1. This is a first appeal by the plaintiff against the portion of his suit dismissed by the trial Court. The plaintiff Bed Ram Singh brought a suit on a simple mortgage which was executed for Rs. 7000 on 22nd April 1927 by one Inderjit Singh, defendant 1. The suit was contested by defendants 2 and 3, the minor sons of defendant 1. The mortgage deed on pp. 26 and 27 sets out the amount of consideration in four items. Of these items 1 and 4 have been disallowed by the Court below. Item 2 has been allowed, Rs. 1269 for payment of two previous simple bonds, and item 3, Rs. 1000 left in deposit to be taken when required, was admittedly never paid and is not in contest in appeal. The main contest was in regard to item 4 which was Rs. 4500 paid in cash at registration. Now the mortgage deed as originally drafted merely set out that the money was borrowed and did not mention any purpose for which the Rs. 4500 was borrowed. In the margin of the hypothecation bond the words are added towards the beginning, 'in order to purchase mauza Takipur.' The remaining item, the first item of Rs. 231, is to meet other expenses and for the completion of this document, and it has been disallowed. Now issue 2 as framed was:
Was it executed for legal necessity or for payment of antecedent debts, or were the debts immoral and are not binding on the contesting defendants.
2. The Court below observed on p. 16 that the taking of Rs. 4500 for the purchase of property in Sharanpur District would be legal necessity. We do not agree as the purchase of property cannot be legal necessity for a joint Hindu family. The Court however has held that the Rs. 4500 was actually taken for an immoral purpose. Learned Counsel for appellant contends that there was not evidence before the Court on which it could arrive at that finding. Learned Counsel refers to Tulshi Ram v. Bishnath Prasad 0065/1927 : AIR1927All435 in which a Bench of this Court following various rulings of their Lordships of the Privy Council held on p. 8 as follows:
Their Lordships of the Privy Council entirely agreed with the High Court that the general charge of immorality was wholly insufficient and that the connexion between the immorality and the debt must be proved. This view has been followed in numerous cases.
3. We agree that this proposition of law is correct. The only difficulty arises in its application and in deciding what evidence is sufficient to show a connexion between immorality and a debt. Learned Counsel argues that in the present case the connexion is not shown. The evidence is as follows. Firstly there is the hypothecation bond itself which shows that the words 'in order to purchase mauza Takipur' were added as an after-thought to the hypothecation bond. Then there is evidence of Mathura Singh, patwari of Mirpur Mazra, the village in which defendant Inderjit Singh lives. This patwari states that he has been patwari of this village for 11 years, that Inderjit Singh is a bad character since 11 years and drinks and indulges in prostitution,
His mother and brothers told me that he eats away the rent money and revenue cannot be deposited. Since then I deposit the revenue in villages under me. His income is sufficient to pay revenue excluding the income from khudkasht. Inderjit is a lambardar.
4. Now the cross-examination did not challenge this very remarkable statement of the patwari that he as patwari had to pay the revenue for the lambardar Inderjit. Apparently the patwari was in the habit of collecting the rent and paying in the revenue as the lambardar Inderjit was entirely unfit to do this work. D.W. Bishan Singh on p. 13 states that he is an Honorary Magistrate and pays Rs. 700 or Rs. 800 land revenue, that Inderjit is distant cousin of his and his father left him 2000 or 2500 bighas of land, that Inderjit has now only 400 or 500 bighas, that his character is very bad since the last eight or ten years and he has got rid of three villages and has spent the amounts in drink and debauchery. Again in cross. examination there was no challenge of the statement that these three villages had been sold by Inderjit. Hem Raj also gives evidence that he has known Inderjit since childhood and Inderjit sold away the properties in three villages which he names, Narsinghpur, Nain and Domatikri, and used the money in drink and debauchery. He mentions that one of the villages was sold to Mt. Koka and the sale deed of this village for Rs. 4000 dated 9th July 1928 appears on p. 33. That sale deed shows that of the consideration Rs. 750 was to pay the plaintiff in the present suit a portion of his mortgage money, and the balance of Rs. 3250 was for household expenses and private debts and was received in cash at registration. It is therefore clear that within about a year of the transaction in question when Rs. 4500 were handed over in cash to Inderjit a further sum of Rupees 3250 was handed over to him in cash. The plaintiff did not go into the witness-box and consequently we cannot accept the argument advanced by learned Counsel for the plaintiff-appellant that the plaintiff was not aware of the behaviour of Inderjit. Had the plaintiff come into the witness-box and shown that he was a comparative stranger to Inderjit and was not aware of the immoral habits of Inderjit and the fact that Inderjit had squandered his property, then some weight might have been given to the argument advanced by learned Counsel for the plaintiff-appellant, but on the contrary we find that the witness of the plaintiff Nathu Singh on page 9 line 19 states : 'Bed Ram (the plaintiff) told me he had gone to Mirpur Mazra several times.' This is in connexion with the transaction in question and apparently as the plaintiff had been at the village Mirpur Mazra of Inderjit Singh several times he had ample opportunity to become aware of the character and conduct of Inderjit Singh. It is doubtless for this reason that the plaintiff considered he would be wise not to come into the witness-box. The same witness Nathu Singh says:
Rs. 4500 was taken for purchase o property of villago Taqipur. It belonged to 'salas' of Inderjit. They wanted on account of a marriage and were selling cheap and the profits were large;
and at line 28:
Inderjit said his salas wanted money. The name was not mentioned. Bed Bam asked the name. Inderjit said the property was of his salas. Bed Bam did not enquire the extent of property....
5. Now it is extremely strange that Bed Ram did not enquire who were the persons who were going to sell this village of Takipur. The fact that he knew the suggestion was entirely a bogus one. We have therefore the fact that this man Inderjit Singh was a person who had been squandering his estate and that his immoral character was well known and that although he was a lambardar he could not even be trusted to pay in the land revenue and that work had to be done for him by the patwari. The Rs. 4500 was attributed in the mortgage deed to the purchase of mauza Takipur, a purchase which was never effected, and the manner in which this expression was introduced indicates that the excuse was false. Under these circumstances it appears to us that the conclusion of the lower Court was correct that there is a connexion between the Rs. 4500 and the immoral purpose and that this is a connexion which was known to creditors. Accordingly therefore we consider that the lower Court was correct in its conclusion. A further ground of appeal urged was that the Rs. 231 put down as expenses for execution and registration of the mortgage deed should have been proportionately divided up. This ground is not accurate because the mortgage deed states that this sum was to meet other expenses and for the completion of this document. Actually, as page 29 shows, there were two stamps, one of Rs. 20 and the other of Rs. 15 total Rs. 35, required for the execution of the document and the fee to the scribe and the registration fee would amount to a few more rupees. The total sum for the document would be very much less than the Rs. 231. We may also note that the plaintiff has received Rs. 750 already as payment tar ftns document and this sum is much larger than any claim for a small proportion of the Rs. 231 of the document. We do not consider that any further sum should be allowed on this head and in any case a claim for one-third approximately would be small.
6. The remaining ground No. 6 was in regard to interest on the sums of Rs. 1269 and Rs. 4731 respectively, the latter amount having been decreed against defendant 1 alone. The decree did not agree with the judgment and the request in appeal is that the decree should be made to agree with the judgment. We do not quite know how the calculation which appears in the decree has been made but it has not been made by taking the amount of interest at the contractual rate which would run on the two amounts decreed from the date of the mortgage up till the date of judgment as was ordered in the judgment. We take first of all the question of Rs. 1269 decreed on the mortgage against the joint family as being for antecedent debt of the father. Now learned Counsel for the respondents supports the decree as it stands by pointing out that the plaint on p. 5 acknowledges the payment of Rs. 750 and interest from 9th July 1928 up to the date of payment Rs. 25-8-0. It is claimed that this sum which was realized by the sale of the joint family property shown on pp. 33 and 34 should be credited altogether against the Rs. 1269 decreed against the joint family. Now the rights of the plaintiff to appropriate are shown by Section 60, Contract Act which states:
Where the debtor has omitted to intimate and there are no other circumstances indicating to which debt the payment is to be applied the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, etc.
7. Now there is no doubt that on the findings the joint family had no liability for the debt of Rs. 4500 and it was not a lawful debt due from the joint family. Therefore it was not open to the plaintiff to appropriate this amount of payment to the whole of the mortgage debt. The question of appropriation to different portions of debt arising on a single transaction has been before a Full Bench of this Court in Gajram Singh v. Kalian Mal : AIR1937All1 . That was a case where part of the debt was for legal necessity and part was not, and it was held that in such a case the amount previously paid must of necessity go to the discharge of the whole debt treating it as one single debt and no question of appropriation in the strict sense arises, that it would be just and equitable to distribute the payment reteably between the two portions. It was however recognized that it might be possible to treat the two portions as distinct debts and that the creditor could appropriate payment towards one or the other. In the present case however where the finding is that one portion was taken for is future immoral purpose and that portion was not in any way binding on the joint family and was not a lawful debt at all but a debt opposed to moral and public policy under Section 23, Contract Act, we consider that the plaintiff was not entitled to appropriate the payment from joint family property to the whole debt and we consider that the Court below should have made the appropriation solely against the Rs. 1269. No cross-objection has been taken on this point but we consider that where we are asked by the appellant to decree a larger sum as interest against the joint family this aspect of the matter may be taken into account. It is obvious that the payment of Rs. 750 which was within a little over a year from the date of the mortgage of 22nd April 1927 would create a claim for the respondents very much larger than the claim for interest put forward on behalf of the appellant in this connexion. For this reason therefore we do not allow any further sum by way of interest to the appellant against the joint family.
8. Turning now to the decree which has boon granted of Rs. 4500 against defendant 1 and the claim for further interest against him we are faced by the fact that the money was taken in this case for a future immoral purpose and we consider that the plaintiff was aware of this matter. Section 23, Contract Act provides that the consideration or object of an agreement is lawful unless the Court regards it as immoral or opposed to public policy. To lend a man money for an immoral purpose is certainly an agreement which will be unlawful under Section 23, Contract Act and therefore in our opinion the Court below should not have granted a decree at all against defendant 1. For this reason we cannot decree further interest against defendant 1. As no appeal was taken by defendant 1 we do not interfere with the decree of the Court below as it stands. In the appeal we are asked in the relief to declare that the simple money decree passed against Inderjit Singh could be executed by attachment and sale of the entire family property according to law. Now, in Brij Narain v. Mangla Prasad (1924) 11 A.I.R. P.C. 50 their Lordships laid down as their second proposition:
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.
9. In the present case there is the immoral purpose and therefore the joint family property cannot be taken in execution of the decree passed by the lower Court against; the father. This is a matter of which no doubt the execution Court will take notice. We therefore dismiss this first appeal with costs.