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 immorality alleged 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. GOUT'S Hindu Code, at page 590, to the effect that the question of the burden 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 6 C. 148 : 6 I.A. 88 : 4 Sar. P.C.J. 113 Suth P.C.J. 589 : 4 C.L.R. 220 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 705 (P.C); Nanomi Babuasin v. Modhun Mohun 13 C. 21 : 13 I.A. 1 : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 682 : 6 Ind. Dec. (N.S.) 510 (P.C.) and Bhagbut Pershad Singh v. Girja Koer 5 C. 717 : 15 I.A. 99 : 5 Sar. P.C.J. 186 : 12 Ind. Jur. 289 : 7 Ind. Dec. (N.S.) 1062 (P.C.). 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 enquiry beyond what appears on the face of the proceedings.' There was no departure in the last- two cases from the rules of law Lal d down in the first case. In the resent case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 141 (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) their Lordships adhered to the Interpretation put by Sir John Stanley in Chandradeo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A. 176 : 6 A.L.J. 263 on the pronouncement in the case of Suraj Bunsi Koer v. Sheo Persad Singh 6 C. 148 : 6 I.A. 88 : 4 Sar. P.C.J. 113 Suth P.C.J. 589 : 4 C.L.R. 220 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 705 (P.C), and remarked that the correct and useful state-'ment of the law was that it was 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.
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 contested of two items, namely Rs. 1,237-8-0 due on a promirisory-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 m 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 consideration and in fact there is no evidence to contradict the vendee. We are, therefore, of opinion that this 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. As to the balance, the defendants' case is, that Girdhari Lal was very much indebted and that there were numerous debts outstanding against Mm in the bazaar. Before the execution of the sale-deed the vendee was assured by Girdhari Lal that he owed a number of these debts and was in urgent necessity to pay them. Ram Saran's version is that he actually made enquiries in the bazaar and learnt from a number of; people that sums of money were due to them from Girdhari Lal that after this enquiry 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. Peare Lal , another witness, has sworn that a sum of Rs. 1,150 was paid to Mm on account of the debt due to Mm. Ram Richpal Singh has stated that Rs. 880 were realised by Mm on the 9th August 1918 from Girdhari Lal and that there are entries in Ms account-books to prove it. Another Ram Richpal Singh has proved that a sum of Rs. 662 was paid to Mm on the 28th October 1918 as part of the amount due on a promissory-note for Rs. 600 dated the nth February 1916. We have also a statement of one Mohan Lal that on the 5th November 1918 he was paid Rs. 3,533 by Girdhari 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 evitience of these witnesses except that of Peare Lal. The reason given by him for disbelieving this last mentioned witness is that he has not produced any bahi khala or documentary evidence in support of the alleged loan, and that it is possible that he has come to support the defendant, he being a friend of his. Peare Lal apparently is a respectable witness. He pays Rs. 500 or 600 Government revenue and about Rs. 300 income-tax. He had stated that the money advanced had belonged to Ms 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 Ms statement. Peare Lal stated that he retimed 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 enquiries to satisfy himself that antecedent debts were existing 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 part of this money was certainly applied for the purposes mentioned.
8. 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. Four witnesses named, Ashfaq Ali, Puran Devi, Ram Prasad and Shi am Sunder 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 his 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 including in this Court fees on the higher scale.