MODI, J. - (1.) THIS is a first appeal by the plaintiff Laxminarain against a judgment of the learned District Judge, Bikaner, dated the 6th December, 1950, in a suit for recovery of mortgage money.
(2.) THE plaintiff's case was that the defendant Shankerlal vs. the Karta of a joint Hindu family consisting of himself and his minor son Bhanwarlal who is the contesting respondent, borrowed a sum of Rs. 25,000/- from the former as a security for which the defendant Shankerlal made a mortgage of his house situate in Sonaron-ka-Moholla near Naya Kuwa in Bikaner city by means of a registered mortgage deed the 29th December, 1947. It was agreed between the parties that cut of the consideration of Rs 25,000/- for the mortgage, the sum of Rs. 1,000/- would not carry any interest, and the balance of Rs. 24,000/- was to bear interest at the rate of ten annas percent per mensem. As the house was in the actual possession of certain tenants, the defendants executed a rent-note in favour of the plaintiff for a sum of Rs. 150/- p. m. THE defendants failed to pay the mortgage money together with the interest due, and so the plaintiff brought the present suit for recovery of the principal sum of Rs. 25 000/- and a further sum of Rs. 1731/4/- as interest, the total amount thus coming to Rs. 26731/4/ -. As the defendant Shankarlal had made a further mortgage in respect of the house in question in favour of one Mangal Chand son of Hazari Mal for a sum of Rs. 1600/- on 5. 11. 1948, the plaintiff also made him a party to the suit. Defendant Shankerlal and Mangal Chand allowed the suit to proceed ex parte against themselves, and the suit was resisted by a guardian-ad-litem on behalf of the minor defendant Bhanwarlal only. It was contended on behalf of this defendant that the mortgage property was ancestral and that Shankerlal had executed the suit mortgage without any legal necessity and for no benefit of the family. It was further contended that defendant Shankerlal was a gambler and a wastrel and was addicted to taking intoxicants and an evil character, and that if at all he incurred the loan in order to pay off any debts, they were immoral and tainted debts and therefore, they were not binding on the ancestral property of the family, and, in any case the minor defendant Bhanwarlal was not liable to pay them or to have his share of the family property sold to pay them. It was also contended that the relations of defendant Shankerlal were extremely strained with the minor's mother and it was on that account that Shankerlal had incurred the alleged loan in order to ruin the minor defendant and his mother. The learned District Judge had found that out of the total consideration of Rs. 25,000/- defendant Shankerlal really received amounts to the tune to Rs. 23,067/7/- only. The balance of Rs. 1932/9/- was held not proved to have been received by Shankerlal. The learned Judge accordingly passed a preliminary decree against defendant No. 1 under Order XXXIV, Rule 3 CPC. The learned Judge further found that the plaintiff had totally failed to prove any legal necessity for the major part of the loan alleged to have been advanced by him to the defendant Shankerlal as specified in Ex. P-2, that is, the deed of mortage in the plaintiff's favour dated 29th December, 1947. His conclusion also was that this debt was for the most part immoral having been contracted for Satta and gambling purpose and was therefore, an immoral and illegal debt, and consequently defendant Bhanwarlal was held not liable for the suit debt and his share of the mortgaged property viz, one half, was declared as not liable to sale for recovery of the mortgage money. The plaintiff has appealed from the above judgment and decree of the trial court. It has been contended before us by learned counsel for the plaintiff appellant that the court below has approached the whole case from an entirely wrong angle and that it completely mis-directed itself as to the law applicable to the case, and, therefore, its conclusions could not be sustained in law. It appears to us that there is force in this contention. The learned District Judge failed, in our opinion, to take notice of the salient features of this case that the suit mortgage represented an antecedent debt, and that it was not necessary in the case of such a debt for the plaintiff to prove that the debt was incurred for legal necessity. The learned Judge has himself found that the deed of mortgage dated 29th December, 1947 (Ex. P-2) was proved to have been duly executed by the defendant Shankerlal, and that finding is not challenged before us in this first appeal. He also found that it was proved that Shankerlal had received consideration to the extent of Rs. 23067/7/- and that the balance of Rs. 1932/9/- was not proved; but we shall deal with that point a little latter. It is admitted that the defendant Shankerlal and the minor son Bhanwarlal were members of the joint Hindu family of which the former was the Karta. We must further point out that the mortgage deed Ex. P-2 was made by the defendant Shankerlal in favour of the plaintiff appellant on 29th December, 1947, in order to pay off previous debts which have all been specified in the deed itself and which were undoubtedly prior in time and fact to the deed in question. This in our opinion, is proved to the hilt by the details given in the mortgage deed itself and by other evidence. A sum of Rs. 16895/7/9 was thus paid off to Mst. Jasoda, which was due to her on the basis of two mortgage deeds for Rs. 10,000/- (Ex. P-10) and Rs. 6000/- (Ex. P-12) dated 9. 1. 1947 respectively. It may be pointed out that these mortgages were made in order to pay off some previous mortgages mentioned in the deed of mortgage. Similarly a sum of Rs. 4200/- was paid to one Ganga Sahai, which was also owing to him on the food of a mortgage for Rs. 2500/- dated 15. 7. 1947. Then a sum of Rs. 454/- (there is a small discrepancy here as to whether this amount was Rs. 450/- or 454/- but the difference is trifling and in our opinion is of no moment) was paid to Seth Champalal Banthia, Secretary, to Jawahir Vidhya Peeth, Bhinasar, as interest on a mortgage of Rs. 20,000/- from 7th June, 1947 (see Ex. P-7 and P-8 ). Then a sum of Rs. 1500/- was paid to Jagannath Sonar in repayment of a loan which was taken by Shankerlal on 2nd November, 1947, (see Ex. P-5 ). A sum of Rs. 250/- was paid to one Amar Chand on account of interest due on a mortgage executed by Shankerlal in favour of Amarchand's father (see Ex. P-3 ). A further sum of Rs. 300/- was paid to one Amru who had performed services as a tonga-driver to Shankerlal up to 7. 3. 1948 (see Ex. P-4 ). This only leaves a balance of Rs. 1436/8/3 out of the total consideration of Rs. 25,000/- for the suit mortgage. From what we have pointed out above, it is abundantly clear that by far the bulk of the total consideration of Rs. 25,000/- represents antecedent debts. We have no doubt, therefore, that the learned Judge should have decided the case in the light of the law applicable to such debts. An antecedent debt is a debt which is prior in fact as well as in time to the transaction impeached. In other words, to constitute a debt an "accident" debt such a debt must be truly independent of and not part of the transaction which is assailed. A borrowing made on the occasion of the grant of a mortgage can not be an antecedent debt. We may in this connection refer to Brij Narain vs. Mangla Prasad (1) (AIR 1924 PC. 50.), where their Lordships of the Privy Council after a review of the case law on the subject summarised the position as follows: - " (1) The managing co-parcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purpose of necessity ; but (2) If he is the father and the reversioners are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt. (3) If he purports to burden the estate by mortgage, then unless the mortgage is to discharge an antecedent debt it would not bind more than his own interest. (4) Antecedent in fact as well as in time; that is to say. that the debt must be truly independent and not part of the transaction impeached. (5) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate is alive or dead. " It will thus appear that the validity of an alienation made to discharge an antecedent debt is founded upon the peons duty of the son to discharge his father's debt provided that such a debt is not tainted with immorality or illegality. As we have already shown above, the mortgage in this case was by the father manager to pay off his antecedent debt and, therefore, the next question that arises is whether such debts had been made for immoral or illegal purposes; because unless that is established, the mortgage must be held to be binding not only on the estate of the father but also on that of the son. In Tulshi Ram vs. Bishnath Prasad (2) (AIR 1927 All. 735.), it was laid down that: - "in all cases the mortgagee must in the first instance, establish that his debt was either for legal necessity or for payment of antecedent debts or for the benefit of the family. Once the mortgagee has established that the loan was for payment of antecedent debts, it is no longer incumbent upon him to prove that these antecedent debts in themselves were for necessity. In order to get rid of his liability the burden then lies on the son to establish that those antecedent debts were tainted with immorality or illegality. " We must pause here to point out that the learned District Judge was entirely in error when, in the first place, he thought that even where the debts were antecedent, the mortgagee must establish that the debts were for legal necessity, and further, that it was incumbent upon the mortgagee also to establish that the antecedent debts had also been incurred for legal necessity. We have no manner of doubt that as soon as the mortgagee has established, as he has, in our opinion, done in this case, that the mortgage had been made for payment of antecedent debts, he had discharged the burden that lay upon him, and then the burden shifted on the sons if they wished to escape the liability to establish that the antecedent debts were tainted with immorality or illegality. We now proceed to see whether the son Bhanwarlal has discharged the burden of showing that these antecedent debts were Avyavharic or were tainted with immorality or illegality. We must further point out that the burden which lies upon a son to prove the immorality of the debt is not discharged by merely showing that the father lived an extravagant or immoral life. A direct connection must be established between the debt and the immorality set up on behalf of the son. Reference may be made in this connection to Tulshi Ram vs. Bishnath Prasad (1) (AIR 1927 All. 735.) already cited above and also to Sri Narain vs. Raghubans Rai (2) ( (17 I. C. 729.)) and Shyam Narain (3) (AIR 1933 P. C. 38. ). Now what we find in this case is that the defendant has entirely failed to establish that the antecedent debts were contracted for immoral purposes. All that he has tried to prove is that the defendant Shankerlal used to lead an immoral life or that he was gambler and addicted to bhang. Reliance was placed by the learned District Judge on the statement of P. W. 2 Amarchand and P. W. 3 Jagan Nath. Now all that P. W. 2 Amarchand said in reply to a question in cross-examination was that Shankerlal occasionally used to go to the silver market for doing satta. Similarly, P. W. 3 Jagannath in his cross-examination deposed that Shankerlal was given to gambling and did not do any business, and that he hod lost a lot of his property in satta and gambling. The evidence of P. W. I Mohanlal is to the effect that Shankerlal gambles and is addicted to drinking bhang. So is the evidence of P. W. 2 Bhanwarlal, D. W. 3 Jhanwarlal and D. W. 4 Jaikishen who have done nothing except raising a general charge that Shankerlal lived a free and easy life and that he used to drink bhang and was a care-free sort of person. We may point out that these are statements which are easily made and are extremely vague and uncertain, and it is impossible to place any reliance upon them. Taken at their highest value, they do establish any connection between the particular debts which are sought to be assailed by the defendant Bhanwarlal and the alleged immorality. We have, therefore, no hesitation in coming to the conclusion that the defendant Bhanwarlal's attempt to prove that the debts in question were tainted with immorality has been a complete failure. It only remains for us now to consider the question as to whether the learned District Judge was justified in holding that the balance of the consideration between the sum of Rs. 25000/- which was the consideration for the mortgage (Ex. P-2) and the sum held by him to have been received by the defendant Shankerlal viz. , Rs. 23067/7/- was not duly proved to have been borrowed by Shankerlal. In the first place, we must point out that the plaintiff appellant paid the total amount of Rs. 25000/- to the defendant Shankerlal, in the presence of the Registrar when the mortgage-deed Ex. P-2 came to be registered on the 29th December, 1947. This fact has been mentioned by the Registrar in his endorsement of registration. It may also be pointed out that payments to the various persons mentioned in the deed were also made in the presence of the Registrar and they affixed their signatures in lieu thereof at the foot of the mortgage deed in the Registrar's presence. It further appears to us that the learned District Judge fell into an error when he thought that a payment of Rs. 16259/7/- only was made to Mst. Jasoda in satisfaction of the earlier mortgages Exs. P-10 and P-12. The amount paid to Mst. Jasoda was really Rs. 16859/7/9. The other items about which the learned District Judge was not satisfied are items Nos. 5, 6 and 8 viz. , of Rs. 500/-, 300/- and a sum of Rs. 536/ -. As regards the amount of Rs. 500/-, the only criticism made by the learned District Judge is that this amount was not shown as paid on account of dalali for Govindram Vaid in the mortgage deed Ex. P-2 itself Govindram has himself come into the witness-box and said that the amount was paid to him as dalali and a receipt has also been produced by the plaintiff in which this amount is stated to have been paid as dalal to Govindram. (Ex. P-9 ). The learned District Judge, therefore was not justified in holding that this amount was not proved. As to the amount of Rs. 300/- paid to P. W. 2 Amarchand as arrears of pay for his services for plying Shankerlal's tonga for a period of six months, Amarchand stated on oath that this sum was due and had been paid to him in the presence of the Registrar, and a receipt from Amarchand has been produced. We do not see what further corroborative evidence was required in order to prove this item. Coming to the last item, the learned District Judge was of opinion that even if the amount spent on the purchase of stamp papers for the execution of the mortgage deed and the rent-note, and registration charge, was allowed, there was a balance of Rs. 536/- which still remained to be accounted for. This, in our opinion, is an inconsiderable amount looking to the entire consideration of Rs. 25000/- which is proved to have been received by the defendant Shankerlal and for which Ex. P-2 had been executed by him in favour of the plaintiff. Reference may be made in this connection to Sri Kishen Das vs. Nathuram (1) (A. I. R. 1927 P. C. 37 ). There the sale challenged was made after due enquiry as to the legal necessity, by the vendee for a sum of Rs. 3500/- but such necessity had been established only to the extent of Rs. 3000/ -. In these circumstances it was held by their Lordships of the Privy Council that the sale was for an adequate consideration and that the mere fact that after some interval of time the appellants were not able to establish how the surplus of Rs. 500/- was applied, was not a sufficient ground in law for setting aside the sale Consequently, we hold that the entire consideration of Rs. 25000/- was received by defendant Shankerlal. For the reasons indicated above, this appeal is allowed, and the preliminary decree passed by the court below is varied so as to be for the entire principal sum of Rs. 25000/- and Rs. 1731/- by was of interest instead of Rs. 1724/9/- allowed by the court below with cost. We further direct that the defendant respondent Bhanwarlal will also be liable for this debt and his share of the family estate will be liable to sale. The plaintiff appellant will be entitled to receive his costs in this Court from the contesting respondent Bhanwarlal. .;