In this suit, the present appellant being minor at that time, was represented by the father. The father remained ex parte and a decree, as prayed for, was made. In execution of the decree Ac. 1-10 cents of land which was allotted to the share of the appellant in the partition suit was brought to sale and purchased by the decree-holder himself. It is to cancel the decree obtained by the respondent in the Small Cause Suit No. 175/1954, which resulted in the sale of the property, that the present action was laid by the appellant.
(3) The main contentions of the appellant in the plaint were that the debt on the basis of which the decree was obtained being one contracted for immoral purposes, did not bind him and secondly that the decree based upon a promissory note renewed after the partition suit, could not be enforced against the son. The answers of the respondent to this suit were that the debt was not an Avyavaharika debt, that the partition was not a bone fide one in that it was designed to defeat the creditors and that in any event, the suit having been filed on the original debt, was not affected by the partition suit.
(4) The trial Court found on all issues against the present appellant. It held that the debt was not an Avyavaharika debt, that the partition was not a bona fide one and that lastly the suit was founded upon the original promissory note and not upon the renewed one. On appeal by the aggrieved appellant, the appellate Court reached different conclusion on all these issues and reversed the judgment of the trial Court.
(5) In the second appeal, our learned brother Justice Seshachalapati, agreeing with the conclusions of the trial Court, restored the judgment of that Court. The learned Judge, however, granted leave under cl. 15 of the Letters Patent and that is how the matter is before us.
(6) The first point that arises for consideration is whether the debt in question is tainted with immorality. It is urged by Shri Venkata Ramana Reddy that when once it is established that the father was indulging in a life of vice, and a debt was incurred during that time, the reasonable inference to be drawn is that the debt was borrowed for feeding immorality. As supporting this proposition, reliance is placed on the following observations in the judgment of a Division Bench of the Nagpur High Court in Udmiram v. Balaramdas, AIR 1956 Nag 76 :
'We are, therefore, of the opinion that if the sons are able establish that during the period the debts were borrowed by the father, he was indulging in a life of vice and that the life of vice could not be indulged in but for the borrowings and that there was no other necessity for the borrowing, and further if it is not established that the borrowings were utilised for some purpose which had no connection with the vice, then a reasonable inference can be drawn that the debts borrowed were for immoral purposes. It is not necessary for the sons to further establish by direct evidence that the debts borrowed were utilised to feed the vice'
(7) Before we consider the correctness of the dictum in the passage extracted above, it must be stated that this argument and the reliance on the rule stated therein were necessitated by the absence of evidence connecting the immorality of the father with the debt in question. There is not a little of evidence to establish a connection between the vice and debt borrowed.
(8) Now coming to the principle enunciated in the cited case, we have observe that it is not in accord with the view of the general trend of the decisions. In Sri Narain v. Lala Raghubans Rai, 25 Mad LJ 27 (PC); Lord Macnaghten observed that a general charge of immorality of the father is not sufficient to relieve the sons of his obligation for the debt of the father.
(9) To a like effect is the rule stated by Lord Macmillan in Syam Narain Singh v. Suraj Narain Panday, 64 Mad LJ 148: (AIR 1933 PC 38), Lord Macmillan observed thus :-
'The burden being upon the appellant here to establish that the debts in question were contracted for immoral purposes, all that he has done, to quote the language of Lord Macnaghten in a previous case of similar character, has been to establish a general charge of immorality, and that, as has been said more than once by this Board, is not sufficient.'
(10) In a recent judgment Hindustan Ideal Ins. Co., Ltd., v. P Satteyya, : AIR1961AP183 , a Division Bench of this Court to which one of us (Justice Narasimham) was a party, extracted with approval a passage from Mayne in his Treatise, 11th Edition, Rules 336 and 336, which are as follows :
335. Where a Hindu son comes into Court to assail a mortgage made by his father ............. it rests upon him, if he seeks to escape from having his interest affected by the sale, to establish that the debt which he desires to be exempted from paying was of such a nature that he, as the son of a Hindu, would not be under a pious obligation to discharge ...............
336. The burden of proof which is upon the son to establish that the debts in question were incurred by proving a general charge of immorality but there must be proof of direct connection between the debt or the expenditure and the acts of immorality ...............It is unnecessary for the alienees or the creditors to show that there had been a proper inquiry or that the money had been borrowed for necessity.
(11) In the light of these decisions, we cannot but express our respectful dissent with the view expressed by the Nagpur High Court. To escape liability on the basis of the doctrine of pious obligation, the son should make out that the borrowing was utilised for immoral purposes. It is not sufficient to make a general charge of immorality against the father. Even otherwise, the appellant cannot succeed on the basis of the principle laid down in the Nagpur case, since it is not proved that but for the borrowings, the life of vice could not be indulged in by the father of the appellant.
(12) Further, there does not seem to be any basis for the theory that the appellant's father was utilising the debts incurred by him for leading an immoral life. It should be borne in mind that all that is proved in this case was that the appellant's father was in illicit intimacy with one Sowbhagyamma. But a document relied on by the learned counsel for the appellant, Ex. A.2 plaint in a suit instituted by the said Sowbhagyamma against the appellant' father for setting aside a sale deed in his favour, shows that he was not spending any money on her. Her complaint in the plaint was that he played fraud on her and got a sale of her properties executed in his name. Moreover, admittedly, the appellant's father was carrying on trade in groundnuts and it is in evidence that he had incurred debts in connection with that trade.
(13) Another significant circumstance to be borne in mind is that in the suit for partition, what was inter alia alleged was that the defendant (appellant's father) started a new speculative trade in groundnut and tobacco and has at the instigation of his concubine, the said Sowbhagyamma, executed several false and fictitious debts with a view to clutch at the (sic) dispose of the joint family property altogether. It is not necessary to pursue this point any further. Suffice it to say that on the evidence it is not possible to differ from the conclusions reached by our learned brother.
(14) The lower appellate Court, although it found that there was no direct connection between the borrowing and immorality thought that from the circumstances that the father of the appellant was the paramour of Sowbhagyamma, that his wife was living away from him, and that his sons were being educated by his son-in-law, it could infer that the debt was tainted with immorality, on the basis of the principle enunciated in the Nagpur case. We have already stated we cannot share the view expressed by the learned Judge of the Nagpur High Court.
(15) For these reasons, we repel the contention of the learned counsel for the appellant on the question whether the debt was Avyavaharika or not.
(16) This leads us to the next question whether the debt would not bind the appellant for the reason that the suit was based on the renewed promissory note executed after the partition suit.
(17) The learned Judge found that the partition action not being a bona fide one, would not bind the creditor. Admittedly, no provision was made for the payment of any of the debts due by the father incurred as manager of the family. That being the position and having regard to the long catena of decisions, the conclusion of our learned brother that it was not a bona fide partition was not impugned before us. If the partition action was not genuine one, even if the suit was based on the renewed promissory note, the decree obtained therein would be binding upon the son.
(18) That apart, it was found by our learned brother, in the light of the recitals in the plaint, that the suit was not in fact based upon the renewed promissory note, but on the original promissory note itself. He referred to paragraph 6 of the plaint, which stated as follows:-
'Cause of action for the suit arose at Cottipadu, Guntur Taluk, where the parties reside on 25-9-1950 when the suit amount Rs. 950/- was borrowed and on 28-8-1953 when the same was acknowledged and the suit notice was executed and subsequently when the amount due has not been paid, within the jurisdiction of this Honourable Court.'
(19) Our learned brother had observed, after looking into the document Ex. B. 4, that there was an endorsement on the back of it acknowledging the debt. It the debt was acknowledged in time by the father, even if the partition suit was a bona fide one, the soon could not escape the liability. A Hindu son is liable for a debt on promissory note executed by his father before partition and kept alive by an acknowledgment made by him after partition. This proposition is vouched by the case of Muniswami Goundan v. Kutti Mooppan, ILR 56 Mad 833: (AIR 1933 Mad 708).
(21) It follows that the judgment under appeal cannot be successfully assailed.
(22) In the result, the appeal fails and is dismissed with costs.
(23) Appeal dismissed.