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1. These appeals raise questions of some general importance relating to the true scope of the pious obligation of a Hindu son to discharge his father's debts.

2. One Viraraghavacharyulu and his brother Ramanujacharyulu were members of a joint Hindu family of which the former was the manager. Viraraghavacharyulu borrowed Rs. 2,000 from the appellant in both appeals on a promissory note, dated 18th December, 1929. The debt was renewed in 1932 by the execution of another note for Rs. 3,070-7-6 being the amount then due for principal and interest under the earlier note. A sum of Rs. 400 was paid on 23rd September, 1935 and the payment was endorsed on the note by both Viraraghavacharyulu and Rarrjanujacharyulu. Viraraghavacharyulu having died in 1936, the appellant sued his son and Ramanujacharyulu (O.S. No. 48 of 1938) for recovery of the balance due on the note. A.S. No. 412 of 1940 arises out of that suit. The connected appeal A.S. No. 383 of 1940 arises out of another suit (O.S. No. 50 of 1938) brought by the appellant against the same defendants to enforce payment of the balance of principal and interest due on a promissory note for Rs. 16,051-15-0 executed by both the brothers on 16th October, 1933. This note was given in renewal of an earlier note for Rs. 9,500 also executed by both of them. In this sum was included Rs. 1,563-15-0 being the principal and interest due under a promissory note executed by Viraraghavacharyulu alone for Rs. 1,000 on 20th December, 1926. The main defence in the first suit was that the debt was borrowed by Viraraghavacharyulu for payment to his concubine for meeting the expenses of her grand-daughter's marriage and that it could not therefore bind the defendants or their family properties. The defendants also pleaded that they are agriculturists within the meaning of the Madras Agriculturists' Relief Act and as such were entitled in any event to have the debt scaled down in accordance with the provisions of that Act. In the second suit also the defendants claimed relief under the Act as agriculturists, and in addition the son pleaded that a portion of the sum borrowed having been utilised for discharging a debt due to a third party from whom Viraraghavacharyulu had borrowed monies for payment to his concubine, the debt could not bind the family properties in the hands of the son. By consent of parties, both suits were tried together, the evidence being recorded in O.S. No. 50 of 1938.

3. The Court below has found that the debt sued for in O.S. No. 48 of 1938 was incurred by Viraraghavacharyulu for payment to his concubine one Saradamba for meeting the expenses of the marriage of her grand-daughter and must therefore be deemed to have been contracted for an immoral purpose; but he held that the debt was binding on the family property in the hands of the son as the appellant was a bona fide lender without knowledge of the purpose for which the amount was borrowed. On the question as to the agriculturist status of the defendants, the learned Judge held that they were disqualified under Proviso D to Section 3 (ii) of the Act from claiming its benefits as they were the holders of an estate called Dumpagadapa agraharam in respect of which they paid more than Rs. 100 an quitrent to the Government. He held, however, that the rate of interest charged, namely, Rs. 1-9-6 per cent. per month compound was substantially unfair and reduced it to nine per cent. per annum, simple, and passed a decree accordingly against the family properties in the hands of the son and dismissed the suit so far as Ramanuiacharyulu was concerned. In the second suit, the learned Judge found that a sum of Rs. 1,874-12-0 out of the amount borrowed under the suit promissory note (Ex. A) was paid in discharge of a debt due to D. W. 2 under an earlier note for Rs. 2,000 (Ex. XVI) executed by Viraraghavacharyulu and that the sum borrowed from D. W. 2 was also paid by Viraraghavacharyulu to Saradamba in connection with her grand-daughter's marriage. He held however that the debt as a whole was binding on the family properties in the hands of the son as the appellant advanced the loan bona fide, as in the other case, without any knowledge that part of the amount borrowed was to be applied in discharge of the promissory note, Ex. XVI. He reduced the rate of interest from Rs. 1-13-6 per cent. per mensem compound to nine per cent. per annum simple and passed a decree for the amount found payable against Ramanujacharyulu personally and against the family properties in the hands of the son. Not being satisfied with these decrees, the appellant has brought the present appeals to this Court and the respondents have preferred a memorandum of cross-objections in each appeal as regards the points decided against them in the Court below.

6. Even so, it was said, the purpose of the borrowings could not be regarded as immoral under the Hindu law as it appeared that Saradamba was in the continuous and exclusive keeping of Viraraghavacharyulu and was thus an avaruddhastri within the meaning of Hindu law texts, which recognise her status and provide for her maintenance. It was indeed suggested that Viraraghavacharyulu was 'morally' bound to meet the expenses of her grand-daughter's marriage. This argument is based on an obvious fallacy and cannot be accepted. The fact that Hindu law, like some other ancient systems of law, recognises and makes provision for certain human frailties cannot be taken as elevating them to the plane of good morals. Nor can the so-called moral duty of a paramour to provide his concubine with funds to meet her expenses render his borrowing for the purpose a vyavaharika debt as between him and his son.

We respectfully agree with this observation.

12. It only remains to consider the respondents' claim to relief under the Madras Agriculturists' Relief Act. The respondents are admittedly the owners of an agraharam village called Dumpagadapa exclusive of certain minor inams situated therein. It is also common ground that a sum of Rs. 205 is payable to the Government as quitrent in respect of the village. It appears that the respondents have alienated portions of the agraharam and after such alienation, the proportionate liability which they have to bear as between themselves and the alienees is Rs. 149. The respondents would therefore be disqualified under proviso D to Section 3 (it) assuming the agraharam to be an estate from claiming the benefits of the Act unless Viraraghavacharyulu and his brother became divided in status in 1935 as alleged by the respondents so that the proportionate liability of each would be reduced to below Rs. 100. The learned Subordinate Judge has not made a definite finding on this point as he took the view that the respondents being jointly and severally liable to the Government for the whole quit rent of Rs. 205, each of them would be liable to pay more than Rs. 100 even if there was a division in status between the brothers--a view which cannot be supported after the decision of this Court in Srinivasayya v. Obula Raju (1941)2 M.L.J. 164, holding that a co-owner's proportionate share of the liability has alone to be taken into consideration in applying the proviso. We have therefore to determine whether the alleged division in status is true. The respondents relied mainly upon entries in the family accounts and upon Ex. XXIV which purports to be an agreement between the brothers to enjoy the income of the family properties in separate shares. Mr. Viyyanna for the appellant frankly conceded that if Ex. XXIV was to be accepted as genuine, it would establish that the brothers became divided in status from its date. The agreement is written on the last two pages of Ex. XXIV which is the family day book for the years 1935 and 1936. It purports to be in the handwriting of the family clerk (D.W. 4) and to bear the initials of Viraraghavacharyulu and the full signature of Ramanujacharyulu. Mr. Viyyanna strongly attacked the genuineness of this document suggesting that it must have been fabricated for the purpose of the suit. He pointed out that Ex XXIV was not filed in Court till after the commencement of the trial, and that the agreement was written on the last two pages of the written portion of the day book. While these circumstances no doubt suggest caution in accepting the document as genuine, we have come to the conclusion, on a consideration of the entire evidence and the general probabilities of the case, that the document is genuine. We have already seen that Viraraghavacharyulu was borrowing large sums of money for payment to his concubine Saradamba in whose name a separate folio was opened in the family ledger showing disbursements made to her from time to time. It is also in evidence that he had alienated some family lands to her. This conduct of Viraraghavacharyulu naturally led to misunderstandings and disputes between the brothers and an actual partition of the properties had to be put off only because their old mother had sentimental objections to her sons dividing the properties during her lifetime. The appellant himself admitted in the course of his cross-examination that in 1934 the brothers went to him as a mediator in connection with their disputes about monies being paid out of family funds to Saradamba, that Ramanujacharyulu told the appellant at the time that he was not going to remain joint with his elder brother any longer and that the assets and liabilities should be divided so that he might discharge his share of the family debts. Even if this statement of Ramanujacharyulu spoken to by the appellant is not to be regarded as effecting by itself a division in status as suggested for the respondents, it clearly shows that Ramanujacharyulu felt aggrieved by the conduct of his brother and was anxious to separate from him in order to protect his interests in the family properties. This background renders highly probable the respondents' case of division in 1935. There is also clear evidence that since 1935, the brothers were separate in mess and, what is more significant, separate folios were opened in the family accounts for the two branches and the entries therein show that the expenses as well as the income were periodically divided in equal shares between the two branches of the family. We have therefore no hesitation in holding that the brothers became divided in status in 1935, and the quit rent payable by each of the respondents in respect of his share of the lands in the agraharam being in that case less than Rs. 100, proviso D does not apply and the respondents are entitled to the benefits of the Act. In this view, it becomes unnecessary to deal with the further question raised as to whether Dumpagadapa agrabaram can be regarded as an " estate " within the meaning of the Madras Estates Land Act as amended by the Amendment Act of 1934, notwithstanding the grant of portions thereof as devadayam inams to certain temples in the village.