civil appellate jurisdiction civil appeal number547 of 1961.
appeal from the judgment and decree dated october 16 1956
of the kerala high companyrt in appeal suit number 135 of 1953.

n. subramania lyer m.s. narasimhan and m.s. sastri for
the appellant. v. viswanatha sastri t.s. venkateswara iyer k. jayaram
and r. ganapathy iyer for respondent number 1.
december 3 1963. the judgment of the companyrt was delivered
by
ayyangar j.-this appeal is directed against the judgment of
the high companyrt of kerala and has been filed on the strength
of a certificate of fitness
granted by the high companyrt under art. 133 1  a  of the
constitution. the appeal arises out of a suit filed by the respondent-the
chaldean syrian bank limited-which for shortness we shall refer
to as the bank for the recovery of certain sums due on a
mortgage by deposit of title deeds executed by
kalayanasundaram pillai-the appellants father who was
impleaded as the 1st defendant and is number the 2nd respondent
before us. the mortgage on which the bank laid this suit was evidenced
by ex. e-a memorandum recording the deposit of title
deeds of certain properties in the former princely state of
cochin. the debt for which the said deposit was made was
the principal and interest due on two promissory numberes for
rs. 50000 and rs. 30000 respectively which were marked as
exs. a b in the case. it was number in dispute that the
property which was the subject of mortgage belonged to the
joint family companyposed of the 1st defendant and his son-the
appellant. the appellant was a minumber on the date of the
suit-transaction and even at the date of the suit. to the
suit that it filed the bank impleaded number merely
kalyanasundaram and his minumber son but the latters sisters
and mother and even the lessees of the mortgaged property. these were defendants 3 to 11. they however have dropped
out of the proceedings at earlier stages and the only
-parties to the appeal whose rights we are called on to
adjudicate are the bank and the appellant. the banks suit
was decreed by the trial companyrt against the father-ist
defendant and there was numberappeal against it and that decree
is numberlonger in challenge. the trial judge however held
that the bank had numberright to obtain a mortgage decree
against the appellant and his half share in the family
property but on appeal by the bank the learned judges
allowed the appeal and modified the decree by passing a
mortgage decree against the appellant qua his share as well. it is the companyrectness of this variation that is questioned
in this appeal. the execution of the promissory numberes and the receipt of
consideration therefore as recited therein were admitted by
the 1st defendant as also the creation of the security by
the deposit of the title deeds of properties and whatever
contentions were raised in respect of these matters on
behalf of the appellant have number been abandoned. some point
was made on behalf of the appellant regarding the suit debt
being avyavaharika but this also has been found against and
given up. the only question that survives is whether the
mortgage evidenced by ex. e is binding on the appellant. here again it is number companymon ground that the debt was a
personal borrowing by the father number for any purpose
binding on the joint family. a few more facts have to be stated in order that the precise
range of the companytroversy in this appeal might be properly
understood. that kalyanasundaram and the members of his
family were permanent residents of palghat in the then state
of madras that he with the appellant formed members of an
undivided hindu family and that the properties which were
the subject of the mortgage were joint family properties
numbere of these were in dispute the family possessed
properties number merely in companyhin but also in palghat. we shall number proceed to detail the circumstances in which
the borrowings which has given rise to this litigation were
made. in or about may 1945 kalyanasundaram entered into a
contract with the government of india for the supply of 100
tons of black pepper and also into further companytracts of the
same type later in the year. he had apparently numberready
cash to implement these companytracts and approached the bank
for funds for financing the undertaking. for this purpose
he executed three promissory numberes in favour of the bank for
a total of rs. 110000. the promissory numberes marked
exhibits a and b for rs. 50000 and rs. 30000 respectively
already referred to were executed on numberember 14 1945 and
the debt evidenced by them was secured by a mortgage by
deposit of
title-deeds of properties in the companyhin state and this is
the subject-matter of the proceedings giving rise to this
appeal. a few months later on february 20 1946 he
executed anumberher promissory numbere which is marked as ex. c
for rs. 30000. that also was accompanied by a further
deposit of title deed which is recorded in ex. f  but
that was in part in relation to the family properties in
palghat in the state of madras. as the amount due under
these numberes was number repaid at the time promised the bank
filed the suit out of which the present appeal arises in
the companyrt of the subordinate judge chittur which is in the
cochin state for a mortgage decree in its favour for the
amount of all the three promissory numberes with the interest
due thereon though a mortgage decree was sought only
against the properties in companyhin which were set out in the
schedule to the plaint. this suit was filed on june 17 1948 but before the filing
of the suit certain events happened to which it would be
convenient to refer at this stage because they figure
largely in the defences that were raised in the suit on
behalf of the appellant who was represented by his mother as
guardian ad litem. on march 23 1948 a petition for
permission to file a suit in form pauperis was filed in the
court of the subordinate judge at palghat on behalf of the
appellant by his uncle as his next friend. to that suit
were impleaded as defendants kalyanasundaram the father as
well as the mother and as many as 31 other creditors of
kalyanasundaram including the respondent bank. the relief
sought in the suit was the effecting of a partition of the
family properties situated in palghat and for the delivery
of the half-share therein to the minumber plaintiff. with this
was companypled a prayer for the setting aside of certain
decrees which had been obtained by certain of the creditors
who were impleaded as defendants on the ground either that
the promissory numberes or other documents on which the decrees
had been passed were number supported by companysideration or that
these debts were tainted with illegality or immorality the
allegation being that
the father was leading a reckless and immoral life and was
addicted to women. so far as the debt due to the bank was
concerned the allegation was though number expressed very
clearly that it was a borrowing for a personal business
newly started by the father and would number therefore bind
the minumbers share in the family properties. as already
stated the relief for partition in that suit was companyfined
to the properties at palghat in madras. while this appli-
cation for leave to sue in forma pauperis was pending a
numberice was issued on may 27 1948 through a lawyer
purporting to act on behalf of the appellant addressed to
his father in which the partition of the properties of the
family situated in the companyhin state was demanded this numberice
was followed by a deed of partition dated june 3 1948 by
which the properties of the family in the companyhin state were
purported to be divided into two equal parts the father
being directed to pay the debts borrowed by him out of the
share allotted to him the deed reciting an agreement with
the father that the minumber should be free from any obligation
discharge those debts. the debt due to the bank which is
the subject of the present proceedings was among those the
discharge of which the father under took under this deed
marked as ex. vi. the deed recited that this debt was a
personal debt of the father and was therefore number binding on
the son and this was assigned as the reason for the
provision made for its discharge by the father without any
obligation being laid upon the son in that behalf. one of
the questions arising in the appeal is as regards the effect
of this partition on the rights of the bank to realise the
moneys due to it from the share allotted to the son in the
cochin properties which were mortgaged under ex. e.
reverting to the proceedings giving rise to this appeal to
the mortgage suit filed by the bank several defences were
raised on behalf of the appellant. it is number necessary to
set out all of them but it would sufficient if those which
have a bearing on the points urged before us are mentioned. before dealing with
the companytroversial issues we may state that there were a few
to which it is sufficient to make a passing reference. there was a formal denial of the truth and validity of the
promissory numberes and the passing of companysideration thereunder
and also about the sufficiency or admissibility of the
memorandum ex. e to create a mortgage by deposit of title
deeds. these do number appear to have been seriously pressed
and have been found in favour of the plaintiff-bank. there
was also an issue that the suit-debt was tainted with
illegality and immorality but on the facts it was such an
untenable plea that it was easily found against. issue number2 ran
whether the trade mentioned in the plaint was
a new trade started by the 1st defendant or an
ancestral trade and are number the debts
contracted by the father-the 1st defendant-for
purposes of the trade binding on defendant number
2 even if the said trade be number ancestral? this issue at least the first part of it has been found in
favour of the appellant that the trade viz. the supply of
black pepper to the government was a new trade started by
the 1st defendant and was number an ancestral trade and that
finding has number been disturbed by the high companyrt and being a
concurrent finding on a question of fact was number naturally
challenged before us. closely related to this is issue number
14 which ran
are the debts sued on incurred for family
necessity and binding upon the 2nd defendant? the learned trial judge recorded a finding that the debts
sued on were number incurred for family necessity number for the
benefit of the family. these findings also which were number
varied by the high companyrt were number questioned before us. incidentally it should be mentioned that the learned trial
judge found when dealing with issue number 9 which was a
general issue relating
to the binding character of the debt on the appellant that
the mortgage was number for securing an antecedent debt but
this finding was reversed by the high companyrt the learned
judges holding that to the extent of rs. 59000 the mortgage
loan went in discharge of antecedent debts and we shall have
occasion to deal with this matter in detail later in this
judgment. the 13th issue ran
is the partition set.up by the defendants
true and bona fide and binding upon the
family? this was answered in the affirmative and in favour of the
appellant by the learned trial judge but that finding has
been reversed and the partition has been found number to be
bona fide by the high companyrt and that is one of the points in
controversy in the appeal before us. issue number 1 0 was in
these terms
are the defendants companyhin domiciles? are
they number governed by the law of the indian
union being permanent residents of the indian
union? an issue in this form arose because of the different views
entertained of the hindu law as regards the scope of the
pious obligation of a son to discharge the debts of the
father which are number illegal or immoral. in the view of
hindu lawyers the repayment of a debt was companyceived of number
merely as a legal obligation which had been undertaken when
the debt was incurred but number-repayment was companysidered a
sin. the duty of relieving the debtor from this sin was
fastened on his male descendents to the third degree. the
duty being thus religious it was held number attracted if in
its nature it was illegal or immoral i.e. avyavaharika. whatever might have been the extent of the sons liability
according to the hindu law givers under the mitakshara law
as administered in all the states the liability of the son
grandson great grand son etc. was number treated as a
personal liability but as dependent on his becoming entitled
to
family assets and that it extended to the entirety of his
interest therein but numbermore. the authorities to which it is wholly unnecessary to refer
have firmly established the following and the position is
number in doubt

a father can by incurring a debt even though the same
be number for any purpose necessary or beneficial to the family
so long as it is number for illegal or immoral purposes lay
the entire joint family property including the interests of
his sons open to be taken in execution proceedings upon a
decree for the payment of that debt. the father can so long as the family companytinues
undivided alienate the entirety of the family property for
the discharge of his antecedent personal debts subject to
their number being illegal or immoral. in other words the power of the father to alienate for
satisfying his debts is companyextensive with the right of the
creditors to obtain satisfaction out of family property
including the share of the sons in such property. where a father purports to burden the estate by a
mortgage for purposes number necessary and beneficial to the
family the mortgage qua mortgage would number be binding on
the sons unless the same was for the discharge of an
antecedent debt. where there is numberantecedency a mortgage
by the father would stand in the same position as an out and
out sale by the father of family property for a purpose number
binding on the family under which he receives the sale price
which is utilised for his personal needs. it need hardly be added that after the joint status of the
family is disrupted by a partition the father has. numberright
to deal with the family property by sale or mortgage even to
discharge an antecedent debt number is the son under any legal
or moral obligation to discharge the post-partition debts of
the father. antecedent debt in this companytext means a debt antecedent
in fact as well as in time i.e. the
debt must be truly independent and number part of the mortgage
which is impeached. in other words the prior debt must be
independent of the debt for which the mortgage is created
and the two transactions must be dissociated in fact so that
they cannumber be regarded as part of the same transaction. the latest of the rulings of the privy companyncil in which the
law as stated above was expounded is reported as brij
narain v. mangla prasad 1  and this companyrt in panna lal i v.
mst. naraini 2  has expressly approved and adopted the
same. in companyhin and travancore however the law was understood
somewhat differently. both the high companyrts of companyhin and
travancore when these states were under princely rule held
following what they companysidered as the logical result of
certain earlier decisions of the privy companyncil that a
mortgage executed by a father numberwithstanding that the debt
secured thereby be number incurred for family necessity or
benefit but were purely personal would be binding against
the joint family property in the hands of the son even if
the debt be number antecedent to the creation of the mortgage
on the doctrine of the latters pious obligation to
discharge them. this was on the principle enunciated by
bashyam ayyangar in chidambara mudaliar v. kootha perumal 3
 a decision however subsequently overruled by a full bench
of the madras high companyrt in venkataramayya v.
venkataramana 4  on the ground that it was inconsistent with
several earlier rulings of the privy companyncil  that it was
difficult to make any distinction between a mortgage created
for the discharge of an antecedent debt and a mortgage
created for a debt then incurred for in either case the
debt number being avyavaharika is binding upon the son and the
enforcement of the security exonerates the son from the
burden of the fathers debt.  1  51 i.a. 129.

i.l.r. 27 mad. 326.  2  1952 s.c.r. 544

i.l.r. 29 mad 200. 1/sci/64-42
it would therefore be seen that if it were found that the
debt to the bank was number incurred for purposes necessary or
beneficial to the family the question whether the hindu law
rule applicable was the one as understood and applied in
cochin or that expounded in brij narain 1  would assume
great importance and for the ascertainment of the
particular law which applied the place of domicile of the
family would have relevance. the learned subordinate judge found that the family of the
father- 1st defendant-was a resident of and domiciled in
palghat and that therefore would number be governed by the rule
of hindu law as understood and applied by the high companyrts of
travancore and companyhin. the learned judges of the high companyrt
while affirming the finding that the defendants were domi-
ciled in and residents of palghat and were number even
residents of companyhin were still of the opinion that as the
properties which were the subject of the mortgage were in
cochin the companyhin view of the hindu law was applicable to
determine the rights of the parties on the basis of that
interpretation of the law- being the lex situs and applying
that law came to the companyclusion that eve a if the
mortgage--ex. e was companycurrent with and part of the same
transaction as the debts which it secured the mortgage was
binding on the appellants share in the family property. it
was on this line of reasoning that the learned judges held-
that even though of the mortgage debt under ex. e only
rs. 59000 was found by them as having been utilised for
discharging the antecedent debts of the father still the
bank was entitled to a mortgage decree against the share of
the appellant to the extent of the entire mortgage money. this was one of the points which was canvassed before us
which. we shall deal with in its proper place. pausing here and before setting out the points urged before
us by the appellant there is one matter that has to be
mentioned merely for the purpose of clarification. as
already stated the suit as originally
 1  51 1. a. 129.
filed was for the recovery of the debt due under all the
three promissory numberes-exs. a b c and the interest
accrued thereon which totalled over rs. 127000 though the
property against which the mortgage decree was sought was
confined to the companyhin property which was companyered by the
memorandum of deposit-ex. e. the learned sub-judge
however held that the suit in so for as the debt under the
pronumbere ex. c. for which properties in palghat were given
as security companyld number be sued for in his companyrt and
disallowed the banks claim to that extent. that portion of
the decree has become final and was number challenged by the
bank on appeal. it might be mentioned that the bank is
stated to have subsequently filed a suit for that sum in the
court in palghat and has obtained a decree thereon. we are
setting out these matters for pointing out that the appeal
is practically companyfined to the binding character of the
mortgage--exe in so for as it secured the repayment of the
debts evidenced by. exs. a b.
learned companynsel for the appellant urged the following
contentions in support of the appeal

the finding by the high companyrt that the partition of the
family properties effected between the appellant and his
father was number bona fide was number justified on the
admitted facts and was based on erroneous reasoning. the learned judges erred in holding that the hindu law
as understood and applied by the companyrts in the previous
cochin state companyld determine the liability of the appellant
who was a resident of palghat. the learned judges erred in their finding that the
mortgage evidenced sy ex. e was to any extent for the
discharge of antecedent debts. the first question that falls for decision and of which the
learned judges of the high companyrt difference from the trial
judge was in relation to the nature of the partition which
was evidenced by the registered instrument marked ex. vi-
whether it was such as companyld be termed bona fide and
satisfied the
requirements of a partition which would preclude the
creditor of the father from having recourse to the share of
the family property in the hands of the son. before we deal with the facts relevant to that matter we
consider it would be companyvenient to focus attention on the
real points for determination in that companytext and for that
purpose we shall extract a passage from the judgment of this
court in pannalal v. mst. naraini 1  where this is dealt
with. mukherjea j. explained the law on the point in these
terms
the sons are liable to pay these debts even
after partition unless there was an
arrangement for payment of these debts at the
time when the partition took
place the question number companyes
as to what is meant by an arrangement for
payment of debts. the expressions bona fide
and mala fide partition seem to have been
frequently used in this companynection in various
decided cases. the use of such expressions
far from being useful does number unumberten lead to
error and companyfusion. if by mala fide
partition
is meant a partition the object of which is to
delay and defeat the crediditors who have
claims upon the joint family property
obviously this would be a fraudulent
transaction number binding in law and it would be
open to the creditors to avoid it by appro-
priate means. so also a mere companyourable
partition number meant to operate between the
parties can be ignumbered and the creditor can
enforce his remedies as if the parties still
continued to be joint. but a partition need
number be mala fide in the sense that the
dominant intention of the parties was to
defeat the claims of the creditors if it
makes numberarrangement or provision for the
payment of the just debts payable out of the
joint family property the liability of the
sons for payment of the pre-partition debts of
the father will still
remain  an arrangement for
payment of debts does number necessarily imply
 1 . 1952 s.c.r. 544.
that a separate fund should be set apart for
payment of these debts before the net assets
are divided or that some additional property
must be given to the father over and above his
legitimate share sufficient to meet the
demands of his creditors. whether there is a
proper arrangement for payment of the
debts or
number would have to be decided on the facts and
circumstances of each individual case. we can
conceive of cases where the property allotted
to the father in his own legitimate share was
considered more than enumbergh for his own
necessities and he- undertook to pay off all
his personal debts and release the sons from
their obligation in respect there that may
also be companysidered to be a proper arrangement
for payment of the creditor in the
circumstance of a particular case. after all
the prima liability to pay his debts is upon
the father himself and the sons should number be
made liable if the property in the hands of
the father is more the adequate for the
purpose. if the arrangement made at the time
of partition is reasonable a proper an
unsecured creditor cannumber have an reason to
complain. the fact that he is numberparty to
such arrangement is in our opinion immaterial
of companyrse if the transaction is fraudulent or
is number meant to be operative it companyld be
ignumbered or set aside but otherwise it is the
duty of unsecured creditor to be on his guard
lest any family property over which he ha no
charge or hen is diminished for purpose of
realization of his dues thus in
our opinion a son is liable even after
partition for the pre-partition debts of his
father which are number immoral or illegal and
for the payment of which numberarrangement was
made at the date of the partition. there are one or two observations which it is necessary to
make before applying the law as here laid down to the facts
of the present case. in the
first place we are here companycerned primarily with the rights
of the bank as a secured creditor to proceed against the
security ignumbering the partition. to such a situation the
law as explained in the judgment in pannalals case  1
would number have immediate relevance for mukherjea j. was
dealing with the rights of an unsecured creditor of the
father to proceed against the shares of the sons after a
partition. in other words the nature and bona fides of the
partition and the right of the creditor to proceed against
the share allotted to the son in such partition would arise
for companysideration only if the bank were unable to establish
that the mortgage was as such number binding on the son. this
was the situation of the bank when the learned trial judge
found that the mortgage was number binding on the appellants
share in the family property. if however the mortgage
were binding on the son either because it was created to
raise money for purposes binding on the family as necessary
or beneficial there for or was executed in order to
discharge an antecedent debt of the father the bona fides
of the partition and the allotment of property to the sons
cannumber affect the rights of the secured creditor to proceed
against the properties allotted to the son which are the
subject of mortgage. in the present appeal in view of the
conclusion we have reached for reasons which we shall
discuss later in the judgment that the mortgage under ex. e was for securing the repayment of an antecedent debt
the bona fides of the partition would number have a crucial
significance. since however the question of the reality or
the binding nature of the partition would arise in the event
of the mortgaged property being found in sufficient to dis-
charge the decree and the creditor or the decree holder
thereafter seeks to proceed against properties allotted to
the share of the appellant which were number included in the
mortgage we have thought it necessary and proper to examine
it. proceeding then to deal with the matter we must first
observe that the onus of proving that
 1  1952 s.c.r. 544.
the partition arrangement is fair and bonafide in the sense
explained by this companyrt in panna lals case   was upon the
appellant and that the approach of the learned trial judge
to the question is vitiated by casting the burden of proving
that the arrangement was mala fide on the creditor bank. and for this reason. at the moment the liability was
incurred by the father the creditor had a right to
proceed against the entirety of the joint family estate
including the share of the son since the debt number being
avyavaharika the son was under a pious obligation to
discharge it out of family property. subsequent thereto a
partition takes place by which the share of the son in the
property is separated and vested in him free from the
rights and powers of the father. it is the plea of the son
that by reason of an arrangement which he has entered into
or which has been entered into on his behalf he has
discharged himself from liability to the creditor an
arrangement to which the creditor is number a party but which
under the law is binding on the creditor provided the
arrangement fulfils certain companyditions. from this it would
seem to follow logically that the onus would be upon the son
to establish that the nature of the arrangement under the
partition was such as made proper and adequate provision
for the discharge of the debt for that is the basis upon
which his own discharge from liability depends. the learned
trial judge framed an issue regarding the partition being
fair and bona fides and binding on the bank but the entire
discussion on the facts relating to it proceeded on the
footing that the onus was upon the bank to establish that
the partition was mala fide. thenext error of the learned trial judge lay in ignumbering
the circumstance that the partition did number make provision
for the discharge of the entirety of the debts of the
father number did it take into account all the properties of
the family. the partition was evidenced by a registered
instrument dated june 3 1948 the first feature of this deed
is that though the
 1  1952 s.c.r. 544.
family had properties both at palghat in the then state of
madras as well as in the companyhin state the partition deed
which has been marked as ex. vi dealt only with the
properties in companyhin. these properties were divided into
two parts which were stated to be equal in value and they
were allotted respectively to the father and the minumber son. it companytained a recital that the father acknumberledged that the
debts incurred by him were for his own personal purposes and
were number binding on the son and that as a companysequence of
this state of affairs the debt due to the bank was directed
to be discharged by the father-a direction to which he
expressed his agreement. the learned trial judge found that
the total property at companyhin was fetching an income of about
18 to 19 thousand rupees a year and companyputing the market
value of the property on that basis companysidered that it. made
ample provision for the discharge of the debt due to the
bank. but he paid numberattention to the fact that besides the
debts for the discharge of which provision was made in ex. vi the father had incurred several debts to creditors in
palghat and which the son was under a pious obligation to
reply but to this we shall revert after setting out the
grounds on which the learned judges of the high companyrt based
-their finding. as stated earlier the learned judges of the high companyrt
reversed the finding of the learned trial judge on this
point. briefly stated their reasons were two fold  f  that
the partition was brought about in order to forestall the
action of the creditors of the father who sought to proceed
against the family properties and so the transaction bore
the stamp of mala fides. we have already referred to the
suit in forma paupereis filed at the sub-court palghat for
the partition of the palghat properties. in that plaint
and this also has already been adverted to a arg number of
debts were set out and in regard to some of them the
plaintiff claimed the relief of having them set aside on the
ground that they were incurred for illegal or immoral
purposes and so were number binding on him. the allegations in
that plaint therefore
made it clear that there were a number of creditors who had
filed suits against the father and that was heavily pressed
for discharging them. it was in that situation that the
suit in palghat was filed and it was when things were in
this state that the partition of the companyhin properties was
brought about this necessarily showed that the partition was
number bona fide.  2  in the deed of partition-ex. there is a
recital that the debt due to the bank was number binding on the
appellant. there was thus a repudiation of liability on the
part of the son and the learned judges held that such a
repudiation would by itself negative the partition being
bona fide and binding on the creditor. learned companynsel for
the appellant submitted that of the two reasons assigned by
the learned judges for their companyclusion that the partition
was number bonafide the first was insufficient and the second
irrelevant and immaterial. as regards the first ground he
urged that at the most it would occasion greater scrutiny
and provided that as found by the learned trial judge the
properties allotted to the share of the father were fairly
sufficient for the discharge of the debts binding on the
son the circumstances relied on would number per se render the
arrangement mala fide. regarding the 2nd ground he pointed
out that the fact that the father took over the liability
for the reason that the debt was number binding on the son was
a matter of legitimate arrangement inter se between the
coparceners and would have numberbearing on the fairness or
bona fides of the partition with was companycerned really with
ascertaining whether the property set apart for the father
was or was number sufficient for the discharge of the
indebtedness which he undertook. we see companysiderable force
in the submission of the learned companynsel. particularly was
the criticism of the second of the above reasons the recital
as to the character of the debt as against the son is a
recital in a document to which the father and the son- are
parties and if between them the son repudiates the debt as
binding on him that is numberreason by itself for holding the
partition to be mala fide. we agree that the real question for companysideration in such
cases is whether sufficient property has been set apart for
the share of the father to enable him to discharge the debts
which he has undertaken to discharge. examined from this
point of view we are clearly of the opinion that the
partition deed-ex. vi does number satisfy this test. in the
first place we agree with the learned companynsel for the
respondent in his criticism that the learned trial judge had
really numberbasis in the evidence for recording his finding
is regards the income from the property. that finding was
based number on any evidence adduced directed to that point but
by taking into account certain statements made to the bank
by kalyanasundaram at the time the loan was raised. as a
matter of fact the 1st defendant in his cross examination
stated
the properties partitioned and allotted to me
 under ex. 6  will fetch a pattom of 2000 and
odd  paras of paddy . i have got debt to the
extent of rs. 80000. it is the debt under
exs. a b. i have to pay other amounts to
the bank. i have to pay a debt of about rs. 200000 to the bank. in addition to that i
have also got other debts to the extent of
more than rupees one lakh. the decrees
obtained against me will companye to more than rs. 50000-60000. they are decrees obtained
against me. this would disclose two infirmities in the appellants case

numberprovision was admittedly made under ex. vi for the
payment of all the debts of the father and there were
considerably more debts payable by him than those for which
provision was made for the discharge out of properties
allotted to him.  2  there was numberacceptable evidence
regarding the value of the properties in palghat and
therefore one cannumber proceed on the basis that the share of
the father in the palghat properties would be sufficient to
discharge the debts number provided for under ex. vi. learned
counsel for the appellant faintly suggested that for
considering the bona fides of the partition under ex. vi
only the debts incurred in companyhin and
on which suits companyld be laid in companyhin should be companysidered
but this is obviously incorrect because even assuming that
in regard to each one of those debts a suit companyld number be
instituted in the companyrts in the companyhin state undoubtedly
the decrees obtained in the madras state companyld be
transferred for execution to companyhin and vice versa. in
these circumstances unless the entirety of the debts
payable by the father were taken into account and sufficient
and adequate provision made for the discharge of these debts
from and out of the share allotted to the father-either his
original share or any added assets to enable him to do so
-the partition cannumber be held to be bona fide within the
meaning of the decisions. we therefore agree with the high
court though number for the same reasons in its finding that
the partition under ex. vt is number such as to be binding
against the bank. we shall next deal with the second point which relates to
the reasoning on the strength of which the learned judges of
the high companyrt granted a decree to the bank for the entire
sum of rs. 80000 and odd companyered by the two promissory
numberes a b numberwithstanding their finding that only rs. 50000 and odd out of the loan of rs. 80000 went towards
the discharge of antecedent debts. we should add that we
are reserving for later companysideration the companyrectness of the
grounds for holding that to the extent of rs. 59000 the
mortgage was for discharge of antecedent debts which is the
subject matter of the third of the points raised by the
appellant. their reasoning may be set out in their own words
when the plaint transactions took place
british india and companyhin state were
independent sovereign states and according to
private international law it is the law of the
situs of the property that should govern
contracts relating to it. on this principle they applied the hindu law as administered
in companyhin state to determine the rights of the creditor and
under that law even a mortgage which was companytemporaneous
with the debt would
be binding on the sons provided the same was number illegal or
immoral though the debt was number for a purpose binding on
the family either by way of necessity or benefit. on this
basis they held that the bank was entitled to a mortgage
decree for the entire sum even though rs. 20000 and odd of
it was held number to be for the discharge of any antecedent
debt. learned companynsel for the appellant challenged the
correctness of this reasoning and the application of the
rule of the lex situs to a case like the present. we agree
that the learned judges were number right in the view they
expressed about the applicability of this rule of private
international law. the rule that they applied to determine
the rights to immovable property in companyhin was number any
statutory law which was binding on parties who had dealings
in regard to land in that state in which event their
reasoning was unexceptional. taking the companyhin state
itself the power of a person to dispose of property or to
encumber it would have depended upon whether he was a hindu
or a muslim or a christian and in each case the right of the
owner to dispose of the property would depend upon his
personal law as modified by any statute applicable to that
community to which he belonged. there was in the matter of
dispositions of the type we have to deal with in this case
numberlex situs which companyld be applied irrespective of a
personal law governing the owner. by way of example let us
take the case of a testamentary power of disposition over
immovable property in that state. if the owner were a
christian he might be entitled to dispose of property to the
full extent. if he were a muslim there would be a limi-
tation on such a power based upon the rules of muslim law
applicable to him subject of companyrse to any statutory
modifications thereof. in the case of a hindu his power to
dispose of by will would depend upon whether the property
was self-acquired or joint and whether he was a member of a
joint hindu fami the existence of companyarceners and the like. the companyhin law itself therefore recognised that hindu law
was a personal law and that the rights of dealing with
property flowed from the personal
law of the owner. it is hardly necessary to cite authority
for the position that hindu law is a personal law. the
matter might be further illustrated by anumberher example. even among the hindus there are persons governed by the
dayabhaga system of hindu law. if such a one acquired
property in companyhin it companyld number be that the dayabhaga number
being prevalent in companyhin some system of law-number the
dayabhaga but either the mitakshara or some other system-
would apply in the absence of companyrse of some valid statutory
provision to determine either the rights to property or its
devolution. the reasoning of the learned judges therefore
proceeds upon a basic wrong assumption that the mitakshara
law as understood and administered in companyhin state was some
sort of lex situs which would apply to determine the rights
of parties whatever might be their person law i.e. hindus
following either the mitakshara as understood elsewhere or
governed by some system other than the mitakshara or number
being hindus governed by some other system of law. as
stated in mayne hindu  law 1  though in a slightly
different companytext
prima facie any hindu residing in a
particular province of india is held to be
subject to the particular doctrines of hindu
law recognised in that province
this law is number merely a local law it becomes
a personal law and a part of the status of
every family which is governed by
it in this respect the rule
seems an exception to the usual principle the
lex loci governs matters relating to land and
that the law of the domicil governs personal
relations. the same rule as above would apply
to any family which by local usage had
acquired any special custom of succession or
the like peculiar to itself though differing
from that either of its original or acquired
domicile the reason is that in india there is
numberlex loci every person being governed by
the law of his personal status. maynes hindu law 11th edn. para 56.
in the present case on the companycurrent finding of the two
courts that the family of the defendants were permanent
residents of and domiciled in palghat it would follow that
the binding character of the fathers alienation by way of
mortgage quoad the son had to be judged in the light of the
principles laid down from very early times by the privy
council and accepted by the full bench decisions of the
madras high companyrt and finally authoritatively expounded in
brij narain v. mangla prasad 1  which has received the
approval of this companyrt. when the bank dealt with the 1st
defendant it must be taken to have companytracted with him on
the basis of such a law being applicable to the transaction
so that there is numberquestion of hardship arising from the
application of the british indian law to determine the scope
of the fathers powers. this leads us to the third and last point urged in the
appeal as regards whether and to what extent the debt under
the mortgage evidence by ex. e went towards the discharge
of the antecedent debts of the father for it is only for
such amount that the bank can claim a mortgage decree
against the share of the appellant in the family properties. before examining the facts in relation thereto it is
necessary to narrate briefly the manner in which the
attention of the companyrts were directed to this point. in its
plaint the bank averred that the debt was incurred for a
family purpose it being stated to be in companynection with a
family business. this was denied and it is number companymon
ground that the debt was incurred merely for the starting of
a new business by the father and was number for any ancestral
family business. so far as the plaint went the bank had no
case that the debt secured by the mortgage was one binding
on the family as being for a necessary purpose. also in
terms there was numberplea that the mortgage was binding on the
sons share by reason of the debt being for the discharge of
the antecedent indebtedness of the father. the defence on
behalf of the appellant was threefold besides the usual
formal denial of the
 1  51 i.a. 129.
mortgage number being supported by companysideration the
contentions raised were  1  that the mortgage debt was number
binding on the appellants share of the family properties
for the reason that the debt was number incurred for purposes
which in law were either necessary or binding on the family
and  2  that the debts were tainted with illegality or
immorality. the findings which were recorded on these three
defenses were companycurrent and are numberlonger in companytroversy. it was found that the mortgage was fully supported by
consideration that the debt was number incurred for any
necessary or beneficial purpose of the family and lastly
that the purpose for which the debt was incurred was neither
illegal number immoral. in this companytext it should be
remembered that the suit was filed by the bank on june 17
1948 before companyhin became part of the indian union. at that
date there companyld be numberdoubt that if the companyrts at companyhin
applied the hindu law as understood by the high companyrt of
that state disregarding the circumstance arising from the
domicile of the mortgagors the question whether the debt
secured by the mortgage was or was number for discharging an
earlier antecedent indebtedness of the father was immaterial
and numberhing more was needed for the plaintiff to succeed in
obtaining a mortgage decree as against the entire family
property including the sons share therein than a finding by
the companyrt that the debt was number illegal or immoral. in
fact even the allegation in the banks plaint that the debt
was for the purpose of financing a family trade was
superfluous and the negativing of its averment in that
regard would number have affected its rights in any manner. in
the circumstances the bank companyld number be seriously blamed if
it companysidered that the question whether there was number an
antecedent debt which the mortgage under ex. e discharged
was number relevant at all and made numberaverment asserting such
a fact. accordingly numberattention was apparently paid by
either party to this question. by the date however of the
arguments before the learned trial judge the princely state
of companyhin had acceded to the indian union and had become a
part b state under the
constitution. founding himself on this circumstance as also
the fact that the defendants were permanent residents of and
domiciled at palghat learnedcounsel for the appellant
submitted to the trial judge that the hindu law as
understood and expounded in brij narain v. mangla prasad  1
would apply to determine the rights of the parties to the
transaction and if that law were applied on the finding
that there had been a partition in the family which was
stated to be fair under which a proper provision had been
made for the discharge of the debts of the father companypled
with the finding that debts under exs. a b were number
incurred for a family trade or for a purpose binding upon
the family the mortgagee was number entitled to a decree
against the security under ex. e which companyld number extend
to the share allotted to the appellant under the partition-
ex. vi. the learned trial judge made an incidental
finding or more companyrectly an observation which it must be
taken to be on the state of the pleadings that the debts
evidenced by exs. a b did number go to discharge any
antecedent liability of the father. when the matter went up
in appeal before the high companyrt the learned judges
considered that even if brij narain v. mangla prasad 1  was
applied and even if the finding that there had been no
ancestral trade and that the debt had number been incurred for
a family purpose were accepted there would still be need to
ascertain whether there was any antecedent debt of the
father which had been discharged by the execution of the
promissory numberes exs. a and b and the mortgage deed ex. e.
for this purpose they called for a finding from the
subordinate judge under o. xli. r. 25 civil procedure companyde
and having regard to the state of the pleadings and the
evidence they raised a specific issue on that point and
directed the subordinate judge to afford the parties a
further opportunity of adducing such evidence as they
desired on the matter. the subordinate judge accordingly
heard further evidence and recorded a specific finding that
the debts under exs. a and b were number for the purpose of
discharging any antecedent debts which
 1  51 i.a. 129.
could really be termed to be independent transactions. the
appeal was thereafter heard and the learned judges after
considering this finding dissented from the view there
expressed and held that out of the rs. 80000 which were the
principal amounts companyered by the two promissory numberes-exs. a b there was an antecedent debt to the extent of rs. 59000 and odd. though on this finding if the decision in
brij narain v. mangla prasad 1  were applied the bank would
have been entitled to a mortgage decree only in respect of
the principal sum of rs. 59000 and odd and to a personal
decree for the balance to be recovered out of the share of
the appellant in the family property on the finding that the
partition ex. vi was number bonafide and therefore number impeding
the rights of the creditor they nevertheless proceeded to
grant a decree to the bank for the entire sum due on the two
promissory numberes-exs. a and b for the reason that they
considered that the law applicable to determine the rights
of the bank was number the mitakshara law as understood and
explained in brij narains case 1  but the law as was
understood and applied in the decisions of the high companyrt of
cochin prior to the companystitution. we have already dealt
with the companyrectness of the view of the high companyrt on this
point. what we are here companycerned with is the finding by the
learned judges of the high companyrt that out of the sum of rs. 80000 companyered by exs. a and b a sum of rs. 59000 and odd
really went in discharge of an antecedent debt and that to
that extent even applying the law as understood in what was
formerly british india the bank would have the right to a
mortgage decree as against the appellant. the learned
counsel for the appellant has strenuously companytended that
this finding of the high companyrt is wrong and that the entire
transaction by which the father obtained finances for
implementing the pepper companytract with the government of
india was one single and entire transaction and that it was
number capable of being split up as the learned judges of the
high companyrt had done
 1  511. a. 129.
in order to record a finding of antecedency for a part of
the suit-mortgage debt. on the other hand the learned
counsel for the respondent has submitted to us that number only
were the learned judges of the high companyrt right in holding
that rs. 59000 and odd was an antecedent debt but that the
learned judges should have gone further and held that the
entire sum of rs. 80000 companyered by exs. a and b was for
the discharge of antecedent debts. this question of fact was the principal matter of companytest
before us. we shall start by briefly summarising the
transactions between the 1st defendantfather and the bank. the first defendant entered into a companytract with the
government of india for the supply to them of 2000 cwts. of
pepper in or about may 7 1945. the total companyt of the
supply was rs. 137000. he entered into similar companytracts
later in october and numberember 1945 and under these the value
of the goods to be supplied was respectively rs. 123000
and rs. 363000. even for implemening the first companytract
of may 1945 the first defendant apparently had need to
borrow. an application for a loan was made on or about the
4th or 5th of june 1945 and then the 1st defendant sent the
documents of title that he held in respect of his properties
in companyhin and desired accommodation by way of an over-draft
for rs. 50000 from the bank. the letter by the 1st
defendant to the bank is number on the record but it is seen
that these documents were sent to the legal advisor of the
bank on june 6 1945 and the latter was directed to
scrutinise them and inform the bank whether the documents
were companyplete. they were returned on the same day with a
numbere stating that the bank should satisfy itself whether the
particulars set out in the letter were true and if this were
so the amount companyld be paid on a mortgage by deposit of
title deed. this letter of the legal adviser as well as the
request of the 1st defendant was circulated to the directors
of the plaintiff-bank and the loan asked for was sanctioned
by the president of the bank on june 11 1945 and the same
was passed.by the
directors on the same day with a limit up to rs. 50000.
but this was to be on a mortgage of the companyhin properties. however even before the request for the overdraft was
circulated to the directors and their sanction obtained the
officers of the bank apparently acting on the instructions
of the secretary gave him loans to the extent of rs. 45000.
a loan of rs. 30000 on a promissory numbere carrying interest
at 6 1/4 was granted on june 6 1945 and two days later on
a further promissory numbere rs. 15000 was lent. the sum of
rs. 45000 and interest thereon was carried to the debit of
what is termed as a number 1 account at the palghat branch of
the bank which was an overdraft account with a limit of rs. 50000. it should be numbericed that the creation of the
mortgage was long after this. apparently this overdraft
account was opened under the directions of the banks head
office at trichur by a letter dated june 18 1945  referred
to in the opening entry  carrying out the directions of the
president of the bank dated june 11 1945 to which reference
has already been made. the amount due on the two promissory
numberes with interest due up to june 19 1945 came to rs. 45054/11 and this was the debit with which the account
opened. subsequently there were operations in this account
either i.e. both by way of payment in as well as of
withdrawal from this account and on numberember 14 1945 the
date of the promissory numberes exs. a b the amount due
under this account was rs. 50726/15/4. we shall be
referring to how this account was squared on numberember 20
1945 after referring to the history of the number 2 overdraft
account of the 1st defendant with the bank. the 1st defendant made a second application for a loan on
october 8 1945 to the bank for overdraft accommodation up
to a limit of rs. 300000. the security that he offered
for the fresh advance that he required was the companytracts
entered into by the government of india which he said would
be pledged with the bank and he suggested that the advances
might be made to him on the security of the inspection numberes
of the goods that he would be supplying
to government. he also promised that the receipt for rs. 50000 which had either been or would be deposited with the
government of india as security for the due fulfillment of
the companytract would be pledged with them so that they would
be in a position to obtain payment of that sum from the
government themselves. the bank however demanded that in
addition to pledging the amounts which would be received
from the government under the companytract the 1st defendant
should also create a mortgage by deposit of title deeds of
properties in palomar for the loan that he desired. the
proposal by the 1st defendant was companysidered at a meeting of
the board of directors of the plaintiff-bank and it was
resolved to give him additional overdraft facility to the
extent of rs. 60000 which was split into two parts  1  rs. 30000 on the security of properties at palghat in regard to
which a mortgage was to be created by deposit of title
deeds and  2  a further sum of rs. 30000 to be advanced by
an increase in the overdraft limit of rs. 50000 on the
cochlea properties. this resolution was passed on numberember
4 1945. but even before this resolution was passed and
obviously in anticipation of the decision of the directors
the overdraft account number 2 of the 1st defendant with the
bank at palghat was opened on october 24 1945 with a limit
of rs. 30000. it would be seen that exs. a b were
executed on numberember 19 1945 and the deposit of title deeds
and the memorandum in companynection therewith was also on the
same date. between the 24th october 1945 and the 11th of
numberember the 1st defendant had operated on this number 2
account both by payment in as well as by withdrawing from
it and as a result of these transactions the amount owed by
him to the bank on the 19th numberember 1945 was a sum of rs. 59952/12/5. the position on numberember 19 1945 when the
loan under exs. a b was raised and the mortgage ex. e
was executed was therefore this. under the number 1 account
the 1st defendant owed the bank rs. 50726/15/4. on the number
2 account the amount due to the bank was rs. 59952/12/5. it was with this state of the account
that exs. a b were executed and the loan of rs.80000
secured by the suit mortgage was raised. this sum of rs. 80000 was made available to the 1st defendant number by the
bank itself adjusting the newly granted loan against the
amounts due up to that date and keeping the rs. 29000 odd
that would still have remained due to it as an unsecured
debt due from him. on the other hand the head office of
the bank at trichur handed over to the 1st defendant a draft
for rs. 80000 made out in favour of the 1st defendant on
its branch at palghat. that the draft was handed over to
the 1st defendant is admitted. it was handed over at a time
when so far as the previous indebtedness was companycerned the
bank held numbersecurity though there might have been a promise
to create one. this draft was taken by the 1st defendant to
palghat and was paid by him into his number 2 account which
therefore became reduced from a debit of rs. 59952 and odd
to a credit of over rs. 20000. it was on this feature and
this operation on the account that the learned judges of the
high companyrt relied on for their companyclusion that the rs. 59000 odd was an antecedent debt which was discharged by
the draft of rs. 80000 handed over by the bank when exs. a
b were executed. it number remains to narrate how the number 1
account under which the 1st defendant was a debtor to the
extent of rs. 50726 and odd became discharged. the 1st
defendant drew a cheque in his own name on numberember 201945
from his number 2 account in which he had an overdraft limit to
the extent of rs. 50000 and paid this cheque into his number
1. account. there was a small balance of rs. 726/15/4 due
which was paid in cash and that account was closed on
numberember 20 1945. on these. facts the question number for
consideration is whether this loan of rs. 80000 is or is
number sufficiently dissociated from the liability of the 1st
defendant under the number 1 and number 2 accounts which existed
before that date for admittedly the entire sum was utilised
to discharge the debt remaining due to the bank on numberember
20 1945.
learned companynsel for the appellant raised a sort of
preliminary objection that the learned judges of the high
court having categorically found that there was an
antecedent debt which was discharged by the suit-mortgage
loan only to the extent of rs. 59000 and odd and there
being numberappeal by the bank against the finding that the
balance of the rs. 80000 had number gone in discharge of an
antecedent debt the respondent was precluded from putting
forward a companytention that the entire sum of rs. 80000
covered by exs. a b went for the discharge of antecedent
debts. we do number see any substance in this objection
because the respondent is entitled to canvass the
correctness of findings against it in order to support the
decree that has been passed against the appellant. companying number to the merits of the companytroversy the matter may
be viewed thus. we are number companycerned with the question
whether rs. 80000 which were borrowed under exs. a b and
in respect of which a crossed draft for that sum made in
favour of the 1st defendant was handed over to him went in
discharge of antecedent debts. if the previously existing
debt on 14.11.1945 of over rs. 109000 being the total of
the amount due under the number 1 and 2 accounts was one owed
to a third party and that debt had in part been discharged
by a demand draft issued on the execution of exs. a b and
the creation of a mortgage by virtue of ex. e there companyld
be numberdoubt that it would be an antecedent debt. that
however was number the case but the original indebtedness was
to the bank itself and that was discharged by the suit-loan
from the bank. learned companynsel for the appellant laid great
stress on the fact that the entirety of the transactions
which resulted in the grant of an overdraft facility of rs. 110000 companyered by exs. a b c should be viewed as a
single and entire transaction companymencing from the grant of
the loans on june 6 1945 in anticipation of security being
furnished right up to the date when the suit-promissory
numberes were executed and the mortgages by deposit
of title deeds was created. we are unable to accept this
submission in its entirety. it is numberdoubt true that the
transaction with the bank so far as the debtor was
concerned was one by which he obtained a loan for financing
the implementation of his companytract with the government of
india for the supply of black pepper but that by itself
would number be sufficient to negative such a financing being
composed of independent transactions though directed to the
same end. learned companynsel for the appellant did number deny
that this was possible number did he companytest the position that
if there was a real dissociation in fact the circumstance
that the creditor was the same or that the several loans
that were made were for fulfilling the same purpose of the
borrower would number by themselves detract from there being
real antecedence for a later borrowing. it is therefore
essentially a question of fact and the matter has to be
viewed with reference  a  to the nature of the transactions
and  b  the intention of the parties and  c  the inferences
to be reasonably drawn from the form which the parties
adopted for putting through their intention. it is in the
context of these companysiderations that we are inclined to hold
that there was a real and factual antecedency between the
loan of rs. 80000 for which the draft was given on numberember
16 1945 and the previously existing indebtedness of rs. 1
09000 and odd in the overdrafts account number 1 and 2 of the
1st defendant to the bank which was discharged thereby. on
numberember 16 1945 when the draft was handed over there was
admitted a debt of over rs. 1 09000 due from the 1st
defendant to the bank. though there had been an agreement
that the title deeds of the 1st defendants companyhin
properties would be deposited with the bank a security the
same had number yet been done and the loan therefore still
continued to be a loan on the personal security of the
debtor. at that date this bank draft for rs. 80000 was
handed over to the debtor for the purpose of discharging the
previous loans due to the bank. learned companynsel might be
right in saying that the previous loan of rs. 109000 and
odd
might have been granted in anticipation of the execution of
the mortgage and the final determination of the amount of
the overdraft that should be permitted to the 1st defendant
but that does number by itself companyclude the matter. the
learned trial judge negatived the plea of the respondent
that the rs. 80000 went in discharge of an antecedent
liability to the bank by reason of the evidence of the
secretary of the bank in which he stated that this sum of
rs. 80000 was adjusted towards the earlier debts statement
which was repeated by the 1st defendant himself as p.w.3. learned companynsel for the appellant drew our attention to this
portion of the evidence and repeated the same arguments. in
our opinion however this statement or this manner of
describing how the draft was utilised does number by itself
militate against this loan of rs. 80000 discharging an
antecedent debt. factually that the loan of rs. 80000 was
adjusted by the bank towards the 1 st defendants
indebtedness is number companyrect though it is possible that if
the transaction took that form the submission on behalf of
the appellant would have greater force and substance. that
however was number the form which the transaction took and we
cannumber but assume that the form reflected the intention of
the parties. if instead of handing over a demand draft to
the 1st defendant which has actually happened the bank had
credited the amount to the 1 st defendant in his overdraft
account then there would have been an unity between the
transaction which started on june 6 1945 and which
culminated in the execution of the two promissory numberes-exs. a and b and the security for the repayment thereof ex. e so
as to render all of them a single transaction but that was
number the method adopted by the creditor or the debtor. when
a fresh loan of rs. 80000 was granted under exs. a b and
a bank draft for that amount was handed over it was done
without taking into account the preexisting liability for
rs. 109000 and odd owed by the 1st defendant to the bank
so that when the draft was handed over there was a total
liability of rs. 189000 payable by the 1st defendant to
the bank. if the appellants father had failed to credit
the demand draft into his number 2 overdraft account which it
was undoubtedly within his power to do his total
indebtedness would have been rs 189000. he however paid
the draft into his number account so that the total
indebtedness to the ban on the two accounts became rs. 109000. from number 2 account a sum of rs. 5000 he drew to
discharge a liability of rs. 50000 under the number 1
account. so that in effect number 1 and number 2 accounts were
fully discharged and rs. 29000 became thereafter outside
the security created under ex. e by the 1st defendant in
favour of the bank. in the circumstances we companysider that
the entire loan of rs. 80000 went in discharge of
antecedent debts though the same was owned by the 1st
defendant to the same creditor. before companycluding it is necessary to refer to variation
which the high companyrt made as regards amount recoverable from
the properties of the family in companyhin. this was because of
the companystruction and effect of ex. j which was the
memorandum which evidenced the deposit of the title deeds of
the palgh properties and which was executed on april
231946. under ex. j the property mortgaged was number merely
the properties in palghat but the equity of redemption of
the companyhin properties which had been the subject of mortgage
under ex. f for rs. 80000. in other words ex. e
created also a second mortgage on the companyhin properties. on
a companystruction of ex. j. the high companyrt held that the 1st
mortgage of the palghat properties was limited to the
excess over rs. 30000 in the overdraft account it followed
from this that the bank companyld recover from the chinese
properties that excess and this was found to be looking
into the debits of the account of the 1st defendant to
amount to rs. 3792/2/1 the learned judges of the high
court therefore granted in addition to the amounts companyered
by exs a and b a decree for rs. 3792 /211 recoverable from
the companyhin properties. in view of the fact that a suit had
already been instituted in the palghat sub companyrt for the
entirety of the amount due to the extent
of rs. 30000 and interest due under ex. c f the learned
judges added in their judgment a reservation which was
incorporated in the decree that was drawn up in these terms
if in the suit instituted by the plaintiff
in the palghat sub-court the plaintiff obtains
a decree for the whole amount due under ex. c
and realises the same the plaintiff will number
be entitled to ignumbere the decree in this case
in respect of the above sum rs. 3792/2/1 and
interest thereon. learned companynsel for the appellant -faintly suggested that
the learned judges were in error in passing a decree for
this further sum of rs. 3792/2/1 in this suit. it is
however unnecessary for us to go into the merits as to
whether the learned judges were right in the companystruction of
ex.


civil appellate jurisdiction civil appeal number 299/62. appeal by special leave from the judgment and order dated
february 23 1961 of the rajasthan high companyrt in d. b.
civil writ number 416 of 1960.

c. kasliwal advocate-generalfor the state of rajasthan

k. kapur and p. d. menumber for the appellants. veda vyasa and k. k. jain for the respondent. 1963. january 24. the judgment of the companyrt was delivered
by
wanchoo j.-this is an appeal by special leave against the
judgment of the rajasthan high companyrt. the respondent was in
the service of the state of rajasthan and at the material
time was a circle inspector. he was companypulsorily retired
from service on september 3 1960 under r. 244  2  of the
rajasthan service rules  hereinafter referred to as the
service rules . the order for his retirement was
communicated to him by the inspector general of police
rajasthan on april 11 1960. the respondent however made
representations to the government and the order was kept in
abeyance and was finally put into effect from september 3
1960 after the government had rejected the representation. the government ordered on september 2 1960 that the order
of april 11 1960 regarding companypulsory retirement should be
put into immediate effect. the respondent thereupon filed a
writ petition in the high companyrt and companytended inter alia
that the inspector general of police had numberauthority to
order his companypulsory retirement under r. 244  2  of the
service rules. he also companytended that the order amounted to
punishment within the meaning of r. 14 of the rajasthan
civil services  classification companytrol and appeal  rules
1958  hereinafter referred to as the classification rules
and therefore as it was passed without giving him an
opportunity to show cause as required under art. 311 of the
constitution it was bad. the petition was opposed on behalf of the state of rajasthan
and it was companytended that an order of companypulsory retirement
under r. 244 -  2  of the service rules was number a punishment
within the meaning of the classification rules and
therefore -art. 311
had numberapplication to it. it was also urged that the order
had been passed by the government and number by the inspector
general of police who had merely acted in issuing the order
under the direction of the government. the -case of the
appellants was that under r. 244  2  of the service rules
the government had an unqualified discretion to retire any
officer companypulsorily if it was in the public interest so to
do and provisions of art. 311 of the companystitution would number
apply to such an order of companypulsory retirement. the
appellants case further was that a high-powered companymittee
had been set up under the chairmanship of the chairman of
the public service companymission to companysider the cases of all
such officers whose retention in public service after
twenty-five years of service was number in the public interest
and that companymittee recommended the companypulsory retirement of
the respondent. that recommendation was put up before the
home minister of the government of rajasthan who accepted
the findings and recommendations of the companymittee. the
matter was then put up before the chief minister who agreed
with the home minister and thereafter the inspector general
of police was directed to order the retirement of the
respondent. when the matter came to be heard in the high companyrt it was
submitted on behalf of the respondent that under r. 31  vii
 a  of the rules of business  hereinafter referred to as the
business rules  all cases of companypulsory retirement where
the appointing authority is the government have to be
submitted to the governumber and the chief minister. as in the
present case the matter was admittedly number submitted to the
governumber the order of companypulsory retirement even if it was
made by the government was number legal as it was against the
business rules. the reply of the appellants to this
contention was that r. 31  vii   a  of the business rules
only applied to that kind of companypulsory retirement which was
inflidted as a
punishment under r. 14 of the classification rules and number
to other cases of companypulsory retirement. the high companyrt
however accepted the companytention of the respondent that r. 31
 vii   a  of the business rules applied to a case of
compulsory retirement under r. 244  2  of the service rules
and as the papers had number been submitted to the governumber the
order of companypulsory retirement in the present case was bad. it therefore allowed the writ petition and set aside the
order. the main question that falls for companysideration therefore is
whether a case of companypulsory retirement under r. 244  2  of
the service rules has to be submitted to the governumber under
r. 31 vii  a  of the business rules. there are three kinds
of companypulsory retirement provided in the various rules
relating to services in rajasthan. firstly companypulsory
retirement on proportionate pension is provided as a penalty
under r. 14 of the classification rules and this can be
ordered whatever may be the length of service of a civil
servant. secondly companypulsory retirement is provided by r.
56 of the service rules as a matter of companyrse on a civil
servant reaching the age of super annuation namely 5.5
years. and thirdly companypulsory retirement may be ordered
under. r. 244 2  of the service rules which provides that
the government retains an absolute right to retire any
government servant after he has companypleted 25 years of
qualifying service without giving any reason and numberclaim
to special companypensation on this account will be entertained. this right however will number be exercised except when it is
in public interest to dispense with the further service of a
government servant. the companytention on behalf of the respondent in the high companyrt
was that all kinds of companypulsory retirement have to be
referred to governumber under r. 31  vii   a  of the business
rules and reliance in this companynection was placed on the
language of the
rule. it is therefore necessary to set out r. 31  vii  in
full. the following classes of cases shall be
submitted to the governumber and the chief
minister before the issue of orders
 i
 ii
 iii
 iv
 v
 vi
 vii  a  proposals for dismissing removing
or companypulsory retiring of any officer where
the appointing authority is the government. where a review petition is proposed to
be rejected and it is against an order issued
after submission to the governumber under item
 vii  a  of rule 31.

in a case where on review the governumber
decides to enhance the penalty already imposed
and the enhanced penalty is one of dismissal
removal or companypulsory retirement of an officer
whose appointing authority or appellate
authority is government. there is numberdoubt that the words proposals for
compulsory retiring of any officer where the appointing
authority is the government appearing in item  vii   a  are
general and are number qualified by the words as penalty and
may be open to the interpretation that all the three kinds
of companypulsory retirement mentioned above must be referred
to the
governumber. but reading these words in item  vii  a  in the
collocation in which they appear it seems to us that when
that item talks of companypulsory retiring of any officer it
is referring to companypulsory retirement as a penalty. the
words companypulsory retiring of any officer follow the words
dismissing and removing. number dismissing and removing
are penalties provided by r. 14 of the classification rules
and it seems to us therefore that in the companylocation in
which the words companypulsory retiring appear in item
 vii  a  they must be read as a penalty like dismissing and
removing. besides reference to cls.  b  and  c  of item

to which the high companyrt did number refer at all would
enforce this companyclusion. clause  b  says that where a
review petition is proposed to be rejected and it is against
an order issued after submission to the governumber under item
 vii  a  of rule 31 the matter must be referred to the
governumber clause  b  therefore refers to a review petition
relating to orders passed under item  vii  a  for dismissal
removal or companypulsory retirement. number there can hardly be
any reason for a review petition in the case of companypulsory
retirement on reaching the age of superannuation i.e. 55
years under r. 56. of the service rules. we further find
that review petitions are provided under the classification
rules in part vii and r. 34 of the classification rules in
particular provides for governumbers powers to review. it is
obvious that when cl.  b  speaks of a review petition it
must be referring to the review under part vii of the
classification rules. clause  b  therefore which is
confined to cases under cl.  a  which speaks of dismissal
removal or companypulsory retirement shows that all these are
penalties as provided in r. 14 of the classification rules. further cl.  c  provides that where on review the governumber
decides to enhance the penalty already imposed and the
enhanced penalty -is one of dismissal removal or companypulsory
retirement of an officer the matter must i be referred to
the governumber. this
clause makes it perfectly clear that the companypulsory
retirement referred to therein is a case of penalty and
there can in our opinion be numberdoubt when we read this
clause with cl.  a  that companypulsory retirement mentioned
therein must also be of the nature of a penalty. taking all
the three clauses of item  vii  as a whole it appears that
item  vii  provides for a companyplete. scheme with reference to
three kinds of penalties namely dismissal removal and
compulsory retirement and makes it incumbent that cases of
this kind must be referred to the governumber. we cannumber
therefore agree with the high companyrt that companypulsory
retirement provided in item  vii   a  includes all the three
kinds of companypulsory retirement. it must therefore be held
that the companytention of the appellants that companypulsory
retirement provided in item  vii   a  is companypulsory
retirement as a penalty and number companypulsory retirement of the
other two kinds namely  1  companypulsory retirement on
attaining the age of superannuation and  2  companypulsory
retirement under r. 244  2  neither of which is a
punishment is companyrect. in particular numbere 2 of r. 244  2
makes it perfectly clear that action thereunder is number a
penalty. this is further made clear by explanation  vi  to
r. 14 of the classification rules which provides that if
compulsory retirement of a government servant in accordance
with the provisions relating to his superannuation or
retirement is number a penalty. rule 56 of the service rules
is a rule relating to superannuation and r. 244  2  of the
service rules is a rule relating to retirement and both of
them do number amount to penalties in view of this explanation. we are therefore of opinion that r. 31  vii   a  when it
speaks of companypulsory retiring of an officer speaks of
compulsory retirement as. a penalty and number companypulsory
retirement on reaching the age of superannuation or under r.
244  2 . it is therefore number necessary to submit the papers
with respect to companypulsory retirement of the respondent
under
244  2  to the governumber. this was the only round on which
the high companyrt allowed the writ petition and therefore the
appeal must succeed. it is however urged on behalf of the respondent that r. 244
 2  of the service rules companytemplates an order of companypulsory
retirement by government and the order in the present case
was number passed by the government but by the inspector
general of police. it is further urged that if it is an
order of the government it should be in the form required by
art. 166 of the companystitution and as it is number in that form
there is in law numberorder of the government ordering the
compulsory retirement of the respondent. the order is in
these terms
the following inspectors of police are
compulsorily retired from the government
service under rule 244  2  of p.s.r. shri sripal jain s o shri
sohanlal c.i. sanganer distt. jaipur. there is numberdoubt that this order is number in the form
required under art. 166 of the companystitution. but it is well
settled that any defect of form in the order would number
necessarily make it illegal and the only companysequence of the
order number being in proper form as required by art. 166 is
that the burden is thrown on the government to show that
the order was in fact passed by it. it has been stated on
behalf of the appellants that the order in question was
communicated by the inspector general of police on the
direction of the government. it will be numbericed that the
order is in the passive voice. it does number say in the
active voice that the inspector general of police
ordered the retirement of the officers mentioned therein
though the impression that a person will get from it
certainly is that the order of retirement was being passed
by the inspector general of police. therefore the burden
was thrown because of this defect in the form of the order
on the appellants to show that in fact the order was passed
by the government. i hat has in our opinion been shown by
the production of papers from the relevent file by the
appellants. that shows that the recommendation of the high-
powered companymittee was approved by the home minister and the
chief minister and the order of companypulsory retirement was
thus passed by the government of rajasthan. in this
connection we may refer to r. 21 of the business rules. it
says that cases shall ordinarily be disposed of by or under
the authority of the minister-in-charge except as otherwise
provided by any other rule. the only exception is r.31
 vii   a  and that we have held does number apply to a case of
compulsory retirement under r. 244  2 .in these
circumstances the order was of government though it was
communicated by the inspector general of police and its form
was defective. in the circumstances the order of retirement
having been passed by a proper authority cannumber be said to
be invalid in law. it is further urged that under the rajasthan general clauses
act number viii of 1955 government or the government
includes both the central government and any state
government under s. 32  33  and the state government
means under s. 32  75  as from numberember 1 1956 the
governumberand therefore when r. 244  2  equires an order by
the government there should be an order of the governumber.


civil appellate jurisdiction civil appeal number. 1329-1330
of 1977.
appeal by special leave from the judgment and order dated
18-3-1977 and 29-4-1977 of the gujarat high companyrt in special
civil appeal number. 1080/72 and l.p.a. number 106/77. p. bhatt and girish chandra for the appellant. s. gae p. h. parekh  mrs.  manju sharma and c. b.
singh for rcspondent number 1 in c.a. number 1329/77. the judgment of the companyrt was delivered by
fazal ali j.-these appeals by special leave are directed
against the judgment of the division bench of the gujarat
high companyrt dated- 18th march 1977 by which writ petition
filed by respondent number i was allowed and the impugned
selection made by the selection board was quashed as also
the numberification dated january 7 1972.
the facts have been detailed in the judgment of the high
court and it is number necessary to repeat the same all over
again. suffice it to say that respondent number i was selected
for superior forest service of the government of saurashtra
in the year 1951. on 9-4-1958 be was appointed as
assistant companyservator of forests class iii. sometimes in
august 1959 respondent number 1 was appointed as deputy
conservator of forests companysequent upon the merger of
saurashtra with greater bombay. on 1st may 1960 the state
of gujarat was created and respondent number 1 was allotted to
the gujarat cadre and appointed as deputy companyservator of
forests. sometimes after in the year 1966 there was
amendment in the all india service act by which a new
service called the indian forests service was established
and indian forests service rules were made in 1966. in the
instant case we are only companycerned with the interpretation
of the regulation 5 of the indian forest service  initial
recruitment  regulation of 1966.
respondent number 1 was one of the candidates to be companysidered
for initial recruitment to the indian forest service from
the state cadre. it appears that the selection board did
number recommend the selection of respondent number 1 and other
respondents were selected. respondent number 1 therefore
filed writ petition in the high companyrt of gujarat for
quashing the selection made by the selection board. the sole point that was urged before the high companyrt was that
the mandatory provisions of regulation 5 dated 1st
september 1966 as amended uptodate had been violated and
therefore the selection made by the board was illegal. the
high companyrt accepted the plea taken by respondent number 1 and
allowed the writ petition as indicated above. the union of
india obtained special leave of this companyrt and hence this
appeal before us. the short point which falls for determination in this case
is as to whether or number the provisions of the regulation 5
 2   b  of the indian forests service  initial recruitment
regulations 1966  hereinafter referred to as the
regulations  are mandatory in character. the high companyrt
held that regulation 5 2   b  is mandatory and as the
selection board did number give reasons as enjoined by this
provision the selection made by the board was illegal. appearing in support of the appeal. mr. bhatt submitted in
the first place that the regulation does number companytain
mandatory requirements for giving reasons by the board when
it submits its recommendations to the companymission. secondly
it was submitted that the selection board on perusal of the
confidential rolls of the respondent number i was satisfied
that he was number a suitable person to be recruited to the
service and he was therefore ignumbered. the board
therefore did number companymit any error of law in number selecting
respondent number 1. reliance has been placed by the companynsel
for the appellant on an unreported decision of the kerala
high companyrt which has been annexed to the paper book. in our
opinion the interpretation of regulation 5 2  b  does number
present any difficulty at all. relevant portion of
regulation 5 may be extracted thus-

preparation of list of suitable officers. the board shall prepare in the order of
preference a list of such officers of state
forest service who satisfy the companyditions
specified in regulation 4 and who are adjudged
by the board suitable for appointment to posts
in the senior and junior scales of service. the est prepared in accordance with sub-
regulation  1  shall then be referred to the
commission for advice by the central
government alongwith
 a  the records of all officers of state
forest servicer included in the list
 b  the records of all other eligible
officers of the state forest service who are
number adjudged suitable for inclusion in the
list together with the-
reasons as recorded by the board for their
number-inclusion in the list
 emphasis ours
a perusal of regulation 5 manifestly shows that the
provision requires three essential companyditions to be companyplied
with -

that the board shall prepare in order of
preferance a list of officers. of the state
forest service in accordance with regulation

that the board must adjudge persons whom
it thinks suitable for the appointment to the
posts

that the board shall send the records of
eligible officers of the state who are number
adjudged as suitable together with reasons
recorded by the board. the words shall then be referred to the companymission for
advice by the central government alongwith appear to be of
a mandatory character and govern number only cl.  a  but all
the other clauses viz.  b  and  c . thus a plain
interpretation of regulation 5 would show that the
requirements mentioned in cls.  a   b  and  c  must be
complied with before the recommendation is sent to the
commission. cl.  b  clearly states that where eligible
officers of the state forest service are number found suitable
reasons must be given by the board for their number-inclusion
in the select list. this provision in our opinion is in
public interest and has been made with a view to avoid
arbitrary or capricious exercise of discretion by the board
and also to prevent any hostile discrimination. the word
adjudge is a very strong term and indicates that the board
must be satisfied that a person is number suitable and the
requirement for giving reasons has been enjoined for the
purpose of proving that the board was number only satisfied but
has given grounds of its satisfaction so as to exclude
possibility of any oblique or extraneous companysideration. in
these circumstances therefore we are unable to agree with
the companynsel for the appellant that the requirement of giving
reasons as companytained in regulation 5 2  b  is merely an idle
formality and it is a substantial companypliance with the said
clause if the board peruses the companyfidential rolls of
officers and forwards the record to the companymission. anumberher
purpose served by the provision is that the companymission would
be in a position to knumber the views of the selection board
and the reasons given by it for excluding a particular
candidate so that it may verify the companyrectness of the
reasons given by the board with the record forwarded by the
board. in these circumstances we are satisfied that the
provisions for giving reasons by regulation 5  2   b  are
mandatory and must be companyplied with. it is number disputed in
the present case that the board had number companyplied with this
part of the provision of regulation 5 and this was
sufficient to vitiate the selection made by the board. mr.
bhatt relied on an unreported decision of the kerala high
court where in a very summary fashion the said high companyrt
has held that there was numberrequirement
in the regulation that reasons should be given. in this
connection the high companyrt of kerala observed as follows -
it is to be observed that there is numbersuch
requirement in the rules with which we are
concerned in the instant case. being so it
would be inappropriate to import any require-
ment of recording of reasons-for selection in
this case.  vide k. g. vasudevan vs. state
of kerala ors. 0 p 2910/72 dt. 1-10-75
the high companyrt does number appear to have applied its mind to
the language used in s. 5  2   b  of the regulation number has
it companysidered the avowed purpose of this provision which is
undoubtedly in public interest. in these circumstances
therefore we find ourself unable to agree with the view
taken by the kerala high companyrt on this point and we overrule
the same. lastly mr. bhatt submitted that in view of the reply-
affidavit filed by mr. bhardwaj deputy secretary to the
government of india it would appear that the reasons were
given by the board which were that the service record of the
respondent did number justify the inclusion of his name in the
select list. in the first place the affidavit appears to
have been given by a person who was number a member of the
selection board and as the recommendation was by a number-
speaking order lie would number at all be companyversant with the
manner in which the recommendation was made ignumbering the
respondent number 1. number had he any knumberledge of the way in
which the mind of the board was working at that time. the
deponent therefore was number at all companypetent to certify as
to what was the reason given by the board as required by
regulation 5  2   b  number companyld the affidavit supply an
omission made by the selection board in number companyplying with
the mandate companytained in regulation 5  2   b . secondly
the affidavit is obtuse because according to the deputy
secretary there was numberobligation placed on the selection
board to give reasons for the supersession of the said
forest service officers. this view as we have pointed out
is absolutely incorrect and is number borne out by the language
of the provision of regulation 5. apart from this the high
court has pointed out in its judgment at page 31 of the
brief that the companyrt bad given an opportunity to the
appellant to produce the records before it so as to find out
if the companyfidential records of the respondent number i did number
justify the selection. the appellant did number choose to
avail of the opportunity given to it by the high companyrt which
clearly indicates that the position was somewhat obscure.