1. The main facts of this case are not in dispute, though the parties are not agreed as to all the inferences to be drawn from them.
2. The sister of Lala Bangsha Gopal Nande, a Hindu governed by the Mitakshata Law, became the wife of the then Maharaja of Bardwan. Bangsha Gopal settled in Burdwan and gathered considerable wealth in lands and goods, the whole of which was self acquired. He had three wives and eight sons. The eldest son (the only son by the first wife) was adopted by the Maharaja and ceased to be a son of Bangsha Gopal. The other sons survived him. He died on the 26th December 1892 (Poush 1299) leaving a Will, dated 31st October 1891, by which he distributed his property among his sons. The youngest son, Santi, is not mentioned in the Will but took his share under its terms. The Will provided generally that each son was to live in joint mess with his brothers until be completed the twenty-fifth year of his age when his aliquot share would 'fully belong to him in title after vesting absolutely in his sons and grandsons, etc' In due course, Nirmal Prokash, the only son by the second wife, became possessed of his share. He died in 1903 (1310) and was succeeded as to his share by his widow. Of the remaining sons, Bhakti Prokash, died early and the share which he would have taken became divisible equally between his five brothers of the full blood. Of these, the two eldest, like Nirmal, took possession of their allotted shares. With the second, Gati, we are not further concerned. The eldest, Jyoti Prokash, is the defendant No. 4 in the suit. He married Iswari, the plaintiff No. 1, and has issue Kirti and Prithi, the plaintiffs Nos. 2 and 3, born respectively in 1898 and 1902. The three defendants are his three younger brothers, Mukti, Dipti and Santi, who were all minors at the date of the transaction to which the suit relates.
3. There are no fathers anywhere who excel the ordinary Hindu father in his anxiety to do his belt for bis sons and the sacrifices to which he submits in order suitably to marry his daughters. Lala Jyoti Prokash Nande is an exception of the worst type. He has led a notoriously extravagant and licentious life, openly frequenting the society pf prostitutes. His disreputable figure is probably behind the plaintiffs in this suit, but whether be is or is not a consenting party to the plaint, there is no dispute that he deserves all the abuse which is showered on him in that document in the name of his wife and sons. The suit in brought to prevent the family estate from being sold in satisfaction of the father's debt and whatever may be true in other cases [Muddun Gopal v. Ram Buksh 6 W.R. 71 at p. 74], it cannot be said here that the sons in order to achieve their object have unjustly blackened their father's character.
4. It appears that between 1901 and 1908 a sum of nearly two lakhs of rupees came into Jyoti's hands made up as follows :
Compensation for lands of his acquired by the Government... about 1,20,000
His share of his mother's ornaments sold in 1907 ... 44,000
His share of his mother's house sold in 1908 ... 20,000
A part of his share of Government pro
missory notes left by his father to the value of Rs. 3,20,000 ... 13,000
Total ... 1,97,000
5. He had also other sources of income. But on the 30th June 1909 he applied in the District Judge's Court at Burdwan for a loan of Rs. 50,000 from monies belonging to his three minor brothers, then under the guardianship of Karuna Nidhan Mukherjee. The petition stated that the money was required for the purchase of a house in Calcutta as a residence 'as well as for meeting other necessities.' He offered to pledge as security the balance (to the face value of Rs. 51,000) of his share in the Government promissory notes left by his father. The guardin filed a consenting petition and on the same day the Judge made his order to the following effect:
30th June 1909. The guardian personally applied to me for permission to lend Rs. 50,000 to the elder brother of the minors, Lala Jyoti Prokash Nande. The conditions of the loan to be as follows:
Lala Jyoti Prokash Nande will take Government promissory notes to the face value of Rs. 50,000 bearing interest at 3 1/2 per cent. He will pay interest on the Rs. 50,000 at 5 per cent. and will execute a hand-note for that amount. He will also pledge his share in his Government promissory notes belonging to his first estate which amounts to Rs. 51,000 and his one-fifth share in the ornaments left by his father. The notes and ornaments pledged will remain with his guardian.
The loan is to be re paid by transfer of Government promissory notes to the face value of Rs. 50,000 bearing interest at 3 1/2 per cent. A time for repayment should, in my opinion, be fixed. On the above conditions the loan proposed is sanctioned.
6. Jyoti, however, was a slippery customer to deal with and the guardian committed a grave breach of trust. The conditions prescribed to the District Judge were never complied with. No notes or ornaments were pledged with the guardian and no time for re-payment was fixed. Nevertheless, sums totalling Rs. 50,000 were lent by the guardian to Jyoti on the security only of three band-notes executed by the latter, dated respectively the 2nd and 20th July and 8th September 1909.
7. Though he took the conveyance in his wife's name, there is no doubt that Jyoti bought the house in Marsden Street in Calcutta in which he resided with his family till 1912. His eldest son attended the Doveton School as a day scholar and he had married daughters living with him in the house, one of whcm was there confined. Later, however, he mortgaged the house and then sold it to his brother Santi for Rs. 14,000 subject to the mortgage. In the argument before us nothing turned on the purchase of the house by Santi.
8. Nothing seems to have been said about repayment till 1912. On the 27th June of that year the guardian addressed two pressing letters to Jyoti on the subject and on the 28th November following, the defendant Lala Mukti Prokash, who had then come of age, made an application to the District Judge. Nothing seems to have happened and on 13th February 1913 Mukti and Dipti made another application on which the District Judge passed orders on the 12th March. They received cold comfort and on the 2nd July 1913 they and their brother Santi instituted a suit against Jyoti to reoover the sum of Rs. 50,000, The defences raised by Jyoti were transparently frivolous and on the 30th June 1914 a decree was made against him by the Subordinate Judge for the amount claimed with interest. An appeal by Jyoti to the High Court was dismissed on the 21st March 1916.
9. Meanwhile execution had been taken out and in July and August 1914 Jyoti's immoveable properties were attached by the Court. In November Jyoti applied to the High Court in his appeal for stay of execution, and a stay was granted on terms of his furnishing security to the satisfaction of the Subordinate Judge. Accordingly Jyoti filed a security bond charging certain properties and covenanting that 'if the original decree in the said suit be confirmed by the Court of Appeal, then the decree-holders will be able to realise, out of the said properties charged, their dues.' The properties charged included the share which devolved on Jyoti under his father's Will of certain 'tankhas'' granted by the Maharaja of Burdwan. A tankha is a permanent and heritable allowance supported by a charge on immoveable property. This bond was accepted by the Subordinate Judge as sufficient security and on the 31st May 1915 the execution case was dismissed.
10. Having obtained some respite, Jyoti had other cards to play. On the 18th August 1915 his two sons, still minors, represented by their mother, instituted a suit against him for partition. The suit was undefended. A preliminary decree for partition was made on the 2nd October, and the final decree, dated 23rd November 1915, allotted to each of the sons a third share of the family interest in the tankhas. That was not all. On the 10th November 1915 Jyoti's wife instituted a suit against him for maintenance. The claim was of a decidedly novel kind, as the lady appears to have been living with her husband. But this suit was again undefended and the ex parte decree in the wife's favour, dated 10th December, entitled her to an allowance of Rs. 125, a month, charged on Jyoti's share of the family properties including the tankhas. The allowanoe exoeeded Jyoti's own share on partition of the tankhas (Rs. 69 7-1 per mensem).
11. I may say at once that as these two suits were instituted after the date of the security bond, they cannot affect one iota of the rights of the present defendants under that bond. (See Strange's Hindu Law, Edition 1825, Volume I, pages 119 and 120.) Apart from that, the suits were carried through with surprising expedition and, in my opinion, they were of no more reality than a scene on the stage ('Fabula non judicium hoe est, in scena, non in foro, res agitur' Shedden v. Patrick (1851) 1 Mac. 553 at p. 608 : 149 R.R. 55]. Jyoti was the real plaintiff and both suits were mere devices to defeat and delay his creditors. In this opinion, I differ from the learned Subordinate Judge, who found on the ninth of the issues tried by him, contrary, as I think, to the irresistible pressure of the facts, that the proceedings in the suits were not collusive. The finding was, however, of little importance in the view which the Subordinate Judge took of the case generally.
12. After the dismissal of Jyoti's appeal to the High Court, the present defendants again attempted to execute their decree. The plaintiffs put in claims under Order XXI, Rules 53 and 62 of the Civil Procedure Code, which were rejected by the Subordinate Judge in January 1917, on the ground that similar claims had been rejected in another case by the District Judge. The judgment of the District Judge, Mr. Roy, dated 14th December 1916, becomes, therefore, by relation, a judgment inter paites in the present case. Being a summary judgment, it is not conclusive, but I observe that his opinion of the suit for partition and the suit for maintenance was the same as mine. The present suit was instituted on the 5th March 1917.
13. On the pleadings, the more important issues framed for the trial were the following:
4. Are the properties in suit or the entire 16 annas thereof liable to be sold in execution of the decree in Money Suit No. 319 of 1913?
5. Was the loan of Rs. 50,000 on three hand notes contracted by the pro forma defendant No. 4 for illegal or immoral purposes P
6. Has any charge been created by the security bond executed in the Execution Case No. 332 of 1914 by the pro forma defendant No. 4 on the entire properties in suit?
14. There are also two issues, Nos. 7 and 8, as to which a word may be desirable.
15. On the fifth issue the Subordinate Judge found, and I agree, that the sum of Rs. 50,000 was not borrowed for illegal or immoral purposes. The purchase of a house was not an immoral purpose. 'The evidence comes to no more than a general charge of immorality which is not sufficient' [Sri Narain v. Raghubans Rai 17 Ind. Cas. 729 : 17 C.W.N. 124 : 25 M.L.J. 27 : (1913) M.W.N. 768 (P.C.) and Bhagbut Pershad Singh v. Girja Koer 15 I.A. 99 at p. 103 : 15 C. 717 (P.C.) : 5 Sar. P.C.J. 186 : 12 Ind. Jur. 289 : 7 Ind. Dec. (N.S.) 1062]. That being so, on the pleadings and the issues tbe suit prima facie stood to be dismissed. In Sripat Singh v. Prodyot Kumar 39 Ind. Cas. 252 : 44 I.A. 1 : 32 M.L.J. 133 : 15 A.L.J. 147 : (1917) M.W.N. 193 : 21 C.W.N. 442 : 25 C.L.J. 220 : 21 M.L.T. 222 : 19 Bom. L.R. 290 : 44 C. 524 (P.C.) the debts were incurred by the father for 'legal necessities'; there was no question of 'antecedency' or of the pious duty of the sons, the only question was whether the entirety of the family interest in a certain estate or only the father's share had passed at a Court sale. Nevertheless the law stated in general terms in their Lordships' judgment represented the law which the parties had in their minds when the issues in the present suit were drawn in June 1917. Before the hearing, however, the decision of their Lordships in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas 280 : 44 I.A. 126 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom L.R. 498 : 26 C.L.J. 1 : 33 M.L.J 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 39 A. 437 (P.C.) had become known in India. The plaintiffs used that decision as a weapon which Jyoti's dilatory tactics had put into their hands, and were able to persuade the Subordinate Judge that the true issue was whether the purchase of the house was a legal necessity, and that that issue and with it the suit should be decided in their favour. If I agreed with the premises, I should have little hesitation in accepting the conclusion, because no evidence which could have been given on the subject seems to have been withheld or shut out and the defendants, therefore, were not prejudiced by the omission of an issue expressly raising the question of legal necessity. But, in my judgment, the decision in Sahu Ram Chandra's case 39 Ind. Cas 280 : 44 I.A. 126 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 39 A. 437 (P.C.) does not affect the law which would previously have been applied in the present case and, moreover, the issue of necessity should have been decided in favour of the defendants.
16. I take the latter question first. The outstanding fact is that the loan for the purchase of the house was sanctioned by the District' Judge during the minority of the defendants upon representations made to him by Jyoti and by their guardian, who also, it appears, was in charge of the common estate of Jyoti and his brothers. The guardian presumably was well-acquainted with all the facts. I can find no justification for the Subordinate Judge's suggestion that the guardian was an accomplice or partaker in Jyoti's vices. Though it was wrong and foolish on his part to lend the money without security and at the same time to allow Jyoti to overdraw his account with the common estate, his letters of 27th June 1912 make it probable that he was a weak minded person who could not withstand Jyoti's demands for money, and that he was a dupe rather than a knave. Fixing the mind on the crucial time when the loan was contracted. I do not think that anything is proved by the plaintiffs to justify the question, 'Why should the plaintiffs suffer because the guardian of the defendants acted dishonestly or fraudulently?' The facts must be viewed not entirely from the standpoint of Jyoti's sons as the Subordinate Judge seems to have viewed them, but also from the standpoint of the defendants. If the law laid down in Hunooman Persaud Panday v. Musammat Baboose Munraj Koonweree 6 M.I.A. 393 : 18 W. R. 81 n : Sevestro 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C. 552 : 19 E.R. 147 be applied to the present peouliar circumstances, it cannot at least be assumed that Jyoti, as karta, was not acting bona fide when he applied for the loan. As to the defendants, apart from the question of security, the loan was made, as I have said, with the sanction and approval of the District Judge upon representations made to him by Jyoti and by the guardian in his double capacity. If the District Judge's order is not con-elusive to show that the money was required for a legitimate family purpose, it at least entitles the defendants to the consideration due to bona fide creditors. They are not affected directly or indirectly by the antecedent mismanagement of his estate by Jyoti. They are not affected by Jyoti's subsequent loose and unprincipled conduct in mortgaging the house, spending recklessly all the money he could lay his hands on and not paying the debt he had incurred. If he had reformed his life after buying the house, the debt could have been re paid without difficulty. Nor were the monies which he contrived to obtain from the common estate made over to him by the defendants' guardian in his capacity as such. The defendants, therefore, are in no way responsible, directly or constructively, in that connection.
17. The question whether on the merits Jyoti was justified at the time as karta in purchasing the house, may be open to discussion. Personally, I am prepared to answer the question in the affirmative, though I understand, my brother Shamsul Huda, J., entertains more than a doubt. What was the position? Apparently under his father's Will, Jyoti took two houses at Burdwan. Both were acquired by the Government for public purposes. It is true that on Bhakti's death Jyoti obtained a one-tenth share in what is known as the ijmali house in Shambazar in Burdwan, half of which had been left to Bhakti. But, in my opinion, on the evidence, it is unreasonable to say that Jyoti and his family should have been content with this accommodation. As I gather, it could not have been made suitable for them without material alterations and additions. Moreover, Calcutta was healthier than Burdwan and possessed batter educational facilities. It is, I think, no answer to say that Gati was content to live at Burdwan and send his son to school at Giridih. A father must have some latitude in such matters. It appears that Jyoti's wife has a house. But it was leased to a tenant and, in any case, Jyoti was not obliged to live in his wife's house. Finally it is not suggested that an extravagant price was paid for the house in Marsden Street or that regarded as an investment the house was a had investment. There may have been other reasons than those already indicated for Jyoti to leave Burdwan and live in Calcutta at any rate for a time.
18. The plan was not necessarily the mere wild cat scheme which the Subordinate Judge, judging by the event, considered it. Here, again, we come back to the point that the District Judge must have been satisfied, on the materials placed before him, as to the propriety of the course which Jyoti proposed to take.
19. It is argued that the house, however desirable, was not a legal necessity. That phrase, though sanctioned by usage, is not perhaps a very apt one. If the two expressions 'legal necessity' and 'legitimate family purpose' are treated as interchangeable and as having the same legal significance in reference either to a father as karta or to a brother or other relation as karta or to a widow in possession of a widow's estate, nevertheless the law has to be applied to those different states of the facts and some differenece of result must ensue. A father, with minor sons, must have some discretion. He 'is in all cases naturally and, in the case of infant sons, necessarily, the managar of the joint family estate' [Suraj Bunsi Koer v. Sheo Persad Singh 6 I.A. 88 at p. 101 : 5 C. 148 : 4 C.L.R. 226 : 4 Sar P.C.J. 1 : 3 Suth P.C.J. 589 : 2 Shome L.R. 242 : 2 Ind Dec. (N.S.) 705]. 'Family necessity' is an expression that must receive a reasonable construction...A reasonable latitude, too, must be allowed for the exercise of a manager's judgment, especially in the case of a father, though this must not be extended so as to free the person dealing with him from the need of all precautions when a minor son has an interest in the property [Babuji Mahadaji v. Krishnaji Devji 2 B. 666 at p. 669 : 3 Ind. Jur. 279 : 1 Ind. Dec. (N.S.) 866]. When, therefore, the creditor lends his money on a representation made by a father that the course which he proposes to take--a course not unreasonable or irrational in itself--is calculated in the circumstances to promote the interest of his family, the creditor ought not to suffer because owing to the subsequent misconduct of the father, things in fast turn out badly. These considerations support the conclusion that in Jyoti's then financial position, the money was borrowed and lent for a legitimate family purpose.
20. If I am wrong as to that, the next question is whether a decree for the debt having been obtained against the father and the debt not having been incurred for an illegal or immoral purpose, it is open to the plaintiffs to contend that the decree cannot be executed against the entire co parcenary interest of the family in the properties covered by the security bond.
21. The money was in fact lent without security. The decree is a personal decree against the father. It was a decree for an antecedent debt, if the term has any meaning in such a case. The debt was unaccompanied by any alienation, by way of sale or mortgage, of any family property, moveable or immoveable. In the circumstances, Sahu Ram Chandra's case 39 Ind. Cas 280 : 44 I.A. 126 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 39 A. 437 (P.C.) appears to have no application. As I understand their Lordships' decision it does not prevent a creditor levying execution on the family property to satisfy a decree for money against the father personally.
22. As to the security bond, that cannot be regarded in the light of a voluntary alienation. It was executed by Jyoti to prevent the decree being then and there executed pending his appeal, After the appeal was dismissed, further proceedings in execution were met by the claim cases and were then stayed by the interlocutory injuction issued in the present suit. The dismissal of the suit will dissolve the injuction. Thereupon the decree against Jyoti being a subsisting decree which has been put in course of execution, there will be nothing to prevent the security bond from being enforced against the whole co-parcenary interest of the plaintiffs and Jyoti. The considerations which apply at the present stage are precisely the considerations which would have applied if the properties covered by the security bond had been actually sold and a suit had been brought to set aside the sale. Such a suit would in my opinion have failed Suraj Bunsi Koer v. Sheo Persad Singh 6 I.A. 88 at p. 101 : 5 C. 148 : 4 C.L.R. 226 : 4 Sar P.C.J. 1 : 3 Suth P.C.J. 589 : 2 Shome L.R. 242 : 2 Ind Dec. (N.S.) 705, Nanomi Babuasin v. Modhun Mohun 13 I.A. 1 : 13 C 21 (P.C.) : 10 Ind. Jur. 251 : 4 Sar. P.C.J. 682 : 6 Ind. Dec. (N.S.) 510, Minakshi Nayudu v. Immudi Kanaka Ramaya Goundan 16 I.A. 1 : 5 Sar. P.C.J. 271 : 12 M. 142 : 13 Ind. Jur. 9 : 4 Ind. Dec. (N.S.) 448 Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas 280 : 44 I.A. 126 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom L.R. 498 : 26 C.L.J. 1 : 33 M.L.J 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 39 A. 437 (P.C.), Koran Singh v. Bhup Singh 27 A. 16 : 1 A.L.J. 310 : A.W.N. (1904) 151, Chandra Deo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A. 176 : 6 A.L.J. 263, Vinjanampati Peda Venkanna v. Vadlamannati Sreenivasa Deekshatulu 48 Ind. Cas. 225 : 41 M. 136 : 22 M.L.T. 334 : 33 M.L.J. 309 : 6 L.W. 619 (1918) M.W.N. 55 and Hanmant Kashinath v. Ganesh Annaji 5 Ind. Cas. 614 : 43 B. 612 : 21 Bom. L.R. 435]. See also Mayne's Hindu Law, 6th Edition, Section 325.
23. The Subordinate Judge wrongly held that the tan has were not saleable. They resemble rant charges and the security bond itself shows that the tankha of Rs. 255-8-0 was made up of smaller tankhas purchased by the Maharani of Burdwan from the annuitants and granted to Dala. Banga Gopal. The case of Maharajah Dheraj Mahtab Chand v. Sreemuttee Dhun Coomaree 17 W.R. 254 is precisely in point See also Padmanand Singh v. Rama Prasad 17 Ind. Cas. 284 : 17 C.W.N. 662 : 16 C.L.J. 354. The Subordinate Judge refers to Tara Sundari Debt v. Saroda Charan Banerjee 7 Ind. Cas. 80 : 12 C.L.J. 146, but he does not appear to have considered the observations of the learned Judges at page 156 of the report. Tankhas are more than a mare right to receive future maintenance. They are heritable allowances in the nature of property and, therefore, assignable [Palu handy Mammad v. Chingoran Keloth 34 Ind. Cas. 381 : 40 M. 302: 80 M.L.J. 331].
24. There remain issues Nos. 7 and 8, which raise the question whether the properties of the security bond are the self acquired property of Jyoti or the ancestral property of Jyoti and his sons. In the Court below the question was not much discussed, the Subordinate Judge assuming the ancestral character of the properties. Before UP, however, Sir Rash Behari Ghose put it in the forefront of his argument and contended strongly that as matter of law, the properties are in Jyoti's hands not ancestral but self-acquired. More precisely stated, the question is whether the self acquired property of a Mitakshara father devolving by gift inter vi os or by Will on a son is in the lands of the son ancestral or self acquired. If it is ancestral it is partible as between the son and his son, otherwise if it is self-acquired. I assume throughout that the property is not partible as between the son and his brethren.
25. The authorities collected by Mockerjee, J., in Hazarimal v. Abani Nath 18 Ind. Cas. 625 : 17 C.L.J. 38 at p. 42 : 17 C. W.N. 280 show that the law on the subject is not settled, We have the view taken by this Court in Muddun Gopal's case 6 W.R. 71 at p. 74, the view taken in Bombay in Jugmohandas v. Mangaldas 10 B. 528 : 5 Ind. Dec. (N.S.) 742 followed in Allahabad, Parsotam Rao v. Janki Bai 29 A 354 : 4 A.L.J. 257 : A.W.N. (1907) 77, and the view taken in Madras in Nagalingam Pillai v. Rama Chandra Tevar 24 M. 429 : 11 M.L.J. 210. In Pauliem Valoo Chetty v. Pauliem Chuckeray Chetty 4 I.A. 109 at p. 116 : 1 M. 252 at pp. 255, 259 (P.C.) : 1 Ind. Jur. 323 : 3 Suth P.C.J. 387 : 3 Sar. P.C.J. 698 : 1 Ind. Dec. (N.S.) 167 the Privy Council left the question open.
26. A preliminary point arises as to the effect of Lala Banghsa Gopal's Will. Undoubtedly his property was all self acquired and he left it generally to his sons as tenants in-common and not as joint tenants, but that is not conclusive to show that his intention, so far as his intention is of importance, was that each son should take his share as self acquired and not as ancestral property, I have referred at the beginning of this judgment to the clause in the Will which lays down that the share which each son would get on attaining his 26th year according to that division' 'by virtue of partition will fully belong to him in title after vesting absolutely in his sons and grandsons, etc, and from that time the light of inheritance will vest in his heirs.' Sir Bash Behari argued that these words were mere words of limitation and had not the effect of making the share ancestral property so as to give the testator's grandsons an immediate interest by birth. The language, however, seems to me to travel beyond mere words of limitation. Moreover, the ordinary estate of inheritance under the Mitakshara Law is an estate in which the son or grandson takes an interest by birth. But apart from that, the reference to partition brings (he case within that part of Muddun Gopal's case 6 W.R. 71 at p. 74 which perms to have been accepted by Sargent, C.J., in Jugmohandas's case 10 B. 528 : 5 Ind. Dec. (N.S.) 742 as good law. Where the gifts are made to several fans, whether they are made inter vivos or by Will, as a substitute for a partition of the property among them, there is no reason to suppose that the father intended to favour any one son more than any other. The natural supposition is that the sons are intended to take their shares as they would take them on a partition after the father's death, that is, as ancestral property.
27. Sir Bash Behari Ghose also argued that the penalty clauses of the Will, taking away the share of a son who quarreled with its provisions or who changed his religion, contemplated each son taking his share as self acquired property. That appears at least doubtful. Assuming that the father can by Will give each of his sons an ordinary estate of inheritance in his share, the estate, that is, which he would take on a partition of the father's estate between him and his brothers, nevertheless the subject of the gifts being self acquired property in the hands of the father, the father can annex to the gifts such conditions as he pleases, whatever the ultimate legal effect of the conditions may be.
28. So far, therefore, as the language of the Will is concerned, my conclusion is that the testator intended each of his sons to take his share as ancestral property.
29. It was farther contended, however, that it is not open to a Mitakshara father to devise self-acquired property to a son so that it will be ancestral in the hands of the son.
30. It was said, firstly, with reference to an observation made in Bai Diwali v. Patel Bechardas 26 B. 445 at p. 448 : 4 Bom. L.R. 102 that such a devise would contravene the rule in the Tagore case (Jotendromohun Tagore v. Ganendromohun Tagore) I.A. Sup. Vol. 47 : 9 B.L.R. 377 (P.C.) : 18 W.R. 359 : 2 Suth P.C.J. 692 : 3 Sar P.C.J. 82 as to the invalidity of a gift in favour of a person not in existence when the gift takes effect. That rule, however, cannot defeat an incident which the Hindu Law annexes, or which, under that law, may be annexed, to self enquired property of the father given to the SON. Jf neeessary, there is no difficulty in supposing that the rule is subject to an exception in this particular instance The rule in the Tagore case I.A. Sup. Vol. 47 : 9 B.L.R. 377 (P.C.) : 18 W.R. 359 : 2 Suth P.C.J. 692 : 3 Sar P.C.J. 82 was stated as a general principle. There is no reason why an incident, which would attach to property when the son takes it ab intestateto or on a partition between himself and his brethren, should not attach, or be attachable, to the same property when he takes it by Will.
31. It was argued, lastly, that self-acquired property of the father taken by the son as devisee under his father's Will must on general grounds be regarded as self-acquired property in the hands of the son. The argument runs contrary to the decision of this Court in Muddun Gopal's case 6 W.R. 71 at p. 74 and it seems to me also to go farther than is warranted by the decision in Jugmohandas's case 10 B. 528 : 5 Ind. Dec. (N.S.) 742, though not further perhaps than the summary of the decision in the head note and in Porsctam Rao v. Jonki Bai 29 A 354 : 4 A.L.J. 257 : A.W.N. (1907) 77. Muddun Gopal's case 6 W.R. 71 at p. 74 has been followed in this Court and though the recent Baluana cases Ram Chandra Marwari v. Mudeshuar Singh 33 C. 1158 : 0 C.W.N. 978 and Lalites war Singh v. Bhabeswar Singh 35 C. 823 at p. 827 : 8 C.I.J. 121 : 12 C.W.N. 958, and Abani's case 18 Ind. Cas. 625 : 17 C.L.J. 38 at p. 42 : 17 C.W.N. 280 may be distinguishable on the footing that the subject of the gift in those cases was already ancestral property in the hands of the giver, the decision still holds good. It lays down the principle that self-acquired property: of the father given to the son is ancestral in the hands of the son unless the gift 'is upon a consideration personal to the donee as marriage.'
32. Any serious discussion of the question as an open one would lead back to the ancient texts which are by no means easy to re council. If under those texts gifts to a son due to the favour of the father are not partible between the son and his sons, and if there is nothing to restrict such gifts to small presents such as a weapon or garment or a utensil or other moveable, the question would be in every case whether the gift by Will was obtained through favour, and as Sargent, C.J., says, 'in the absence of special circumstances or of anything in the context to show a contrary intention, every such gift must be regarded as such ' Jugmohandas v. Mangal das 10 B. 528 : 5 Ind. Dec. (N.S.) 742. That would at least make it the general rule that the son taking as devisee, the property would be self-acquired in his hands.
33. On the other hand, the texts, as would be natural in early times, lay great stress on the requirements of the family as a whole for sustenance. ' They who are born and they who are yet unbegotten and they who are still in the womb require the means of support' (Mitakshara, Chapter I, Section 1, P1. 27). If the texts admit of a broad distinction between a gift due to favour and a gift which is intended to form the son's portion or a part thereof or a gift by way of advancement, a conclusion might be drawn in accord with the result arrived at in Muddun Gopal's case 6 W.R. 71 at p. 74 and with the Madras view.
34. However that may be, Muddun Gopal's case 6 W.R. 71 at p. 74 is binding on us and the properties in question in the present suit must be regarded as ancestral properties in Jyoti's hands.
35. I will add, not because it affects the law but because it is a part of the history of the case, that here we have a Mitakshara family living in a Dayabhaga country and Jyoti, spendthrift as he is, has always treated the property coming to him from his father as property at his absolute disposal. That, however, is not the fault of the plaintiffs.
36. The defendants fail on issues Nos. 7 and 8 but, in my opinion, they succeed on the other points argued and the appeal should be Allowed with costs throughout.
Shamsul Huda, J.
37. After anxious consideration, I have come to the conclusion that I must agree with my learned brother in dismissing the plaintiffs' suit, though I do not agree with all the reasons upon which that decision is based. On the question of legal necessity, I feel considerable doubt whether having regard to all the circumstances, it was a prudent act on the part of Jyoti Prokash to purchase a house in Calcutta or that the purchase of such a house was in any sense of the term a necessity. Without agreeing with the Subordinate Judge that the house in Marsden Street was purchased in order to facilitate the life of wreckless profligacy which Jyoti was then pursuing, I am not satisfied that the house was required for the education of his sons or that he could not continue to live in the joint family dwelling house in Burdwan as Indian families generally do. Assuming for the sake of argument that the purchase of the house was a legitimate family purpose or even a necessity, it is not proved that the necessity was sufficiently pressing to justify Jyoti in borrowing money for the purpose, and a loan was still less necessary if he had resources of his own on which be could have drawn for the sum required. That Jyoti could have found the money without contracting a debt is perfectly clear. He had Government promissory notes jointly belonging to himself and his brothers, the face value of his share being Rs. 5,000. He was borrowing not Rs. 50,000 in cash but Government promissory notes of that face value. It teems to me that he might have got those promissory notes, if he had wished, by surrendering his share in the joint promissory notes left by his father. It does cot appear that any such proposal was made to the District Judge and refused. The guardian lent the money with full knowledge of these facts and in violation of the terms upon which the loan was sanctioned. The result was that Jyoti took advantage of the opportunity to waste his share in the joint promissory notes on wine and women. If the guardian had insisted on the security of the joint notes and of the ornaments which Jyoti had offered to give and upon which the loan was sanctioned by the Judge, perhaps we should not have heard of this suit at all. On these grounds, I am not prepared to bold that there was any necessity for the loan at all, nor do I think that any inference adverse to the plaintiffs and favourable to the defendants can be drawn from the fact that the District Judge must have been satisfied on the material placed before him as to the propriety of the course which Joyti proposed to take. In the first place, he was only concerned with the interest of the minors who were lending the money and in the second place, the conditions upon which the Judge sanctioned the loan were not fulfilled.
38. On the question whether the security bond executed by Jyoti Prokash for the purpose of obtaining a stay of execution of the money decree passed against him upon the hand-note was binding on the sons, I agree with my learned brother in holding that by the security bond a charge was created on the family property to discharge an antecedent debt not tainted with immorality and that it is enforceable against the plaintiffs.
39. I do not think it necessary to discuss the other points raised in the appeal, as on those points I am in agreement with my learned brother.