BETI MAHA LACHMI BAI Vs. RAJA BAHADUR

JUDGEMENT

(1.) This appeal arises out of a suit for foreclosure of a mortgage made on the 30 of June, 1900, for one lakh of rupees by two brothers, Raja Bahadur and Jang Bahadur. The defendants are the two mortgagors Raja Bahadur and Jang Bahadur and the three sons of Jang Bahadur. The suit was defended by the sons of Jang Bahadur on the ground that the debt was not incurred for family necessity but that it was incurred for immoral purposes. In the third paragraph of their written statement they alleged that Raja Bahadur and Jang Bahadur were spendthrifts, debauchers, drunkards and imprudent men and that they have squandered all the ancestral household property of the family. In the fourth paragraph they say that of the debts stated in the document sued on as having been paid some are fictitious and have no existence at all. Then they go on to state that "if any debts are actually proved their amounts must have been improperly spent by, Raja Bahadur and Jang Bahadur or must have been paid to defray the expenses of their drink and debauchery."

(2.) They further state that no part of the debts mentioned in the bond sued on was paid on account of family expenses and that the defendants, the sons of Jang Bahadur, were not benefited thereby and are not liable. We may observe that the mortgage-deed, on which the claim is founded, recites the various debts which are alleged to have been antecedent debts discharged out of the amount secured by it and only two sums amounting to Rs. 5,491-11-11 are alleged to have been paid in cash to the mortgagors at the time of the mortgage. The Court below has found that Raja Bahadur was not a person addicted to immorality but as regards Jang Bahadur the learned Subordinate Judge was of opinion that he led an immoral life that he was addicted to gambling and drinking and that most of the money which he borrowed from 1892 to 1895 was required to satisfy his immoral propensities and his craving for liquor and gambling. With the exception of a sum of Rs. 23,044-12-6 and another sum of Rs. 2,101-12-6 which he holds were debts incurred for family necessity, he was of opinion that the minor sons of Jang Bahadur were not liable for any of the other debts. He has accordingly made a decree declaring the minor sons to be liable for one-third of the amounts stated above and he has directed foreclosure of their one-third share in the event of their failing to pay a third of the amounts aforesaid. As against the mortgagors he has made a decree for foreclosure in respect of the whole of the amounts borrowed. The decree we notice is very carelessly drawn. In the opening part of it, it declares all the defendants to be liable and directs all of them to pay the amount due upon the mortgage in suit and orders foreclosure of the whole of the property mortgaged in the event of the said amount not being paid. But lower down there is a direction for payment of one-third of the two items mentioned above by the sons of Jang Bahadur.

(3.) The plaintiff has preferred this appeal and it is contended on his behalf that the Court below was wrong in holding that from the mere fact of Jang Bahadur being a man of immoral habits it may be reasonably presumed that the debt in question was incurred for immoral purposes. It is urged on his behalf that the whole amount borrowed was taken with the exception of Rs. 5,491-11-11 to pay off antecedent debts which were properly incurred and for which the minor defendants, the sons of Jang Bahadur, were liable equally with their father. The mortgage bond in favour of the plaintiff sets forth the various items of debts which were discharged by the plaintiff out of the amount secured by the bond. The first item is a sum of Rs. 55,175-14-9 paid to the Allahabad Bank in discharge of a mortgage decree and of a simple decree for money. As regards the amount due to the Bank on foot of these decrees there is no evidence to show that it was borrowed for purposes of immorality. On the contrary it appears that Raja Bahadur and Jang Bahadur were carrying on business as commission agents and they borrowed Rs. 25,000 from the Bank on the 13 of April, 1892, for the purposes of their business. It was what is called a cash credit bond and the amount secured by it was drawn from time to time as occasion arose for the purposes of the business carried on by the two mortgagors.