Madras High Court
Sami Ayyangar vs Ponnammal on 22 February, 1897
Equivalent citations: (1898)ILR 21MAD28
JUDGMENT
1. As regards the liability of the son's share for the debt of the father as a more money claim, there can be no question, since it is found that the mortgage was for consideration and was not illegal or immoral
2. The next question is whether the mortgage is binding on the son in respect of his share. It is argued for the appellant that, the father having borrowed money not prior to the mortgage but only at the time of the mortgage, the debt cannot be considered to be an antecedent debt so as to come within the rule in the Privy Council case, Suraj Bunsi Koer v. Sheo Persad Singh I.L.R. 5 Cal. 148. This is the view taken by this Court in Srini-vasa Ayyangar v. Ponnammal Letters Patent Appeal No. 12 of 1893 unreported and Chinnayya v. Perumal I.L.R. 13 Mad. 51. The respondent refers us to the case reported as Khalilul Rahman v. Govind Pershad I.L.R. 20 Cal. 328 in which it was held that even in circumstances such as those of the present case, the mortgage will be enforced against the son's share as well as against that of the father. We do not find any sufficient grounds for differing from the rule hitherto followed by this Court, viz., that in order to justify a sale or a mortgage by a father so as to bind the son's share, there must be, in fact, an antecedent debt, i.e., a debt, prior to the mortgage or sale. We must, therefore, allow the appeal with costs, and modify the decree of the lower Appellate Court accordingly, but this will not affect the right of the plaintiff to proceed against the son's share in execution of the decree, treating it as a more money decree. We make no order as to costs in the lower Appellate Court.