Sadasiva Aiyar, J.
1. There are two questions raised in this second appeal filed by the plaintiff, the respondents being the 1st defendant and his sons (the defendants Nos. 3 and 4). The suit was brought on a promissory note executed by the 1st defendant: The first of the two questions is, whether the plaintiff has a right to appropriate several payments made by 1st defendant (without specific directions) in full satisfaction of the interest due to the plaintiff on the pro-note till the respective dates of payment and the balance, as far as would go towards the principal amount, or whether plaintiff ought to treat whatever was paid as paid wholly towards the principal and allow counter-interest on the whole of the amount of each payment without denoting there from the interest due till the date thereof. I think the lower Courts were wrong in deciding in favour of the second alternative. The cases in Luchmeswar Singh. Bahadur v. Syud Lutf Ali Khan 8 B.L.R. 110; Bamundoss Mookerjee v. Omeish chunder Raes 6 M.I.A 289; Kripasindhu Sahu v. Raja of Kallikota 29 Ind. Cas.718 and Second Appeal No. 143 of 1916 (the two latter being decisions of this Court), dearly lay down the rule in support of the first alternative, would, therefore, decide this question in favour of the appellant. The decision of the lower Courts will be modified by calculating the amount due in accordance with the above observations.
2. The second question is, whether, on the facts found by the lower Courts, they were1 justified in finding that the defendants Nos. 3 and 4 had discharged the burden of proving that the money borrowed under Exhibit B was spent for illegal or immoral purposes. The lower Appellate Court says: 'in this case, I must say that defendants Nos. 3 and 4 have not succeeded in proving which ; specific part of the consideration for Exhibit B was spent for immoral purposes.' I think that this means that no portion of the consideration has been directly connected by the evidence with any expenditure for immoral purposes. Notwithstanding this observation, the ultimate conclusion of the lower Appellate Court is that, because the 1st defendant's 'life' was valid and immoral, 'because be was not engaged in any trade or business and because his lands yielded sufficient income, the defendants Nos. 3 and 4 have discharged the burden of proving that the money borrowed under Exhibit B was spent on immoral purposes. I think that this is opposed to the decision of the Privy Council in Sri Narain v. Lala Raghubans Rai 17 Ind. Cas. 729: (1913) M.W.N. 768 in an Allahabad case, the High Court of Allahabad having long held,, the same view see Hawman Singh v. Nanak Chand (1884) A.W.N. 23; Kishan Lal v. Goruruddhwaja Prasad Singh (1899) A.W.N. 42 and Babu Singh v. Behari Lal (1908) A.W.N. 61 see also Sadashiv Dinkar Joshi v. Dinkar Narayan Joshi 6 Ind. Jur. 655; Chintamanrav Mehendale v. Kashinath 7 Ind. Dec. 674 and Hazarimall Babu v. Abani Nath 18 Ind. Cas. 625 The lower Appellate Court relies on a Punjab Chief Court decision reported in Ram Nath v. Bulaqi Ram 17 Ind. Cas. 735 which , no doubt, supports view of the law; but I am unable to follow it in preference to the decisions of the Privy Council and of this High Court and the High Courts above referred to.
3. The lower Courts' decree have, therefore, to be further modified by making the defendants Nos. 3 and 4 liable along with the 1st defendant to the extent of the ancestral family properties, the 1st defendant, of course, being also personally liable.
4. Having regard to all the circumstances, 1 would order that the defendants Nos. 3 and 4 do bear their own costs throughout, and that the plaintiff do bear his own costs here and in the lower Appellate Court. The award of costs to the plaintiff in the Mansif's Court against the 1st defendant will stand.
5. I think the decision in Bhagat Mal Sahu v. Abdul Karim 34 Ind. Cas. 23 correctly sums up the settled law .on the subject of the immoral debts, when it lays down that, ''in some way by reasonable legal proof it must be shown that there is a connation between the debt and the immoral purpose.'
6. In this case that condition does not seem to be satisfied by mere proof that 1st defendant was leading an immoral life, coupled with .the negative evidence that the income of his estate was sufficient for the family needs and that there was no trade or business necessitating borrowing of loans.
7. The finding of both the lower Courts that defendants Nos. 3 and 4 had discharged the onus that lay upon them is, thus, not a finding which can be justified upon the facts which have been found from the evidence to exist.
8. Although I am reluctant to interfere with what is, on its face, a finding of fact, especially where the lower Courts have had in their minds the principle s governing the question to be decided, I think that they have gone too far in holding that the onus was discharged when the materials before them do not establish any direct connection, between the suit debt and the 1st defendant's immorality, and there is nothing more tangible than a mere surmise to connect the debt with the immorality. Defendants Nos. 3 and 4 should have proved that, at least, some part of the consideration for Exhibit B was spent for immoral purposes. The case in Ram Nath v. Bulaqi Ram 17 Ind. Cas. 735, followed by the Subordinate Judge, itself enunciates the principle that there must be clear connection between the immoral life and the debts contracted; though, in applying that principle, the learned Judges have considerably widened it by assuming that every debt contracted at a time when the debtor was living a riotous life must necessarily have been devoted to immoral purposes.
9. I, therefore, agree with my learned brother in allowing the second appeal on this point and upon the question of interest also as to which I have nothing to add to what he has said