Chail Behari Lal vs Gulzarimal and Another

Khurshed Bahadur, the father of the defendant, drew a Hundi for Rs. 4,000, on himself in favour of the plaintiffs and as collateral security he executed a hypothecation bond. That Hundi was renewed and four Hundis for Rs. 1,000 each and one for Rs. 451 (the latter representing the interest which had accrued on the amount of the first Hundi) were granted by him to the plaintiffs and the collateral security was continued. Khurshed Bahadur having died, the present suit was brought to recover the amounts due on the Hundis last mentioned by sale of the property hypothecated in the security bond. The defendant raised several objections to the claim, only two of which have been urged in this appeal. Those objections were that there was no consideration for the Hundis and that the debt was incurred for an immoral purpose. The Court below has overruled those objections and has granted a decree to the plaintiffs. It is contended here that the defendant has proved that the debt in question was incurred for immoral purposes. There can be no doubt that the burden of proof in a case of this kind is on the son to show that by reason of the nature of the debt he is discharged from the pious obligation to pay it. The evidence which has been read to us falls far short of proving that the particular debt impugned was tainted by immorality. All that the evidence shows is that Khurshed Bahadur was given to drink and was a man of extravagant habits and there is some evidence that the plaintiffs knew what his character was. We are of opinion that evidence of general character is not sufficient for the discharge of the onus which lies on the son. He must prove that the particular debt in question was incurred for an immoral purpose and this the defendant has not been able to do in this case.

As for the question of want of consideration, the burden of proof was also on the defendant and that burden has not been discharged. The appeal fails and is dismissed with costs including counsels'' fees on the higher scale.