1. These two appeals are connected and arise out of two suits, the first by Tulshi Ram mortgagee to enforce a mortgage executed by Bishnath Prasad in 1917 and the other a suit for a declaration by Bishnath Prasad's minor son that a simple money decree of 1921 obtained by Tulshi Ram was not binding on the plaintiff. The case for the minor son in both the suits, apart from a denial of consideration, was that Bishnath Prasad was a person of grossly immoral character and that the money taken by him, if at all, was spent on immoral objects. On the other hand Tulshi Ram's position was that the money had been acquired for purposes of legal necessity, family business and for the payment of antecedent debts. In Tulshi Ram's suit the learned Subordinate Judge has found that the full consideration did pass and that the money was taken to a large extent for payment of previous debts, and has passed a personal decree against Bishnath Prasad. He has, however, held that the burden of proving that the previous debts were of a binding character was on Tulshi Ram and that he has failed to discharge that burden. His claim to enforce the mortgage has therefore been disallowed. In the suit brought by the minor son the same learned Subordinate Judge has held that the burden of proving that the antecedent debts were contracted for illegal and immoral purposes lay on the minor and he failed to prove it. He has accordingly dismissed the suit. Both parties have filed cross-appeals.
2. We propose to take up F.A. No. 504 of 1923 first. The subject of controversy in this case is the mortgage-deed dated the 14th April 1917, for Rs. 38,000. As stated above, the Court below has found that the whole of the consideration money has been paid by Tulshi Ram. The mortgage-deed recited that Rs. 17,700 were set off on account of debts due to Tulshi Ram himself and had been required for family necessity and for business under Bahi Khata and sarkhats and that the balance of Rs. 20,300 was taken in cash from the mortgagee for payment of previous valid debts due to other creditors. According to the plaintiffs' account books Rs. 17,700 were due to him on previous accounts including large Sums advanced shortly before the mortgage-deed to pay off certain previous creditors. The cash consideration of Rs. 20,300 was actually paid to Bishnath Prasad before the sub-registrar. That the first portion of the consideration was actually due to Tulshi Ram is not now disputed before us. There is thus no suggestion that Tulshi Ram has played any trick and taken the mortgage-deed for an inflated amount. In fact the learned Subordinate Judge has passed a personal decree for the whole amount together with full interest against the executant, Bishnath Prasad, who has submitted to the decree and has not chosen to appeal from it. It is, therefore, quite clear that the payment of the full consideration is established. Indeed the learned advocates for the appellant have not challenged that part of the finding of the Court below.
3. The learned Subordinate Judge has, in our opinion, been led into error by the supposition that even if the mortgagee proves that the amount of the mortgage money was required for the payment of antecedent debts, it was still incumbent upon him to prove that there was legal necessity for those earlier debts. His whole judgment is affected by this assumption. When dealing with the various items of the mortgage money and the debts for the payment of which they were taken he has over and over again repeated that the plaintiff has failed to prove necessity for these earlier debts. In this view his chief reliance is on the case of Maharaj Singh v. Balwant Singh  28 All. 508 He has quoted the following passage, from the judgment in that case:
It has been repeatedly held in this High Court the where a Hindu, son comes into Court to assail either a mortgage made by his father or a decree passed against his father or a sale held or threatened in execution of such a decree, it rests upon him to show that the debt in respect of which the decree was obtained was of such a character that he would not the under a pious obligation to discharge it.... But the appellant in this case is not the assailant, he is defending his title.
4. From this he has inferred that where the mortgagee is the plaintiff it is not sufficient for him to show that the mortgage money was utilised for the payment of antecedent debts but that he must further show that those debts were required for necessity. We do not think that this is a correct statement of the law as laid down by their Lordships of the Privy Council. In all cases the mortgagee must, in the first instance, establish that his debt was either for legal necessity or for payment of antecedent debts !or for the benefit of the family. Once the mortgagee has established that the loan was for payment of antecedent debts it is no longer incumbent upon him to prove that these antecedent debts in themselves were for necessity. In order to get rid of his liability the burden then lies on the son to establish that those antecedent debts were tainted with immorality or illegality. Without proving such immorality or illegality the son cannot succeed whether he be a plaintiff or defendant to a suit: see Mt. Nanomi Babuasin v. Modun Mohun  13 Cal. 21 and Brijnarain Rai v. Mangla Prasad Rai A.I.R. 1924 P.C. 50. We must, therefore, first consider whether the mortgagee has proved that the loan was required for the payment of antecedent debts. If he has succeeded in proving this, we shall then have to see whether the son has discharged the burden of showing that these antecedent debts were tainted with immorality or illegality.
5. The appellant is a minor son of the age of eight years who contested the suit under the guardianship of his own mother. Having regard to the circumstances of this case we have no doubt in our mind that it is Bishnath Prasad the mortgagor himself who has put up his minor son to defend the claim. We find no good ground for supposing that Bishnath Prasad is not helping the appellant or that so far as the defence of this suit is concerned his interest is in any way adverse to that of the minor. The first significant fact to which the Court below has not attached due weight is the absence from the witness-box of Bishnath Prasad himself, who must be in a position to explain what he did with the money which he admittedly borrowed. We realize that it cannot be expected that Bishnath Prasad would expose himself by deposing to his alleged immoral habits, nevertheless when in our opinion the defence is a collusive one might have been put into the witness-box and asked whether he did not spend a large part of the money on his family business.
6. A still more important circumstance is the suppression of the account books which admittedly exist. We have no doubt in our mind that the defendants' account books have been deliberately withheld in order that no light may be thrown on the needs for which the money was required and on which it was spent. The plaintiff summoned these account books not only from Bishnath Prasad but also from his minor son, but they were not produced and instead we had a most vague reply on behalf of the contesting defendant that no account books were in his possession. This bald denial was not coupled with any explanation as to what had happened to those books. When the oral evidence was being led the defendant came out with the story that the mortgagee himself had taken away those books. (The judgment then dealt with the evidence and proceeded.) The defendants have deliberately withheld these books which would have been almost conclusive evidence of the facts to be enquired into and would have thrown a clear light on the points at issue. When they have withheld such clear evidence every presumption is to be drawn against them.
7. Before we go into details there is another circumstance which requires mention. The plaintiff's case is that before the execution of the mortgage-deed he wanted to be satisfied that a large amount of antecedent debts really existed which were required to be paid off. He accordingly asked for a copy of the defendants' accounts to be supplied to him in order that he might see what those debts were. Some 'chittas' in the hand-writing of defendants' servants have been produced by the plaintiff which are said to be copies of the accounts supplied to him. The defendants did not admit the genuineness of these chittas. (The judgment then further discussed the evidence in connexion with the chittas and holding that they sufficiently proved the existence of antecedent debts it proceeded to examine the various items of the mortgage consideration and continued.) The result of our findings is that the entire sum of Rs. 38,000 was advanced and was actually utilised towards the discharge of previous debts of the mortgagor. Under the circumstances it was wholly unnecessary for the plaintiff to go further and show that these previous debts were for actual necessity. After the proof of these debts the burden lay upon the son to show that these previous debts were tainted with immorality. (After dealing with the criticizm of evidence by the Subordinate Judge the judgment proceeded.) In our opinion, therefore, unless the son can establish to our satisfaction that those previous debts or any one of them were tainted with illegality or immorality his defence must fail.
8. The defendant has no doubt produced a number of respectable witnesses whose evidence clearly goes to show that Bishnath Prasad soon after attaining majority entered upon a reckless and extravagant career not unattended by immoral pursuits. The learned Subordinate Judge has clearly found this point in favour of the defendant and we have no hesitation in accepting that finding. It may, therefore, be taken that there is a proof of the general immoral character of Bishnath Prasad about the time when this mortgage-deed was executed or even about the time when these previous antecedent debts were incurred. The Subordinate Judge has quoted extensively from the Judgment of this High Court in Maharaj Singh v. Balwant Singh  28 All. 508 and has tried to draw an analogy from the similarity of certain circumstances. His inference is that these debts must have been contracted for immoral purposes. The learned Subordinate Judge's view seems to be that it is not necessary for the son to connect the immorality with the debt but that proof of the general immoral habits of the defendant Bishnath Prasad at the time the debts were advanced would be sufficient to justify the Court in presuming that the debts were so tainted.
9. We think that we should once and for all refute this contention. In the case of Sri Narain v. Raghubans Rai  17 C.W.N. 124 the Subordinate Judge had presumed the taint of immorality from the general evidence produced. The High Court of Allahabad held that no inference could he drawn that the debts were connected with the immoral pursuits of the mortgagor unless there was definite evidence to prove the connexion. 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. We may only mention Babu Singh V. Bihari Lal  30 All. 156, Ram Asre V. Mahomad Abdul Hasan Khan  2 O.L.J. 241 and Dhunpallia v. Kuppa Venkatakrishnayya : (1919)36MLJ296 .
10. If this were not be correct law the position of mortgagees would become wholly insecure and intolerable. Even the payments of antecedent debts would be nullified by a proof that the father was an immoral person. Oral evidence showing the private character of the father which might not have been in any way connected with the antecedent debts should be easily procured. It, therefore, seems to be a wholesome principle to-insist on the son connecting the debt with the immorality before he can vitiate the debt.
11. Direct evidence to connect the immorality of Bishnath with the debts is lacking or is at any rate unsatisfactory. Similarly direct evidence to bring home to Tulshi Ram the knowledge that the antecedent debts had been incurred for family purposes is also not forthcoming. (The judgment then discussed the evidence and concluded.) There is no evidence on the record to bring home to the previous creditors a knowledge of the immorality of Bishnath or its connexion with their debts. If such prior creditors had instituted suits to recover the amount due to them it would have been impossible for the minor defendant to evade his liability. Those debts were, therefore, just debts which were binding on Bishnath and could be realized out of the family property. Tulshi Ram in our opinion, was justified in advancing money for the discharge of such debts. We have remarked that it is fully established that the whole consideration of Rs. 38,000 was in fact paid by Tulshi Ram. We find it difficult to believe that the latter would have advanced such a large sum of money out of his own pocket if he had known with certainty that the previous debts which were going to be discharged were all directly tainted with immorality and were such as could not have been recovered by the creditors. It would have meant taking a risk which would not be undertaken by a man of ordinary intelligence and prudence. We, therefore, feel it impossible to uphold the decree of the Court below.
12. We accordingly allow this appeal and setting aside the decree of the Court below decree the plaintiff's suit with costs in both Courts. It is to be noted that 17 bighas 17 biswas and 15 dhurs of fixed-rate tenancy belonging to the defendant Sahadeo Rai in mouza Jagdishpur, which has been found by the Court below not to have been mortgaged will not be sold in execution of this decree. In preparing the decree the usual six months for payment should be fixed