1. I agree with the judgment which my learned colleague has prepared and will now deliver.
Abdur Rahim, J.
2. The appellant as plaintiff in the suit seeks to recover the Oveli zamin, a small impartible zemindari, which belonged to his ancestors and was sold in 1869 at a Court-auction during the lifetime of his father and purchased by one Chidambaram Chettiar, the 1st defendant's father. It was in execution of a decree obtained by Chidambaram Chettiar himself in a suit (Original Suit No. 10 of 1866) that the sale took place The plaintiff's father died on the 24th January 1894 and the present suit was instituted on 23rd January 1906 just on the last day of the 12 years since the plaintiff's father's death. The Subordinate Judge, having found on the main issues on the merits against the plaintiff, dismissed the suit. By the third issue, the plaintiff raised the contention that the zemindari in question was inalienable by custom but the finding of the Subordinate Judge on this point, which is against the plaintiff, has not been contested before us. It could not be and has not been disputed that the debts, to satisfy which the sale took place, were binding on the last zemindar and, as the alleged custom of inalienability has not been established, there can be no doubt that the zemindari of which the plaintiff's father was the full owner, according to the law as well settled in this Presidency by the Pittapur case, Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards 26 I.A. 83 following the decision of Sartaj Kuari v. Deoraj Kuari 15 I.A. 51 was liable to be sold absolutely in execution of the 1st defendant's father's decree. The whole of the argument, therefore, addressed to us by the learned Vakil for the appellant is concentrated on the question: 'What was in fact sold under the decree?' He contends that what was sold was not the entire proprietary interest of the zemindar which he actually possessed in the zemindari but a mere life-interest. The argument is, that the decisions of this Court showed that the law, as interpreted in this Presidency up to 1869, was that an impartible zemindari was inalienable except during the zemindar's life and as under the sale certificate, 'the right, title and interest' of the plaintiff's father was the subject of sale, we must presume that what was intended to be sold and was in fact sold was the zemindar's life interest. He has also contended that the debts embodied in the decree in Original Suit No. 10 of 1866 have not been proved to have been incurred for proper or necessary purposes and that the doctrine that a Hindu son was liable for the debts of his father, which were not shown to have been incurred for illegal or immoral purposes, had no vogue in this Presidency until 1881,--i.e., long after the sale in question in this case, when a Full Bench of this Court in Ponnappa Pillai v. Pappuvayangar 4 M.K 1 held that the principle of the Privy Council ruling in Girdharee Lall v. Kantoo Lall 14 B.L.R. 187 was applicable.
3. In dealing with these contentions, we must bear in mind that, as pointed out in Abdul Aziz Khan v. Appayasami Naicker 8 C.W.N. 186, the question what the Court intended to sell and what the purchaser understood that he bought, is one of fact or rather of mixed law and fact and must be determined according to the evidence in the particular case and, as observed in Veerabadra Aiyar v. Marudaga Nachiar (1910) 1 M.W.N. 799in investigating this question the Court is not confined to any one fact. What is to be gathered from the numerous decisions on the subject which are summarised in the last mentioned case is that the character of the debt, the terms of the sale-certificate which formed the contract of the parties, the law as interpreted at the time of the sale, the frame of the suit, the judgment and decree, the execution proceedings, the advertisements for sale, the adequacy or inadequacy of the purchase-money and the conduct of the parties are all circumstances which may legitimately be considered in an inquiry of this nature and no single circumstance can be regarded as conclusive by itself.
4. As regards the state of the law in this Presidency in 1869, it was, undoubtedly, held by the Courts that a holder of an impartible zemindari was not its full owner and did not possess absolute powers of alienation. This interpretation of the law prevailed down to 1889 when, in Beresford v. Ramasubba 13 M. K197 Muthuswamy Iyer and Wilkinson, JJ., felt themselves bound by the ruling of the Judicial Committee in Sartaj Kuari's case 10 A.D 272, which laid down the law otherwise. Bat it is not shown to have been the law in this Presidency that the zemindar for the time being had no powers of alienation in any circumstances, that is to say, he had not the same powers of disposition over the carpus of the estate as the head of an ordinary joint Hindu family governed by the Mitakshara. In Beresford v. Ramasubba 13 M.K 197 the learned Judges observe: 'Thus, the principle, which has hitherto guided the Courts in this Presidency, as supported by the observations of the Judicial Committee, has been this,--that when an estate is shown to be impartible by custom, the general law is superseded only to the extent of excluding the right of partition and of joint enjoyment, and the Mitakshara law governs the disposing power of the co-parcener in sole possession over the corpus of the estate. But this view of the law was overruled by the Privy Council in the case of Sartaj Kuari v. Deoraj Kuari 10 A.F 272' When the applicability of the decision in Sartaj Kuari's case 15 I.A. 51 was questioned before the Judicial Committee of the Privy Council in the Pittapur case 26 I.A. 83 on the ground that in the Madras Presidency a general custom of inalienability of impartible zemindaris existed apart from the law of the Mitakshara as evidenced by a long series of decisions, their Lordships reviewed all the cases down to Beresford v. Ramasubba 13 M.K 197and came to the conclusion that 'this custom now relied upon did not modify the law. It had no force independently of the law.' In commenting on the prior decisions of the Madras High Court, Raja Enooganty Sooriah v. Raja Venkata Niladri Row (1882) 3 Knapp 27 Viswasa Ramiah v. Vahidally Beg (1849) Mad. & Dec. 51; Sree Sree Ramachandra Sur Harischandra v. Jaganadha Jagapathi Narayana Deo (1861) Mad. Dec.162; Subbarayulu Nayak v. Rama Reddi 1 M.H.C.R. 141; Malavaraya Nayanar v. Oppay Ammal 1 M.H.C.R. 349; Narayanga Devu v. Harischandana Devu 1 M.H.C.R. 455; Chintalapati Chinna Simhariraj v. Zemindar of Vizianagaram 2 M.H.C.R. 128; Gavuri Devamma Garu v. Ramanadora Garu 6 M.H.C.R. 93and Pareyasami v. Saluckai Thevar 8 A.W.N. all of which, except the last two cases, proceeded upon the terms of Regulation XXV of 1802, their Lordships, with reference to the view expressed by Holloway, J., in Chintalapati Chinna Simhariraj v. Zemindar of Vizianagaram 2 M.H.C.R. 128 upon which much reliance has been placed by the learned Vakil for the appellant as showing that the law at the time was that a zemindar had no power of alienation beyond his life-time, observe: 'In that, it was held by the High Court of Madras that the ratio decidendi of all the cases down to the two latest, clearly was that a zemindar under the permanent settlement had really an estate analogous to an estate tail as it originally stood upon the statutes de donis. This was introducing in the Law of the Madras Province what is said in Jotindra Mohan Tagore v. Ganendera Mohan Tagore L.R.IndAp Sup. 47to be a novel mode of inheritance inconsistent with the Hindu Law.' These observations of the Judicial Committee are conclusive to show that the law of this Presidency was not even in the earlier days that a zemindar's estate was analogous to an estate tail as it originally stood upon the statute ds donis, as was wrongly stated in the case reported as Chintalapati Chinna Simharirai v. Zemindar of Vizianagaran 2 M.H.C.R. 128. Besides neither in that nor any other decision of that period, as I read them, does it appear to have been held that apart from the enactment embodied in Regulation XXV of 1802, a zemindar holding an impartible zemindari could not for legitimate family or other necessary purpose make an alienation binding upon his successor. On the other hand, in Gavuri Devama Garu v. Ramandora Garu 6 M.H.C.R. 93 what was laid down with reference to impartible zemindaris was that 'the unity of the family right to the heritage was not dissevered anymore than by the succession of co-parceners to partible property, but the mode of its beneficial enjoyment was different,' and in Pareyasami v. Saluckai Tevar 8 M.H.C.R. 157 it was distinctly stated that 'He (the zemindar) should be regarded as possessing only the qualified powers of disposition of a member of a joint family with such further powers, or it may be with such restrictions, as spring from the peculiar character of his ownership and that these powers fall short of a right of absolute alienation of the estate.' Then, as to what is the exact nature of a zemindar's estate in an inalienable zemindari according to those decisions, the Judicial Committee observed that there was a remarkable divergence of views in those judgments which deprived them of much authority. [The Pittapur case 22 M.K 383 the Judicial Committee was again called upon to declare what was the law in Madras with respect to impartible zemindaris before 1889 and they say at page 142: 'As regards the law of the matter in 1873-76, when the sale took place, it was the accepted law in Madras that the holder of an impartible zemindari, who was himself a member of an undivided family, could not alienate or encumber the corpus of the estate so as to bind his co-parceners except for justifiable especial causes. Prior to 1889, there had been a series of decisions to this effect in the Madras Courts, but in that year, following the judgment of the Judicial Committee in the case of Sartaj Kuari v. Deoraj Kuari 10 A.K 272 the High Court of Madras overruled those decisions. Beresford v. Ramasubba 13 M.K 197.' This leaves no room for doubt in the matter but it is suggested on behalf of the appellant that their Lordships' statement refers to the period between 1869 and 1873 and not to the state of law in 1869. It is, however, clear that the Judicial Committee did not mean to confine the scope of their observations to that period and that there is nothing to support this suggestion that there was a radical difference in the interpretation of the law during that period and what preceded it to the effect that up to 1869, the law was that a zemindar of an impartible zemindari in this Presidency could not, according to the Hindu Law, alienate the corpus of the estate even for such causes as would justify an alienation by the manager of a joint family, that the law was the reverse of this since 1869. The decision of the High Court in Gavuri Devamma Garu v. Ramandora Garu 6 M.H.C.R. 93 was in 1870 and if that was not quite in accord with the cases referred to in Subbarayulu Nayak v. Rama Reddi 1 M.H.C.R. 141; Malavaraya Nayanar v. Oppay Ammal 1 M.H.C.R. 349 Narayanya Devu v. Harischandana Devu 1 M.H.C.R. 455; Chintalapati Chinna Simhariraj v. Zemindar of Vizianagaram 2 M.H.C.R. 128 all that could be said was that there was a divergence of views about that period as to the rights generally of a holder of a zemindari and not that it was the established interpretation of the law in 1869 that he could not make an alienation even for 'justifiable especial causes.' The proper conclusion then, as already stated, is that in 1869, the law was that the zemindar was not possessed of absolute powers of disposition over the corpus but that apart from the necessity of conformity to the requirements of any special regulation, such as Regulation XXV of 1802, he was, like any other head of a co-parcenary, competent to bind the estate by debts incurred or alienations made for purposes which are regarded by the Mitakshara Law as proper and justifiable. It is then contended that in any case in 1869 the law in this Presidency was not that a Hindu son was bound to pay his father's debts unless he could show that they were incurred for illegal or immoral purposes and that this proposition established by Girdharee Lall's case 14 B.L.R. 187 was not adopted in Madras until the Full Bench decision of Ponnappa Pillai v. Pappuvayyangar 4 M.K 1. The Privy Council had to consider this question in the Sivagiri case, Muttayan Chetti v. Zemindar of Sivagiri 6 M.I.A. 1 and their Lordships observe that the doctrine laid down in Girdharee Lall's case 1 I.A. 321, was not new but supported by previous decisions and they held that there was no ground for the opinion that that did not apply to the Madras Presidency. And when one looks to the judgment of the learned Judges in the Full Bench case of Ponnnppa Pillai v. Pappuvayyangar 4 M.K 1 I do not think that it can be said to be clearly made out that the law in this Presidency was recognised by the Courts to be different from what is stated to be the law in Girdharee Lall v. Kantoo Lall 1 I.A. 321 In Ponnappa Pillai v. Pappuvayyangar 4 M.K 1 Chief Justice Turner observes (at page 52) that he did not 'understand the other learned Judges, who felt themselves unable to accept the law declared by the Privy Council, to assert the existence of any immemorial usage at variance with the law' and points our that no ruling of the Madras Court to the contrary was cited at the Bar except a decision of Mr. Justice Muthusawmy Iyer, which was then under appeal to the Privy Council, that is the case, it may be mentioned, which was the subject of decision in the Sivagiri's case 6 M.I.A. 1 already referred to No doubt, Mr. Justice Kindersley said that the cases of Girdharee Lall v. Kantoo Lall 1 I.A. 321 and Jotindra Mohan Tagore v. Gonendra Mohan Tagore 9 B.L.R. 277 appear to imply that the son was responsible for his father's debt even in the life-time of the father and that this doctrine was new to this part of India. However that may be, he does not say that the doctrine that the son was under obligation to pay his father's debt after the latter's death was not recognised in this Presidency. In any case, even Mr. Justice Kindersley does not lay down that the law respecting the liability of a Hindu son for his father's death was different here from that which obtained in the other Presidencies, and he points out that for many years, there had been no decision here directly on the point. And in fact no decision has been cited to us which laid down the law, otherwise than as enunciated in Girdharee Lall's case 1 I.A. 321 at the time of the sale in question in the present case. Further, when the father occupies the position of the manager of the family, and in this case the plaintiff's father had at least that status, if not something higher, the essential difference in the law with respect to the liability of the son as a co-parcener for his debts and that of any other coparcener relates substantially to the onus of proof. In the case of the son, the burden is on him of showing that the debt was incurred for illegal or immoral purposes, while in the case of the other co-parceners, the creditor has got to prove that the debt was incurred for proper or necessary purposes. It is not necessary to determine in this case, apart from the onus of proof, the exact nature of the difference between a debt or alienation which is not shown to have been incurred or made for illegal or immoral purposes and a debt or alienation which is proved to have been contracted or made for a proper or necessary purpose, because I have come to the conclusion that the debts, which were paid off by money borrowed under Exhibit XIV, were incurred by the plaintiff's father for necessary purposes. What I wish to point out here is, that the doctrine enunciated in Girdharee Lall's case 1 I.A. 321 in so far as we are concerned with it in this case, is one relating to the question of onus of proof, and such a question is obviously one to be determined only at the time of trial. So even if it were the fact that at the time of the sale of this zemindari, the onus was upon the alienee to make out that the alienation was made for a binding purpose, that cannot affect the way in which the matter was to be tried at the date of this suit.
5. The most important point for consideration in the case is, whether the finding of the Subordinate Judge that the debts, which ultimately led to the sale of the zemindari, were incurred for necessary and proper purposes, is correct. I have come to the conclusion that it is. The Subordinate Judge has exhaustively dealt with the matter in paragraphs 19 to 56 of his judgment and I do not consider it necessary to enter into any detail.
6. The clear outstanding facts are, that the plaintiff's father at the very outset had to incur the expanses of a heavy litigation to secure possession of the zemindari and for that purpose contracted debts of a very large amount and when he did, at last, recover the zemindari, he apparently recovered very little--if any thing at all--in the shape of mesne profits. As a result of the suit for possession, he had to grant a long lease of it for a very small rent. Then he either instituted other suits himself or had to defend suits instituted by other parsons and the expenses of all these suits along with the expenditure on the occasion of marriages in the family, including his own after his first wife's death and those of his brothers and daughters, considerably swelled the debts he had to incur at the very beginning of his career. These debts are proved by bonds and razinama decrees passed on bonds executed by him to the different creditors. All the papers connected with those decrees are not available at this distant date, but, as found by the Subordinate Judge, there is evidence, as I have already stated, showing that the debts were borrowed under pressure of necessity. At the date of Exhibit XIV, which is the simple bond executed on the 18th August 1863 in favour of Venkatachalam Chettiar by the plaintiff's father, the debts amounted to Rs. 49,000 and it was with this sum for which Exhibit XIV was executed, that the previous debts were discharged. It is suggested that the plaintiff's father was not right in instituting or defending many of the suits in which he was engaged and which ultimately resulted in decrees against him. But in the first place, the materials before us do not enable us to come to any definite conclusion on the point; and in the next place, if the plaintiff's father unwisely or imprudently engaged in certain litigations, or if he was somewhat extravagant in expenditure in connection with the marriages, that is to say, if the debts, most of which were evidenced by razinama decrees, were to any extent the result of imprudence or mismanagement, it could not be said that Venkatachalam Chettiar, the predecessor-in-title of the present defendant, who advanced the money to discharge those debts, was under an obligation to inquire to what extent the debts could by proper management have been avoided, if, as there can be no doubt, those debts constituted a pressing demand which had to be met. It has not been shown that the zemindar could have paid off his liabilities out of the income of the zemindari. In the usual course of procedure in those days, a razinama decree was obtained on Exhibit XIV by which the zemindari was mortgaged to the plaintiff for Rs. 51,000 odd, which included a sum of Rs. 1,715 for interest and costs in addition to the sum of Rs. 49,000 mentioned in Exhibit XIV. The plaintiff attempted to show that his father was addicted to vices and that some of the debts, at any rate, were incurred for making large presents to nautch girls and in connection with cock and ram fights. Bat I agree with the Subordinate Judge that though it is possible that the plaintiff's father's character was not all that was desirable, there is really no evidence to connect his debts with necessities arising out of vicious and immoral indulgences. In this connection, I may say that the estimate, of the Subordinate Judge, of the income and value of the property is not shown to be wrong. That matter is dealt with in paragraphs 63 and 64 of the judgment. The finding of the Subordinate Judge that a net income of the zemindari at the time of the sale in 1869 was not more than about Rs. 55,000 is amply justified by the evidence and is not in fact seriously challenged. The zemindari was sold for Rs. 97,000 and having regard to the fact that lands have since then gone up very much in value and the prices obtained at the time for similar lands in the zemindaris in the neighbourhood, there can be no doubt that that figure would represent the proper value of the fall and absolute interest in the zemindari supposing that was what was sold now. The debts having been incurred for necessary purposes and the law at the time being that the absolute interest in the zamindari was liable to be sold for such debts, the only question is, what was in fact sold. The sale price, as I have said, was equal to the full value of the zemindari and the sale took place in execution of a mortgage decree by which the entire zemin was liable to be sold and not merely an interest terminable with the life of the zemindar, and if we look at the proceedings in execution, they also show that it was the absolute interest in the zemin that was put up for sale as is apparent from accounts of attachment, and sale proclamation (Exhibits 17 and 17A). With regard to the oral evidence on the plaintiff's side as to what is alleged to have been said by the officers of the Court and other persons at the time of the sale, there can be no doubt that the Subordinate Judge was right in refusing to act upon it.
7. Much reliance is placed by the learned Pleader for the appellant upon the fact that the sale certificate, Exhibit XVIII, mentions that the right, title and interest of the defendant in the suit in the zemindari, is sold as indicating that only his life-interest was sold. It has been repeatedly pointed out that such a description is not inconsistent in any way with the sale of all the interest which the debtor had power to dispose of under given circumstances. See Abdul Aziz Khan v. Appayasami Naicker 8 C.W.N. 186. I may also mention that it is proved by evidence that in 1869, apart from the decisions of the Courts, sale of zemindari lands was not in fact confined merely to an interest terminable with the life of the zemindar for the time being. Then, we have it that the debts which led to the sale were incurred for necessary purposes and the corpus of the zemindari was liable to be sold for such debts in 1869 when the sale actually took place. By the razinama decree passed on the bond Exhibit XIV by which the previous debts were paid off, the absolute interest in the zemindari was hypothecated and made liable to sale. The execution proceedings show that such interest and not merely an interest limited to the life of the zemindar was attached and notified for sale and the price paid was the full value of the zemindari supposing that the absolute interest in it was sold. These facts are to my mind conclusive to show that what was in fact sold was the entire interest in the zemindari. It is not, therefore, necessary to consider whether Section 373 of the Civil Procedure Code would be a bar to the suit because the plaintiff had instituted in his father's life-time another suit, asking for a declaration that the sale did not affect his interest, and when withdrawing the suit, he did not obtain permission of the Court to institute another suit. But I may say that, in my opinion, the present suit is based on a substantially different cause of action, the plaintiff being now, if his allegations were made out, entitled to possession of the zemindari, while in the life-time of his father his only interest was a mere chance of succession. I am doubtful if such interest was sufficient to sustain the suit, though I do not express any definite opinion on the point.
8. The judgment of the learned Subordinate Judge must be confirmed and the appeal dismissed with costs.