Dave, J. - (1.) THIS is a first appeal by the plaintiffs against the judgment and decree of the District Judge, Bikaner, dated 23-4-1952.
(2.) THE plaintiffs-appellants Tolaram and Kashiram are sons of the defendant-respondent No. 3 Kaluram. It is common ground between the parties that on 23-5-1932, the appellants' father executed a mortgage-deed in favour of the defendants-respondents Nos. 1 and 2 Beenjraj and Nemchand for Rs. 10,000/- in respect of a house which is situated in Dungargarh and which is the subject of dispute in the present case. Respondents Nos. 1 and 2 later on filed a suit against respondent No. 3 on the basis of the said mortgage-deed and obtained a final decree for the sale of that property on 5-11-1948. In execution of that decree, a proclamation for sale was made by the executing Court and 16th to 18th June 1950 were fixed for the auction of that property. After this proclamation was issued, the appellants brought the present suit on 13-5-1950 for a declaration that the said decree was void and inoperative against them and the mortgaged property was not liable to be sold in execution thereof. It was averred by the plaintiffs that the house in dispute was their ancestral property since its patta was in the name of the appellants' grandfather and, therefore, their father defendant No, 3 had no right to mortgage the same in the absence of any legal necessity. It was further averred that there was no antecedent debt of the family to be paid off, that no benefit had accrued to the family from the money which was borrowed by defendant No. 3. It was also pleaded on the other hand that the money was borrowed by defendant. No. 3 for immoral and illegal purposes and, therefore, it was not binding on them. 2a. THE suit was resisted by defendants Nos. 1 and 2 on several grounds which led the trial court to frame the following five issues: 1. Is the Haveli in question the joint ancestral property of the plaintiffs and defendant No. 3? P. 2. Did defendant No. 3 mortgage this Haveli with the defendants Nos. 1 and 2 for immoral and illegal purposes? P. 3. Was the decree dated 5-11-1948 obtained by defendants Nos. 1 and 2 against defendant No. 3 by collusion with defendant No. 3 and so it is void and ineffective as against the plaintiffs and so the property was not liable to sale? P. 4. Is the suit not within time? D. 5. Are the plaintiffs estopped from bringing the present suit? D. Of these, issues Nos. 4 and 5 were not pressed by the defendants in the trial court and, therefore, they were decided against them. Similarly, the plaintiffs failed to produce any evidence on issue No. 3 and, therefore it was decided against them. Issue No. 1 was decided by the trial court in the plaintiffs' favour and its correctness has not been questioned before us at the time of arguments. The main discussion in the trial court centred round issue No. 2 which was decided by that court against the appellants. It was found by the trial court that the defendants Nos. 1 and 2 had advanced a loan of Rs. 10,000/- to the defendant No. 3, that out of this amount, Rs. 4,000/- were paid by the defendant No. 3 to defendants Nos. 1 and 2 themselves towards the repayment of a loan which he had obtained earlier from them, and that the remaining amount of Rs. 6,000/- was obtained by defendant No. 3 to pay off other debts. It was further found by that court that the defendants had made proper enquiries about the necessity of the loan. The plaintiffs' suit was, therefore, dismissed with costs. Against this decision, the present appeal came for hearing before this Court on the 9-11-1953. At that time, it was contended by the appellants' learned advocate that the trial court had failed to frame an issue regarding legal necessity and, therefore, they were prejudiced in the trial. It was held by the court that issue No. 2 was not properly framed and, therefore, the following two issues were framed and the case was remanded to the Civil Judge, Churu, who had jurisdiction to hear the present suit, with directions to record evidence of both the parties and to return the record with its findings thereon: 1. Was the money borrowed through the mortgage deed of 1932 taken for legal necessity or payment of antecedent debt? 2. Did defendants Nos. 1 and 2 make bona fide enquiries as to legal necessity, and were they satisfied about it? The learned Civil Judge, Churu, has accordingly recorded evidence of both the parties. He has come to the finding that defendant No. 3 had obtained Rs. 10,000/- from the defendants Nos. 1 and 2, that out of them, Rs. 4,000/- were paid to defendants Nos. 1 and 2 themselves in discharge of an antecedent debt and that the remaining Rs. 6,000/- were obtained by defendant No. 3 Kaluram for legal necessity. Regarding issue No. 2 also, he has remarked that the defendants Nos. 1 & 2 had made personal enquiries and they had come to know that defendant No. 3 was indebted to various creditors. Learned counsel for the appellants has filed a memorandum of objections under Order XLi Rule 26 of the Civil Procedure Code. In that memorandum, as also in his oral arguments, it has been urged by him that the existence of the alleged antecedent debt of Rs. 4,000/- has not been proved by defendants Nos. 1 and 2 according to law and the finding of the trial court is, therefore, incorrect. Regarding the remaining amount of Rs. 6,000/-, it is urged that its payment to defendant No. 3 has not been satisfactorily proved. It is further urged that even if this Court comes to the conclusion that Rs. 10,000/- were paid to defendant No. 3 and that defendant No. 3 repaid Rs. 4,000/- to defendants Nos. 1 and 2 in discharge of their antecedent debt, then the mortgage could be held binding on the appellants only to this extent. It is contended that so far as the amount of Rs. 6,000/- was concerned, defendants Nos. 1 and 2 had failed to prove that this amount was paid to any particular person or persons in discharge of antecedent debts. According to learned counsel, this amount was not borrowed by defendant No. 3 either for the repayment of antecedent debts or for legal necessity because there was no pressure on the disputed property to pay off the old debts. It is prayed that the mortgage being entirely invalid, the decree of the trial court should be set aside and the plaintiffs' suit should be dismissed. Before entering upon the discussion on questions of law, it would be proper to decide the ques- tions of fact which have been raised by the appellants' learned counsel. It may be pointed out that So far as the amount of Rs. 4,000/- is concerned, defendants Nos. 1 and 2 have produced the account books of the Firm Beenjraj Jaichandlal in which they were partners. The relevant entries Exs. D. 3 and D. 4 are on the record and they show,that Rs. 4,000/- were borrowed on behalf of Firm Heeralal Kaluram from the Firm Beenjraj Jaichandlal on the 25th of April 1932 and this was repaid on Jeth Vad. 4 i. e. the 23rd of May 1932. The mortgage-deed itself contains a recital that Rs. 4,000/- were repaid to the Firm Beenjraj Jaichandlal in discharge of its antecedent debts. Defendant Nemchand has himself appeared jn the witness-box and stated on oath that Rs. 4,000/-were repaid by defendant No. 3 towards their old debt of the same sum. Learned counsel for the appellants has urged that the entries Exs. D. 3 and D. 4 have not been proved according to section 34 of the Indian Evidence Act; but in our opinion, there is no substance in that argument. Defendants Nos. 1 and 2 have not filed any money suit for a decree of Rs. 4,000/- on the basis of Exs. D. 3 and D. 4. They have been produced only to show that this amount was advanced on 25th of April 1932 and that the debt was subsis-ting at the time the mortgage-deed was executed and that Rs. 4,000/- which were advanced at the time of the execution of the mortgage-deed were repaid towards the discharge of this debt. It may be further remarked that the plaintiffs have not produced their account-books. On the other hand, they have tried to take shelter under the plea that their account-books were burnt. We are not satisfied that the appellants' account-books were burnt in fire and the presumption from withholding the production of those books arises against them. We agree with the trial court that defendants Nos. 1 and 2 have been able to prove satisfactorily that Rs. 4,000/- were advanced to defendant No. 3 Kaluram for the Firm Heeralal Kaluram on 25th of April 1932 and that this sum was repaid by him out of Rs. 10,000/- which he borrowed on 23rd of May 1952 from defendants Nos. 1 and 2. Similarly, about the amount of Rs. 6000/-, we have absolutely no doubt that it was paid to defendant No. 3 Kaluram by defendants Nos. 1 and 2 at the time the mortgage-deed was executed. It is significant that although the plaintiffs and defendant No. 3 were still living as members of the joint family, the plaintiffs had not the courage to produce their father Kaluram as a witness to deny on oath the advance of this sum. On the contrary, the defendant Nemchand has come in the witness-box and his evidence regarding this loan has remained unshaken. He has also produced the attesting witness P. W. 7 Rewatmal, P. W. 8 Meghraj, P. W. 10 Gokalchand and P. W. 13 Shamim Ahmad. They all say that Rs. 6,0007- were given to Kalu-ram in their presence. We see no reason to disbelieve them. So we have absolutely no doubt that Rs. 6,000/- were given to defendant No. 3 on 23rd of May 1932 at the time of the execution of the mortgage-deed. At the same time, it may be remarked that the defendant No. 3 has not pointed out in what manner this sum of Rs. 6,000/was actually distributed by him to his creditors. He would have been the best man to give an account of its disposal but unfortunately, he has not come out with the truth. Defendants Nos. 1 and 2 did not care to see the actual payment of this amount by defendant No. 3 in their presence and, therefore, we have to find out from other evidence whether the whole or part of this amount was paid by defendant N6. 3 to any of his previous creditors towards the repayment of their debts. The evidence, which defendants Nos. 1 and 2 have led, is to the, effect that defendant No. 3 was heavily in debt at the time of the execution of the mortgage. The trial court has recorded a finding on the basis of the documents on record that defendant No. 3 had executed the following deeds for the amounts mentioned against them near about that date: 1. Mortgage-deed for Rs. 4,500/- in favour of Tarachand Rampratap dated 21-5-1932. 2. Mortgage deed for Rs. 7,000/- in favour of Munabai dated 21-5-1932. 3. Sale-deed for Rs. 2,000/- in favour of Chhog-mal Gattani dated 21-5-1932. 4. Mortgage-deed for Rs. 5,500/- in favour of Banechand Surachand dated 24-5-1932. 5. Sale-deed in favour of Ramchandra Bhagwan-das for Rs. 12,683/- dated 2-8-1932. 6. Sale-deed for Rs. 11,200/- in favour of Ram-kishan Basantlal dated 2-8-1932. We have also gone into the record and it appears that the finding of the trial court regarding the above deeds is correct except in respect of item No. 3. (After discussion of evidence his Lordship proceeded:)8. It was alleged by the appellants in the trial court that their father was indulging in wagering transactions, that all his losses were due to that reason and his debts were thus illegal and immoral. The trial court has remarked after going through the evidence that this allegation is not proved. Learned Judge has pointed out that the appellants have withheld their account-books and they had no intimate knowledge about their father's transactions. They could not even say how many immovable properties were possessed by their father and how many of them were mortgaged or sold away by him. They made their allegation on the basis that they had received this information from their father's Sister but that was only hearsay evidence. Learned counsel for the appellants tried to raise this question very faintly at the time of arguments. We have also gone through the appellants' evidence and we think that the appellants have miserably failed fo establish that their father had entered into wagering transactions or that his debts were immoral or illegal for any other reason. On the other hand, the appellant Kashiram has himself admitted in his statement that both the appellants and their father had joint family business upto the year 1987 and that the business which was carried on at Murliganj, Behariganj and Sahibganj was their old family business. He has also admitted that in the Samwat year 1987 corresponding to 1932 which is the year of the disputed mortgage, he was seventeen years of age, while his brother was about 19 years old. This means that they had fairly developed intelligence at the time of the disputed mortgage and if their father had really incurred the debts for il- legal or immoral purposes, they could give faithful account of the same. Their failure to point out the exact illegality or immorality about the transactions only shows that they are anxious to get rid of their responsibility to pay their father's debt by fair or un fair means. According to the evidence produced by the respondents, the appellants are still living toge ther with their father. Thus in the present case, the following facts are established beyond any doubt: 1. That Rs. 10,000/- were advanced by defendants Nos. 1 and 2 to Kaluram on 23rd of May 1932, that he mortgaged the disputed property for this sum, that Rs. 4,000/- were appropriated by defendants Nos. 1 and 2 towards his old debt and Rs. 6,000/- were paid to him in cash. 2. That Rs. 6,000/- were obtained in cash by defendant. No. 3 on the representation that he was borrowing that amount to pay off his old debts. 3. That respondents Nos. 1 and 2 did not themselves pay the said amount of Rs. 6,000/- to Kalu-ram's creditors nor did they care to see that this amount was paid by him to his creditors in their, presence, 4. It is however established that on the date of the disputed mortgage, Kaluram was heavily in debt and also that he paid no less than Rs. 9,822/12 in cash to different creditors thereafter in discharge of his debts. 5. That the Firm Heeralal Kaluram was a joint family firm and it was carrying on its joint-family business at Murliganj, Behariganj and Sahibganj for, a very long time. The only new business which was started by Kaluram in the name of Tolaram Kashiram was at Dharara and Calcutta. 6. It is not proved that Kaluram had contracted the debts for any illegal or immoral purpose. We have now to decide on the proved facts stated above whether the mortgage-deed dated 23rd of May 1932 is void or inoperative qua the appellants. This brings for determination the first issue which was framed by this Court. It is not disputed by learned counsel for the appellants that if a mortgage, of the joint-family property is executed by a father in order to pay off his antecedent debts, such alienation would bind the sons as well provided the debt was antecedent to, the alienation and it was not incurred for an immoral purpose. (See Brijnarain Rai v. Mangalaprasad, AIR 1924 PC 50 (A) ). What he contends is that the present mortgage aennot be said to have been executed for the payment of antecedent debts because no antecedent debts have been proved to have been cleared off by the amount of Rs. 6,000/ -. In other words, he means that Rs. 6,000/- should have been either paid by respondents Nos. 1 and 2 themselves towards the discharge of the antecedent debts of Kaluram or they should have seen that the said amount was actually paid by Kaluram in their presence to clear off his antecedent debts. It is urged that a mere reference in the mortgage-deed that the mortgage of co-parcenary property was executed for discharging antecedent debts was not enough because unless the antecedent debts are specifically mentioned, the sons cannot have an opportunity to find out whether they were incurred for illegal or immoral purposes. Learned counsel for the respondents, on the other hand, has urged that the only thing which was necessary for the mortgagee was to find out whether the father was actually in debt and whe-ther the mortgage was being executed in order to clear off his antecedent debts. It was also his duty to find out that the antecedent debts which were incurred by their father were not obtained for illegal or immoral purposes. According to learned counsel, it was none of the duty of the mortgagee to see thereafter whether the father actually applied the amount obtained in payment of his debts. In other words, he means to say that if the father utilises that money in some other manner, the mortgage cannot be void or in-operative against the sons for that reason. Learned counsel has further pointed out that in the mortgage-deed which was executed by Kaluram, he had clearly mentioned that he was obtaining the loan for paying off his antecedent debts. Defendants Nos. 1 and 2 had ascertained from a number of his creditors that he was in actual debt. They also made it certain that his debts were on account of losses in his business, but they were neither immoral nor illegal and, therefore, the mortgage is binding on the appellants. We have given due consideration to, the arguments advanced by learned advocates of both the parties. It may be pointed out in the case of Jamna v. Nain Sukh ILR 9 All 493 (B) it was observed that. " It is good sense and a general rule that a creditor endeavouring to enforce his claim under a bond given by a Hindu father against the estate of a Hindu family in respect of money lent or advanced to the father having only a limited interest should, if the question is raised, prove either that the money was obtained by the father for a legal necessity, or that he made such reasonable enquiries and obtained such information as would satisfy a prudent man that the loan was contracted to pay off an antece-dent debt, or for the other legal necessities of the family. " We may further refer to the following observation appearing in the case of Jayantilal Jethalal v. Amritlal Nagji, AIR 1954 Sau 36. (C): '"now it is long since settled law on the subject of antecedent debts that when a Hindu son seeks to set aside an alienation by his father, it is for the alienee fo show that the alienation was for payment of an antecedent debt or that after due inquiries he in good faith believed that it existed. The burden is then shifted upon the son to prove that the debt was contracted by his father for an illegal or immoral purpose 'and that the alienee had notice that the debt was so contracted'. " This observation is an extract from Mulla's Hindu Law (11th Edition) page S83. The learned author has referred to a number of authorities on which these observations are based and we need not refer fo them. It is quite clear from these observations that if a mortgagee is able to prove that the mortgage executed by the father was for the payment of, antecedent debts, then the burden would shift to the sons challenging the validity of the mortgage fo prove that the antecedent debts were contracted by their father for illegal or for immoral purposes and that the alienee had notice of the same. This does not however mean that the alienee's or mortgagee's responsibility is no more than that of proving that the father had told him that he wanted money for paying off his antecedent-debts. It is the duty of the alienee to find out that the father had really particular antecedent-debts to pay. It may be observed that this is necessary because unless the particular antecedent debts are pointed out by the alienee, it would not be possible for the son to prove that they were immoral or illegal. The son has to relate the particular debt to immorality or illegality and unless he knows what particular debts were either actually paid off or at least intended to be paid off through the loan, he cannot discharge that burden: See Laxminarain v. Shankarlal, ILR (1954) 4 Raj 328 (D ). It is easy to conceive of four kinds of mortgage deeds of joint family property executed by the father for paying off antecedent debts. The first kind of mortgage-deed may be one in which the antecedent-debts of the father are mentioned and the mortgagee clears off the debts by making payment to the creditors or pays the money to the father to clear off the debts. In such a case, there can be no difficulty for the sons to prove whether the antecedent-debts referred in the document were illegal or immoral. The second kind of mortgage may be one in which the antecedent debts are referred, but the payment is not made by the mortgagor and the mortgage money is withheld by the mortgagee and later on paid to the mortgagor's creditors. In this kind of mortgage, the mortgagee will simply have to prove that the antecedent-debts were actually paid off by him; but the sons would again have no difficulty in proving the illegality or immorality of the debt because they can know from the document itself what those debts were. The third kind of mortgage deeds may be those in which there is a mere reference about the antecedent debts but no particulars are given to, show what those debts were. There may be a fourth kind also in which the mortgage is really executed for paying off the antecedent debts but there is no mention of antecedent debts in the mortgage deed. In the last two kinds of mortgages, the onus would lie on the mortgagee to prove that the father had some antecedent debts to be paid at the time of the mortgage and he would further be required to relate the mortgage money to those debts. Unless the mortgagee is thus able to prove that there were antecedent debts in existence and that the mortgage money was borrowed to pay off those particular debts, the sons cannot possibly prove the immorality or illegality of the antecedent debts. We, therefore, do not agree with the learned counsel for the respondents that the mere reference to the presence of antecedent debts in the present, mortgage-deed was sufficient. If respondents Nos. 1 and 2 had not been able to prove the existence and payment of the antecedent debts, the appellants could not know from the mortgage-deed alone what those debts were. But we find that in the present case, respondents Nos. 1 and 2 have been able to prove that Kaluram, father of the appellants had particular antecedent debts to be paid off on the date of the mortgage and that they were actually paid off after the mortgage money was advanced to him. We have already pointed out above that after obtaining the loan of Rs. 10,000/- from the respondents Nos. 1 and 2, the respondent No. 3 paid off Rs. 9,822-12-0 in cash to different creditors pointed out above. Learned counsel for the appellants has urged that respondent No. 3 might have paid the said amount out of other funds and it cannot be said that the said debts were discharged out of the money borrowed from respondents Nos. 1 and 2. We do not see any force in this argument because the appellants have not been able to prove anywhere that respondent No. 3 had another fund in his possession to pay off these debts. It is further contended by learned counsel for the appellants that respondents Nos. 1 and 2 have not been able to prove the aetual application of their money to the payment of these debts. In this connection, it may be pointed out that in Krishan Das v. Nathuram 54 Ind App 79: (AIR 1. 927 PC 37) (E), it was observed by their Lordships as follows: " It would rather appear that in any case where the sale has been held to be justified but there is no evidence as to the application of a portion of that consideration, a presumption arises that it has been expended for proper purposes, and for the benefit of the family. This is in line with the series of decisions already referred to, in which it was held that where the purchaser acts in good faith and after due inquiry, and is able to show that the sale itself was justified by legal necessity, he is under no obligation to inquire into the application of any surplus and is, therefore, not bound to make repayment of such surplus to the members of the family challenging the sale. "
(3.) IT is true that these observations were made in case of legal necessity but there seems no reason why the same principle should not be applied in case of antecedent debts. If the mortgagee makes a proper inquiry about the existence of the antecedent debts and if after such inquiry, he advances the mortgage-money to the father for the purpose of discharging his antecedent debts, then there seems to be no reason why such a mortgage should not be binding on the sons. If the mortgagee is not required to see to the actual application of the money in the case of legal necessity, there is no reason why he should be required to do so in the case of money advanced for payment of antecedent-debts subject to what imme-diately follows. In such cases it would be necessary that if the antecedent debts are not paid off by the mortgagee himself on behalf of the mortgagor or are not particularised in the mortgage-deed, then the mortgagee must relate the money advanced by him to particular antecedent-debts. In other words, he must prove that the mortgagor had particular antecedent debts to be paid off and that the money was borrowed by the mortgagor to discharge those debts so that the sons may be able to prove whether the antecedent debts were illegal or immoral. In the present case, we are satisfied that respondents Nos. I and 2 have been able to show that there were particular antecedent debts in existence at the time of the mortgage and that those antecedent debts were cleared off after the mortgage money was advanced to respondent No. 3. The appellants were in no doubt about the existence and particulars of those debts after the respondents Nos. 1 and 2 had finished their evidence. They have not been able to prove that those debts were incurred for illegal or immoral purposes. Under the circumstances, we cannot hold the mort-gage to be invalid. The appeal is dismissed with costs. .;