P. R. Gokulakrishnan, J.
1. The 7th and 9th defendants are the appellants in Second Appeal No. 360 of 1971. It concerns with item 4 of the suit properties. The 8th and 20th defendants are the appellants in Second Appeal No. 389 of 1971 and it concerns with items 2, 3 and 7 of the suit properties. Defendants 26 and 31 are the appellants in Second Appeal No. 1363 of 1971 and it concerns with items 13, 14 and 18 of the suit properties. The suit is for partition and possession of the plaintiff's 1/5th share of the suit properties and for recovery of future mesne profits from defendants 7 to 31. The plaint allegations are that the suit properties are the properties of the joint family consisting of the first defendant and his sons who are the plaintiff and defendants 2 to 4. They are entitled to a one-fifth share each. The fifth defendant is the daughter and the sixth defendant is the wife of the first defendant. The sixth defendant has got a right of maintenance and fifth defendant has got a right of maintenance till her marriage. The first defendant and his brothers partitioned the properties by two partition deeds. The suit properties and other properties fell to the share of the first defendant. The income from the properties and other properties per year was two hundred kottahs of paddy, ten kottahs of gingelly, ten kottahs of cholam, one kottah of blackgram and ten pothis of cotton worth Rs. 2,000. There was no debt to the family. A huge amount could be saved from the income from the properties. But the first defendant was leading an immoral life. He was taking liquor and having illicit connection with other women. He was a gambler. His sons were minors. He has alienated the properties fraudulently without any family necessity. He has executed benami sale deeds. They are not supported by consideration. The plaintiff and defendants 2 to 4 were not benefited by the said transactions. They are not binding on the plaintiff and defendants 2 to 4.
2. The first defendant remained ex parte. The 22nd defendant was exonerated. In the written statement filed by defendants 2 to 6 they contended that the plaint allegations are true and that they have paid Court-fee for partition of their shares. The alienations according to these defendants made by the first defendant are not binding on defendants. 2 to 4. A sum of Rs. 8,000 is required towards the marriage of the 5th defendant. The sixth defendant is entitled to maintenance and a sum of Rs. 100 each per month is required towards maintenance of each person. 3/5th share of defendants 2 to 4 may be partitioned and a charge may be created with regard to the marriage of the 5th defendant and the maintenance of defendants 5 and 6.
3. As regards the alienees who are from defendants 7 onwards, they inter alia contended that the sales effected and the debts incurred by the first defendant who is no other than the father of the plaintiff and defendants 2 to 5 are for family necessities and to discharge antecedent debts, that the minors were benefited by such transactions and that the sales effected and debts incurred by the first defendant were not for illegal or immoral purposes.
4. The trial Court, after elaborately discussing the evidence on record came to the conclusion that the first defendant was not having any immoral connections with other women as alleged by the plaintiff or incurred the debts for illegal purposes. As regards, the binding nature of the debts, the trial Court came to the conclusion that the debts incurred by the father of the plaintiff are binding upon his minor sons.
5. Aggrieved by the decision of the trial Court, the plaintiff preferred an appeal to the Sub-Court, Tirunelveli. The Subordinate Judge, Tirunelveli came to the conclusion that the alienees have not discharged their burden of proving that the sales effected and the debts incurred by the first defendant were for family necessity and also to discharge the antecedent debts. With these observations the lower appellate Court allowed the appeal and thereby granted a decree for partition as prayed for by the plaintiff. Aggrieved by the decision of the lower appellate Court, various defendants who are the alienees from the first defendant in the suit have filed independent appeals as stated above.
6. Mr. K. Venkataswami, the learned Counsel appearing for the appellants, in S.A. No. 360 of 1971 submitted that the lower appellate Court has not properly understood the principle evolved by various decisions as regards the burden of proving the legal necessity and the antecedent debts for the sales effected by the father of the minors in respect of the joint family properties. The learned Counsel further submitted that there is absolutely no finding by the lower appellate Court as regards the allegation by the plaintiff to the effect that the first defendant was addicted to illegal ways and immoral life. The learned Counsel further submitted that the lower appellate Court has not adverted to the evidence given by the plaintiff as P.W.1 which, coupled with the evidence of the defendants will prove that the family had legal necessities to borrow and to sell certain properties. The said argument advanced by Mr. Venkataswami was more or less adopted by the learned Counsel appearing for the appellants in S.A. Nos. 389 of 1971 and 1196 and 1363 of 1971. Mr. T.R. Srinivasan, learned Counsel appearing for the appellants in S.A. No 1363 of 1971 pointed out the reasoning of the lower appellate Court as regards item No. 18 and submitted that the duty of the alienees is only to prove that some antecedent debts existed but they cannot go further and establish the actual application of the money borrowed or taken by the first defendant. As far as item 18 is concerned, Mr. T.R. Srinivasasn submitted that they have proved that the said sale is for discharging prior mortgage-debt apart from the family necessity as mentioned in the sale deed for item No. 18. When it is so, the lower appellate Court has completely gone wrong in coming to the conclusion that the proof required as per law has not been given by the 31st defendant to establish that the sale effected under Exhibit B-139 is for discharging antecedent debts. Mr. Ganesan, the learned Counsel appearing on behalf of Mr. Desappan appearing for the appellant in S.A. No. 389 of 1971 submitted that the evidence let in by the 8th and 20th defendants is sufficient to discharge their burden as regards the genuineness of the sale effected in their favour in respect of items 2 and 3 and 7 of the suit properties. The learned Counsel appearing for the appellants in S.A. No. 1196 of 1971 adopted the arguments advanced by the Counsel for the appellants in the other second appeals.
7. Mr. Venkateswara Rao, learned Counsel appearing for the plaintiff-respondent submitted that there is absolutely no need for the first defendant to dispose of almost all the properties as the family had enough properties and had also large and sufficient income to manage the family. It is further submitted by the learned Counsel that the lower appellate Court has considered each of the items and has come to the conclusion that the sales effected by the first defendant are neither for family necessity or to discharge antecedent debts.
8. I have been taken through the judgments of the Courts below and also the evidence on record. From the decision in Hanuman Prasad's case (1854) 6 M.I.A. 393 it is seen that up till now it is well settled that the burden, is upon the alienee in respect of the alienations effected by the father of the minors to prove initially that the sale is for discharging antecedent debts or for family necessities. If this initial burden is-discharged, it is for the minors to establish that the debts incurred or the sales effected by the father are for illegal or immoral purposes. Thus, it is clear that the alienees must prove the antecedent debts or they ought to have enquired as regards the legal necessity for effecting the sales of the properties in which the minors have interest. No doubt it is too much to expect from the alienees to find out whether the monies have been actually applied by the father of the minors for such purposes. It is for the Court to ultimately decide from the evidence on record as to whether the alienees have discharged their burden initially in respect of such transactions and borrowings. It is also well settled by various decisions that while all the evidence is before the Court the burden of proof assumes little importance. But from the evidence on record it is for the Court to come to the conclusion whether the alienees have discharged their initial burden as laid down in the various decisions of our High Court and also of the Supreme Court. It is useful to refer to the decision in Meenakshi Achi v. Manick in Chettiar : AIR1960Mad99 , wherein it has been stated correctly that:
An alienee making a bona fide enquiry as to the existence of the antecedent debt for the discharge of which the monies were borrowed, ostensibly by a father would be protected, notwithstanding the fact that the monies borrowed were not proved to have been actually utilised for the discharge of the entire debt. Where the father mortgaged the joint family property in order to discharge his antecedent debt not taimed with illegality or immorality the son's interest in the property would be liable for the amount borrowed.
It has also been further made clear in that decision that the initial burden is upon an alienee to prove that the alienations or borrowings by the father of the minor were to discharge the antecedent debts or for legal necessity. Bearing in mind the abovesaid principles, I am of the view that the lower appellate Court has not properly discussed the evidence on record including that of the plaintiff as P.W.1. It has not also adverted to the allegation made by the plaintiff as regards the character of the first defendant. The nature of proof that the alienee has to give in respect of the debts incurred by the father of the minors is limited in character and if the Court is satisfied that the alienees had made sufficient enquiry as regards the family necessity it can be construed that the burden has been discharged by the alienees. In the same way if the alienees are able to establish that there were antecedent debts, the application of the money borrowed for the same need not be proved by the alienees. The lower appellate Court, in my opinion, has to discuss in detail all the available evidence on record and come to the conclusion bearing in mind the principles laid down in the various decisions and also discussed by me in this judgment.
9. In these circumstances, the second appeals are allowed, the decree and judgment of the lower appellate Court are set aside and the case remanded to the file of the lower appellate Court for the purpose of disposing of the same afresh bearing in mind the observations made by me in the paragraphs supra. The Court-fee paid on the memorandum of grounds in the above second appeals will be refunded to the respective appellants. There will be no order as to costs. No leave.