Venkatasubba Rao, J.
1. In this suit a very large amount is involved but otherwise this is a typical case. In form the suit is for partition of family property but in truth it is an attepmt by a son with the aid of his father to recover for his family the properties alienated by the latter. The following pedigree explains the relationship of the parties:
Veeraperumal Pillai__________________________|__________________| | |Thiruvengadathan Doraisani RajagopalaPillai Ammi Pillai|P.Appasami Pillai= |Nagathammal. |______________________|______________ | | | |Muthusami Shrinivasa P.M. Appasami Nagath-| Pillai ammal.|_________________________________________|_________________| |P. Veeraperumal Pillai P. Sethuram(1st defendant. Pillai.Rajagopala Pillai,plaintiff).
2. The plaintiff Rajagopala Pillai is a minor who sues by his next friend. Defendant 1, his father, became an insolvent and his estate is now represented by defendant 5, the Official Assignee of Madras. No relief is sought against defendant 2, who has not appeared to defend the suit and the really contesting defendants are the third and the fourth. Defendant 3 holds a mortgage for Rs. 2,50,000 and defendant 4 for about Rs. 1,24,000, These two mortgages were executed by defendant 1 and the primary object of the suit is to get rid of them.
3. On the 30th March 1915, there was a partition among the members of the plaintiff's family who at that time were (1) P. M. Appasami Pillai, (2) Veeraperumal Pillai (defendant 1), (3) Sethuram Pillai and (4) the plaintiff, the son of Veeraperumal Pillai. By the partition Sethuram Pillai and Nagathammal the sister of Appasami Pillai were given certain properties; some were allotted to P. M. Appasami Pillai and some to defendant 1 as representing himself and his son. Shortly after the partition, on the 11th August 1915, Appasami Pillai made a will in effect bequeathing his properties to defendant 1. On the 19th October 1920, he made a codicil which, however, did not substantially alter the will. Appasami Pillai died on the 4th October 1921. As I have said the mortgage in favour of defendant 3 was executed on the 10th April 1923, and that in favour of the defendant 4 on the 31st May 1924. It is the same set of properties that were comprised in both the mortgages. Four properties were mortgaged, one of them being a property that fell to the share of defendant 1 at the partition and the other three being those that were allotted to Appasami but were bequeathed by him to defendant 1.
4. Mr. Venkataramana Rao for the plaintiff has advanced several contentions. The gist of them is that all the four properties mortgaged to defendants 3 and 4 were joint family properties in which the plaintiff has an interest. These defendants do not admit that the plaintiff has any right in the properties taken by defendant 1 under the will of his uncle. Mr. Venkataramana Rao firstly urges that the partition of 1915 was intended only to separate Sethuram Pillai but that as between Appasami and the defendant 1 it was a sham and a pretence. Secondly, he urges that if there was a partition there was an immediate reunion between the defendant 1 and his uncle. He thirdly contends that granting there was a real partition the defendant 1 should be taken to have thrown into the hotchpot the properties taken by him under the will and that all the properties thus became joint family properties in which the plaintiff has an interest. He fourthly urges that the devise in favour of defendant must be taken to be in his character as the manager of the joint family consisting of himself and his son and that in this view again the plaintiff has an equal right with his father.
5. I shall postpone the consideration of these interesting questions to a later part of my judgment; for, in my opinion, it is unnecessary to deal with any of them as the case may be disposed of on the assumption that the properties jointly belonged to defendant 1 and the plaintiff. So far as the creditors, defendants 3 and 4 are concerned, their case rests on a very firm foundation and from their point of view the questions that have been raised can be only of academic interest. They have taken up this position.
Let it be granted that the properties are joint family properties but we are able to conclusively prove that the amounts we advanced were utilized for paying off the antecedent debts of defendant 1, the father. If this be so, the son is as much bound as the father by the mortgages in our favour.
6. This case has been proved to the hilt. Every rupee advanced by these creditors was required for, and utilized in paying off antecedent debts. (His Lordship then examined the evidence about the application of the money borrowed from defendant 3 and proceeded). I shall now turn to the case of Gillanders Arbuthnot & Co., defendant 4. Defendant 1, had, as I have said, dealings with them in timber. In dealing with the Defendant 3's case I have already referred to a decree obtained by this firm against defendant 1. They obtained two other decrees. On the 26th October 1922, they obtained a decree on a promissory note dated 10th November 1921, for about Rs. 1,10,000. Another decree was obtained on 20th September 1923, in C. S. No. 498 of 1923 for about Rs. 55,000. Application was taken out against defendant 1 for execution and for the balance of the decree amount then due to this firm the suit mortgage in their favour was executed by the defendant 1 acting for himself and as the guardian of his minor son. Thus we find that the consideration for the mortgage represents wholly an atecedent debt and the plaintiff in thus liable.
7. The facts which I have reviewed at some length establish (I) that the money paid by defendant 3 for his mortgage really went in discharge of antecedent debts and (2) that the consideration for defendant 4's mortgage represents an antecedent debt due to himself. Mr. Venkataramana Rao contends that a major portion of these antecedent debts is of the nature known as 'avyavaharika' and that the plaintiff is not, therefore, liable. Defendant 1 carried on a business in timber under the name of Burang & Co. and incurred several debts. The money advanced by defendant 3 was to some extent utilized in paying off these debts. The whole of the debt due to defendant 4 was incurred in the course of that trade. The contention is that defendant l's family was not a trading family and that if debts are incurred in trade which is commenced by the father, the son is not liable for them under the pious obligation recognized by Hindu Law. For this position he relies upon the text of Gautama which is to the following effect:
Money due by a surety, a commercial debt, a fee due to the parents of the bride, debts contracted for spirituous liquor, or in gambling, and a fine shall not involve the sons of the debtor.
8. It is significant that of the several texts that bear on this question the only text which gives the son exemption from payment of commercial debts is the text of Gautama. In my judgment in Ramasubramania Pillai v. Sivakami Ammal A. I. R. 1925 Mad. 841 I set forth all the texts that deal with this point. The word 'avyavaharika' occurs in the text variously attributed to Vysia and Usanas. That text is to the following effect:
The son has not to pay a fine or the balance of a fine or a tax (or toll) or its balance (due by father nor (avyavaharika or not vyavaharika) that which is not proper.
9. The word 'avyavyharika' has generally been rendered as illegal and immoral. Judges have from time to time attempted, to define this word and there has been some divergence of opinion; and after reviewing several cases, I. thus stated my view in the case to which I have made reference:
It is not every impropriety or every lapse from right conduct that stamps the debt as immoral. The son can claim immunity only when the father's conduct is utterly repugnant to good morals or is grossly unjust or flagrantly dishonest.
10. Judged by this text a trade is certainly not an 'avyavaharika' debt.
11. There is a large body of case law on the point but there is not a single reported decision where a commercial debt has been treated as an illegal or an immoral debt. In Nidavolu Atchutam v. Ratnaji A. I. R. 1926 Mad. 323 the question was for the first time raised. The Chief Justice and Vishwanatha Sastri, J., regarded the text of Gautama as obsolete and refused to treat trade debts as avyavaharika debts. It is impossible to believe that even in remote antiquity commercial debts were regarded as immoral debts. Trade is enjoined as a duty in the case of one of the three higher castes and it is incompatible with that notion to regard commerce as degrading. The very fact that out of so many texts, the solitary text of Gautama alone can be cited in support of this theory shows that the rule enunciated by him did not correctly reflect the prevalent opinion even of his day. It is unnecessary to speculate further regarding this; for the law on this subject is after all Judge-made law and no modern Court would tolerate the proposition that to engage in trade is a sin and that a debt incurred in trade is an immoral debt.
12. In the present case, it is unnecessary to base my judgment on any such general ground. The question may arise in two ways: the creditor may seek to make the debt binding upon the son, because the father incurred it for family necessity or benefit. If the debt in such a case is a trade debt the son may plead that the family not being a trading family the debt is not binding upon him. Though, in my opinion, such a plea is unsustainable, the question does not pointedly arise at present. The case under consideration is not a case of this description. It belongs to the second category, that is, the creditor may seek to show not that the debt was incurred for a family purpose but that the amount advanced went in discharge of an antecedent trade debt. The son's obligation comes into being owing to an entirely different rule. The test is not that the debt was incurred for a family purpose but for discharging an antecedent liability. The only question then is: Is the antecedent debt of an illegal or immoral nature? The fact that it arose out of trade cannot bring it within the description of immoral and illegal debts. I, therefore, find on this point against the plaintiffs. Before concluding this part of my judgment I must point out that the cases that lay down that the manager of a Hindu family cannot start a new trade are for the present purpose beside the point. We are here concerned not with a manager but with a father and, moreover, as I have pointed out, we are not concerned with the father raising money for the benefit of the family but with his payment of an antecedent debt.
13. I have up till now dealt with the case making the assumption on behalf of the plaintiff that in spite of the partition, Appasami and Veeraperumal held their properties as joint family properties. So far as the creditors are concerned, in the view I have taken, they are not interested in the other questions that have been raised. But I shall now examine the soundness of the position taken up by the plaintiff that, in spite of the partition his father and Appasami continued to remain joint. (After dealing with the evidence his Lordship proceeded.) The presumption in law is against reunion. Mayne observes in para. 497 of his Hindu Law:
As the presumption is in favour of union until a partition is made out, so after a partition the presumption would be against a reunion. To establish it, it is necessary to show, not only that the parties, already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of forming a joint estate with all its usual incidents.
14. The evidence is clearly insufficient to show either that the partition was a mere sham or that there was a subsequent reunion. (His Lordship then dealt with the evidence on the point of reunion and continued.) The next contention of the plaintiff is that, although the bequest is in terms to Veeraperumal only, it should be held to enure to the benefit also of his undivided son, the plaintiff. I cannot see my way to accept this contention. There has been a great diversity of opinion on the question whether when a bequest is made by a father to his son such property is held by the latter as his separate or ancestral property. Then again, there has been a conflict of opinion as to whether a property bequeathed by a father to his sons is taken by them as joint tenants or tenants-in-common. The Judicial Committee in Lal Ram Singh v. Deputy Commissioner of Partabgarh A.I.R. 1923 P. C. 160 review the decisions of the various High Courts and point out that there has been divergence of opinion; but they do not state their own view and leave the question open.
15. In Nagalingam Pillai v. Ramchandra Tevar  24 Mad. 429 it was laid down that if there were no words indicating a contrary intention, the inference should be that the father intended his sons to take his property as their ancestral estate. The exact opposite of this was held in Yethirajalu Naidu v. Mukuntha Naidu  28 Mad. 363 where the learned Judges observed that in the absence of express intention the sons take in severalty and not as joint tenants. I may point out that in Madras the weight of authority is in favour of the view taken in Nagalingam Pillai v. Ramchandra Tevar  24 Mad. 429 but it is necessary to remember that the question arises in this case in a different form. It is not a bequest by a father to his sons. It is, on the contrary, a bequest by an uncle to his nephew. In the case of a father's separate proparty when the sons take it by inheritance they take it as ancestral property; that is to say, their male issue acquire in it a right by birth. The law presumes that a Hindu who gifts or bequeaths his property does not intend to alter the incidents of the property devised or gifted. If in the case of inheritance the property is taken as ancestral proerty, why should it be presumed that it is taken as separate property merely because there is either a will or a gift? It is on this principle that the Courts have laid down that when the bequest or the gift is in -favour of the sons they should prima facie be held to hold the property as joint family property.
16. I am not now concerned with the correctness of this rule, but I see no reason which would justify me in extending it. When the property is taken by gift or will from a stranger or from a collateral relation, there is no warrant for making the presumption that it is taken with the incidents of joint family property. On this point I agree with the decision of Kumaraswami Sastri, J., in Janikram Chetty v. Nagamony Mudaliar A. I. R. 1926 Mad. 273 Take the case of a collateral relation. If his property was taken by the father by inheritance, the son would have no right in it by birth. Why should he have a higher right merely because the father takes it not by inheritance but under a gift-deed or a will? This is the distinction pointed out by Kumaraswami Sastri, J. and I am disposed to take the same view. In the present case, if Appasami Pillai had died intestate the property would have been taken by Veeraperumal as well as Sethuram to the exclusion of the plaintiff. The very fact that by the will he alters the course of descent shows that it was not his intention that the property should be taken as joint family property. Turning to the will itself (for in each case, it is a question of construction of the instrument) its recitals show that he intended that his nephew should take it as his absolute property. There is no reference to the plaintiff, and if the testator intended that he should have an interest, there was nothing to prevent him from clearly expressing that intention. I, therefore, find this point also against the planitiff.
17. On these findings it follows that the plaintiffs can have a decree for partition only in respect of items in Part I of Sch. B to' the plaint, and I accordingly pass a preliminary decree to that effect. This right of the plaintiff is of course subject to the mortgage of No. 74 Varada Muthiappan Street, item 3 of Part I in favour of defendants 3 and 4 The Official Assignee does not object to this decree being passed. In other respects, the suit is dismissed.
18. For passing a final decree the case is adjourned till the administration of the estate by the Official Assignee is completed.
19. The plaintiff has really failed in the action, The minor relief he has obtained is really not the one for which he has filed the suit. I must direct him to pay the costs of defendants 3 and 4 (two sets). I do not think the Official Assignee is entitled to any costs. Defendant 3 is a receiver appointed by Court, representing an estate, and he is allowed to charge his estate with actual out-of-pocket expenses including the fee paid to his vakils as between party and vakil. The fee for this purpose is fixed at Rs. 2,400 for the senior vakil and Rs. 800 for the junior. The fee for translating the partition-deed, Rs. 32 shall be paid by defendant 3, and he may include the same in the costs to be recovered against the plaintiff.
Ruling on an application made by the plaintiff for filing certain account books.
20. Mr. Venkataramana Rao, the learned vakil for the plaintiff wants to file three account books. Objection is taken on behalf of the contesting defendants, that these books were not disclosed by the plaintiff's next friend, that they have had no inspection of them, and that I should, therefore, not admit them in evidence. Mr. Venkataramana Rao, at an earlier stage, explained that the next friend did not file an affidavit of documents as he had no documents to disclose. The latter was examined yesterday and he had no explanation to offer as to how these account books came to be produced at such a late stage. I may mention that Mr. Venkataramana Rao himself says that he had not seen the account books till about the time the case was opened.
21. I at first thought that I might condone negligence if there was at least honesty on the part of those instructing the plaintiff's vakil but they wilfully suppressed several other account books. The entries in the day books now produced show that ledgers were maintained and this is admitted by Kolandavelu Mudali, the clerk. The object of the plaintiff in seeking to file these books is to show that all the properties were treated alike and that rents from all of them were brought into the same account, But the question becomes pertinent: What were the amounts that were carried to the account of Veeraperumal and what to the account of Appasami? How were the accounts maintained as between themselves? The entries in these books show that there were dealings between them inter se. The ledgers are thus very important, and I am satisfied that they have been wilfully withheld. I cannot show any indulgence to the plaintiff who, while he produces these books at this late stage, is not honest enough to produce all the books. In fact he desires to file such books as he thinks may help him and keep back others. Kolandavelu has been asked several questions by the plaintiff's vakil and by myself as to the circumstances in which these books are now produced in Court. His answers in the witness-box, it is said, do not tally with his statements made in the proof he gave to Mr. Venkataramana Rao, and there is very little doubt that, so far as his evidence before me is concerned he has been prevaricating.
22. I am, therefore, not satisfied that there is any good reason for the next friend not having disclosed these books. As I am also of the opinion that some other account books which have a material bearing have been kept back and that the effect of those that have been produced will be to mislead, in the absence of those that are withheld, I must accede to the defendants' contention and rule out those books. I must add that I was prepared to allow the books to be filed provided the plaintiff produced the other books also which were admittedly maintained. As he says he cannot produce them my ruling must be against him.