Sulaiman and Kendall, JJ.:— This is a plaintiffs' appeal arising out of a suit for a declaration by the sons of Jagannath Prasad that the joint property belonging to the family was not attachable and saleable in execution of a simple money decree obtained by the defendant No. 1 against their mother. The facts leading up to this litigation are as follows:—Jagannath Prasad and his two minor sons, the present plaintiffs, formed a joint Hindu family and owned considerable property. About 1918, Jagannath Prasad became heavily indebted, though it is not clear that there were any mortgages on his estate in existence at that time. In October, 1918, he was arrested in connection with the Katarpur riot and admittedly remained in jail till August, 1919, when he was actually convicted. At first he was ordered to be transported for life, but later on the sentence was reduced to one of seven years' imprisonment.

On the 10th of February, 1919, while Jagannath Prasad was in jail, he executed a deed of gift of a 5 biswa share in manza Nasirpur Khurd in favour of his wife Musammat Parbati. The recital, contained in the deed is that she was faithful and obedient to him and he had love for her and in consideration thereof he had gifted the property to her. Subsequently, on the 27th of June, 1921, which was long-after his conviction, Musammat Parbati executed a deed purporting to be a mortgage-deed for Rs. 15,500 in favour of the defendant Hari Kishan Das. This document was attested by Jagannath Prasad himself. It recited that there were debts due from the lady and her husband Jagannath Prasad and it was necessary to make arrangements for their payment. The consideration consisted of Rs. 3,133 set off against an amount due to the creditor himself, about Rs. 3,000 due from the executant on the basis of promissory notes executed by her and the balance of about Rs. 8,000 and odd on account of previous debts of Jagannath Prasad. Under this document she hypothecated the share which had been gifted to her by her husband. In 1924, the defendant sued and obtained a decree for recovery of this amount, but the decree was only a simple money decree inasmuch as he failed to prove that the document had been duly attested and was effective to create a charge on the property. In execution of this decree he sought to attach the very property which had been included in the deed. An objection was raised on behalf of the minors in the execution department, and these objections being disallowed, the present suit for declaration was filed.

The plaintiffs' case in the plaint was that the document purporting to be a deed of gift in favour of their mother was a wholly fictitious document and that it was never given effect to and she never obtained possession under it. It was further assorted that the father had no power in law; to gift the property to the mother and therefore, the transfer was in no way binding on the plaintiffs. In his written statement the defendant pleaded that it was the duty of Jagannath Prasad to maintain his wife, Musammat Parbati, and to provide her food and raiment and that it was with that object that he gifted a very small portion of the estate to her and gave it to her as stridhan property of which she became an absolute owner. The written statement then went on to allege that the mortgage-deed was executed for the purpose of raising money to pay off the previous debts of Jagannath Prasad and for raising money to meet the expenses of the criminal case which was pending against him and that the document was executed with the consent of Jagannath Prasad and was binding on the plaintiffs.

The learned Subordinate Judge has rejected the theory that the deed of gift was executed in lieu of maintenance and has also rejected the theory put forward in evidence on behalf of the plaintiffs that it was a fictitious document executed in anticipation of an apprehended confiscation of Jagannath's estate. His finding amounts to this that the property was given to Musammat Parbati under an absolute gift by which she became full owner. He has then gone on to find that the money under the mortgage was borrowed by Musammat Parbati for paying the debts of Jagannath Prasad and for defraying the expenses of the defence of her husband and, therefore, she was entitled as de facto guardian of the plaintiffs to contract debts to pay of such previous debts of their father. On these findings he has decided the main issues which arose in the case against the plaintiffs. As the defendant did not in the written statement take up the position that the gift was made to Musammat Parbati in order to enable her to raise funds for the purpose of meeting the expenses of the defence, and inasmuch as we find that the bulk of the amount raised under the mortgage-deed was to pay off the debts which had been incurred long before the criminal prosecution, we find it very difficult to accept the hypothesis of the learned Subordinate Judge that the transfer was made with that object in view. As a matter of fact even up to the time when interrogatories were sent for the examination of Jagannath Prasad the defendant's case appears to have been that the gift was made for Musammat Parbati's maintenance, as the frame of the question No. 10 in the interrogatories would suggest. This theory is, therefore, contrary to the defendant's pleading and contrary to the recital in the deed of gift and we find it difficult to accept it. If the gift was made for the purposes of maintenance of Musammat Parbati then it will be very difficult to hold that it conferred an absolute estate on her. On principle it would seem that when the necessity for the maintenance should disappear, the gift itself would come to an end. We might refer to the case of their Lordships of the Privy Council—Debi Mangal Prasad v. Mahadeo Prasad where the share allotted to a widow on a partition in lieu of her maintenance was held not to confer an absolute estate on her but to devolve on the heirs of her husband after her death. There would be no objection to the validity of a transfer in lieu of maintenance, because in our opinion the view of the court below that the property transferred was only a fractional share of the whole estate is correct. According to its view it amounted to one-fifth of the whole estate and according to the evidence of the witnesses for the defendants it did not amount to more than one-sixth—in any case it would not be an unreasonably large share.

We are however, of opinion that the second ground which is made the basis of the decision of the court below is sounder. The position at the time was this, Jagannath Prasad was confined in jail and was unable to look after the management of the estate. His two sons were minors of tender age and were utterly unable to manage the estate. The only person who could look after the affairs under the circumstances was his wife. She was also the de facto guardian of the minor sons for the time being. At that time there were large debts outstanding against the husband Jagannath Prasad. There is no suggestion in this case that these debts were in any way tainted with immorality or illegality, nor has it been suggested that these debts were not in fact due. The position, therefore, was that the creditors of Jagannath would have sued for their debts and in execution of the decrees obtained by them would have proceeded against the family estate by attachment and sold it off in satisfaction of their claims. It is also a fact that the family had to defend Jagannath Prasad in the criminal case pending against him. That case proved to be very expensive and according to Jagannath Prasad's own statement something like Rs. 20,000 or 25,000 was spent by the members of his family for his defence. Jagannath Prasad admits that a good part of this amount was borrowed by his wife Musammat Parbati. Some of the accounts of the creditors like those of Khub Chand show that the borrowing commenced after Jagannath had been actually arrested. One of the promissory notes on which money was borrowed by Musammat Parbati is dated the 1st of July, 1919, while Jagannath Prasad was undergoing his trial. There was, therefore, full justification for the court below to record a finding that the bulk of the amount was raised either for the purpose of paying off debts due from Jagannath Prasad or for meeting the expenses of his defence. This, however, cannot be said with regard to two items borrowed by Musammat Parbati under promissory notes, dated the 30th of September, 1920, and the 22nd of July, 1921, which were long after the conviction of Jagannath Prasad.

Even when allowing the creditors to sue for their money by obtaining decrees and proceeding against the family estate, Jagannath Prasad obviously allowed his wife to raise money in order to pay off the bulk of these debts. That the defendant acted in good faith is abundantly proved by some of the letters, which have been proved, which passed between the parties at the time. In his statement Jagannath Prasad has admitted that the money was raised by his wife with his full consent and he actually attested the document. There is plenty of documentary evidence to prove that Hari Kishan Das has paid off the previous debts which were specified in the deed executed by Musammat Parbati. The only thing that had happened is that in the suit which was instituted by Hari Kishan Das, the present plaintiffs were not impleaded as parties. If they had been impleaded they would probably have been represented by their mother as de facto guardian, and in view of the fact that they were not challenging the validity of those debts it is difficult to see what defence they could have put forward to that suit. Although, therefore, technically speaking, they were not represented in that proceeding, it is quite clear that they have not been prejudiced in any way substantially. We are, therefore, of opinion that, although the decree in execution was obtained against the plaintiffs' mother on the basis of a deed executed by her under which she herself had raised the money, the debt which is the foundation of this decree was incurred in order to pay off the previous debts of the plaintiffs' father which were binding on the family. The case is somewhat analogous to the case of Devji v. Sambhu. The principle laid down in that case was subsequently approved by the Madras High Court in the case of Veerabadra Aiyar v. Marudaga Nachiar. The difference between the present case and that before the Bombay High Court is that here the husband was not dead but was in jail, whereas in the Bombay case the husband was dead, but in both cases the property did not devolve on the widow but on the minor sons, and the decree had been obtained against the widow personally without impleading the minor sons. Another distinction perhaps is that in the Bombay case the suit was brought to recover the debt due by the husband himself, whereas in the present case the suit was brought to recover the debt due by the lady which had been raised for the purpose of paying off the debts due by the husband. We, however, think that the principle underlying that case applies to the present case, and that it would be inequitable to hold that the plaintiffs are not bound by the decree obtained against their mother, even though the original debts which were the basis of the decree were really binding on them.

The defendant, however, has failed to prove that the two debts raised by Musammat Parbati on the promissory notes of 1920 and 1921 were in any way binding on the plaintiffs.

We accordingly allow this appeal in part and modify the decree of the court below to this extent that we declare that the family property of the plaintiffs is not liable to attachment and sale so far as the amount, together with interest, due on the promissory notes of 1920 and 1921 is concerned, and that it can be attached and sold in satisfaction of the decree for the remaining amount. We direct that the parties should receive and pay costs in proportion to their success and failure.

Appeal allowed in part.