JUDGMENT

John Edge, Kt., C.J. - In this case, the plaintiffs sued the sons upon an hypothecation bond which was given by their father. The family was a joint Hindu family. The plaintiffs gave no evidence as to the circumstances under which the bond was given or to show that any inquiry bad been made by them. The defendants, on the other hand, have given no evidence as to the circumstances under which the bond was given. In both Courts, the Judges decreed the claim so far as the father's interest in the property was concerned and dismissed the claim so far as the interests of the other parties (the defendants) were concerned. The single question before us is as to upon whom the onus of proof lies. Pandit Ajudhia Nath hand Mr. Ram Prasad have contended that the onus of proof was on the defendants, and that their clients, the plaintiffs, were entitled to succeed, unless it was shown that the bond was given for ill gal or immoral purposes. In support of this contention, they cited the following cases: Narayanacharya v. Narse Krishna I. L. R. 1 Bom. 262 Luchmun Dass v. Giridhur Chowdhry I. L. R. Cal 855 Gunga Prasad v. Ajudhia Pershad Singh I. L R. Cal. 131 Girdharee Lall v. Kantoo Lall L. R. I I. A. 321 Sita Ram v. Zalim Singh I. L. R All. 231 Nanomi Babuasin v. Modun MohanI. L. R. I. A. 1:1 L. R. Cal. 21 Rampardip Rai v. Salig Rai, Weekly Notes, 1883, p. 107 PonnappaPillai v. Pappucayyangar, I. L E. 4 Mad., 4 and see I. L. R. 9 Mad. 343 Gangulu v. Ancha Bapulu I. L. R., 4 Mad. 73 ; Hanuman Singh v. Nanak Chand I. L. R. All. 193. With regard to the cases cited, with the exception of two, to which I will refer, they do not, appear to bear out the proposition contended for on behalf of the plaintiffs They are cases in which a decree had been obtained against the father, and the property sold, or cases in which the sons had come into Court to ask for relief against the act of their father. These are cases that seem to me to afford no safe guide, because, where a decree was obtained against the father, and a sale effected, the presumption is that the decree was properly made. Where a son comes into Court to ask relief against a sale effected by his father for an antecedent debt, it, would be for the son to make out a case for the relief asked for. I approve of everything which was said by my brother Straight in his judgment in Hanuman Singh v. Nanak Chand I. L. R. All. 193. As to the case of Sita Ram v. Zalim I. L. R., 8 AIL 231 it would appear, until examined, to be in point. The difficulty with regard to dealing with that case as an authority is that it was a first appeal to this Court, and it does not appear what the findings of fact of this Court in that case were. It is true that the findings of fact of the Judge of the Court below were referred to in the judgment of this Court. We must assume that this Court, as a Court of first appeal, found facts to which the proposition of law contained in the judgment at p. 234, was applicable. Then I come to the case of Luchmun Das v. Giridhur Chowdhry I. L. R. Cal 855. That is a most important case. It was on the authority of that case that the eminent Judge, Mr. Justice Mitter, decided as he did in the case of Gunga, Prasad, v. Ajudhia Pershad Singh I. L. R Cal. 131. Now as to the case of Luchmun Dass v. Giridhur Chowdhry I. L. R. 5 Cal. 855 it is difficult to ascertain what the facts were, or what was the precise form of litigation. This alone is certain, that there were certain questions which appear at p, 857 of the report, which were referred to a Full Bench. The answers to these questions are found at p. 863, and taking the first question and answer as an example and as those relied upon by Pandit Ajudhia Nath here, it is to be observed that the Judges, in giving their answer, have assumed a most important fact which is not suggested in the question. The same observation applies to others of the questions. They have assumed that the debt contracted by the father was an antecedeut debt