TULSHI RAM Vs. BISHNATH PRASAD

JUDGEMENT

(1.) These two appeals are connected and arise out of two suits, the first by Tulshi Ram mortgagee to enforce a mortgage executed by Bishnath Prasad in 1917 and the other a suit for a declaration by Bishnath Prasad's minor son that a simple money decree of 1921 obtained by Tulshi Ram was not binding on the plaintiff. The case for the minor son in both the suits, apart from a denial of consideration, was that Bishnath Prasad was a person of grossly immoral character and that the money taken by him, if at all, was spent on immoral objects. On the other hand Tulshi Ram's position was that the money had been acquired for purposes of legal necessity, family business and for the payment of antecedent debts. In Tulshi Ram's suit the learned Subordinate Judge has found that the full consideration did pass and that the money was taken to a large extent for payment of previous debts, and has passed a personal decree against Bishnath Prasad. He has, however, held that the burden of proving that the previous debts were of a binding character was on Tulshi Ram and that he has failed to discharge that burden. His claim to enforce the mortgage has therefore been disallowed. In the suit brought by the minor son the same learned Subordinate Judge has held that the burden of proving that the antecedent debts were contracted for illegal and immoral purposes lay on the minor and he failed to prove it. He has accordingly dismissed the suit. Both parties have filed cross-appeals.

(2.) We propose to take up F.A. No. 504 of 1923 first. The subject of controversy in this case is the mortgage-deed dated the 14 April 1917, for Rs. 38,000. As stated above, the Court below has found that the whole of the consideration money has been paid by Tulshi Ram. The mortgage-deed recited that Rs. 17,700 were set off on account of debts due to Tulshi Ram himself and had been required for family necessity and for business under Bahi Khata and sarkhats and that the balance of Rs. 20,300 was taken in cash from the mortgagee for payment of previous valid debts due to other creditors. According to the plaintiffs account books Rs. 17,700 were due to him on previous accounts including large Sums advanced shortly before the mortgage-deed to pay off certain previous creditors. The cash consideration of Rs. 20,300 was actually paid to Bishnath Prasad before the sub-registrar. That the first portion of the consideration was actually due to Tulshi Ram is not now disputed before us. There is thus no suggestion that Tulshi Ram has played any trick and taken the mortgage-deed for an inflated amount. In fact the learned Subordinate Judge has passed a personal decree for the whole amount together with full interest against the executant, Bishnath Prasad, who has submitted to the decree and has not chosen to appeal from it. It is, therefore, quite clear that the payment of the full consideration is established. Indeed the learned advocates for the appellant have not challenged that part of the finding of the Court below.

(3.) The learned Subordinate Judge has, in our opinion, been led into error by the supposition that even if the mortgagee proves that the amount of the mortgage money was required for the payment of antecedent debts, it was still incumbent upon him to prove that there was legal necessity for those earlier debts. His whole judgment is affected by this assumption. When dealing with the various items of the mortgage money and the debts for the payment of which they were taken he has over and over again repeated that the plaintiff has failed to prove necessity for these earlier debts. In this view his chief reliance is on the case of Maharaj Singh V/s. Balwant Singh [1906] 28 All. 508 He has quoted the following passage, from the judgment in that case: It has been repeatedly held in this High Court the where a Hindu, son comes into Court to assail either a mortgage made by his father or a decree passed against his father or a sale held or threatened in execution of such a decree, it rests upon him to show that the debt in respect of which the decree was obtained was of such a character that he would not the under a pious obligation to discharge it.... But the appellant in this case is not the assailant, he is defending his title.