(1) This civil second appeal has been pre­ferred by the alienee against the judgment and decree of the learned District Judge, Udhampur dated 20-11-1973, whereby he set aside the Judg­ment and decree passed by the Sub Judge, Udham­pur, on 31-3-1971, dismissing the suit of the Plain­tiff respondent No 1, son of the alienor,

(2) Briefly stated that facts of the case are that the Plaintiff respondent No. 1, a minor, brought a suit through his mother Mst shanti, as next friend, praying that the sale deed dated 8th April, 1957 executed by his father in favour of the defendant appellant be declared void, and in effective against his interests as a member of the Joint Hindu Family on the ground that the property involved in the suit was ancestral property in which he had an interest right from the day he was in the womb of his mother as a member of the Joint Hindu Family, and that the same had been transferred by virtue of the sale deed by his father, respondent No 2, who was a person of depraved character, and given to licentious life and who had spent the amount for immoral purposes. It was stated that the alienation was not made for any legal necessity or for the benefit of the Joint Hindu Family, and as such, the alie­nation was bad in the eye of the law so far as he was concerned.

(3) Defendant No 1, contested the suit of the Plaintiff in his written statement on various grounds. The locus standi of the Plaintiff was challenged and it was averred that the Plaintiff was not the son of the defendant No 2, and was never born nor conceived at the time of the alienation. It was also averred that the debts incurred were for necessity; the sale deed was effected .to satisfy the antecedent debt, and was for consideration.

(4) From the pleadings of the parties the following issues were framed.

1) Whether the Plaintiff is entitled to bring this suit because he is the son of defen-No 2 Tirath Ram ? O. P. P.

2) Whether the principle of resjudicate is applicable to the suit. If so, how ? O.P.D.

3) Whether the Plaintiff was in the womb of his mother at the time of the execution of the sale deed dated 8-4-1957 and had the right to sue ? O. P. P.

4) Whether the sale deed in question has been executed for legal necessity and is for consideration ? O. P. P.

5) Whether the suit property is ancestral ? O. P. P.

6) Relief.

(5) The learned trial court decided issue No 1 a ad 3 in the affirmative and in favour of the Plain­tiff issue No 2, was decided against defendants issue No 4 was decided in favour of the defendants issue No 5 was also decided in favour of the Plaintiff. The result of these findings was that it was held by the learned trial court that the Plaintiff had the locus standi to bring the suit; that he was in the womb of his mother at the time of the execution of the sale deed dated 8-4-1957, that the principle of resjudicata did not apply to the suit, that the suit property was ancestral and that the sale of the disputed property was effected for legal necessity for the satisfaction of antecedent debts and therefore, dismissed the suit of the Plaintiff. An appeal from the Judgment and decree of the trial court was taken to the District Judge Udhampur, who confirmed the finding of the trial court on issue No 1, 2 and 3 and 5 but reversed the finding of the trial court on issue No 4, and held that the alienator had no legal necessity to effect the sale of the house and the son was not under any obligation to dis­charge the debts incurred by the father which were for immoral purposes. In the result, the learned District Judge, Udhampur, decreed the suit of the Plaintiff. Aggrieved, the defendant has preferred this second appeal.

(6) I have heard Mr T. S. Thakur, the learn­ed counsel for the alienee appellant, and Mr I. K. Kotwal, the learned counsel for the Plaintiff res­pondent and have also perused the record and gone through the evidence with the assistance of the learned counsel for the parties.

(7) Before me in this civil second appeal an attempt was made by the learned counsel for the appellant to challenge the finding of the trial court on issue Nos 1 to 3. However, the finding of these issues are concurrent findings of fact; and they can­not be allowed to be challenged in this civil second appeal specially when the discussion of these issues is based only on appreciation of evidence by the courts below and, in my opinion, the findings of facts arrived at by the courts below are not open to challenge as they do not suffer from any infirmity whatsoever. I would, therefore, confirm the findings of the courts below on these issues. No arguments were addressed with regard to issue No 5. by the learned counsel for the parties and the finding of the courts below on that issue is also confirmed.

(8) The main argument of the learned coun­sel for the appellant revolved around issue No 4, and the findings on that issue as given by the first appellate court were attacked and challenged by the learned counsel for the appellant on various grounds. I shall deal with them in the following paragraphs.

(9) In order to resolve the controversy between the parties on issue No 4, the first require­ment is to find out whether the debt, which was incurred by the father respondent No 2, was an antecedent debt. There is no controversy between the parties on this account and it has been coceded before me at the bar that the debt incurred by the father was an antecedent debt. Even otherwise, from fact I find, that it was in 2001 Bikrami and 2004 Bikrami that the ancestral property was mortg­aged by the father for a total sum of Rs. 17CO/- and the sum of Rs. 800/- was the interest which had accrued on that amount. A further sum of Rs. 16.00/- was payable by the father respondent No 2, on the basis of a pronote in favour of Hari Bhagat, D. W which also had been incurred before the sale of the disputed property. Further more, Rs 244/-and 96/~ respectively were payable as arrears of rent under decree by the father. The property was, then sold to discharge the obligations aforesaid. After discharging the obligations out of the sale proceeds of the disputed property only a sum of Rs 300/- remained with the father, which he had received in cash at the time of registration, the remainder having been adjusted against the above said obligations which were dis­charged. The authenticity of the above transactions (which were paid out of the sale proceeds) has been admitted by respondent No- 2 in his statement, in the trial court. This, keeping in view the nature of these debts I am of the opinion, that the debts are to be treated as antecedent debts; the two essen­tial conditions viz :

(a) That the debt must be independent of the impeached transaction and

(b) that the debt must be prior in time.

which are required to be proved to determine whether a debt is an antecedent debt or not are satisfied in the instant case. The sale of the disputed property was made by respondent No 2, mainly for the satisfaction of the antecedent debts which existed at the time of the sale of the property in dispute, the debts having been incurred prior to the sale in question.

(10) Having come to the conclusion that the debts were antecedent debts the next point for deter­mination would be whether the son is bound to pay the same as a pious obligation.

(11) This is a settled propositions of law that when a Hindu son seeks to set aside an alienation by his father, it is for the alienee to first show that the alienation was for payment of antecedent debt, but once that is done the burden shifts upon the son to prove that the debt had been contracted by his father for illegal or immoral purposes and that the alienee had notice that the debt was so con­tracted. The existence of the antecedent debt itself would be sufficient to justify the alienation, unless, of course the a lienee had acted malafide and had notice that the antecedent debt was tainted with illegality or immorality in which case the son would be under no obligation to pay off that debt as the debt would be deemed to be "Avaviharika" which means repugnant to good morals. In Doshi Jayanti-lal Jathalal V Lukar A mritilal Nagji and others,

AIR 1954 Saurashtra, 36 it was held :

"When a Hindu son seeks to set aside an ali­enation by his father. It is for the alienee to show that the alienation was for pay­ment of an antecedent debt or that after due inquiries he in good faith believed that it existed. The burden is then shifted upon the son to prove that the debt was contracted by his father for illegal or im­moral purpose and that the alienee had notice that the debt was so contracted......

When the alienation is made to pay off an antecedent debt, it is not necessary for the alienee to show that he made a proper inquiry as to the purpose of the loan or to prove that the money was bor­rowed for the benefit of the family. The existence of the antecedent debt itself would be sufficient to justify the alienation unless the alienee had acted 'malafide', if he had notice that the antecedent debt tainted with illegality or immorality."

(12) In the result the learned Judge in Doshi's case (Supra) found that since the son had failed to esta­blished that the mortgagor had the knowledge of the allege illegality of the antecedent debt which were discharged by the loan taken by the father from the mortgagee, the son's suit to set aside the mortgage must fail. The learned Judge thus held, that is was necessary to establish not only that the debt was contracted for the immoral purpose but also that the alienee had the notice of the immoral character of the said debt. Failure to prove either one of the two conditions would result in the failure of the suit. The said judgement and decree in Dosh's case (Supra) was challenged by meai means of an appeal by Special Leave before their lordships of the Supreme Court as reported in A. I. R. 1960, S. C. 964. Mr Justice P. B. Gajendragadkar, as his lordship then was, posed a question :

''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.?"

(13) After considering the various autho­rities of the Privy Council and other courts in India, and also various Text Books on Hindu Law, their lordships answered the question by affirming the view of the High Court that the son must prove both

(i) immoral character of the debt and (ii) notice of it to the alienee.

(14) We shall have to see in the instant case whether respondent No. 1, has been able to prove that the said antecedent debt was immoral and also that the aliencee had the notice of the immoral character of the said debt. Failure to prove any one out of the two above mentioned requirements would result in the failure and dismissal of the suit.

(15) Adverting the pleadings of the parties, I find that there is no averment whatsoever that the alienee had any notice that the debt being con­tracted was for immoral purpose. In the absence of any such plea it would not be open to the son (Plaintiff) to contend that the alienee had the re­quisite notice that the debt was being contracted for immoral purposes. Mr Kotwal, the learned counsel for the respondent No 1, agreed at the bar that the two requirements which I have indicated above were required to be satisfied before the son could absolve himself from liability to discharge the debts of the father, but he contended that there was no necessity to plead that he alienee had notice about the immoral purpose for which the debt was being incurred. It was submitted that it is im­plied in the pleadings and that the Plaintiff could prove it without raising any specific plea in that behalf. In support of this argument, Mr. Kotwal, has submitted that from the evidence it is clear that respondent No. 2 was known to be a drunkard and a womaniser and since the appellant was living in the same area, he would by im­plication, have had the notice that the debt was being incurred for immoral purposes. I am afraid I cannot persuade myself to agree with the submis­sion of the learned counsel. It is a material fact in the suit as to whether the alienee had notice of the immoral purpose for which the debt was being incurred and unless this material fact was pleaded I do not see, how, any amount of evidence (which again is lacking) could cure that defect in the plea­dings. It is elementary that the pleadings of the parties must contain material facts on which the parties rely in support of their claim or defence. In the absence of such a plea, the defendant appellant, would not be able to say that he did not have the notice that the debt was being incurred for immoral purposes. In a case of this nature, pleadings assume great importance and in the absence of any specific plea, the party concerned cannot be allowed to urge the material fact before the court for the first time in the second appeal. The onus was on the Plain­tiff to establish this aspect of the case and he must suffer the consequence of the absence of such a plea in his Plaint. I would, therefore, having considered the case with respect to the above aspect hold that the Plaintiff has failed to establish and prove from his pleadings as well as from the evidence on the record, that the alienee had notice about the im­moral nature of the debt which was contracted and the argument that the defendant appellant was living in the locality and therefore, must have known about the debt having been contracted for immoral pur­poses, because of the general reputation of the father of the Plaintiff, has only to be noticed to be rejected being far-fetched. Not only there is no plea in the Plaint to that effect, no question even was put to the appellant when he appeared at the trial that he had acquired that knowledge by virtue of staying in the locality that the debt was being incurred for immoral purposes. A party should put to the witness so much of the case that concerns that witness. If no such question are put, the courts presume that the wit­ness's account has been accepted. Since no such suggestion was put to the witness, the aforesaid argument cannot be allowed to be raised at this stage without any material on the record. In the result the suit is liable to fail because the Plaintiff has not been able to establish the pre-condition (ii), of notice to the alienee.

(16) Coming now to the next condition precedent, i. e. whether the debt was contracted for immoral purpose or not, a general charge of im­morality is not sufficient to show that the debts in question were tarnished with immorality. The Plaintiff in order to succeed must show some con­nection between the debts contracted and the im­moral purposes for which they were contracted. Every debt incurred or every transaction entered into by a father who is given to immoral habits is not necessarily tainted with immoral purposes has to be shown by evidence and until it is done the debt or transaction cannot be avoided. In the instant case I do not think that any connection between the debt contracted and the immoral habits of the father have been established by the evidence on the record. The evidence led in the case is not sufficient to return a finding that the debts were incurred for immoral purpose. Mr. Kotwal, the learned counsel for the respondent No 1, argued that he was required to prove only from the cir­cumstances that the money was spent on per suits which are immoral and having done that, the onus on him stood discharged. He invited my attention to the statement of the witnesses of the Plaintiff who had stated that Tirath Ram, father of respon­dent No 1, had a general reputation of being a drunkard and womaniser. He also referred to the evidence of the defendant's witnesses Ram Lal, and Sunder Dass, who had accepted that defendant No 2, was spending money on women and wine. Implicit reliance was also sought to be placed on the statement of Tirath Ram, respondent No 2, who was produced by the defendant as his witness and who had admitted that he incurred debts for immoral pursuits. It was contended that since the defendant had produced Tirath Ram, as his own witness, he had necessarily produced him as a witness of truth and as such he would be bound by the statement given by the witness. I have gone through the evidence on .the record and I find that the witnesses have given a general vague statement aboh Tirath Ram being a and a womaniser. No witness, other than Tirth Ram, has said specifically and categorically that the debts were incurred by the Tirth Ram, for immoral per­suits, and as such, the evidence of these witnesses cannot advance the case of the Plaintiff. I shall now deal with the evidence of Tirth Ram

(17) Generally speaking the practice of call­ing the defendant as a witness to give evidence on behalf of the Plaintiff is condemnable but if a defen­dant is so put as a witness, then in the words of Privy Council in AIR 1938 P. C. 59.

"In such a case in the Plaintiff must be treated as a person who puts the defendant forward as a witness of truth"

(18) Indeed the instant case, the appellant must have treated Tirth Ram as a witness of truth but merely because he was produced by the adversary his evidence does not become gospel truth. The value that can be attached of his evidence to see whether the witness can be relied upon with regard to the facts, which he states. In other words, it will have to be seen whether the evidence of Tirth Ram inspires confidence, Adverting to his statement I must say, that the reading of his deposition leaves no doubt in my mind that he is colluding with his son for the obvious reason that having appropriated the sale proceeds in full, he now wishes to avoid the sale. Respondent No. 2, has brandished himself to be a devauch, given to all types of vices, who contracted, the debts to satisfy his vices. The mere fact that he made such a statement puts the court atonce to his guard to examine and scrutinise his evidence more carefully. Although the case of the Plaintiff was that loans had been taken from Kirpa Ram by Tirath Ram, he (Tirath Ram) curiously enough in his deposition stated, that he took loan from Shiv Lal. From the record it appears that Kirpa Ram was the father of Shiv Lal and Tirth Ram may have thought that since the sale was in favour of Shiv Lal, he should name him as the person from whom he took the loan to strengthen the case of his son rather than naming Kirpa Ram whatever may have been the reason, the statement of Tirath Ram is inconsistent with the Plaintiff's case and on that ground alone the statement of Tirath Ram cannot afford any help to the case of the Plaintiff. In a case of this nature the role of father who tarnishes his own character is such that he cannot be brandish by any other name except that of "collusive. "The trial court, in my opinion, was justified in coming to the conclusion that respondent No. 2, father of respondent No. 1, was not a witness of truth and the learned District Judge, had erred in reversing that finding, Bhattacharyya in his Tagore Law Lectures on the "Law relating to Joint Hindu Family, (page 549-550) has dealt with the serious abuses which had become rife in the Mitakshara districts in the follow­ing words. : In those places the fathers of families knowing well that ancestral properties were secure against the claims of their own creditors had estab­lished almost a regular system of inveigling innocent person of substance to lend money to them and when a decree was obtained and properties were attached they used to put forward their sons to contest the creditors' claims." The above view :s fully appli­cable to the facts of the present case and I would hold that Tirath Ram. is not a witness of truth and he made a convenient statement only to avoid the sale. Respondent No. 1, cannot make any use of this statement with a view to get the sale set aside. From the evidence on the record I find that the Plaintiff has failed to establish any connection bet­ween the debts contracted and the immoral persuits of his father Tirath Ram, by any reliable, trust­worthy and cogent evidence. I am quite in agree­ment with Mr. Kotwal. the learned counsel for res­pondent No. 1, that it is not necessary to prove by any direct evidence that the money borrowed was expended on vice, but I think it is necessary for the son respondent No. 1, to establish some connec­tion between the debt borrowed and immoral habits of respondent No. 2, from circumstantial evidence at least. The circumstantial evidence in the case, on this aspect of the matter is wholly lacking. More­over respondent No. 1, has not led any evidence to show as to what was the source of livelihood of his father, respondent No. 2. to maintain himself and his family and whether that source was sufficient for the purpose. In the absence of any such evidence an inference can be allowed to be drawn that the father might have incurred the debts for the benefit of the family, especially in a case where alienee is a purchaser for value. The mortgage had been effected by respondent No. 2, and as long as the mortgage is not redeemed, the family is deprived of the enjoyment of the entire property given in mort­gage. It may have been considered prudent to redeem the mortgage and dispose off the property so that not only the mortgage is redeemed but also the other loans received by respondent No. 2, over a number of years from 2001 Bk are repaid, and the decree for payment of rent satisfied. Since, there is no material on the record to find out the source of livelihood of the father of the respondent No. 1, and since neither in the Plaint, nor at the trial, has the son, Plaintiff respondent No. 1. stated that the family had other resources to maintain itself other­wise than through the borrowings by his father, it cannot be said that the borrowings were made only to satisfy the immoral persuits, and not for the bene­fit of the family. The father of Plaintiff respondent No. 1, may have been a drunkard and a womaniter but from the material on the record, I find it diffi­cult to return a finding that the borrowing by him were only with a view to satisfy his vices. As a matter of fact, it appears that the borrowings were for the benefit of the family, and not to satisfy the vices of respondent No. 2, and in any event the sale transaction was entered into to satisfy the antecedent " debts.

(19) After considering the case in all its aspects and having gone through the evidence led by the parties, I am of the opinion, that the Plaintiff-respondent No. 1, has not been able to establish both the essential conditions given above which were required to be established by him if his suit was to succeed and consequently his suit deserves to fail on both counts. On the both other hand the defen­dant - appellant has established that the sale deed in question was executed for the satisfaction of the antecedent debts which had been incurred not for any immoral purpose but for the benefit of the family, and legal necessity and accordingly I could decide issue No. 4, in the affirmative, and in favour of defendant No. 1, the appellant,

(20) In the result this appeal is allowed with costs, and the Judgment and decree of the District Judge, Udhampur is set aside, and that of the trial court dismissing the suit of the Plaintiff respondent restored. Counsel's fee is fixed at Rs. 300/-.