A Hindu son challenging an alienation made by his father to pay his antecedent debt is not required to prove the alienee's knowledge of the immoral character of the said debt.

Judgment

GAJENDRAGADKAR, J. : This appeal by special leave raises an interesting question of Hindu Law. If a Hindu son wants to challenge an alienation made by his father to pay his antecedent debt is it necessary for him to prove not only that the said antecedent debt was immoral but also that the alienee had notice of the immoral character of the said debt? The High Court has held that the son must prove both the immoral character of the debt and notice of it to the alienee; the correctness of that view is challenged before us by the appellants in the present appeal.

2. The appellants are two brothers Amritlal and Mohanlal Nagji and their mother Bai Jakal Arjan. The three appellants and respondent 2 Nagji Govind, the father of appellants 1 and 2 and the husband of appellant 3, constitute an undivided Hindu family. Respondent 2 executed a mortgage-deed in favour of respondent 1 Jayantilal Doshi in respect of the joint family property for Rs. 2,000. This document was executed on February 5, 1946. In 1950, respondent 1 sued respondent 2 on his mortgage, obtained a decree for sale and filed an application for execution for sale of the mortgaged property. Sale was accordingly ordered to be held. At that stage the appellants filed the present suit on April 30, 1951, and claimed a declaration that the decree passed in the mortgage suit (Civil Suit No. 589 of 1949) in favour of respondent 1 and against respondent 2 was not binding in respect of the 3/4 the share of the appellants in the mortgaged property; they also asked for a perpetual injunction restraining respondent 1 from executing the said decree in respect of their share. To this suit the mortgagor respondent 2 was impleaded as a party.

3. In their plaint the appellants have stated that respondent 2 had speculated in gold and silver and had thereby lost a large amount of money which he sought to make up by borrowing amounts from several creditors. One of such creditors was Dharsi Shamji to whom Rs. 2,000 were payable by respondent 2. According to the appellants the impugned mortgage had been executed by respondent 2 for the payment of the said debt of Rs. 2,000, and since the said debt was immoral or avyavaharik the appellants were not bound by it.

4. The claim was resisted by both respondent 1 and respondent 2 who pleaded that the mortgage had been executed for the payment of debts which were binding on the family and that there was no substance in the plea of immoral debts raised by the appellants. It was also alleged by them that the mortgaged property was not the property of the undivided Hindu family.

5. On these pleadings the trial court framed appropriate issues. It found that the mortgaged property was the coparcenary property of the family, that the mortgage deed in question had been executed to pay off a debt which was immoral and that in consequence the mortgage was not binding against the appellants. According to the trial court the debt contracted by respondent 2 to pay the losses incurred by him in speculative transactions must be held to have been contracted for illegal and immoral purposes and as such the subsequent alienation for the payment of the said debt cannot bind the appellants. The trial court also observed that respondent I had not stepped into the witness box to give evidence to show that he had made any enquires about the existence of any antecedent debts payable by respondent 2. In the result the suit filed by the appellants was decreed. Against the said decree respondent 1 preferred an appeal before the District Judge, but the District Judge agreed with all the findings made by the trial Court and dismissed the said appeal. Respondent 1 then took the matter before the High Court of Saurashtra in second appeal. The High Court agreed that the mortgaged property was the property of the joint Hindu family and that respondent 1 had made no attempt to prove any enquiry on his part before he entered into the transaction. The High Court did not think it nece