KRISHNA KANT PRASAD SHUKUL Vs. DHANU LAL CHOUDRY

JUDGEMENT

(1.) The appellants are the two minor sons of respondent 9 Bate Krishna Prasad. By their mother Smt. Avadesh Dulari Debi they sue to have a mortgage decree dated 18 December 1931, set aside as against them and to establish that their interest in the joint family property is not liable for the monies due thereunder. The mortgagees who obtained the decree of 1931 are respondents 1 to 7, herein called the respondents. Respondent 8 is a puisne mortgagee and need not be further mentioned. The present suit was brought on 26 July 1933, in the Court of the Subordinate Judge at Muzaffarpur. The appellants succeeded in the trial Court whose decree was dated 16 December 1935, but the High Court at Patna on 9 March 1939, dismissed their suit.

(2.) The mortgages in question are three in number and were executed by the appellants' father (respondent 9) in terms which purport to bind their interests. (1) The first dated 19 July 1924, was for Rs. 20,000. Apart from a small sum of Rs. 200 and a sum of Rs. 400 borrowed to pay the costs of the mortgage, this loan was expressed to be made - as to Rs. 9098, to pay off' a previous loan made by the respondents on a bond dated 16 August 1917; as to Rs. 4650, to pay off a decree in favour of one Shyam Nundan Sahay; and as to Rs. 5650 to meet a decree for maintenance obtained by a lady called Deokeshari. These debts were not incurred for the benefit of the joint family but as antecedent debts of the father, respondent 9, they have been held by the High Court to come within the principle that a father can mortgage the joint property to discharge a debt contracted by him for his own personal benefit. (2) When the second mortgage, dated 28 March 1925, came to be made it appeared that the whole sum of Rs. 5650 had not in fact been paid to Deokeshari but only Rs. 2600 ; and that she was taking execution proceedings for the balance which by this time amounted to Rs. 7300. Apart from Rs. 255 borrowed for the costs of the mortgage, Rs. 4745 was taken to save certain properties which had been put up for sale. The High Court have found that the mortgagees took care to see that the money was this time applied to the discharge of the maintenance decree but that a stay of the sale could not be obtained; and that in the end the money or the bulk of it was expended for the purpose for which it was taken by buying back the properties in the name of a nominee. (3) The third mortgage was on 18th May 1926, for Rs. 2500. Of this, Rs. 2090 was expressed to be taken to pay off one Noorullah or Sadhulla Khan who had lent money on a hand-note to meet revenue and cesses, repairs to the family house and for clothes. The rest was said to be necessary to meet medical expenses. The High Court have found that there was such a hand-note, and that it was paid off with the money borrowed for the purpose.

(3.) On the merits the appellants' case which the trial Judge accepted was that their father, respondent 9, was addicted to evil habits, was borrowing the monies in question for immoral purposes and was spending it upon intoxicating drink and prostitutes. In addition to a body of general evidence as to his bad character and depraved habits, the appellants made a positive case that the sum exceeding Rs. 10,000 received by him from the first mortgage (19 July 1924) or the great part of it was immediately squandered upon prostitutes. They called four witnesses to prove the division of the money among such women. The trial Court accepted their evidence; but the High Court regarded them as unworthy of credit and on a careful examination of their evidence rejected their story as one which had broken down. Their view in the end was that however successful the appellants may have been in attacking their father's character, they have not succeeded in connecting the loans which are now in question with the immorality alleged.