Subramania Ayyar, J.
1. The plaintiff, as purchaser under a sale deed dated 24th February 1894, executed by the Official Assignee, claims possession of the house in dispute, which admittedly was the family property of the defendants, of whom the second defendant is the younger brother and the other defendants sons of the first. He rests his claim on the grounds that the second defendant being a leper is not entitled to any share in the property and that even if he was entitled, the debts with reference to which the first defendant was declared insolvent were incurred by him for purposes binding upon all the defendants. As to the relief the plaintiff prays in the alternative, that should it be held that the plaintiff is not entitled by his purchase to the possession of the entire property, but that he became entitled to an interest less than the whole, the same be ascertained and that on due partition being made, such share be ordered to be delivered to him, or if that be found impracticable the whole house be sold and such portion of the sale-proceeds as represents his interest be ordered to be paid to him.
2. The first and the third defendants are dead. The second defendant denies that the disease which it is now admitted he has been suffering from is of such a character as to entail forfeiture of his rights and that the debts referred to in the plaint are binding upon him. The fourth and fifth defendants also raise a similar contention as to the debts.
3. Three issues were raised. The first relates to the extent of the interest which passed under the sale and the second and the third to the second defendant's disease and its effect, if any, upon his right to the property in dispute.
4. It will be convenient to deal first with the last two. That the second defendant's disease is leprosy is not now disputed. But that disease is regarded by the Hindu law as a disqualification entailing forfeiture of rights only when it appears in a virulent and aggravated form. Muttuvelayuda Pillai v. Parasakti Sudder Reports of 1860 p. 239; Janardhan Pandurang v. Gopal Pandurang 5 B.H.C.R. 145; Ananta v. Ramabai I.L.R. 1 Bom. 554; Mohunt Bhagaban Ramanuj Das v. Mohunt Roghunundun Ramannj Das L.R. 22 IndAp 94. Consequently the plaintiff has to make out that the disease is of that particular description which leads to loss of rights. With reference to this matter the plaintiff called as a witness Mr. Haller, a medical practitioner, who had been in subordinate charge of Leper hospitals for many years and who appears to have made the disease a subject of special study; the witness states that the form from which the second defendant suffers is of the slowest type, that it expends itself in the extremities of the hands and the feet, and that it is of the least disfiguring kind. I am of opinion, therefore, that the second defendant's disease is not virulent and it hence does not affect his coparcenary rights.
5. Now as to the first which is the remaining issue and which relates to the extent of the interest acquired by the plaintiff under the sale to him, two questions have to be considered.
6. The first is whether the Official Assignee was in law entitled to convey not only the interest of the first defendant the insolvent, but also that of his coparceners the other defendants. On behalf of the plaintiff it was contended that he was, and Fakirchand Motichand v. Motichand Hurruckchand I.L.R. 7 Bom. 438 was referred to as a distinct authority in favour of that contention. There it was held by Latham, J., that the right which entitles a father governed by the Mitakshara law to dispose of his son's interest in ancestral immoveable estate for the payment of his own debts not incurred for immoral purposes, is, on a vesting order being made on the father's insolvency, vested, under Section 7 of the Indian Insolvent Act, in the Official Assignee who can consequently give a good and complete title to such ancestral immoveable estate to a purchaser. The learned Judge considers that the father's right of disposal is not a ' power ' within the meaning of Section 30 of the said Act, which in his opinion applies to powers in the ordinary legal sense of the term created by will or instrument inter vivos, but that it falls more appropriately within the words in Section 7 under which all the real and personal estate and effects of the insolvent and all his future estate, right, title, interest and trust in or to any real or personal estate or effects (with certain specified exceptions immaterial for the present) vest in the Official Assignee. To put it shortly the learned Judge's view amounts to saying that the son's share in the ancestral estate is property available for the realization of the father's debts not shown to be immoral. A substantially similar conclusion was arrived at in Jagabhai Lalubhai v. Bhukandas Jagjivandas I.L.R. 11 Bom. 37 where West and Birdwood, JJ. held that the father's right referred to above was covered by the words of Section 266 of the Code of Civil Procedure laying down what property is liable to attachment in execution of a decree. West, J., who delivered the judgment of the Court referring to this point observes: 'The District Judge has relied on Section 266 of the Code of Civil Procedure which says that the property subject to attachment must be such as the judgment-debtor could dispose of for his own benefit. This is the direction, no doubt, but it does no more than state a general principle which, though the section is not referred to, must have been present to the minds of the Judicial Committee. Their Lordships thought probably that the father could dispose of the family estate for his own benefit at least prima facie and subject only to the rights on which the sons could rely in particular cases.' Jagabhai Lalubhai v. Bhukandas Jagjivandas I.L.R. 11 Bom. 37 . If this conclusion were erroneous, the innumerable cases including the leading decisions of the Judicial Committee on the point, wherein the interest of sons was held to have passed by a sale in execution of decrees obtained against the father alone, must be considered to have been wrongly decided, a contention which is impossible at all events at this time of the day. Fakirchand Hotichand v. Motichand Hurruckchand I.L.R. 7 Bom. 438 relied upon on behalf of the plaintiff is therefore a direct authority in favour of his contention, so far as the third and fifth defendants, the surviving sons of the late first defendant, are concerned. Nor as to the second defendant am I able to see any sound distinction in principle between his case and that of the other defendants just referred to. For if the son's share is property which the father has power to dispose of for his own benefit in the restricted sense explained by West, J., in the passage quoted above, how can the share of any other undivided coparcener, which the managing member can convey for debts incurred by him for legal necessity, be treated differently? No doubt there is difference in the proof to be adduced as to the character of the debt in the two instances. But the essential element that the shares other than that of the transferee are liable to be proceeded against for the transferor's debt is common to both the cases. I must therefore hold that the Official Assignee has in law power to transfer not only the share of the insolvent, but also those of his coparceners, whether they be his sons or brothers or other collaterals, provided of course the debts for which the property is disposed of are shown to have been incurred for purposes binding upon them.
7. The second question, therefore, to be considered with reference to the issue under discussion is, were the debts incurred for such purposes? The case of the third and the fifth defendants is easily disposed of, as they have failed to prove that any of the debts which led to their father being adjudicated an insolvent was incurred for immoral purposes. It is quite true that the evidence of Baggyam called by the defendants satisfactorily establishes that the late first defendant kept her for nearly ten years from 1885 up to his death, and spent upon her considerable sums of money. By such proof alone, however, the said defendants cannot be said to have discharged the onus thrown on them by law as they should connect the particular debt, about which the dispute exists, with the immorality of the father. In this case not only has that not been shown, but there is positive evidence on behalf of the plaintiff which proves that the debts in question had nothing to do with the immoral life of the late first defendant. The second defendant's case, of course, rests on a different ground. As to him, unlike the case of the sons, the burden of proof as already suggested is on the plaintiff who must affirmatively make out that the debts were incurred for the necessary purposes of the family. Has this been shown? Before considering this question, I ought to notice the contention urged by the plaintiff's vakil in his reply to the effect that the second defendant, not having expressly traversed the averments in the plaint as to the character of the debts, is not now entitled to say they are not binding upon him. This contention is clearly untenable. In the first place there is nothing to show that the defendant admitted that the debts were incurred for family purposes. Secondly, the first issue is wide enough to raise the point, and in fact the whole trial proceeded upon the distinct footing that this question was one of the points to be established by the plaintiff who accordingly adduced evidence on it. Now in the evidence thus adduced only three debts are referred to. The first is a sum of money lent by the plaintiff to the first defendant. Theruvengada, plaintiff's second witness, states that the first defendant became a surety for one Shanmuga Mudali with reference to certain moneys borrowed by the latter from the Bank of Madras and as Shanmugam failed to pay the Bank, the first defendant incurred the debt in question to enable him to discharge his obligation to the Bank. Whether in the interests of the family it was necessary for the first defendant to become Shanmugam's surety has not been shown, and the debt in question cannot therefore be held to be binding on the second defendant. The two remaining debts are similar in character and the circumstances connected with them are these. The first defendant Theruvengada referred to above and Virasami, plaintiff's first witness, jointly executed about 1888 certain works under the Public Works Department and made profits. But as the first defendant received the whole of the profits and withheld from Theruvengada and Virasami their shares thereof, they sued and obtained against him decrees for the sums so due to them. Beyond the oral testimony of these two persons, there is no evidence on the point. No portion of the record in the suits in which the said decrees were passed has been exhibited in this case. Nor does it appear why Virasami and Theruvengada allowed the first defendant to take away moneys due to them. The evidence shows that from 1886, i.e., a considerable time before the three became partners in connection with the said works, the first defendant ceased to live with the other members of the family including the second defendant and had been residing elsewhere with his concubine Baggyam already referred to. That the first defendant lived not only an immoral, but an extravagant life from the time he took the said woman into his keeping in 1885 seems tolerably clear from her evidence. And even though I am not prepared to say that no share of his earnings as a contractor under the Public Works Department went to the support of his children and the second defendant, who remained in the family house, I am unable to hold that the debts due to the two individuals in question arose from family necessity. Baggyam says that during all this time Theruvengada lived with the first defendant in the same place in which he and she resided. I cannot treat one in such a position as a bond fide creditor in respect of a sum of money which he ought never to have allowed the first defendant to appropriate to his own use especially as against the second defendant from whom the first defendant was living separately without any fault on the part of the former (second defendant). The case of Virasami is not the same as that of Theruvengada in this respect, but at the same time as against him also, 1 fail to see why the second defendant should be held responsible for moneys which are not shown to have been appropriated for the purposes of his family and towards the misapplication of which by his elder brother, he in no way contributed. I must therefore hold that the plaintiff has failed to establish that any of the debts relied on by the plaintiff is binding upon the second defendant, whose interest in the house in dispute, therefore, remains unaffected by the sale to the plaintiff.
8. The result is there must be a decree in favour of the plaintiff for a moiety of the house which will be sold and (she plaintiff's moiety of the sale-proceeds paid to him. Both parties are permitted to bid for the property at the sale. The rest of the claim is disallowed. The plaintiff must pay the second defendant's costs, and the third and fifth defendants will pay those of the plaintiff.