DHULIPALLIA BUTCHAYYA Vs. KUPPA VENKATAKRISHNAYYA

JUDGEMENT

(1.) There are two questions raised in this second appeal filed by the plaintiff, the respondents being the 1st defendant and his sons (the defendants Nos. 3 and 4). The suit was brought on a promissory note executed by the 1st defendant: The first of the two questions is, whether the plaintiff has a right to appropriate several payments made by 1st defendant (without specific directions) in full satisfaction of the interest due to the plaintiff on the pro-note till the respective dates of payment and the balance, as far as would go towards the principal amount, or whether plaintiff ought to treat whatever was paid as paid wholly towards the principal and allow counter-interest on the whole of the amount of each payment without denoting there from the interest due till the date thereof. I think the lower Courts were wrong in deciding in favour of the second alternative. The cases in Luchmeswar Singh. Bahadur v. Syud Lutf Ali Khan 8 B.L.R. 110 (P.C.) : 2 Sar. P.C.J. 700 : 2 Suth. P.C.J.461; Bamundoss Mookerjee v. Omeish chunder Raes 6 M.I.A : 289 : 1 Sar. P.C.J. 542 : 19 E.R. 108; Kripasindhu Sahu v. Raja of Kallikota 29 Ind. Cas.718 and Second Appeal No. 143 of 1916 (the two latter being decisions of this Court), dearly lay down the rule in support of the first alternative, would, therefore, decide this question in favour of the appellant. The decision of the lower Courts will be modified by calculating the amount due in accordance with the above observations.

(2.) The second question is, whether, on the facts found by the lower Courts, they were1 justified in finding that the defendants Nos. 3 and 4 had discharged the burden of proving that the money borrowed under Exhibit B was spent for illegal or immoral purposes. The lower Appellate Court says: "in this case, I must say that defendants Nos. 3 and 4 have not succeeded in proving which ; specific part of the consideration for Exhibit B was spent for immoral purposes." I think that this means that no portion of the consideration has been directly connected by the evidence with any expenditure for immoral purposes. Notwithstanding this observation, the ultimate conclusion of the lower Appellate Court is that, because the 1st defendant s "life" was valid and immoral, "because be was not engaged in any trade or business and because his lands yielded sufficient income, the defendants Nos. 3 and 4 have discharged the burden of proving that the money borrowed under Exhibit B was spent on immoral purposes. I think that this is opposed to the decision of the Privy Council in Sri Narain v. Lala Raghubans Rai 17 Ind. Cas. 729 : 25 M.L.J. 27 : 17 C.W.N. 124 : (1913) M.W.N. 768 (P.C.), in an Allahabad case, the High Court of Allahabad having long held,, the same view see Hawman Singh v. Nanak Chand 6 A. 193 : A.W.N. (1884) 23 : 3 Ind. Dec. (N.S.) 793; Kishan Lal v. Goruruddhwaja Prasad Singh 21 A. 238 : A.W.N. (1899) 42 : 9 Ind. Dec. (N.S.) 861 and Babu Singh v. Behari Lal 30 A. 156 : 5 A.L.J. 175 : A.W.N. (1908) 61 see also Sadashiv Dinkar Joshi v. Dinkar Narayan Joshi 6 B. 520 : 6 Ind. Jur. 655 : 3 Ind. Dec. (N.S.) 801; Chintamanrav Mehendale v. Kashinath 14 B. 320 : 7 Ind. Dec. (N.S.) 674 and Hazarimall Babu v. Abani Nath 18 Ind. Cas. 625 : 17 C.W.N. 280 : 17 C.L.J. 38. The lower Appellate Court relies on a Punjab Chief Court decision reported in Ram Nath v. Bulaqi Ram 17 Ind. Cas. 735 : 69 P.L.R. 1913 : 50 P.R. 1913 : 15 P.W.R. 1913 which , no doubt, supports view of the law; but I am unable to follow it in preference to the decisions of the Privy Council and of this High Court and the High Courts above referred to.

(3.) The lower Courts decree have, therefore, to be further modified by making the defendants Nos. 3 and 4 liable along with the 1st defendant to the extent of the ancestral family properties, the 1st defendant, of course, being also personally liable.