Lindsay and Sulaiman, JJ.
1. This is a plaintiffs' appeal arising out of a suit for recovery of possession of a shop by avoidance of a sale-deed, dated the 9th of August, 1918, executed by the plaintiffs' father Girdhari Lal. The plaintiffs' case was that the property was ancestral and that the sale-deed was without any consideration and further that there was no legal necessity for it and that Girdhari Lal was a man of immoral character and habits and the debt, if any, had been tainted with immorality. On behalf of the defendants the allegations contained in the plaint were denied and it was urged that the sale was justified. The learned Subordinate Judge has rejected the evidence of the plaintiffs that Girdhari Lal was a man of immoral character and he has further held that there is no evidence whatsoever to connect the alleged immorality with the amount: advanced under the deed. He has further held that the defendants vendees have shown that in fact part of the sum was paid in lieu of an antecedent debt and that there was legal necessity for the balance.
2. The plaintiffs have come up in appeal to this Court and challenge the findings of the learned Subordinate Judge.
3. The learned Subordinate Judge was of opinion that it was the duty of the sons to show why they were not bound by their father's acts. For this view he relies on a passage in Dr. Gour's Hindu Code at p. 590 to the effect that the question of the harden of proof must depend upon whether the property has or has not passed out of the family by an alienation made by the father. If it has, then the son suing to dispossess the alienee must show why he is not bound by the father's alienation.
4. Reliance is placed on the authority of the earlier Privy Council cases, namely, Suraj Bunsi Koer v. Sheo Persad Singh (1879) I.L.R. 5 Calc. 148 Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21 and Bhagbut Per shad Singh v. Girja Koer (1888) I.L.R. 15 Calc. 717. In all those cases the property had passed out of the family under an execution sale and it was after the execution sale that the sons wanted to challenge the alienation. As was pointed out in the first of these cases, it is only 'Where joint ancestral property has passed out of a joint family either under a conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt, or under a sale in. execution of a decree for the father's debt, (that) his sons, by reason of their duty to pay their father's debts, cannot recover that property unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted; and, secondly, that the purchasers at an execution sale, being strangers to the suit, if they have no notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings.' There was no departure in the last two cases from the rules of law laid down in the first case. In the recent case of Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437 their Lordships adhered to the interpretation put by Sir John Stanley in Chandradeo Singh v. Mata Prasad (1909) I.L.R. 31 All. 176 on the pronouncement in the case of Suraj Bunsi Koer v. Sheo Persad Singh (1879) I.L.R. 5 Calc. 148 and remarked that a correct and useful statement of the law was that the rule was applicable only where joint ancestral property has passed out of a joint family, either under n conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt or under a sale in execution of a decree for the father's debt.
5. It is quite clear, therefore, that it is only when the property has passed out of the family on account of an antecedent debt or where it has been sold by public auction, that the sons cannot challenge the alienation unless they show that the debt was tainted with immorality. It is not correct to say that in every case where the property has passed out of the family (though under a private sale not in lieu of any antecedent debt and even when the legal necessity has not been established), the sons cannot challenge it unless they show that the debts were contracted for immoral purposes. Where a property has been sold by the father, and the sons bring a suit to recover it, and apparently the property has not been, sold away at public auction, then it lies upon the transferee to justify the alienation of the estate by showing that the debt was in lieu of some antecedent debt or that the. alienation was for some legal necessity.
6. In the present case the document in question was in lieu of Rs. 7,500. It consisted of two items, namely, Rs. 1,237-8-0 due on a promissory note for Rs. 1,000, said to have been executed on the 2nd of January, 1917, and the balance of Rs. 6,262-8-0 paid in cash before the Sub-Registrar.
7. As to the first item we think there can be no doubt that it had been paid prior to the execution of the sale-deed. We' have the statement of Ram Saran Das vendee, supported by an entry in the account books that the sum of Rs. 1,000 had been borrowed on the 2nd of January, 1917, by Girdhari Lal from him. The amount of the principal and interest due on it would come up to Rs. 1,237-8-0. Girdhari Lal has not gone into the witness-box to deny the passing of this part of the consideration, and in fact there is no evidence to contradict the vendee. We are, therefore, of opinion that his sum was due. This, being a debt due personally from the father and' being antecedent in time to the transaction in question and not having been secured on the property, was clearly an antecedent debt and was binding on the family.
8. As to the balance, the defendants' case is that Girdhari Lal was very much indebted and that there were numerous-debts outstanding against him in the bazar. Before the execution of the sale-deed the vendee was assured by Girdhari Lal that lie owed a number of these debts and was in urgent necessity to pay them. Ram Saran's version is that he actually made inquiries in the bazar and learnt from a number of people that sums of money were due to them from Girdhari Lai; that after this inquiry he agreed to advance the money to Girdhari Lal. In support of this Ram Saran Das has-gone into the witness-box and he has produced some of these creditors. Mohan Lal witness has stated that Rs. 1,000 had been advanced by him to Girdhari Lal under a promissory note and that there are entries in his account books. Piari Lal, another witness, has sworn that a sum of Rs. 1,150 was paid to him on account of the debt due to him. Ram Richpal Singh lias stated that Rs. 880 were realized, by him on the 9th of August, 1918, from Girdhari Lal and that there am entries in his account books to prove it. Another Ram Richpal Singh had proved that a sum of Rs. 662 was paid to him on the 28th of October, 1918, as part of the amount duo on a promissory note for Rs. 600, dated the 11th of February, 1916. We have also a statement of one Mohan Lal that on the 5th of November, 1918, he was paid Rs. 3,533 by Girdhaii Lal. The total of these sums comes to Rs. 6,225. There is also evidence to the effect that there were other debts due from Girdhari Lal at the time the sale-deed was executed. The learned Subordinate Judge has believed the evidence of those witnesses, except that of Piari Lal. The reason given by him for disbelieving this last mentioned witness is that he has not produced any Bahi khata or documentary evidence in support of the alleged loan, and that it is possible that he has come to support the defendant as he is a friend of his. Piari Lal apparently is a respectable witness. He pays Rs. 500 or 600 Government revenue and about Rs. 300 income-tax. Ho had stated that the money advanced had belonged to his wife, and it was on that account that it was not entered in his Bahi khata. We must say that we see no reason to disbelieve his statement. Piari Lal stated that he returned the document as soon as it was paid off, which of course might have been done. In our opinion, therefore, the defendant vendee had, before taking the sale-deed, made reasonable and sufficient inquiries to satisfy himself that antecedent debts were exist in, and that Girdhari Lal had necessity to transfer the property in order to pay off those debts. It was not absolutely necessary for Ram Saran Das to prove how the money advanced by him was actually applied, but in this particular case, we are of opinion, that he has also proved that the greater, I art of this money was certainly applied for the purposes mentioned.
9. To disprove the existence of any legal necessity the plaintiffs led evidence to show that Girdhari Lal was a man of immoral character, that he had had two mistresses one after the other and was addicted to drinking and gambling. Pour witnesses named Ashfaq Ali, Puran Devi, Ram Prasad and Shiam Sundar have been examined. Their evidence, however is only of a general character and has been wholly rejected by the learned Subordinate Judge. We see no reason to differ from in view. Furthermore, the evidence of these witnesses does not in any way connect any of the items, proved by the defendant vendee to have been due from Girdhari Lal, with his immorality or gambling. We are, therefore, of opinion that it is not open to the plaintiffs to challenge this alienation without proving that these debts are tainted with immorality or illegality. This they have failed to do. The result is that this appeal fails and is hereby dismissed with costs.