Ashutosh Mookeejee, J.
1. This is an appeal on behalf of the first defendant, in a suit for declaration that a decree obtained by the first eight defendants against the ninth defendant on the 26th July 1904, on the basis of four mortgages, is not binding upon the plaintiffs, the first four of whom are the sons and the fifth is the wife of the mortgagor. The plaintiffs asked for a declaration, for an injunction, and for incidental reliefs. The first eight defendants resisted the claim substantially on the ground that the plaintiffs were bound to pay the debts of the ninth defendant, which were incurred for legal necessity and not for immoral purposes as falsely alleged by the plaintiffs. The defendants further contended that the properties hypothecated were the self-acquired properties of the mortgagor. The family to which the mortgagor belongs is governed by the Mitakshara School of Hindu Law, and the evidence on this point is described by the Court of first instance as complete, satisfactory and overwhelming. The founder was a Kanauj Brahmin, who migrated from the North-Western Provinces and settled at Maliara in the District of Bankura. The family has acquired considerable landed property, and the eldest male member is locally styled as Raja. In the Court of first instance, an issue was raised upon the question, whether the Maliara estate is impartible and succession thereto is governed by the rule of primogeniture. This issue was, however, subsequently expunged and the suit proceeded to trial. The Subordinate Judge found, with regard to the first property mentioned in the schedule to the plaint, that it was the ancestral property of the mortgagor, and decreed the claim is so far as that property was concerned. As regards the third property, mentioned in the schedule, he held that it was the self-acquired property of the mortgagor and dismissed the claim in respect thereof. When the matter was taken on appeal to the District Judge, he held that the sixth issue ought not to have been expunged and remitted the case to the original Court for decision of the question raised therein. The Subordinate Judge held that there was no tangible or direct evidence in proof of the allegation that in the Maliara estate, the eldest son alone succeeded according to the family usage and the other sons were entitled to receive nothing beyond maintenance allowance. The matter then came up for disposal before the District Judge, and he proceeded to consider the appeal by the defendant in so far as the first property was concerned and a cross-appeal by the plaintiffs in respect of the third property. On behalf of the creditor appellant, three points were urged, namely, first that the plaintiffs could not maintain a pure declaratory suit and should have asked for consequential relief by way of possession; secondly, that the first property was not ancestral property is the hands of the mortgagor; and thirdly, that the debts had not been proved to be illegal or immoral. On behalf of the plaintiffs-respondents, it was argued that the third property was not the self-acquired property of the mortgagor. Upon the first question, the District Judge held that the suit as framed was maintainable. Upon the second question, he held that the view of the Subordinate Judge, namely, that the first property was ancestral, could not be successfully attacked. Upon the third question, he affirmed the finding of the Court of first instance that the debts were contracted for immoral purposes and that the creditors were aware of the purpose for which the loans were taken. As regards the cross appeal, he found that the third property had been rightly deemed self-acquired property, as it was a lease-hold interest acquired by the mortgagor himself. In this view, the District Judge dismissed both the appeal and the cross-appeal and affirmed the decree of the primary Court. The first defendant alone has appealed to this Court, and on his behalf, the decree of the District Judge has been assailed substantially on the ground that the first property was the self acquired property of the mortgagor. There is no controversy as to the history of the acquisition of this property by the ninth defendant. The property admittedly formed part of the Maliara estate. On the 25th May 1889, the father of the ninth defendant made a testamentary disposition. The Will recites that he had four sons and a married daughter who lived with him, and that according to family custom, his eldest son would inherit the entire zemindari, while the other sons would get maintenance either in cash or from property. The testator then proceeds to state that each of his sons other than the eldest would get lands yielding a net annual profit of Rs. 2,000 and a house to be built at a cost of Rs. 5,000, Then follows an important clause to the effect that the property given for maintenance and the houses for residence, which each son will get, will be held and enjoyed by him by right down to his sons, grandsons and their sons in succession. The first property now in dispute was received by the ninth defendant under this clause of the Will, and the question in controversy is, whether it became his self-acquired property or formed ancestral property subject to the rules of Mitakshara law. To determine this question, it is essential to investigate, in the first instance, whether the Maliara estate, of which it formed part, was impartible and descendible according to the rule of primogeniture. As already stated, there has been no satisfactory determination of this question, and both the parties are responsible for this result. The sixth issue specifically raised the question, but was expunged by consent of parties. The District Judge directed the issue to be restored and tried, but as no evidence had been directed to this point at the original trial, the Subordinate Judge could only come to the conclusion that the affirmative of the issue had not been proved. In effect, the only evidence on the record, worthy of the name, upon this matter, is the assertion of the father of the mortgagor in his Will that the estate was impartible and governed by the rule of primogeniture. A question of this character, however, cannot obviously be decided upon such slender material. The creditor, no doubt, seeks to hold the plaintiffs bound by their allegations in the plaint, but this is not quite fair, because he did not accept those allegations in the Court of first instance, and, indeed, expressly repudiated them. The substance of the matter, therefore, is that each party seeks to abandon the position originally taken up by him and relies upon the case of his adversary. This is manifestly unsatisfactory, and the position is not by any means improved when we bear in mind the fact that four of the plaintiffs are infants, represented by their mother, a paradanashin lady, who is herself the fifth plaintiff. As their Lordships of the Judicial Committee pointed out in Ramalakshmi Ammal v. Sivanantha 14 M.I.A. 570; 12 B.L.R. 396; 17 W.R. 553 it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable and that they should be established to be so by clear and unambiguous evidence. It would not be right, therefore, to assume for the purposes of this appeal that the Maliara estate is not governed by the ordinary rules of inheritance but is an impartible estate descendible according to the rule of primogeniture. The question was in controversy in the Courts below and the Subordinate Judge answered it against the plaintiffs, upon objection taken by the defendants; the latter cannot be permitted to take up an inconsistent position when it suits them to do so, to withdraw their objection, and to seek to bind the plaintiffs by an assertion which they have failed to establish; the plaintiffs may as well seek to hold the defendants fast to their allegation. In the events which have happened, the Court cannot attribute to the family a status which involves a departure from the ordinary law and can be established only by convincing proof. In these circumstances, if it were necessary to determine this question for the purposes of the appeal, it would, in my opinion, be essential to remand the case to the Court of first instance for a fresh investigation. But as I shall presently show, the appellant cannot succeed even on the assumption that the Maliara estate is impartible and governed by the rule of primogeniture.
2. Let us assume for a moment that the Maliara estate is an impartible zemndari descendible according to the rule of primogeniture. The decision of their Lordships of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari 15 I.A. 51; 10 A. 272 shows that the holder for the time being is competent to alienate the estate without the consent of the next taker, because the eldest son of the holder is not a joint owner; in other words, as there is no joint ownership, there is no right to partition and no restraint upon alienation. The subsequent decision in Venkata Surya Mahipati Rama Krishna v. The Court of Wards 26 I.A. 83; 22 M. 383; 8 O.W.N. 415 shows that an impartible zemindari is not inalienable by Will or otherwise, by virtue only of its impartibility, and in the absence of proof of some special family custom attaching to the zemindari and having that effect. Assume, therefore, that the father of the ninth defendant was in possession of an impartible estate and made a valid testamentary disposition whereby he granted to his younger son part of the property of the estate, for his maintenance and for the maintenance of his descendants. The question arises, whether the property so received by the ninth defendant became self-acquired or ancestral property in his hands. Upon this question, there is a well-marked divergence of judicial opinion; and though an elaborate attempt has been made by each party to distinguish the cases which run counter to their respective contentions, it is clear that in whatever manner the cases may be sought to be distinguished, two conflicting principles have been adopted, one by the Calcutta and the Madras High Courts and the other by the Bombay and the Allahabad High Courts.
3. In Muddun Gopal v. Ram Buksh 6 W.R. 71 at p. 74 a father distributed property acquired by him, among his sons by various deeds of gifts. It was held that the portion obtained by each son was ancestral property in so far as his issue was concerned; it was further held that property acquired by a grandfather and distributed by him amongst his sons, did not by such gift become the self-acquired property of the sons so as to enable them to dispose of it by gift or sale without the consent and to the prejudice of the grandsons. The same principle was recognised in Tara Chand v. Reeb Ram 3 M.H.C.R. 50 at p. 55. The question arose again in Nagalingam Pillai v. Ramchandra Tevar 24 M. 439; 11 M.L.J. 210 where the father of the plaintiff made voluntary gifts of certain property to the defendant after the birth of the plaintiff. The whole of the property in question had been acquired by the plaintiff's paternal grandfather, who disposed of it by Will to his three sons, of whom the father of the plaintiff was one. The plaintiff contended that, notwithstanding this fact, the property had the quality of ancestral property in his father's hands. It was held that as there were no words in the grandfather's Will that the sons would hold their shares free from the incidents of ancestral property, the property devised by him to his sons was ancestral, and that the plaintiff was, therefore, entitled to succeed in a suit brought by him to set aside his father's alienation and to recover the property. It was farther held that if a partition was made by the father on the footing that the property was partible property, although in point of law there was a disposition made by the father, there was no doubt that the father intended that the quality of the ancestral estate should remain. On the other hand, it was ruled in Jagmohan Das v. Sir Mangaldas 10 B. 528 that a son to whom his father bequeathed his self-acquired property by Will took it under the Will, and not by inheritance, and, that as property devised by Will was held by Hindu Law to be received as gift, such property was self-acquired in the hands of the son and was not subject to partition in his life-time at the suit of the son of the latter. To the same effect is Nanabhai v. Achratbai 12 B. 122 which, however, recognises the position that where a father indicates by his Will that his sons should take his self-acquired property jointly, such property would, undoubtedly, be regarded as ancestral. The current of decisions in Bombay has, however, gone back, as is shown by the cases of Ahmedbhoy v. Sir Dinshaw M. Petit 11 Bom. L.R. 366; 3 Ind. Cas. 124 and Chabildas v. Ramdas 11 Bom. L.R. 606; 3 Ind. Cas. 257. In the former of these cases, it was held that where property passed from one Hindu to another, its character was to be ascertained, in the hands of the latter, by the relationship existing between the grantor and grantee and the mode of transmission; a doubt was further expressed as to whether self-acquired property, devised by a Hindu father to his son, would remain in the hands of the son as the latter's self-acquisition. The Bombay High Court had previously held, in Lakshmibai v. Ganpat 5 B.H.C.R. 128 (O.C.) that where a grandfather indicates by his devise that his property should be held in severalty, such property in the hands of the devisee must be deemed self-acquired and not ancestral. In Parsotam v. Janki Bai 29 A. 354 at p. 363; A.W.N. (1907) 77: 4 A.L.J. 257 Sir John Stanley preferred the view taken in Jagmohandas v. Sir Mangal Das 10 B. 528 to that adopted in Muddun Gopal v. Ram Buksh 3 M.H.C.R. 50 at p. 55 and Tara Chand v. Reeb Ram 3 M.H.C.R. 50 at p. 55. There the Hindu family consisted of a father and his sons, and the father devised by his Will property which he acquired under the Will of his father, to his sons separately by name. It was held that the property so devised remained separate property according to Hindu Law, although the sons continued to live as members of the joint family and treated the property for a long series of years as if it was their ancestral property. Upon a review of the decisions analysed above, it is plain that there is a divergence of judicial opinion upon the question whether when a Hindu, instead of allowing his self-acquired or separate property to go by descent, makes a gift of it to his son or bequeathes it to him by Will, such property is the separate property of the son or whether it is ancestral in the hands of the son as regards his male issue. According to this Court, such property-is ancestral property in the hands of the son as if he had inherited it from the father: Muddun Gopal v. Ram Buksh 3 M.H.C.R. 50 at p. 55. According to the decisions of the other High Courts, it is a question of construction in each case whether the property was intended to pass to the son as ancestral property or as separate property, though in Bombay and Allahabad the inference has been in favour of the separate or self-acquired character of the property, Jugmohan Das v. Sir Mangul Das 10 B. 528; Parsotam v. Janki Bai 29 A. 354 at p. 363; A.W.N. (1907) 77: 4 A.L.J. 257 while in Madras, the tendency has been in favour of the inference that the character of the property was ancestral; Tara Chand v. Reeb Ram 3 M.H.C.R. 50 at p. 55; Nagalingam v. Ramchandra 24 M. 439; 11 M.L.J. 210. The decision in Muddun Gopal v. Ram Buksh 3 M.H.C.R. 50 at p. 55 has been treated in this Court as good law for half a century and was expressly followed in Hardai Narain v. Haruck Dhari Singh 12 C.L.R. 104 the decision wherein was subsequently affirmed by the Judicial Committee: Nanomi Babuasin v. Modhun Mohun 13 I.A. I; 13 C. 21. The decision of the Full Bench in Modhoo Dyal v. Golbur Singh 9 W.R. 511 does not touch the question raised before us and so also the decision in Bawa Misser v. Rajah Bishen Prokash 10 W.R. 287. I am not un-mindful of the observation of Sir Barnes Peacock to counsel in the course of argument in Pauliem Valoo v. Pauliem Sooryah 1 M. 252 at p. 255; 4 I.A. 109 but this can hardly be taken as a decision upon the point which did not directly arise in that case; nor can the decision in Rajah Ram Narain Singh v. Pertum Singh 20 W.B. 189; 11 B.L.R. 397 be deemed to contain any definite pronouncement upon the matter. On the other hand, the decision in Muddun Gopal v. Ram Buksh 3 M.H.C.R. 50 at p. 55 was treated as good law in Ram Chandra Marwari v. Mudeshwar Singh 33 C. 1158; 10 C.W.N. 978 and Laliteswar Singh v. Bhabeswar Singh 35 C. 823; 8 C.L.J. 124; 12 C.W.N. Under these circumstances, I am not prepared to dissent from the decision in Muddun Gopal v. Ram Buksh 3 M.H.C.R. 50 at p. 55 though it may be conceded that if the matter were res integra, the question would be worthy of consideration. It cannot further be overlooked that even if the view be maintained, as has been done in some of the cases reviewed, that it is a question of construction whether the property was intended to pass to the son as ancestral property or as separate property, the appellant cannot possibly succeed. The testamentary disposition of the father of the ninth defendant makes it abundantly clear that the intention of the testator was that the property should vest in his son for the maintenance, not merely of his son himself but also of his grandsons and their descendants. The testator would have been very much surprised to hear that the effect of his devise was to make the property self-acquired property in the hands of his son, so that he might alienate it at pleasure and deprive the grandsons of their only, means of maintenance. It may finally be observed that the view adopted by Sir Charles Sargent in Jagmohandas v. Sir Mangal Das 10 B. 528 is applicable only to cases where the property obtained by the son from his father may be regarded as given simply as an act of favour; in other words, to exclude such property from partition, it must be brought within Chapter I, Section 4 pl. 28 read with Chapter 1 Section 6 pl. 13-16 of the Mitakshara. But in the present case, it is impossible to say that the disputed property was 'Pitriprasadlabdha' or obtained through the father's favour' within the meaning of the expression as used in the Mitakshara; the Will of the father admits that the younger sons are entitled by family custom to maintenance in cash or property, and with a view to prevent future dispute, he gave this particular property to the ninth defendant. It cannot justly be maintained that this was a mere act of favour; on the other hand, the property so given may rightly be deemed to possess the same characteristics as would have attached to it, if the father had, during his life-time, given it to his son for maintenance, or the latter had obtained it from his eldest brother, the holder of the impartible estate, in lieu of maintenance as a matter of right. The decisions of their Lordships of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari 26 I.A. 83; 22 M. 383; 8 O.W.N. 415 and Venkata, Surya Mahipati. Rama Krishna Rao v. The Court of Wards 26 I.A. 83; 22 M. 383; 8 O.W.N. 415 recognise that the holder of an impartible estate has the right to alienate the estate without the consent of the next taker; but these decisions do not, by necessary implication, involve the conclusion that if the holder of the impartible estate, by a testamentary disposition or otherwise, carves out a portion thereof and grants it to his younger son for purposes of the maintenance of the son and his descendants, such property becomes the self-acquired property of the grantee, liable to be capriciously alienated by him to the detriment of the grandsons of the testator. It is not contended, and in view of the decision of the Judicial Committee in Durgadut v. Rameswar 36 C. 943; 10 C.L.J. 233; 13 C.W.N. 1013 (P.C.); 6 M.L.T. 68; 11 Bom. L.R. 901; 6 A.L.J. 847; 4 Ind. Cas. 2; 36 I.A. 176; 19 M.L.J. 567. it cannot be contended, that the property is inalienable, but the view may well be maintained that it has all the incidents of ancestral property. I hold, therefore, that the disputed property was ancestral property in the hands of the ninth defendant.
4. If the property is held to be ancestral property in the hands of the mortgagor, the decree of the District Judge cannot be successfully attacked. The plaintiffs do not dispute the well-settled rule that where it is alleged by the sons that a particular debt was contracted by the father for an illegal or immoral purpose, the burden lies upon them to show that it was contracted for such purpose; such burden is not discharged by proof that the father lived an extravagant or immoral life; there must be a direct connection established between the particular debt and the immorality set up by the son. Suraj Bunsi Koer v. Sheo Persad 6 I.A. 88; 5 C. 148; 4 C.L.R. 256; Bhagbut Pershad v. Girja Koer 15 L.A. 99; 15 C.717; Sahu Sita Ram v. Zalim Singh 8 A. 231; A.W.N. (1886) 62; Kishan Lall v. Garuruddhwaja 8 A. 231; A.W.N. (1886) 62; Gaura v. Nanak Chand 6 A. 193; A.W.N. (1884) 23; Chintamanrav v. Kashinath 14 B. 320; Sadashiv v. Dinkar 6 B. 520 and Dattatraya v. Vishnu Narayan 36 B. 68; 13 Bom. L.R. 1161; 12 Ind. Cas. 949. The burden which thus rests upon the sons has been discharged in this case. The District Judge has held that there is ample evidence to show the connection between the debts and the immoralities alleged and proved by the sons, and further that the creditors were aware of the purpose for which the loans were taken. Some stress was laid, however, on the form of the issue raised upon this point, namely, were the mortgage bands bona fide transactions and executed for legal necessity, and it was suggested that the question of immorality was not expressly raised. But no objection was taken in the Courts below to the form of the issue which was framed in the presence of the parties. The parties went fully into evidence upon the question of immorality. There is no suggestion that either of them has been misled by the terms of the issue, and the Court would not, under these circumstances, remand the case for retrial: Vishnu Ramchandra v. Ganesh Appaji 21 B. 325 and Rajah Saheb Perladh Singh v. Broughton 24 W.R. 275.
5. It has finally been contended that the fourth plaintiff, who is said to have been born after the execution of the mortgages, is not entitled to relief in respect of what would be his share in ancestral property. This question does not appear to have been pressed before the District Judge, and there is no substance in it. It is well-settled that where a Mitakshara, father has made an alienation without necessity and without the consent of sons then living, it would not only be invalid against them but also against any son born before they had ratified the transaction, and no consent given by them after his birth would render it binding upon him: Hurodoot Narain Singh v. Beer Narain 11 W.R. 480 and Bunwari Lal v. Daya Sunker 13 C.W.N. 815; 1 Ind. Cas. 670. Substantially to the same effect is the decision in Ponnambala Pillai v. Sundarappayyar 20 M. 354; 7 M.L.J. 240 although one need not take the extreme view adopted by the Pundits of the Madras Sadar Court in Sooba Pudten v. Janga Miah (1851) M.S.D.A. 3. I am not unmindful that the contrary view was taken by the Allahabad High Court in Chuttan Lal v. Kallu 33 A. 283; 8 A.L.J. 15; 8 Ind. Cas. 719 but the later view of the same Court is in harmony with that adopted by this Court: Tulshi Ram v. Babu Lal 33 A. 654; 8 A.L.J. 733; 10 Ind. Cas. 903. It may be conceded that an alienation, valid when it is made, Cannot be set aside at the instance of any son, grandson or other co-parcener who was neither born nor begotten at the time of alienation: Raja Ram v. Luchnun, 8 W. It. 15 and Bholanath v. Kartick Kissen 34 C. 372; 11 C.W.N. 462. It may also be conceded that an alienation, valid when it is made, cannot be impeached by a son adopted after the date of alienation: Sudanund v. Soorjoo Mouse 11 W.R. 436 and Rambhat v. Lakshman 5 B. 630. The position, however, is obviously different in a case where the alienation, when made, is not valid, and the case is very much stronger where, as here, the property has not as yet passed completely out of the family; there is, as pointed out by this Court in Kishan Pershad v. Tipan Pershad 34 C. 735; 11 C.W.N. 613; 5 C.L.J. 569 a fundamental distinction in this class of cases between an absolute alienation and a mortgage by the father. In my opinion, the position of the fourth plaintiff cannot be differentiated from that of his brothers upon any sound principle of law.
6. The result is that as all the contentions of the appellant fail, the decree of the District Judge must be affirmed and (his appeal dismissed with costs to the plaintiffs-respondents.
7. I agree that the appeal must be dismissed, though I am not at one with my learned brother in regard to the first point, which he discusses in his judgment. I think, for the purposes of this appeal, that we mast proceed on the footing that the Maliara estate was impartible and governed by the rule of primogeniture. This was the case with which the plaintiffs started their action. It is true that the defendants denied it and that when the learned District Judge, before whom the appeal first came, remanded the suit for a finding on the issue as to impartibility, the parties found it convenient to reverse their positions on this question. The decision (on remand) of the Subordinate Judge shows that the parties were given an opportunity to produce evidence on the point, but no evidence was offered beyond what was already on the record. No doubt impartibility is an instance of a special usage modifying the ordinary law of succession and it is for the party alleging it to establish his position. But I do not think it quite right to say that the defendant can no more rely on the plaintiffs' original case than the plaintiffs can on the defendants. It must be remembered that the plaintiffs are members of the family and, therefore, presumably know whether their family estate is impartible or not. The principal defendants, on the other hand, are strangers to the family and their denial of impartibility really amounted to no more than to putting the plaintiffs to proof of their case. Where a defendant merely puts a plaintiff to proof of the usage on which he bases his title, I do not see that he is precluded from saying at a later stage that he will not insist on proof of the usage, but will accept the plaintiff's case on the point. But it is altogether another matter for a plaintiff, who presumably knows the truth as to the usage and bases his case on it, to turn round and gay: I find it more convenient for my title to deny the usage and, therefore, I will accept the defendant's contention.'
8. As regards the question whether a son, to whom his father bequeaths self-acquired property by Will, takes under the Will, or by inheritance, I incline to the view that he takes by Will but I cannot press my view in the face of the decision of this Court in the case of Muddun Gopal v. Ram Buksh 3 M.H.C.R. 50 at p. 55 which has been subsequently accepted as good law by this Court in the cases of Hardai Narain v. Haruck Dhari Singh 12 C.L.R. 104; Ram Chandra Marwari v. Mudeshwar Singh 33 C. 1158; 10 C.W.N. 978; Laliteswar Singh v. Bhabeswar Singh 35 C. 823; 8 C.L.J. 124; 12 C.W.N. In the last mentioned case, it was held that a grant of ancestral property for the maintenance of junior branches of the family did not divest the property granted of its ancestral character. In the present case, there can be no question that the grant was one of this nature. It is not necessary to discuss the question whether such a grant offends against the law of perpetuities. It is sufficient to say that such a grant has been recognised as valid by this Court and that I am not prepared to dissent from that decision.