JUDGMENT
1. The suit out of which this appeal arises was one, the essential purpose of which, as rightly remarked by the learned District Judge before whom the suit came in first appeal, was to set aside an alienation of joint family property. This alienation had taken place by way of a sale in execution of a simple money decree obtained against the father alone. It is true that the son endeavoured to improve his position by bringing his case into Court in the form of a suit for partition of joint family property; but he asked the Court to treat the property sold at auction as part of the joint family property still capable of division between him and his father, and to assign the whole of it to the father's share. In effect this was asking the Court to hold that the auction-sale was void as against the son, or, at any rate, to the extent of the share which he would take on partition in the property sold. Now, it has been conceded before us in appeal that, on the principles laid down by their Lordships of the Privy Council in Nanomi Babuasin v. Modhun Mohan (1886) 13 Cal. 21 re-affirmed recently in the case of Brij Narain Rai v. Mangla Prasad A.I.R. 1924 P.C. 50, the son could not succeed, in this suit without proving that the debt in respect of which a decree was obtained and the joint family property brought to sale had been incurred by his father for what the Hindu Law would call an immoral purpose. The Court of first instance seems to have hold on the evidence that the father had borrowed this money for an immoral purpose; but the learned Subordinate Judge went on to hold that the auction-purchaser defendant had taken the property in good faith for valuable consideration and without any knowledge of the immoral taint attaching to the father's transaction. On the ground the trial Court passed a decree for partition, but in a form which virtually negatived the claim of the plaintiff to have the sale sot aside. The learned District Judge in appeal re-considered the evidence regarding the immoral nature of the debt. It has been one of the principal matters of controversy in this Court as to what the learned District Judge intended to find, and actually did find, on this point. At the end of its judgment, however, the lower appellate Court definitely agrees with the trial Court that the auction-purchaser had no notice of the immoral nature of the debt, if it was in fact immoral, and had acted in good faith. On this express ground the learned District Judge dismissed the appeal before him and affirmed the decision of the trial Court. There was a second appeal which came before a single Judge of this Court for disposal, and the learned Judge of this Court has based his decision wholly upon the view taken by him as to the meaning and effect of the judgment recorded by the lower appellate Court. We do not think it necessary to go into detail as to the precise circumstances of the case. There was evidence produced which, if believed, would warrant a finding that this debt bad been incurred by a Hindu father for immoral purposes; that is to say, in furtherance of immoral relations which he had contracted with a woman who was an actress and a courtesan. The learned District Judge says that the oral evidence on this point had not greatly commended itself even to the opinion of the trial Court, and that, in his opinion, it was definitely worthless. He then goes on to remark that the finding of the trial Court as to the immoral nature of the debt was based mainly on the evidence of the plaintiff's father. He adds the following words:
Under the circumstances I would be inclined to demur to this finding.
2. Now, the expression "under the circumstances" does seem to us to refer back to curtain remarks at the beginning of the judgment/where the learned District Judge, rightly or wrongly, expresses a definite opinion that the suit was collusive in its nature, the father and his son acting together in order to recover certain property from the hands of a bona fide purchaser for value. In this view of the judgment as a whole the learned Judge of this Court held that he had before him a definite finding that the debt which was the foundation of the entire transaction was not tainted with immorality; and he has accordingly dismissed the second appeal. He expressly remarked that he would have remitted the case to the lower appellate Court for a specific finding on the issue regarding the immoral nature of the debt, if he did not feel perfectly satisfied from the judgment of that Court what its finding on such an issue must inevitably be. In the appeal which comes before us under the Letters Patent there are certain pleas which seem to suggest a contention that the plaintiff in this suit was not necessarily bound to prove the immoral nature of the debt. In so far as any such pleas appear in this memorandum of appeal, we are content to say that they have not been pressed in argument and arc clearly unsustainable. There is a plea taken to the effect that certain admitted facts regarding the purposes for which the father had contracted the debt would be sufficient in themselves to warrant a finding that the purpose for which the loan was taken was an immoral one in the eye of the Hindu Law. This plea, again, has not been seriously pressed in argument and would not in our opinion, be sustainable. The main contention before us is that the learned Judge of this Court has misunderstood and misinterpreted the judgment of the lower appellate Court and that the main issue in the case could not be determined against the plaintiff without a definite finding on the part of the lower appellate Court as to the alleged immoral nature of the debt. On behalf of the respondents it was contended that the trial Court and the lower appellate Court were after all right, and that the question is concluded against the plaintiff by the finding that the auction-purchaser acted in good faith and had no notice of the alleged immoral nature of the debt contracted by the father. In this connexion a number of authorities have been cited before us, and the real question is whether certain principles of law laid down by their Lordships of the Privy Council in the well-known case of Suraj Bunsi Koer v. Sheo Persad Singh (1880) 5 Cal. 148 have or have not been modified by later pronouncements of their Lordships and in particular by the two cases quoted at the beginning of this judgment. It has been suggested before us that there are two recent decisions of this Court, both reported in Volume 21 of the Allahabad Law Journal Reports, at pages 683 and 809 respectively Sitla Prasad v. Chameli Bahu A.I.R. 1924 All. 111 and Judubir v. Gajadhar A.I.R. 1924 All. 169 which show that three learned Judges of this Court have recently affirmed the principle apparently laid down in Suraj Bunsi Koer's case (1880) 5 Cal. 148 in the sense in which it was understood by the trial Court and by the lower appellate Court in the present suit. On this point we desire only to make one comment, which is that the head-note on each of these two cases in the Law Journal Reports does, in our opinion, go beyond what the learned Judges actually decided if the judgments themselves are carefully considered. We have come to the conclusion, however, that the learned Judge of this Court was substantially right in the manner in which he dealt with this case. The most that the plaintiff, coming before this Court in second appeal, could have asked this Court to do would have been to remit to the lower appellate Court a definite issue regarding the immoral nature of the debt, or rather to insist upon a clear and specific finding on the part of the learned District Judge upon this issue, which was considered and discussed by him. Undoubtedly, if such a finding had been cabled for from the learned District Judge who actually heard and disposed of this suit in first appeal his finding would have been against the plaintiffs, as the learned Judge of this Court has rightly remarked. We do not think that the plaintiff is entitled to be allowed an off chance of success upon this question which is after all, in substance, a question of fact, because an issue, if now remitted, might conceivably come up for determination before a District Judge other than the learned Judge who pronounced the decision of first appeal in the present suit in the year 1921. In our opinion this appeal should fail on this ground alone, and we dismiss it accordingly with costs, including fees on the higher scale.