C.A. Vaidialingam, J.
1. The short point that arises for consideration in this appeal is whether the sale-deed Ex. B4, executed by the 1st defendant, the father of the plaintiff, regarding item 3 of plaint B schedule, is binding on the plaintiff.
2. The plaintiff is the only son of the 1st defendant and his suit was for a partition of the joint family properties by metes and bounds, ignoring the several alienations made by the 1st defendant and for allotment to him of a half-share in all the items.
3. Though several transactions of the father were challenged in the suit, the controversy in this appeal is mainly regarding the alienation made under Ex. B4 by the 1st defendant. The benefit of the suit transaction has ultimately enured to the 5th defendant, who is the appellant before us.
4. The plaintiff alleged that he and the father, the 1st defendant, are members of a Mithakshara joint Hindu family of which the father was the Yejman and that they owned the several items of properties mentioned in the schedules to the plaint. The father is stated to have obtained in a partition between himself and his brothers those items and it was also stated that there was a fairly decent income from those properties and that the family had very little expenditure, as the family comprised of the father, 1st defendant, his only son the plaintiff and the four sisters of the latter.
It was stated that the income from the joint family properties were Quite ample and that it would even leave a surplus after meeting all necessary and legitimate expenses. But the father, the 1st defendant, being a simpleton was easily 'beguiled by other people and was also of imprudent habits. There was also an allegation that the father has alienated valuable portions of the Joint family properties to several of the defendants for no justifying necessity and for inadequate consideration.
After giving some details of the several transactions challenged by him, the plaintiff in paragraph 6 (c) stated that his father in the original family partition, had obtained a right to receive in perpetuity 40 muras of paddy on a charge and responsibility of item 3 of plaint B schedule which -was allotted to the share of the 1st defendant's brother, Ranga Rao. On 23-4-1945, under (Ex. B4), the father transferred the entire rights to receive this amount by registered documents of that date to one Mohan Prabha for Rs. 2,000/- and that on 30-3-1950, the 5th defendant has acquired the rights of the said Mohan Prabha. Then follows the allegation regarding Ex. B4:
'Herein also the said transfer was collusive and not for any real or pressing necessities and was for art inadequate consideration and hence cannot affect the shares of the plaintiff in it.'
5. Then there was a general allegation in paragraph 7 of the plaint regarding all the transactions including that covered by Ex. B4 that they are not valid and binding on the plaintiff and the recitals as to consideration, necessities, etc., are all false, fraudulent and fictitious. He also wound up by saying that there was absolutely no necessity for any of those transactions inasmuch as the family was possessed of sufficient income. On these allegations, he claimed the relief already mentioned for a partition of his one-half share free from all liabilities.
6. The 5th defendant, who is interested in item 3 of plaint B schedule, covered by the sale-deed of the 1st defendant, Ex. B4, admitted the recitals as to the terms of the partition between the let defendant and his brother on 10-1-1938 and the right of the family of the 1st defendant to get annually 40 muras of paddy. But he stated that the said paddy payment had been converted into cash payment of Rs. 80/- by later proceedings of court and he gave particulars of those court proceedings.
The 5th defendant further contended that he had purchased the interests of Banga Rao In item 3 of plaint B schedule in court auction In 1942 and that he also obtained by assignment on 30-3-1950, under Ex. B7, the rights obtained by Mohan Prabha under Ex. B4. He also contended that there was absolutely no collusion between his assignor, Mohan Prabha and the 1st defendant and he also stated that Ex. B4 was executed for a valid and binding necessity for discharge of family debts.
The price mentioned in Ex. B4 was also etated to be quite adequate, having regard to the market conditions then prevalent. In view Of the fact that Ex. B4 was also executed for discharging antecedent debts of the father, he contended that the transaction covered by Ex. B4 was binding on the plaintiff and that he is not entitled to claim any rights in respect of this item.
7. The sufficiency of Income for the joint family of the plaintiff and 1st defendant was also disputed and allegations were made that the expenses such as the plaintiff's education, his Upanayanan, the marriage of his sister and such other essential family expenses could not be met from the income alone.
8. The 5th defendant wound up his written statement by alleging that he has become the full owner of the property and that neither the plaintiff nor the 1st defendant have any rights in respect of that property and that the suit itself is engineered by the 1st defendant with a view to make a gain, if possible, for the family.
9. The learned Judge held that the family of the 1st defendant and the plaintiff would have an income of about 601/2 muras of rice including the annuity of 40 muras of paddy equivalent to 20 muras of rice charged on item 3 of plaint B schedule. The family consisted of the 1st defendant, his wife, the plaintiff and his four sisters, that is, about 7 members.
Regarding Ex. B4, the learned Judge held that the only antecedent debts free from doubt is the decree-debt in respect of which Ex. B3, the second item of consideration, was executed. He also held that the evidence of D. w. 1, the husband of Mohan Prabha about the enquiries made prior to taking Ex-B4 in favour of his wife were far from satisfactory and he further held that D. W. 1 cannot be said to have made proper and bona fide enquiries as to the existence of the necessity mentioned in Ex-B4.
The learned Judge also held' that the consideration for Ex-B4 cannot be said to be adequate. In this view, he held that Ex-B4 is not binding on the 1st defendant and he upheld EX-B4. only as a sale by the 1st defendant of his share. The learned Judge ultimately held that the 5th defendant will be entitled to the half-share to be allotted to the 1st defendant in item 3 of plaint B schedule and he reserved the question of equities for consideration to the stage of the final decree,
10. Mr. Gopalan Nambiar, learned Counsel for the 5th defendant-appellant, attacks the finding of the learned Judge on the binding nature of Ex-B4, and also the finding regarding adequacy of consideration. He finally contended that inasmuch as there is no allegation of the debts being illegal or immoral, his client will be entitled to a decree in his favour especially when he has satisfied the court that the debts for which Ex-B4 was executed, were for antecedent debts. On this line of argument, he finally contended that the question of bona fide enquiries by his client does not at all in any way affect his client's rights.
11. On the other hand, Mr. Balakrishna Eradi, learned Counsel for the plaintiff, has contended that the onus of proving the necessity for the transaction was on the creditor, 5th defendant and that the learned Judge was perfectly right in holding against the appellant. He also contended that in any event, in view of the finding about the inadequacy of consideration, the plaintiff wag entitled to succeed.
12. Before considering the legal contentions, it is better to record the necessary findings on the points at issue between the parties.
13. Ex-B4, dated 23-4-1945 evidences a sale by the 1st defendant of his right to realise 40 muras of paddy per annum from item 3 of the plaint B schedule. The sale-consideration is Rs. 2,000/-. It is by the 1st defendant as Ejman and Adaltedar of the family and also as guardian of the plaintiff in favour of Mohan Prabha. wife of D. W. 1, an advocate of Kasargode. It recites about the right of the 1st defendant under the partition entered into by him with his brothers on l3-2-1938.
14. There are three Items of consideration mentioned in EX-B4. The 1st item of consideration is the sum of Rs. 600/- in respect of a promissory-note debt due by the 1st defendant to Ramappayya, The promissory-mote, Ex-B2 is dated 6-7-1944 and is in favour of Ramappayya for Rs. 600/-. The recital in Ex-E2 is that the amount has been borrowed by the 1st defendant for discharging the unsecured debt incurred by him for household expenses etc., of the 1st defendant's family.
It is also in evidence that Mohan Prabha, the purchaser under Ex-B4, has paid this sum of Rs. 600/- due under Ex-B2 and obtained a discharge from Ramappayya. In fact, there is no serious dispute about this discharge by Mohan Prabha as part consideration for Ex-B4, D. W. 1, husband of Mohan Prabha, also speaks to the same.
15. It is admitted by the plaintiff that this Ramappayya, the payee under Ex-B2 is his sister's husband and that even at the time of his giving evidence, the plaintiff was staying with him. He also admits that Ramappayya and he are on very good terms and that Ramappayya has not done anything against his interests so far to his knowledge. The plaintiff also admits that the signature in Ex-B2 is that of his father, the 1st defendant.
Though, no doubt, he would say that he does not know whether defendant 1 received consideration under Ex-B2, it is absolutely impossible for us to accept his professed ignorance about the same. Even otherwise, it was open to him to have adduced the evidence of Ramappayya with whom he was admittedly residing. We do not agree with the learned Judge about his criticism of Ex-B2 and we hold that Ex-B2 is fully supported by consideration and that it has been also discharged by the purchaser under Ex-B4.
16. The next item of consideration for Ex-B4 is another promissory-note debt due under Ex-B3 by the 1st defendant to one Rama Kamath. Ex-B4 itself says that this Rama Kamath is the younger brother of Mohan Prabha's husband, D. W. 1. The total amount due under the promissory-note was Rs. 610/14 annas.
17. A reference to Ex-B3 shows that a sum of Rs. 600/- was borrowed on 7-12-1944 by the 1st defendant for the purpose of paying the amount relating to R. E. P. No. 1612/43 on the file of the District Munsiff's Court, Kasargode. It is also in evidence that this amount of Rs. 610/14 annas has been paid by Mohan Prabha to the payee as part of the sale consideration for EX-B4.
The learned Judge has held that it being a decree-debt, it is also antecedent in time and in fact, and he has held this item of consideration to be true and genuine. But the learned Judge appears to criticise when he says that there is no evidence as to what the other expenses mentioned in Ex-B3 are. We do not see any justification for this criticism, because Ex-B3 is quite clear and it is only for paying the decree-debt and there is no other matter mentioned therein.
In fact, the evidence of the plaintiff himself shows that Ex-B3 has been attested by his brother-in-law, Ramappayya, who was also the payee under Ex-B2 and he has not placed any materials to show that the decree-debt is not binding. We hold that the second item of consideration for Ex-B4 is for valid and binding purposes of the family of the plaintiff and defendant 1.
18. Coming to the last item of consideration, it is stated in Ex-B4 that for the purpose of discharging the unsecured debts contracted for household expenses of the family, for necessary expenses relating to the marriage of the 1st defendant's daughter, and for medical expenses incurred in connection with the diseases in the family, a sum of Rs. 789/2/- annas is received before the Sub-Registrar.
19. The learned Judge is of the view that there is no evidence about the nature of these expenses mentioned in Ex-B4, and based on this view, the learned Judge held that the said item of consideration is not binding on the plaintiff. The plaintiff has admitted that his brother-in-law, Ramappayya is an attestor and also an identifying witness in Ex-B4.
Though he would state generally that he does not know whether his father received the consideration under Exs.-B2 to B4, we have already held that his evidence regarding B2 and B3 cannot be accepted. He has admitted that this Ramappayya has not done anything to his prejudice. Ramappayya, who is the payee under Ex-B2, Is an attestor in Ex-B3 and he is both an attestor and identifying witness under EX-B4. That clearly shows that this Ramappayya knows everything about the transactions done by his father-in-law, the 1st defendant and he will be the best person to support the case of the plaintiff, if really true.
Apart from the admissions of the plaintiff himself, there is the evidence of a respectable witness, D. W. 1, who is the husband of Mohan Frabha and also an advocate of considerable standing. We accept the evidence of D. W. 1 and hold that this amount of consideration has really been paid by his wife to D. W. 1 under Ex-B4.
20. Therefore, in our opinion, the creditor has been able to satisfactorily establish that all the items of consideration mentioned in Ex-B4 are true and that the purchaser under Ex-B4 has discharged the promissory-note liabilities of the family under Exs. B2 and B3 and also paid the balance amounts shown In Ex-B4.
21. Then the question arises whether there was a necessity for the 1st defendant to borrow: or incur these various debts mentioned in Ex-34. As stated earlier, the promissory-note debt under Ex-B3 was for paying of a decree-debt and as such, it was incurred for a valid and binding purpose.
22. The 1st and 3rd items of consideration are also stated to be for family expenses and other necessaries. The learned Judge has found that the family was getting only an income of about 601/2 muras of rice and there were 7 members to be maintained out of that income. Ex-B3 itself clearly shows that the family was finding it difficult, because even for the payment of a decree-debt the 1st defendant had to borrow a sum of Rs. 600/-.
Even apart from this, the evidence of the plaintiff himself shows that his Upanayanam took place in about 1945 and that one of his sisters was also married sometime in 1944. He has also stated that his father had given him education upto S. S. L. C. All these clearly show that the family income may not be sufficient even for ordinary day-to-day expenses. The evidence of P. Ws. 2 and 3, to our mind, does not in any way assist the plaintiff. It is more or less general and the evidence of P. W. 3 in particular, also shows that the sister of the plaintiff was married and that the 1st defendant would have spent about Rs. 100/- for that marriage. His estimate must be rather a very modest one.
In fact, he says in cross-examination that the relations of the 1st defendant criticise the 1st defendant for spending so much on the Upanayanam of the plaintiff.
23. The learned Judge is not quite correct when he says that D. w. 1 has not made any reasonable enquiries at the time of Ex-B4. Though, no doubt, he says that he does not remember if he made any enquiries regarding the income of the properties allotted to the 1st defendant in the partition or about the Viniyoga properties allotted to him, nevertheless, he says that he asked the creditor Ramappayya as to the necessity for the promissory-note, Ex-E2.
He categorically says that Ramappayya assured him that the amounts borrowed from him under Ex-B2 by the 1st defendant were for meeting the expenses of the 1st defendant's family. It will be remembered that this Ramappayya is the son-in-law of the 1st defendant and the plaintiff has admitted that he was living with him when giving evidence. He has also stated that this Ramappayya has not done anything against his interest and that he has attested Exs.-B3 and B4 also.
In fact, D. W. 1 further swears that this enquiry was a few days before Ex-B4 and he saw also Ex-B2. No doubt, D. w. 1 admits that he did not make any further enquiries regarding the family expenses for which Ex-B2 was executed.
24. Regarding Ex-B3 also, D. w. 1 states that he enquired of Rama Kamath, the payee therein, it will again be remembered that even in Ex-B4, the 1st defendant has stated that the payee under Ex-B3 is the brother of this witness D. W. l further states that Rama Kamath told him that he had advanced the amount to pay off the decree-debts.
This is absolutely correct, because the promissory-note also mentions about the debt and the plaintiff has not placed any materials to show that the decree debt is not binding on him.
25. D. W. 1 further says that his recollection is that he appeared for the 1st defendant in respect of the decree- and that he arranged to pay the amount on behalf of the 1st defendant. No doubt, he says that at this distance of time he does not know who the decree-holder was or whether there were other joint judgment-debtors also. In our opinion, these circumstances have absolutely no bearing on this point. There is a decree for paying which Ex-B2 was executed.
Regarding the last item of consideration, D. W. 1 says that the marriage of one of the sisters of the plaintiff took place a few months prior to Ex-B4 and he also says that the 1st defendant represented to him that he himself was ill and was undergoing treatment for Asthma and Malaria and that he was satisfied with the answers given by him. D. W. 2, who lives within a furlong of the house of the 1st defendant, knows both the plaintiff and the 1st defendant and further says that they are living together. He also speaks to the Upanayanam of the plaintiff and the marriage of the plaintiff's sister sometime thereafter.
26. The 5th defendant as D. W. 3 states that he knows the plaintiff and the 1st defendant, as his house is about a mile from their house. He further states that the plaintiff and the 1st defendant have come to court together on the day when he gave evidence. He also speaks to the marriage of one of the sisters of the plaintiff and also the performing of the Upanayanam of the plaintiff. Even the plaintiff and his witness P. W. 3 speak to the Upanayanam and education of the plaintiff and also the marriage expenses of the sister of the plaintiff at the relevant time.
27. The evidence of D. Ws. 1 to 3 and the admissions of the plaintiff and his witness P. W. 3, leave no doubt in our mind that the family was not in such affluent circumstances as the plaintiff wants us to believe. We are also satisfied that there was a necessity to borrow and the recital about the third item of consideration under Ex-B4, as being for discharging unsecured debts, necessary expenses relating to the 1st defendant's daughter's marriage and for medical expenses of the family members, is perfectly true.
We are also satisfied that D. W. 1, who was acting on behalf of his wife, has made very careful and prudent enquiries about the condition of the family and the necessity for the various loans for discharge of which EX-B4 was executed. The findings of the learned Judge on the first and third items of consideration in Ex-B4 are not correct and his finding on the question of enquiries made by D. W. 1 is also equally not correct. We are satisfied that Ex-B4 was executed by the 1st defendant for debts incurred by the 1st defendant which are binding on the plaintiff's share also.
28. There is one other aspect to be considered and that is regarding the inadequacy of consideration for Ex-B4. According to the learned Judge, the right which was the subject-matter of Ex-B4', will be worth much more than Rs. 2,000/-. In this connection, it may be noted that the learned Judge has taken the price of 40 muras of paddy at the time of Ex-B4 and has capitalized it into 20 times.
This, to our mind, is not the proper way of arriving at the sale price. It should be remembered that what was being sold is not an absolute right in the property, but only a right to get a particular income from the lands every year. If the amount is not paid, there is always the difficulty of having to resort to court and being put to additional expense. Further, there is nothing on record to show that such a right is easily marketable and that there were people ready to purchase it at a higher price.
In the nature of things, such a right will not have a ready purchaser in the open market as will be the case when a property with a full title is sought to be sold. Further, though Mohana Prabha obtained these rights under Ex-134 on 23-4-1945, she has assigned the same rights for the same value 5 years thereafter on 30-3-1950 under Ex-B7 to the 5th defendant. This transaction by itself is not challenged in any way.
The 5th defendant purchased it because he had already become the owner of the properties allotted to Ranga Rao over which this charge right had been created. Therefore, in our opinion, the test applied by the learned Judge is not correct and we hold that the price fixed under Ex. B4 namely, the sum of Rs. 2000/- is quite adequate and reasonable, in view of the nature of the property that was conveyed and it really represents the full rights of the father, the 1st defendant and the plaintiff.
Therefore, in our view, the transaction cannot be challenged on this ground either. Further Ex. B7 also shows that there was litigation and this has been commuted at Rs. 80/- a year and this will also show that the price fixed was correct.
29. In view of our findings recorded above, it may not be really necessary to consider in any great detail the legal contentions raised by the learned counsel .on either side. We will only refer to the decision of the Privy Council in Hemraj v. Khem Chand, 3LR 1943 All 727: AIR 1943 PC 142 (A). Their Lordships observe at pages 145 and 146 of the AIR report as follows:
'This also makes clear the connexion between the nature of the debt and the liability to pay it. That the duty cast upon the son being religious or moral, the character of the debt should be examined from the standpoint of justice and morality appears to be fairly clear from the decisions.
In this connexion regard may also be had to the debts mentioned in the texts which the son need not pay, most of which are of an objectionable character. It also appears to be clear en principle and on authority, that examination of the nature or character of the debt should be made with reference to the time when it originated, in other words, when the liability was first incurred by the father.
If, on such examination, it is found that at its inception the debt was not tarnished 6r tainted with immorality or illegality, then it must be held that it would be binding on the son. This principle, stated as R. 1 by Venkata-subba Rao and Madhavan Nair, JJ. in Rama-subramania v. Sivakami Ammal, AIR 1925 Mad 841 at pp. 845, 852 (B) respectively, in language almost identical, is amply borne out by the numerous authorities which they have examin-'ed. The rule is not rigid but has to be applied 'with reference to the circumstances of each case'.
29A. It will be seen that their Lordships have quoted with approval a decision of a Bench of the Madras High Court of Mr. Justice Venkata-subba Rao and Mr. Justice Madhavan Nair, in AIR 1925 Mad 841 (B). It is not the case of the plaintiff that any of the debts mentionec' in Ex-B4 is tainted with illegality or immorality of the father.
30. As observed by Mayne in his book on Hindu Law and Usage 11th Edition at page 415:
'The distinction between an involuntary sale of the father's property for the satisfaction of his own debt and a voluntary disposition by him consists in the limitation that in the latter case the debt must be antecedent to the transfer of property not contemporaneous with it'.
31. Reference may also be made to the decision of the Privy Council in Suraj Bunsi Koer v. Sheo Persad Singh ILR 5 Cal 148 (C). At page 171 in dealing with antecedent debts and alienations by a father for discharging such debts, their Lordships observe as follows:
'That 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 debts, his sons by reason of their duties to pay their lather'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'.
32. Useful-guidance is also obtained by the principles laid down by the Travancore-Cochin High court in Sivarama v. Subramonia, AIR. 1953 Trav-Co. 417 (D). The learned Chief Justice and Mr. Justice Govinda Filial, after considering the principles laid down by the decisions of the Privy Council regarding alienations made by the manager of a Hindu Family particularly, the father, observe at page 419 as follows:
'Where the sons are joint with their father and debts have been contracted by the father for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for an illegal or immoral purpose. This liability of the sons arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara Law to discharge the father's debts when the debts are not tainted with immorality'. The learned Judges further observe:
'In all such cases the alienee's responsibility lies in proving the passing of consideration, and with that, the debt will be treated as one binding on the joint family properties of the alienor (father) and his sons'.
The principles laid down in the above cases seem to indicate that when once the antecedent debt is established, the sons 'cannot succeed in avoiding It unless they are able to establish that the debt is tainted with illegality or immorality.
33. Mr. Balakrishna Eradi, learned counsel for the respondent, invited our attention to the decisions of Mr. Justice Ramesam and Tiru-venkatachariar, JJ., reported In the Matter of Amirthalinga Thevan, AIR 1928 Mad 986 (E) and Varadachariar and Mockett, JJ., In Narayana Rao v. Venkatapayya, AIR 1937 Mad 182 (F). These decisions are more on the question of onus in such cases. In fact in the decision in AIR 1928 Mad 986 (E) the learned Judges observe at page 986 as follows:
'The only difference between the powers of a Hindu father as manager of the family and that of other managers is that the father can sell the property also for an antecedent debt of his which is neither illegal nor immoral. The sale will be valid if it was made to discharge an antecedent debt contracted by the father and to the extent necessary to discharge that debt.
The onus lies on the purchaser to prove that it was to discharge an antecedent debt of the father that the sale to him was made or that he, after using reasonable care to ascertain the existence of such circumstances that would justify the sale has acted in good faith.
'If the sale is proved to have been made for discharging the father's antecedent debts, then only the onus is shifted to the sons to establish affirmatively, that the said debts were illegal or immoral and that the purchaser had also notice that they were of such a character.' We respectfully agree with the observations of the learned Judges and in deciding this appeal, we have only applied those tests. We have held that the several debts mentioned in Ex. B4 are really debts actually incurred by the father for the necessities of the family and the sale under Ex. B4 was for discharging those antecedent debts. The plaintiff has not placed any evidence to show that any of those debts, for discharging which Ex. B4 was executed, are tainted with illegality or immorality or bogus debts.
34. Mr. Justice Varadachariar and Mr. Justice Mockett in AIR 1937 Mad 182 (F) at p. 184 observe as follows'
'The pious obligation can arise only on the assumption of the existence of a debt due bythe father; and this way of stating the position would prima facie throw on the creditor the onus of proving 'the existence of a debt.'
35. We again respectfully adopt this line of reasoning of the learned Judges. An antecedent debt must be a real debt and not a bogus one. Therefore, unless the antecedent debt itself is real, there cannot be a discharge or payment of such a debt. In this case, we have held that the existence of the antecedent debts has been sufficiently established. Following the principles laid down in the Privy Council decision cited above and the decision of the Tra-vancore-Cochin High Court referred to earlier, we hold that the plaintiff is not entitled to any relief regarding item 3 of plaint B schedule.
36. The judgment and decree of the trial court on this point are reversed and the appeal allowed with costs of the 5th defendant throughout.