T NANNU SHANKAR TAWKER Vs. PSBASHYAM AIYANGAR

JUDGEMENT

(1.) This appeal concerns a mortgage executed on the 12 March, 1919, in favour of the father of the first and second respondents by the third respondent, who is the father of the appellant. In executing the mortgage the third respondent signed for himself and also purported to be acting (a) as the guardian of the appellant and of his nephew, Krishnaji, and (b) as the manager of a joint family which he alleged consisted of himself, the appellant, his nephew, and his brother Balakrishna. The mortgagee having died, the first and second respondents, on whom his estate devolved, instituted the suit out of which this appeal arises in the Court of the Subordinate Judge of Chingleput to recover the sum of Rs. 9,213-12-0 claimed to be due as principal and interest under the mortgage. The defendants were the appellant, the third respondent, and Balakrishna who died during the pendency of the suit. Balakrishna's estate having devolved by will on the appellant the suit was continued against the appellant as the legal representative of Balakrishna as well as against him as a member of the joint family. The suit was defended by the appellant who averred that the property in suit constituted trust property and as such could not be mortgaged by the third respondent; that even if it were not trust property no necessity existed for mortgaging it; that the loan was in fact obtained by his father for immoral purposes; and that, in any event, the estate of Balakrishna was not bound by the deed as he had already separated from the family. The learned trial Judge lightly refused to go into the question whether there was a paramount title, as all that could be sold was the right, title arid interest of the defendants in the property. He rejected the plea that the loan had been obtained by the third respondent for immoral purposes, but held that the appellant was bound by the deed as the mortgagee had made reasonable inquiries with regard to the need for the loan and had satisfied himself that it was necessary. He was, however, of the opinion that liability did not extend to Balakrishna's estate. On these findings he passed a decree for the amount claimed and directed that in default of payment within the time allowed for redemption the interests of the third respondent, of Krishnaji, who had died before the suit, and of the appellant as the son of the third respondent should be sold. The appellant contends that on the evidence the learned trial Judge should have accepted the plea that the money was raised by the third respondent for immoral purposes and failing this should have dismissed the suit so far as the appellant was concerned on the ground that the loan was not required for family purposes and it had not been shown that the mortgagee made inquiries before lending the money. The first and the second respondents have filed cross-objections as they challenge the finding that the estate of Balakrishna is not bound by the mortgage.

(2.) In order to understand the position it is necessary to refer to certain events which happened before the mortgage deed was executed. Up to the year 1905 the family was joint. It then consisted of the appellant's great uncle (Gopinath) his father, his father's brothers (Rajaram and Balakrishna), Rajaram's son (Krishnaji) and himself. In January of that year Gopinath separated from the other members of the family, and on the thirty-first of that month a deed of partition was executed. The properties belonging to the family were a house in Tanjore, a house in Madras, and certain property on the outskirts of Madras known as "Teeds Garden". Under the terms of the partition deed Gopinath received the Tanjore house and Rs. 3,000 and the third respondent and his brothers the Madras house. Teeds Garden was not partitioned, but the effect of the deed was to make Gopinath a tenant-in-common with his nephews, who as between themselves remained joint. On the 28 April, 1905, Balakrishna separated from his brothers and executed a deed relinquishing his interest in the Madras house in consideration of a sum of Rs. 2,000. On the 24 July, 1910, Rajaram and the third respondent sold the Madras house. Shortly afterwards Rajaram died. The joint family then consisted of the third respondent, the appellant and Rajaram's son Krishnaji.

(3.) According to the recitals in the mortgage deed the money was required for the marriage of the appellant and for capital in the family business in precious stones. It will be necessary to consider whether these recitals were true, but I will first of all deal with the plea that the loan was raised by the third respondent for immoral purposes. It is the appellant's case that his father became addicted to drink many years ago and that drink led him to associate with woman of immoral character. He is supported by a number of relatives, some of whom hold good positions in life. It is said on behalf of the first and the second respondents that it is no uncommon thing in this country for members of a family, ostensibly respectable, to instigate and to assist a son in maintaining a plea that his father has lived an immoral life, when it is a matter of preventing a mortgagee from enforcing his rights. It is a regrettable fact that false pleas of this nature are not unknown. But each case must be considered on its merits, and the fact that other people have not hesitated to raise false pleas cannot be taken into account here. The learned trial Judge, having heard the appellant's witnesses, refused to believe their testimony on this point, and the learned Advocate for the first and the second respondents has shown that in another respect the defence evidence is not true. An attempt was made to prove that the third respondent had not lived with his wife and son for many years, but the falsity of this story is to be gathered from the evidence of Nana Tawker, the uncle of the appellant's mother and one of the defence witnesses. In these circumstances we are not prepared to hold that the learned trial Judge has failed to weigh the evidence on this point properly. But even if it were true that the third respondent did drink and associate with women of bad character this would not entitle the appellant to succeed, because there is nothing to show that the loan was raised for the purpose of enabling the third respondent to lead an immoral life or to discharge debts which had been incurred as the result of such conduct. To prove that the father has been immoral will not relieve the family from liability. It must be shown that there is some connection between the debt and the father's immorality, as the Privy Council pointed out in the case of Sri Narain V/s. Lala Raghubans Rai (1912) 25 M.L.J. 27 : 17 C.W.N. 124 (P.C.). In their judgment in Tulshi Ram V/s. Bishnath Prasad (1927) I.L.R. 50 All. 1, Lindsay and Sulaiman, JJ., remarked that if this were not the correct law the position of the mortgagees would become wholly insecure and intolerable, and that even the payment of antecedent debts would be nullified by proof that the father was an immoral person. This disposes of the appellant's plea based on the alleged immorality of his father.