1. This appeal arises out of a mortgagee's suit for sale. The mortgage sued on (Ex. A) was executed in 1925 by defendant 1 for himself and as guardian of his five minor sons. Defendant 2, the eldest son, attained majority during the pendency of the suit and by the written statement filed on behalf of the minor sons, questions were raised as to the binding character of the mortgage as against the interests of the sons in the mortgaged property. The mortgage was for a sum of Rs. 4,000. Objection was taken particularly in respect of two items of consideration, viz. a sum of Rs. 2,242 directed to be paid by the mortgagee to one Manicka Pillai who had obtained a decree against the father in Order Section No. 30 of 1921 on the file of the Court of the Trichinopoly Subordinate Judge's Court and a sum of Rs. 960-12-0 left with the mortgagee to be paid to a Nattukottai Chetti from whom money had been borrowed by defendant 1 on a promissory note (Ex. F) dated 9th October 1923. It was contended that the father had no necessity to borrow at all and had been leading an immoral life and that the moneys due both under the decree in O.S. No. 30 of 1921 and under the promissory note Ex. F had been borrowed for and applied to immoral purposes.
2. With reference to the decree debt, a further contention was raised on the strength of what happened during the pendency of O.S. No. 30 of 1921. In the first instance, the sons had also been impleaded as defendants in that suit. But on 12th July 1921, the pleader who appeared for that plaintiff endorsed on the plaint that he exonerated the sons. It is somewhat difficult to understand the reason given for the exoneration. It seems to be the opposite of a reason given for exonerating them. The result was that defendants 2 to 4 were treated as having been given up by the plaintiff and a decree was passed only against defendant 1 in that suit. It has been argued that, the decree in Order Section No. 30 of 1921 must be read as having impliedly negatived the liability of the sons for the amount then claimed and that their interests in the family property could no longer be made liable for that decree debt. The contentions above referred to, advanced on behalf of the sons, were overruled by the lower Court. Hence this appeal, by defendant 2.
3. In answer to the contention based on what happened in Order Section No. 30 of 1921, we may observe that it is not possible to hold that Section 11, Civil P.C., has any application to the circumstances of this case. Expln. V to that section can be invoked only in respect of any adjudication made by the Court. The fact that the plaintiff 1 who in the first instance asked for a decree against the joint family property so far as the interests of the minor sons therein were concerned, subsequently withdrew his claim as against them, can only bring the case under Order 23, Rule 1, Civil P.C. The result of such a withdrawal is not to bring in the operation of the rule of res judicata embodied in Section 11 but only to entail the statutory penalty enacted in Order 23, Rule 1, itself, viz. that no fresh suit can be instituted against those defendants on the same cause of action. It cannot therefore be said that anything that happened in Order 8. No. 30 of 1921 amounted to an adjudication, whether express or implied, that the sons are not liable in respect of the claim in that suit.
4. As regards the contention that the father's debts were incurred for immoral purposes, no serious attempt has been made before us to prove that plea in respect of the amount of the claim in O.S. No. 30 of 1921. The attack of the learned counsel of the appellant under this head has been directed mainly against the sum due under Ex. Rule The plea of immorality in respect of it rests on the evidence of D. Ws. 1 and 5. The learned Subordinate Judge has given good reasons for not accepting that evidence. D.W. 1 was summoned on the plaintiff's side because he was one of the attestors to the payment made by the plaintiff in satisfaction of the claim under Ex. F He preferred not to attend Court in answer to that summons and appeared later as an unsummoned witness on the defendant's side. His story by itself is not by any means easy to believe; on the other hand both 1). Ws. 1 and 5 admit that the father was at that time carrying 6n business as an abkari contractor. It is significant that Ex. F is executed not merely by the father but also by the maternal uncle of the minors. If as the witnesses would have it, the father was leading such an immoral life as practically to stay away from his wife, it is scarcely likely that the maternal uncle would have joined in a transaction of borrowing money for payment to the alleged concubine of the father. In this view, it is not necessary to consider the further point raised before as whether even if the loan had really boon applied to an immoral purpose, it was incumbent upon the sons to go furthor and prove that the lender was aware of the intended immoral purpose. We may also point out that in the present suit we are concerned not with the rights of the original lender but of a person from whom money was subsequently borrowed under an independent transaction, part of the money thus borrowed being utilized to pay off the alleged original immoral debt.
5. In Suraj Bunsi Iswar v. Sheo Pershad Singh (1880) 5 Cal 148 the Privy Council held that when a father conveys ancestral property to raise money for payment of an antecedent debt, the sons can get their share released from such conveyance only on proof that the antecedent debt was immoral and also that the purchaser was aware that it was so. In Savumian v. Narayanan Chettiar AIR 1914 Mad 244, this observation was held to be limited to a purchaser and not to be applicable to a mortgagee. It is unnecessary in this case to consider whether that distinction is well founded, because even the learned Judges who decided Savumian v. Narayanan Chettiar AIR 1914 Mad 244 were prepared to hold that if the mortgagee had made reasonable enquiries and acted bona fide, the validity of the mortgage would not be affected by the impropriety of the original loan which was paid off [with the money borrowed under the mortgage. Applying that test to the present case, we are satisfied that the plaintiff here has acted in perfect good faith and as a prudent man. The main portion of the consideration was required to stave off impending sale of the family property in execution of the decree in O.S. No. 30 of 1921; and the mortgage transaction was entered into by the father with the knowledge of all the relations interested in the minor sons as shown by the fact that the mortgage document is attested by defendant 1's elder brother, by defendant 1's wife and the wife's brother. We therefore see no reason to differ from the conclusion of the lower Court that the mortgage is binding on the interests of the minor sons as well.
6. A point was raised in respect of a sum of Rs. 90 which was remitted by the decree-holder in O.S. No. 30 of 1921, and it was contended that the mortgagee should have applied it in reduction of the mortgage debt and not paid it over to defendant 1. We see no force in this point. In making a payment to the decree-holder the mortgagee was only acting as the agent of the mortgagor and when the mortgagor insisted upon the remitted amount being paid over to him, the mortgagee had no legal right to resist that claim. Finally, a question was raised as to the rate of interest to be allowed to the plaintiff. The document provided for 13 per cent, on regular payment, for 18 per cent, in the event of default in the regular payment of interest, and for 24 per cent, on default of payment of the principal on the stipulated date. In the plaint, interest was claimed at 13 per cent, up to a particular date and at 21 per cent, from date of default. The learned Subordinate Judge rightly held that the provision for 24 per cent, interest was penal. It is not clear whether he held that the 18 per cent, also was penal. Anyhow he has awarded only simple interest at 15 per cent, throughout. It is not possible to say that the award is unreasonable or one that we will be justified in interfering with in appeal. The appeal fails and is dismissed with costs of respondent 1. The appellant will pay to Government the court-fees due on the memorandum of appeal.