Waliullah, J.:— This is a plaintiffs' appeal against the decree passed by the learned Civil Judge dismissing their claim for possession of some zamindari property. The plaintiff appellants and defendant respondents 3 and 4 are the sons of defendant respondent 2 Babban Prasad. Admittedly the appellants as well as the defendant-respondents 2 to 4 constituted a joint Hindu family and the property in dispute was she ancestral property of the joint family. Babban Prasad executed five simple money bonds in favour of Suraj Bali Rai, defendant-respondent 1. Suraj Bali Rai instituted Suit No. 544 of 1928 for enforcing his claim on the basis of these bonds and obtained a decree for Rs. 1519-7-1 on 20-10-1930. In execution of this Decree the property in dispute, namely two annas and eight pies share in village Tarman Sahu was sold by auction and purchased by the decree holder himself substantially in lieu of the decretal amount indicated above. Thereafter possession of the property purchased was secured by Suraj Bali Rai on 28th January, 1931. The plaintiff-appellants instituted the present suit on 13th October, 1941 with the allegations that their father Babban Prasad Sahi, defendant 2 was an idiot or a man of rather a weak intellect, foolish and incapable of understanding. It was also alleged that he was addicted to ganja and bhang and was not capable of managing and protecting the property of his family. It was alleged that after the death of Gobind Prasad Sahi, the grandfather of the plaintiff-appellants, at the time of mutation objection was taken on behalf of the plaintiff-appellants by their mother that her husband was a lunatic and could not manage the property but the objection was overruled by the revenue Court and mutation was effected in the name of Babban Prasad Sahi and that thereafter persons who were characterized as the enemies and adversaries of the plaintiff's family took advantage of the situation and obtained bonds from him which were fictitious and without consideration. It was under these circumstances, so the plaintiffs alleged, that Suraj Bali Rai, defendant 1, obtained the five simple money bonds in his favour. There was no consideration for these bonds and there was no necessity for them, if any consideration passed it must have been spent on ganja and bhang. The bonds were, therefore, not binding upon the plaintiffs and the decree obtained by Suraj Bali Rai could not, therefore, in any way adversely affect the right of the plaintiffs to the property in dispute. In effect, therefore, according to the plaintiffs, Suraj Bali Rai, defendant 1, was a mere trespasser.
2. The suit was contested by Suraj Bali Rai, defendant 1, alone. He pleaded that Babban Prasad defendant 2, was a clever person and executed all the five money bonds for consideration and legal necessity and, therefore, the decree obtained on foot of these bonds was binding on the plaintiffs. He also pleaded that he had been in adverse and proprietary possession of the property in question and, therefore, the suit was barred by time. It was further pleaded that the suit was barred by Section 11 of the CPC, and was not maintainable as the plaintiffs who had filed an earlier Suit No. 127 of 1930, but had later withdrawn it had not paid the costs of that previous suit. The learned Civil Judge found that Babban Prasad, defendant 2, the father of the plaintiff appellants, was intellectually a normal person and did not suffer from any special intellectual weakness as alleged by the plaintiffs. He also found that the suit was not barred either by time or by Section 11 of the CPC. With regard to the principal issue in the case, however, on a consideration of the materials before him, the learned Civil Judge found that the five bonds on the basis of which the decree had been obtained by Suraj Bali Rai, defendant 1, were for consideration but not for legal necessity. In view of this finding the learned Civil Judge proceeded to consider the legal position of the parties. He held that in order to get possession of the property in suit it was necessary for the plaintiffs to prove that the five simple money bonds in question were executed for immoral purposes. He considered the oral evidence of the three witnesses including that of plaintiff 1 as also the evidence given by Suraj Bali Rai, the contesting defendant, and came to the conclusion that the statements of the plaintiffs' witnesses were vague and general statements and failed to show want of consideration and necessity in respect of the five bonds in question. He also came to the conclusion that the evidence adduced by the plaintiffs failed to connect the five bonds in question with any particular act of immorality. He felt inclined to believe that Babban Prasad had been extravagant and might be addicted to ganja and bhang but that the plaintiffs had failed to prove that the bonds in question were tainted with immorality. In view of these findings the suit was dismissed with costs.
3. Learned counsel for the appellants has strenuously contended that the materials on the record fully established that as a matter of fact no consideration passed in respect of the five money bonds on the basis of which the contesting defendant-respondent, Suraj Bali Rai, had obtained his decree in suit No. 544 of 1928. It was further contended that the plaintiff appellants were entitled to go behind the decree and to show that no debts were actually incurred by Babban Prasad Lastly it was contended that the materials on the record clearly established that the so called debts incurred by means of these five bonds were tainted with immorality. Learned counsel for the appellants has taken us, through the evidence of the three witnesses produced by the plaintiffs. He has also invited our attention to the fact that the mortgage deed dated 18-9-1928, which was executed by Babban Prasad in favour of a third person was found by the civil Court to be valid and binding upon the sons only for a small amount. We confess we find it impossible to attach any importance to the judgment of the civil Court regarding the mortgage aforementioned. The statements of the three witnesses produced by the plaintiff-appellants do not show any connection, direct or indirect, between the debts incurred by means of the five bonds in question and the alleged immorality thereof. The statements made by the witnesses do not amount to anything more than mere general and vague assertions about the extravagance of Babban Prasad and about his indulgence in ganja and bhang. Such statements, even if believed, are not all sufficient to establish that there was any definite connection between the debts incurred and the acts of extravagance or immorality of any sort or kind. The onus undoubtedly was upon the plaintiff appellants to establish that the debts incurred by Babban Prasad and evidenced by the five simple money bonds were incurred by Babban Prasad for immoral purposes. The decree obtained by Suraj Bali Rai and the sale which followed in execution of the same would undoubtedly be binding upon the plaintiff-appellants, the sons of Babban Prasad, unless the plaintiff appellants established that the debts contracted by the father were for an immoral purpose. This onus cannot be said to have been discharged by proving a general charge of immorality. There must be proof of direct connection between the debts and the acts of immorality alleged. The law on the subject is well expressed by Mulla in his well-known book on Hindu Law (10th Edition) at page 338 where it is observed:
“In a case where the son is under a pious obligation to pay the father's debt, the creditor may sue the father alone and obtain a decree against him, and he may execute the decree by ‘attachment and sale of the entire interest of the father as well as the son in the joint family property, and the sale will bind the son, though he was not made a party to the suit, unless the debt contracted by the father was for an immoral purpose.”
4. This is undoubtedly well settled law and it has been repeatedly expounded by their Lord-ships of the Privy Council in numerous cases. Learned counsel for the appellants has contended that the sons are entitled to go behind the decree obtained against the father and to show that no debts were actually incurred by the father and that the decree obtained against him by Suraj Bali Rai was obtained by collusion between the creditor and the father. He has relied upon the decision of a Full Bench of the Lahore High Court in A.I.R 1944 Lah. 2201. The majority decision of two learned Judges in this case no doubt supports the contention of the learned counsel. On the other hand, learned counsel for the respondents has contended on the strength of the Full Bench decision in 27 Mad. 2432 and the Full Bench decision of this Court in 27 ALL. 163, that the decree debt as debt of record due from the father is binding upon the sons unless they show that such debt was illegal or immoral.
5. Learned counsel for the respondents has also invited our attention to Mayne's Hindu Law, 10th Edn., p. 431, where the law is stated thus:
“Where a sale or mortgage is made by the father without his son joining in it in order to satisfy his antecedent debt, or when in execution of a decree for money or on a mortgage by the father the ancestral property is sold, the sons, not being parties, are entitled to have the nature of the debt tried in a suit of their own.”
6. In this connection he has invited our attention to the foot note to the passage quoted above. The foot note reads thus:
“Some of the dicta of the Privy Council and of the Courts in India would entitle the son to dispute the fact of the debt also. 13 I.A 1 at p. 18 : 13 Cal. 214, 21 Mad. 2225 at p. 226, 34 Cal. 7356 at p. 742. It is fairly clear from the more recent decisions that in a suit upon a debt against the father, he represents the sons when they are not made parties so far as the factum of the debt is concerned and the judgment against the father itself creates the debt. Fraud or collusion, of course, will always be an exception. When a decree is passed against the father for a debt proved against him it is not easy to see how the sons can dispute the father's liability under it except of course in respect of the nature of the debt regarding which the father could not represent the sons. 16 Mad. 997, 24 Bom. 3438, 27 Mad. 243 at p. 252, 27 All. 16, 37 ALL. 2149, 44 ALL. 64910, 47 ALL. 42111, 33 Cal. 67612.”
7. It seems to us that there is no doubt some conflict of judicial opinion on this question. The trend of the more recent decisions, however, seems to be in favour of the view that the father represents the sons so far as the factum of the debt is concerned and the judgment against the father itself creates the debt. In the absence of fraud or collusion between the creditor and the father, and, in the present case, we do not find any allegation of such fraud or collusion, it is difficult to see how the factum of the debt can be questioned by the sons. It must be remembered that the liability of the sons to pay the father's debts arises from the religious obligation to rescue him from the penalties arising from the non-payment of his debts. A debt imposed upon the father by means of a decree of a Court of justice is nonetheless a debt owed by the father. It is the pious duty of the sons to discharge this liability like any other debt. In short the position comes to this:
“Starting from the theory that it is a pious duty on the part of the son to pay his father's debts, the Hindu law liability of sons has proceeded step by step till the debts of the father, not being illegal or immoral, have become in every sense a liability of the joint estate of the father and the sons.” (vide Mayne's Hindu Law, 10th Edition, page 423).
8. In the present case, on the evidence led by the plaintiffs appellants, it is impossible to hold that they have succeeded in discharging the onus which lay upon them of establishing either that there was no debt owed by Babban Prasad to Suraj Bali Rai by means of the five simple mosey bonds in question or that any of the debts so incurred was tainted with any illegality or immorality or was incurred for any immoral purpose.
9. As a matter of fact, there is no evidence directly connecting any of the debts evidenced by these bonds with any act of immorality or extravagance. It must, therefore, be held that the findings recorded by the learned Civil Judge were fully justified. It, therefore, follows that the plaintiff appellants have failed to substantiate their claim.
10. In the result this appeal is dismissed with costs.
11. Appeal dismissed.