RAJESHWAR Vs. MANGNIRAM GANGABISAN

JUDGEMENT

(1.) 1. This appeal arises from a suit founded on a mortgage deed executed by Tukaram, defendant 1, on 9th February 1922, to secure a debt of Rupees 5,000 in favour of the firm Magniram Gangabisan, the respondent. The lower Court decreed the suit and the appeal is preferred by the defendant Rajeshwar, son of Tukaram. Rajeshwar, defendant 2, and Waman, defendant 3, were impleaded in the suit as defendants, as being respectively the son of the mortgagor, and subsequent mortgagee. Waman, defendant 3, admitted the mortgage debt and the plaintiff's claim in full. Tukaram, defendant 1, who executed the mortgage deed, admitted its execution but denied the receipt of Rs. 1,381 out of Rs. 5.000 for which the mortgage deed was executed. He however absented himself in the later stage of the suit and allowed the suit to proceed ex parte. The real contesting defendant was Rajeshwar, defendant 2, who is appellant here. Among the several pleas raised by him those relevant for the purpose of this appeal were that there was no legal necessity to justify the debt incurred by his father; that his father was given to prostitution for which he contracted various debts; that there was a partition on 1st December 1925 between himself and his father in consequence of which he became an unqualified owner of half-share in the property comprised in the mortgage deed ; and that the plaintiff mortgagee had agreed to release his half-share from the mortgage. All these pleas were negatived by the lower Court.

(2.) IT is urged for the appellant that it is proved that defendant 1, that is Tukaram, the appellant's father, derived an income of Rs. 1,500 to Rs.

(3.) IF the money obtained by incurring loans is proved to have been spent on immoral or illegal purposes the son would not be bound to pay such debts. It is not the character of the father but the nature of the debt which has to be proved. The learned Counsel for the appellant argues that the debts borrowed on promissory notes and bonds anterior to the mortgage bond in suit were avyavaharika and relies on Chhakauri Mahton v. Ganga Prasad (1912) 39 Cal 862, Venugopala Naidu v. Ramanandan Chetty AIR 1914 Mad 654, Ramkrishna v. Narayan (1916) 40 Bom 126 and Hanmant Kashinath v. Ganesh Annaji . The word "avyavaharika" occurs in the text of Ushanas cited in the Mitakshara in the commentary of Yajnavalkya, Book 2, Verse 47,. which runs as follows: A fine or the balance of a fine, likewise a bribe or a toll or the balance of it, are not to be paid by the son ; neither shall he discharge improper (avyavharik) debts.