JUDGMENT

Straight, Offg. C.J. and Tyrrell, J. - It seems to us that the principle enunciated by their Lordships of the Privy Council in Suraj Bunsi Koer's Case ILR Cal. 148, as to the effect of an earlier decision of that tribunal in Muddun Thakoor v. Kantoo Lall 14 B.L.R. 187 : 1 Ind. Ap. 333 must be our guide in the present instance. It is as follows: "That where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent; debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted." It will be seen from this passage that where an antecedent debt is the consideration for a sale by the father of the ancestral property, or it is charged by him to raise money to pay oft an antecedent debt, it rests with the sons to show that such debt was contracted for immoral purposes to the knowledge of the vendee or mortgagee. But it is to be observed that this rule is limited to antecedent debts, that is to say, debts contracted before the sale or mortgage sought to be impeached by the sons and it does not cover cases in which a sum in ready money has been paid over to the father by the vendee or mortgagee. As we understand it, the distinction drawn by their Lordships is founded on the view that while in the one instance the vendee or mortgagee is not to "be expected to know or to come prepared with proof of the antecedent economy and good conduct of the owner of an ancestral estate," on the other hand, "he may reasonably be expected to prove the circumstances of his own particular loan"--Hunooman Pershad Panday's Case 6 Moo. I.A. 419 The authorities therefore seem to come to this, that in those cases where a person buys ancestral estate or takes a mortgage of it from the father, whom he knows to have only a limited interest in it, for a sum of ready money paid down at the time of the transaction, such person, in a suit by the sons to avoid it, must establish that he made all reasonable and fair inquiry before effecting the sale or mortgage, and that he was satisfied by such inquiry, and believed, in paying his money, that it was required for the legal necessities of the joint family, in respect of which the father, as head and managing member, could deal with and hind the joint ancestral estate.

2. Adopting this rule and applying it to the present case, it is obvious that the Judge below in dealing with it did not appreciate the distinction to be drawn as indicated above, and that his decision does not meet the difficulties of the position. It seems to us therefore that the proper course for us to adopt is to remand the following issues u/s 566 of the Code for determination:

1. As to the Rs. 1,200, and Rs. 232 antecedent debts, part of the consideration for the sale to the defendants, have the plaintiffs established that those debts were contracted for immoral purposes, and that at the time the sale was impeached the defendants had notice they were so contracted?

2. As to the Rs. 1,500 paid in cash to Ram Dihal by the defendants, have they proved that they made reasonable and proper inquiries before handing it over, and that they did it believing it was required for the legal necessities of the joint family of which the plaintiffs were members, and that Ram Dihal, as managing member and head, required it for purposes of the joint family?

3. The findings, when recorded, will be returned into this Court, with ten days for objections from a date to be fixed by the Registrar.