Patna High Court
Mathura Misra And Anr. vs Rajkumar Misra And Ors. on 25 May, 1921
Equivalent citations: 62IND. CAS.132
JUDGMENT Dawson Miller, C.J.
1. This case came before the Division Bench of this Court on second appeal from a decision of the District Judge of Darbhanga. The main argument before the Division Bench was directed to the question whether a mortgage of family property, executed by some members of a joint Mitakshara family without the consent of the others, can be enforced against the family property, when it was executed to secure an advance for the purpose of discharging an antecedent debt which had been itself raised on the security of the family property, there being no grounds of legal necessity or family benefit to justify the transaction, The learned Judges before whom the appeal came were unable to agree with the earlier decision of this Court in the case of Sukhdeo Jha V. Jhapat Kamat 54 Ind. Cas. 946 : 5 P.L.J. 120 : 1 P.L.T. 49 (1920) Pat. 67 : 2 U.P.L.R. (Pat.) 39 decided in January last year and referred the case to a Full Bench for determination. The Order of Reference formulates the question for decision thus:
is a mortgagee entitled to enforce a mortgage executed by the father of a joint Mitakshara Hindu family against the father and sons, if it is hot established either that there was a family or estate necessity for the loan or that the loan was raised for an illegal or an immoral purpose, if the consideration for the mortgage is a debt in substance and in reality incurred antecedently to the mortgage but incurred on the security of joint family property or the object of the mortgage is to raise a loan to pay such a debt.
2. The form of the question stated for decision assumes certain facts which on a closer investigation hardly appear to be warranted by the findings of the lower Appellate Court. It appears that the suit was instituted by the plaintiffs against 13 defendants, members of a joint Mitakshara family, to enforce the mortgage-bond, dated the 13th June 1914, executed by some of the defendants' in favour of the plaintiffs. The mortgage was to secure an advance of Rs. 1,300 with interest, made to those members of the defendants' family who executed the bond. The defendants' family consisted originally of three brothers, Bhagwat, Rajeshur and Rajkumar. Bhagwat and Rajeshur died before the bond in suit was executed, Bhagwat left a widow and four sons and one grandson. Three of his sons and the grandson were minors when the mortgage-was executed, Rajeshur left a widow and two sons, one' of whom was a minor at that time. Raj Kumar had three sons, all of whom were minors. All these persons except the two deceased brothers are defendants. The bond in suit was executed by Rajkumar, Jaisu, the eldest son of Bhagwat, and Pulkit, the eldest son of Rajeshur, who, apart from the widows, were the only adult members of the joint family. The bond also purported to be signed on behalf of the other three sons of Bhagwat through their, mother and guardian, the defendant No. 12, and on behalf of the younger sou of Rajeshur through his mother and guardian, the defendant No. 13. It is clear, however, that the mothers of the minors, although guardians of their person, had no authority to bind them by a transaction of this nature, see Gharib-Ullah v. Khalak Singh 25 A. 407 : 80 I.A. 165 : 6 Bom. L.R. 478 : 7 C.W.N. 681 : 8 Sar. P.C.J. 488 (P.C.). The advance for which the mortgage was granted as security was raised partly to pay off a debt of Rs. 650 payable to one Gopal Purbay by Rajkumar as the purchase price of 6 bighas of land purchased by him in the name of his son a short time earlier. This was an antecedent debt of Rajkumar's, who was at that time presumably the harta of the family. It was found as a fact by the learned District Judge, whose findings are binding upon this Court, that the purchase of this property was not dictated by the necessities of the estate, nor did it conduce to its benefit. The mortgage in such circumstances might be binding upon the estate as against the sons of Rajkumar on the ground that it was a charge to pay off the father's antecedent debt. It was, however, not binding upon the undivided shares of Rajkumar's nephews and other collateral relations. That being so, the mortgage, in so far as it secured the advance, to pay off Gopal, was not enforceable against the family estate nor even against the undivided shares of the mortgagors. With regard to the balance of the advance, this was raised to pay off a prior mortgage-debt due to one Awadh Jha, the earlier mortgage having itself hypothecated the family property. It was found that neither of these mortgages were justified by family necessity or benefit to the estate; The earlier mortgage was executed by Rajkumar, the defendant No. 1, and his brother Bhagwat, who was then alive, but not by the third brother or any other member of the family. Assuming that the earlier mortgage is to be regarded as an antecedent debt of Rajkumar and Bhagwat, the subsequent mortgage now sued upon might bind the estate in the hands of their descend ants, but it would not be binding upon the undivided shares of their brother Rajeshur and his two sons, one of whom, the defendant No. 10, was at that time and still is a minor. It follows, therefore, that the mortgage, not being binding upon the whole estate, is void even as against the undivided shares of those who executed it. In these circumstances the learned District Judge refused to grant the plaintiffs a mortgage decree but granted them a personal decree against Rajkumar and his two nephews Jaisu and Pulkit, who were of age and parties to the mortgage, the suit having been brought within 6 years of the due date. In my opinion, upon the facts found, the mortgage was not valid as against the family estate and the adult members of the defendants' family who signed the mortgage alone were liable personally to the plaintiffs. In my opinion this appeal should be dismissed and the question referred to the Full Bench does not really arise. As, however, the question was argued before us at some length, I propose to state shortly my opinion on the question referred. 2. The answer to the question depends largely upon whether the principle laid down and, acted upon by their Lordships of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) is to be taken as of general application, or whether it is to be limited by reference to the particular facts of that case. The facts of that case, as pointed out by Lord Shaw in delivering the judgment of the Board, arose clear from all complications; but the principle upon which it was decided would cover many cases where the facts were not precisely similar. The debt which, in that case, it was unsuccessfully contended was an antecedent debt was incurved simultaneously with the granting of the mortgage and was in respect of the advance to secure which the mortgage was granted. The judgment, however, deals at length with the general principles governing the power of the manager of a Mitakshara joint family to alienate or charge by gift, sale or mortgage the family property committed to his management, It then deals with the exception to the general principle which recognises the power of the father to mortgage or sell the joint property in order to discharge an antecedent debt, and points out that this, being an exception from the general sound principle, should not be extended and should be very carefully guarded. From this it would appear that their Lordships intended to indicate by the passage, which I shall presently quote, the limits beyond which the exception should not be extended. The judgment next deals with the limits of the application of the exception and points out in what cases it applies and in what cases it has no application. The passage in their Lordships' judgment which has recently given rise to so much controversy is that appearing on page 447 Page of 39 A.--[Ed.] of the report in the Allahabad Series, After quoting certain passages from earlier decisions on the question of antecedent debt, the judgment proceeds as follows:
In their Lordships' opinion these expressions, which have been the subject of so much difference of legal opinion, do not give any countenance to the idea that the joint family estate can be effectively sold or charged in such a manner as to bind the issue of the father, except where the sale or charge has been made in order to discharge an obligation not only antecedently incurred, but incurred wholly apart from the ownership of the joint estate or the, security afforded or supposed to be available by such joint estate. The exception being allowed, as in the state of the authorities it must be, it appears to their Lordships, to apply, and to apply only to the case where the father's debts have been incurred irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family property. In their view of the rights of a father and his creditors, if the principle were extended further, then the exception would be made so wide as in effect to extinguish the sound and wholesome principle itself, viz., that no manager, guardian, or trustee can he entitled for his own purposes to dispose of the estate which is under his charge. In short, it may be said that the rule of this part of the Mitakshara Law is that the joint family estate is in this position: under his management be can neither obtain money for his own purposes for it, nor can be obtain money for his own purposes upon it. To permit him to do so would enable him to sacrifice those rights which he was bound to conserve. This would be equivalent to sanctioning a plain and, it might be, a deliberate breach of trust. The Mitakshara Law does not warrant or legalize any such transaction.
The limits of the principle of the exception have been thus set forth because in their Lordships' opinion they form a guide to the settlement of the, conflict of authority in India on the subject of antecedent debt.
3. It is true that in the case then under consideration the debt, to secure which the mortgage was granted, was an advance made at the same time and as part of the same transaction, and the case was free from all complications, but their Lordships considered at length the whole question of the application of the doctrine of antecedent debt. In order to determine this question, it was necessary to formulate a principle by reference to which the question of antecedency could be determined. The principle laid, down was that the antecedent debt must comply with two conditions. It must be an obligation not only antecedently incurred but incurred wholly apart from ownership of the joint estate or the security afforded or supposed to be available by such joint estate. In other words, the exception applies only to the case where the father's debts have been incurred, irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family, property. If the criterion by which the factum of antecedent debt is to be judged, as laid, down in that decision, is applied to the lasts of the present case, I think it must be conceded that the obligation which it is now contended formed the antecedent debt, was an obligation arising from a loan raised upon the security of the family property and not one incurred wholly apart from that security.
4. It is contended, however, that the principle enunciated in Sahu Ram Chandra's case 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) was, not intended to have any application except in so far as it was necessary to determine, the conflict of authority in India on the subject and that no conflict had then arisen upon the question raised in this case. If is also pointed out that in fact the antecedent debt in some of the cases already decided both by their Lordships' Board and by the Courts in India was in. fast a debt secured by a mortgage on the family property. On the other hand, none of these decisions affords any authority for the proposition that an antecedent debt may be one incurred upon the security of the joint family property. The point was not argued or decided in any of those cases. Even if Sahu Ram Ghandra's case 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) is not to be regarded as decisive on the question now, raised, it lays down in clear terms a broad general principle by reference to which that case was decided and the principle affords a guiding light towards the solution of a Question not hitherto determined.
5. It is conceded that a, mortgage to secure, an immediate loan ,or even an antecedent loan coupled, with some promise , or understanding- that a mortgage would follow is not binding upon the family estate on the ground of antecedent debt, and it seems to me that the principle and the only logical principle upon which such a loan can be excluded from the category of antecedent debts is that such a transaction cannot be regarded as creating a debt of the father at all bat a debt of the whole family charged or intended to be charged upon the family property. If the contention of the appellants is to prevail, it would follow that although the father cannot for his own purposes raise money on the security of the family estate, he could achieve the same object even when he had come to the end of his own personal resources by mortgaging for a short term the family estate to day and, six months or a year later when the loan became due, again mortgaging the same property in order to discharge the prior debt. In fact a mere renewal of the first mortgage would have the same effect and render the undivided shares of his sons liable. The somewhat startling result, would follow that the father could in all cases, in effect, convert into an antecedent debt that which in its inception was not an antecedent debt at all, If we are to accede to the appellants' contention, then, in my opinion, to use the words of Lord Shaw already quoted, "the exception would be made so wide as in effect to extinguish the sound and wholesome principle itself, viz., that no manager, guardian or trustee can be entitled for his own purposes to dispose of the estate which is under his charge."
6. In my opinion the question referred should be answered in the negative." The result is that the appeal is dismissed with costs. There will be no costs of the reference to the full Bench.
Jwala Prasad, J.
7. The reference to this Bench relates to an action to enforce a security based on a mortgage-bond, dated the 13th June 1914, executed by defendants Nos. 1 to 5, 9, 10, 12 and 13. Defendant No. 1, a member of a joint Mitakshara family, is father of defendants Nos. 6 to 8. Defendants Nos. 2 to 5 are the sons of one Bhagwat Missir. Defendants Nos. 9 and 10 are the sons of one Rajeshwar Missir. Defendant No. 13 is the widow of Rajeshwar Missir. Defendant No. 12 is the widow of Bhagwat Missir, and Bhagwat Missir and Rajeshur Missir were brothers of Rajkumar, defendant No. 1. The mortgage-bond in suit was executed to secure the payment of Rs. 1,300, out of which Rs. 650 was to pay one Gopal Missir, who had executed a sale-deed in favour of defendant No. 1. The obligation to pay the consideration of this sals-deed was a personal one of the vendee, defendant No. 1, and the other members of the family are not bound to pay the same. The family property of the defendants was not, therefore, validly mortgaged with respect to this Rs. 650, As to the balance of Rs. 650, the members of the family other than the executants would only be bound to pay the same provided the loan was taken for family necessity or to pay off prior debts of the family or the antecedent debts of the fathers of the members of the family. The money was taken for payment of the prior mortgage debt of one Oudh Jha of the 5th of November 1910. The bond of Oudh Jha was executed by defendant No. 1 and Bhagwat, father of defendants Nos. 2 to 5.
8. That bond again was executed, in order to pay off a prior mortgage. My Lord the Chief Justice has shown that none of these prior mortgages was executed by all the defendants or their fathers. There is nothing to show that this loan was taken for family necessity or to discharge the prior debts incurred for such a purpose. The entire family of the defendants in, therefore, sought to be bound on the ground of the loan having been taken to pay off an antecedent debt, But the liability to pay an atecedent debt attaches only to the sons, and not to other relations in the family. In the present case, however, neither all the defendants, members of the family, nor the father had incurred the prior debt to secure which the mortgage-bond in question was executed. Consequently the loan of Rs. 650 cannot bind the family, nor can it create a charge upon the family property. Even the shares of the executants of the bonds or their sons in the family property cannot be liable to pay the debt in question, inasmuch as their shares in the family property were not defined. Therefore, the mortgage in question is invalid as such and the properties mortgaged cannot be sold for its satisfaction. I, therefore, agree with my Lord the Chief Justice in the view of the Court below that the mortgage did not create a valid charge on the family property of the defendants which cannot be disturbed, and the appeal to this Court must be dismissed without the necessity of deciding the point raised in the Order of Reference as to whether a loan secured by a mortgage of the family properties can be said to be an antecedent debt of the father, so as to justify the sale or mortgage of the joint family property of the father and the sons governed by the Mitakshara Law.
9. The point referred for decision to this Bench, therefore, arises independently of the ease which was the subject-matter of the reference, and it is necessary that this opportunity should be taken advantage of to have a decision of the Full Bench of this Court, so as to be binding upon this Court as well as upon the Courts subordinate to it, for the resent decision of their Lordships of the Judisial Committee in 1917 in the well-known ease of Sahu Bam Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) has given rise to an acute divergence of opinion, not only in the other High Courts, but also amongst the Judges of this Court, as to the true meaning and scope of 'antecedent debt' in the Hindu Law. The question is of every day occurrence and, therefore, an immediate and effective solution of it is essential so as to obtain an uniformity of decisions of the cases that arise in this Province. In view of this sharp divergence of opinion and the decision of a Division Bench of this Court in the case of Sukhdeo Jha v. Jhapat Karmat 54 Ind. Cas. 946 : 5 P.L.J. 120 : 1 P.L.T. 49 (1920) Pat. 67 : 2 U.P.L.R. (Pat.) 39 (Coutts and Sultan Ahmed, JJ.), Ross, J., and myself felt diffident in giving our opinion with confidence on the point which arose at Cuttack in the case of Michu Missir v. Balbhadra Prasti 62 Ind. Cas. 116 : 2 P.L.T. 147, decided on the 13th January 1921, and I realised that the matter was one for the consideration of a Full Bench of this Court and observed: "I have no doubt the question will sooner or later be considered by such a Bench." I welcome this reference to this Bench so soon after the aforesaid case, as giving me an opportunity of having the advantage of the full and learned discussion of the question at the Bar and of the considered opinion of my colleagues constituting this Bench, and I am glad to find that my opinion then given, far from being in the least shaken, has been doubly confirmed.
10. The question, in short, is whether the decision of their Lordships of the Judicial Committee in the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) is an authority for making a real distinction between a secured and an unsecured debt for the purpose of its being an antecedent debt to re-pay which the father can validly alienate the family property so as to bind his sons. The case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) came before their Lordships of the Judicial Committee on appeal from the decision of a Full Bench of the Allahabad High Court. There the plaintiff brought his suit to enforce the security on the basis of a mortgage bond, dated the 6th January 1893. The loan secured by the bond was taken by the father at the time of executing the bond. No family necessity for the debt in question was established, and it was not a debt antecedent to that for which the mortgage bond was executed. Their Lordships, therefore, agreed with the learned Chief Justice of the Allahabad High Court, Sir John Stanley, that the debt secured could not be said to be an antecedent debt so as to validate the transaction of the mortgage in question, although there may have been antecedency in time in the sense that the loan might have been taken before the execution of the bond, but in reality the borrowing was made on the occasion of the grant of the mortgage and there was no real dissociation in fact. Their Lordships emphasised this proposition by observing that the joint family estate cannot be effectively sold or charged in such a manner as to bind the issue of the father, "except where the sale or charge has been made in order to discharge the obligation not only antecedently incurred but incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate."
11. The interpretation of the aforesaid passage in the judgment of their Lordships has led to a great divergence of opinion. In interpreting this passage a Division Bench of the Allahabad High Court in the case of Brij Narain Rai v. Mangla Prasad 50 Ind. Cas. 101 : 41 A. 235 : 17 A.L.J. 249 : 1 U.P.L.R. (A.) 49 held that "where a mortgage in suit had been executed to pay off two earlier mortgages of joint family property, also executed by the father, it was for the defendant mortgagee to show that the earlier mortgages fell within the exception recognised by the Judicial Committee of the Privy Council in the ease of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.)." The view of the Allahabad High Court was not accepted by the Full Bench of the Madras High Court in the case of Arumugham Chetty v. Muthu Koundan 62 Ind. Cas. 625 : 42 M. 711 : 9 L.W. 585 : (1919) M.W.N. 409 : 37 M.L.J. 166 : 26 M.L.T. 96, where the learned Judges observed that "the interpretation put by the Allahabad High Court upon the decision of the Privy Council relating to the meaning of the antecedent debts was repugnant to the Hindu Law, and their Lordships of the Judicial Committee could not have intended to exclude the prior mortgages from the category of antecedent debts."
12. In two cases a Division Bench of this Court accepted the interpretation of the Allahabad High Court in preference to that of the Madras High Court: vide Bankhandi Roi v. Kishori Mandal 61 Ind. Cas. 102 : 2 P.L.T. 17 : 6 P.L.J. 22 : (1921) Pat. 113, 8, decided on the 14th August 1920, whereas in two other cases this Court (one decided by Ross and Jwala Prasad, JJ., and the other by Das and Adami, JJ.) accepted the view of the Madras High Court. The last one is the subject matter of this reference.
13. In the Order of Reference Mr. Justice Das has gone into the question fully and elaborately and has shown, with reference to the texts of the Hindu Law and the judicial decisions bearing upon the subject, that for the purpose of its being an antecedent debt there is no real distinction between a secured and an unsecured debt, and that a mortgagee is entitled to enforce a mortgage executed by the father of a joint Mitakshara Hindu family against the father and the sons, if the consideration for the mortgage is a debt in substance and in reality incurred independently of the mortgage but incurred on the security of joint family property, or the object of the mortgage is to raise the loan to pay such a debt. I fully agree with what has been said by Mr. justice Das in his Order of Reference. This relieves me of the necessity of going into a detailed discussion of the subject and of referring to the Shashtric texts or to the judicial pronouncements upon the subject. The rights of the sons in the family property and the power of the father to deal with the ancestral property in which his son has by birth acquired ownership, are contained in Chapter I, Section 1, Clauses 27, 28 and 29 of the Mitakshara, which run as follows:
(27) Therefore, (it is settled that) ownership in the father's or grandfather's estate is by birth, Still, it (also) stands (as good law) that the father has independent power in the disposal of effects other than immoveables for indispensable acts of duty, and for purposes prescribed by the. texts of law, as gifts through affection, support of the family, relief from distress and so forth: but he is subject to the control of his sons and the rest, in regard to the immoveable estate, whether acquired by himself or inherited from his father or other predecessor, vide the text: Though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They, who are born, and they who are yet unbegotten, and they who are still in the womb, require the means of support; no gift or sale should, therefore, he made.
(28) An exception to it follows: 'Even a single individual may conclude a donation, mortgage, or sale, of immoveable property, during a season of distress, for the safe of family, and especially for pious purposes.' (29) The meaning of that text is this: while the sons and grandsons are minors and incapable of giving their consent or doing similar acts or while the brothers are so and continue unseparated, even one person who is capable, may conclude a gift, hypothecation, or sale, of immoveable property, if a calamity affecting the whole property require it, or for supporting the family, or for performing indispensable duties, such as the obsequies of the ancestors.
14. Thus the father as head and manager of the family has certain powers with respect to the joint family property. He is at liberty to dispose of the joint family property in respect of estate or family necessity and where such a necessity arises, the co parceners as a whole are bound by an alienation such as a mortgage or sale of the family property effected by the father, A Mitakshara son is further under a pious obligation to pay the debt of his father, whether it is incurred for family necessity or not. This obligation arises from the notion that unless the debts are paid off, the father would fall into the region of torment or hell and to liberate him from this torture it is the pious duty of a son to pay his father's debt. The derivative meaning of the word 'putra' (son)* * * * * * [that is he is called 'son' because he delivers (the father) from the hell] implies the duty of paying the father's debt. This obligation, however, arises, according to the view of their Lordships of the Judicial Committee in Sahu Ram Chandra's case 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.), only after the death of the father, so that during the lifetime of the father the sons are liable only for such debts as are incurred by the father for family necessity or estate necessity. In order to satisfy such a debt the father can validly mortgage or sell the family property. This power of the father recognised in the aforesaid test of the Mitakshara is in consonance with the general principle, he being the head and the manager of the family constituted by himself and his sons. As a matter of fact, this power exists in every karta of a Hindu family who can for estate or for family necessity alienate the family property, the consent of the other members being implied from the benefit accruing to them by such an alienation, An exception has, however, been recognized by the judicial decisions in favour of the power of the father to bind the sons during the father's lifetime by a mortgage or sale of the family property, provided the object of the transaction be to satisfy an antesedent debt of his. There if, however, nothing in the text of the Mitakshara to juctify an alienation by the father of the family property to pay off an antecedent debt. The theory of antecedent debt was, if I am right, for the first time recognized in the decision of their Lordships of the Judicial Committee in the case of Hunoomanpersaud Panday v. Musammat Babooee Munraj Roonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147. The reason for the power of the father to alienate the family property for antecedent debt was enunciated by Lord Justice Knight Bruce, at page 420, in the following words:--"It is obvious, however, that it might be unreasonable to require such proof from one not an original party, after a lapse of time, and enjoyment and apparent acquiescence; consequently if, as is the case here as to part of the charge, it be created by substitution of a new security for an older one, where the consideration for the older one was an old precedent debt of an ancestor not previously questioned, a presumption of the kind contended for by the appellant would be reasonable." This is supported not on any express text of the Mitakshara but on expediency.
15. The theory of antecedent debt has since been invariably recognized and acted upon in administering the Hindu Law, as an exception to the rule in the Mitakshara that a father can only alienate the co-parcenary property for family necessity, and has been upheld in the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) which we are at present considering. Personally I am loth to engraft upon the Hindu Law the theory of antecedent debt which does not find place in the Shashtras. But, as the theory has been judicially accepted, I am not competent to question it, There is, however, no justification for confining it to unsecured debts only.
16. There has, however, never been made any distinction between a secured debt and an unsecured debt for the purpose of its being an antecedent debt, All that is required is that a debt, in order to be antecedent and as being a valid consideration for the mortgage or Bale of the family property by the father, must have been incurred prior to the transaction resulting in such a mortgage or sale. In other words, the antecedent debt, secured or unsecured, must be a real antecedent debt not only in point of time, but also it must be independent of and unconnected with the mortgage or sale executed in order to pay it off. This is the only limitation placed upon an antecedent debt and we cannot impose a further limitation that the antecedent debt must be an unsecured one. If it is a secured debt without any family necessity, it is invalid and does not create any charge upon the family property, On principle also, it is impossible to make a real distinction between a secured and unsecured debt for the purpose of its being an antecedent debt. Yet the debt incurred by the father remains and it becomes an antecedent debt of his for the purpose of being a valid consideration for a subsequent mortgage or rale of the family property executed by the father.
17. Thus virtually there can be no distinction between a secured and an unsecured debt for the purpose of its being an antecedent debt.
18. In the case of Chandradeo Singh v. Mata Prosad 1 Ind. Cas. 479 : 31 A. 170 : 6 A.L.J. 263, Sir John Stanley, C.J., says:--"Now by the expression 'antecedent debt' I understand a debt which is not for the first time incurred at the time of a sale or mortgage that is persently incurred, but a debt which existed prior to and independently of such sale or mortgage. It must bo a bona fide debt, not colourably incurred for the purpose of forming a basis for a subsequent mortgage or sale or other similar object...it must be shown that it was made for the payment of antecedent debts, and not merely in consideration of a Join or a payment made to the father on the occasion of his making the alienation; and that in the case of a voluntary sale the purchase-money does not constitute an antecedent debt such as to render that sale binding on the sons unless they prove the transaction to have been immoral," Therefore, according to the view of Sir John Stanley, C.J., in order that an antecedent debt may be a valid consideration for the sale or mortgage by the father of a joint family estate, all that is required is that it must be independent of the transaction and must not be incurred for the first time for the purpose of executing the sale or the mortgage. His Lordship was not making any distinction between a secured and an unsecured debt for the purpose of being an antecedent debt. No controversy of this kind had ever arisen, nor did it arise either upon the arguments at the Bar before 'their Lordships nor upon the decision of the Allahabad High Court in the Full Bench case with which their Lordships of the Judicial Committee ware dealing in appeal. The only controversy which arose in that case was as to whether the borrowing on the occasion of the mortgage or sale of the joint estate can be said to be an antecedent debt. This controversy was due to a difference of opinion between Sir John Stanley, C.J., and Banerji, J. This was the conflict which their Lordships of the Judicial Committee intended to get at rest and did not intend to make any real distinction between a secured and an unsecured debt for the purpose of its being an antecedent debt. Their Lordships simply approved of the view of Sir John Stanley, C.J., and were giving effect to it in the passage in question, The quotation from the judgment of Sir John Stanley, C.J., cited above is the true criterion for the interpretation of the passage in question occurring in the judgment of their Lordships in the case of Sahu Ram Chandra v, Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.). In order to elucidate more clearly, I crave leave to refer again to the contentious passage from Lord Shaw's judgment in the case of Sahu Ram Chandra v, Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.), where it is observed that the joint family estate cannot be effectively sold or charged in such a manner as to bind the issue of the father, except where the sale or charge has been made in order to discharge the obligation not only antecedently incurred but incurred wholly apart from the ownership of the joint estate or the security offered or supposed to be available by such a joint estate." When their Lordships were emphasising the requirements of an antecedent debt, they had in their minds both the kinds of alienation, sale and mortgage, executed by the father in order to pay off the antecedent debt. In a sale the ownership of the family property is transferred to the vendee, and in the case of a mortgage the security of the family property is afforded to the mortgagee. If we road the words "ownership of the joint estate" in the aforesaid passage as referring to the sale, and the words "the security offered or supposed to be available by such a joint estate" as referring to the mortgage effected to pay off the prior debt, the passage would read as follows Except where the sale or charge has been made in order to discharge the obligation not only antecedently incurred but incurred wholly apart from such a sale or mortgage." The passage then becomes the exact rendering of the passage in Sir John Stanley's judgment which Lord Shaw was giving effect to. That passage is--"Now by the expression 'antecedent debt' I understand a debt which is not for the first time incurred at the time of a sale or mortgage that is personally secured, but a debt which existed prior to and independently of such a sale or mortgage," In other words, the borrowing of the debt for which the sale or mortgage of the joint estate is effected must not be on the occasion of the grant of the mortgage. It must be not only prior to it, bat must also be independent of and dissociated with it. Neither Sir John Stanley nor Lord Shaw wanted to pat any farther limitation upon a debt for the purpose of its being an antecedent debt by Requiring that it must not be a secured debt, Neither grammatically nor logically the passage is capable of bearing such an interpretation. Their Lordships of the Judicial Committee could not possibly intend to make a real distinction between a secured and an unsecured debt for the purpose of its being an antecedent debt, a distinction so far unknown in the administration of the Hindu Law on the subject in this country, ever since the notion of antecedent debt was first conceived in the year 1656 in the case of Hunoomanpersaud Panday v. Musammat Babooee Munrai Koonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147.
19. I have, therefore, no hesitation in holding that a prior mortgage executed by the father may also be an antecedent debt for being a valid consideration for a subsequent sale or mortgage of the family property, provided it is not only prior in time but also independent of and unconnected with the subsequent mortgage or sale, as the case may be, and provided also that the debt was not contracted for immoral or illegal purposes.
20. I would answer the question referred to us in the affirmative.
Das, J.
21. I adhere to the opinion which I have expressed in the Order of Reference. According to Mr. Kulwant Sahay, an "antecedent debt" means a debt insurred not only antecedent to the transaction, the subject-matter of the suit, but incurred on the personal security of the borrower. So he says is the effect of the decision of the Judicial Committee in the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.). He does not contend that the question was either directly or indirectly before the Judicial Committee in the case cited, but his contention is that, since there was a conflict in the Indian Courts as to the meaning of antecedent debt, though not on this point, it was competent to the Judicial Committee, not only to settle that conflict, but also to legislate in the matter, for so it must be, so as to give a complete and comprehensive definition of the term "antecedent debt."
22. Now it may be conceded at once that there are expressions in the judgment of Lord Shaw which, if separated from the context, lend considerable support to the contention of Mr. Kulwant Sahay. But I have always understood that sweeping expressions of Judicial opinion mast be read as limited as to their operation by the facts which are before the Court responsible for that opinion, and a careful search of the Law Reports will, I think, establish how misleading general statements may be when separated from their context.
23. Before dealing with the general expressions on which strong reliance has been placed by Mr. Kulwant Sahay, it is necessary to see what the contention before the Judicial Committee was in the case cited. Now, in India, there were two schools of thought on the question relating to the scope and meaning of ' antecedent debts." One school (of which Mr. Justice Banerjee of the Allahabad High Court was the chief exponent) maintained that a debt contracted at the time of, or, it may be, an hour before, granting the mortgage sued upon was sufficiently antecedent to support the mortgage action. The other school (of which Stanley, C.J., of the same Court was the chief exponent) maintained that the doctrine has no application to a case in which no antecedent debt of the father, that is, a debt antecedent to the alienation in question, is concerned as the consideration or the object of the alienation.
24. These were the rival views on the question, and the Judicial Committee had to determine which of these two views was correct. Stopping here for a moment, it will be useful to remember that neither side ever thought of denying that the antecedent debt could be a mortgage-debt, and that so far as this question is concerned, there was no conflict whatever in the Indian Courts. Indeed the decision of Sir John Stanley in the case of Chandradeo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A. 170 : 6 A.L.J. 263, which was adopted in a very conspicuous manner by Lord Shaw, was confessedly based on a decision of Edge, C.J., in the case of Badri Prasad v. Madan Lal 15 A. 75 (F.B.) : A.W.N. (1893) 52 : 7 Ind. Dec. ( N.S.) 765, where the antecedent debt was a mortgage debt. It is interesting to note that Sir John Edge was on the Board desiding the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.).
25. Now the Lords of the Judicial Committee say very clearly that their decision was intended to settle the conflict in the Indian Courts on the question of the antecedent debt; on the question, that is to say, whether an antecedent debt was a debt incurred at the time of the transaction in suit or whether it was a debt incurred antecedent to, and independent of such transaction. Now the argument advanced before the Board by Mr. DeGruy ther will help us to understand the passages on which great reliance has been placed by Mr. Kulwant Sahay; and, in my judgment, if these passages can be read as an answer to the argument of Mr, DeGruy ther, they ought not to be read as imposing a further limitation on the doctrine, since to impose it would be to disturb a current of authorities coming down from the days of Girdharee Lall V. Kantoo Lall 22 W.R. 56 : 1 I.A. 321 : 14 B.L.R. (P.C.) 187 : 3 Sar. P.C.J. 380.
26. The argument put forward by Mr. DeGruy ther may be given in the words of Lord Shaw: "What difference would it make," so Mr. DeGruy ther argued, "if the father had contracted the debt an hour, a day, a year before granting the mortgage? Then de facto it would be an antecedent debt, and the creditor would have a mortgage good upon that ground." "No," replied Lord Shaw, 2. The case as put might instantly raise the presumption that what occurred was substantially this: that the father contracted the debt knowing that he was at the end of his personal resources and (hat the creditor advanced the money relying upon an understanding or agreement, express or implied, given to the father." And then occurs this pregnant statement of the law in the judgment of Lord Shaw: "in truth, in order to validate such a transaction of mortgage there must, to give true effect to the doctrine of antecedency in time, be also real dissociation in fact. The Courts in India, wherever snob antecedency is found to be unreal and is merely a cover for what is essentially a breach of trust, will not be slow to deny effect to a mortgage so brought into existence." This passage, in my opinion, is the key to the understanding of the passages so strongly relied upon by Mr. Kulwant Sahay and gives a complete explanation to them. Before dealing with these passages it is well to remember that the breach of trust, in the opinion of Lord Shaw, consists in borrowing the money to day on a secret understanding with the creditor that a mortgage of joint family properties will follow.
27. Now let me take the passages one by one. The first passage runs as follows ;--"In their Lordships' opinion these expression?," referring to the expressions used by Lord Hobbouse in Nanomi Babuasin's case 13 C. 21 (P.C.) : 13 I.A. 1 : 10 Ind. Jur. 151 : 4 Sar P.C. 682 : 6 Ind. Dec. (N.S.) 510, "which have been the subject of so mush difference of legal opinion, do not give any countenance to the idea that the joint family estate can be effectively sold or charged in such a manner as to bind the issue of the father, except where the sale or charge has been made in order to discharge an obligation not only antecedently incurred, but incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate." Mr. Kulwant Sahay's argument on this passage is that here is a complete definition of the term "antecedent debt," and that, in order to bring a debt within the meaning of the term " antecedent debt," two conditions must be satisfied, first, that it should have been antecedently incurred and, secondly, that it should not have been, incurred on the security of joint family properties, Now, if I hud to read the passage separated from the context, I would at once accede to the interpretation placed upon this passage by Mr. Kulwant Sahay but reading it with the context, I have no doubt whatever that, in this passage, Lord Shaw is giving expression to his view that the antecedency in time must bis real and not merely formally so, and that there is no real dissociation in fact if you borrow money antecedently to the mortgage sued upon, but borrow it on a secret understanding with the creditor that such mortgage will follow. The use of the word "apart" is significant. It indicates "dissociation." It means, " in a state of separation, of exclusion or of distinction, as to purpose, use or character, or as a matter of thought separately, independently." Now, if on the 1st January 1920 A borrows Rs. 1,000 from B either on a promissory note or on mortgage of joint family properties on a secret understanding that he will grant another mortgage to B an hour, or a day, or a year after : and be does on the 1st January 1921 grant a mortgage of joint family properties to B, and B brings a suit to enforce the mortgage granted to him on the 1st January 192], then, according to the decision of Lord Shaw, the Court would be entitled to tell B, "it is true that, as a matter of form, the obligation was incurred by A antecedently to the mortgage of the 1st January 1921, but it was not incurred distinctly and separately, in other words, apart from the transition of the 1st January 1921, and accordingly the Court cannot give effect to a mortgage so brought into existence." As I have said before, I regard the use of the word "apart " as significant. If the contention put forward on behalf of the respondents were correct, it would have been more accurate and less open to doubt for Lord Shaw to have formulated the exception in these words, 'except where the sale or charge has been made in order to discharge an obligation not only antecedently incurred, but incurred on the personal responsibility of the father." But, in the view which I take of the judgment of Lord Shaw, such a statement of the law would not clearly meet the case. Take, for instance, the illustration which I have already given. A borrows Rs. 1,000 from B on the 1st January 1920 on his personal security, but on a secret understanding with B that he will grant a mortgage of joint family properties to B an hour, a day or a year after : and be does on the 1st January 1921 grant a mortgage of joint family properties to B. Can the security of the 1st January 1921 be enforced against the joint family? Now, if the interpretation suggested by Mr. Kulwant Sabay be correct, then, upon the passage which we are at present considering, it can be enforced, for not only was the obligation incurred antecedently to the mortgage of the 1st January 1921, but it was incurred on the personal responsibility of A. But it is quite dear from the concluding portion of the judgment of Lord Shaw that such a mortgage cannot be enforced, there being no real dissociation in fact between the two transactions. It must follow, therefore, that either Lord Shaw's definition of "antecedent debt" in the passage which we are considering is not only not adequate but misleading, or Mr. Kulwant Sabay's understanding of that passage is at fault. I prefer to take the view that Mr. Kulwant Sahay's interpretation of that passage is erroneous.
28. The next passage is as follows:--"The exception being allowed, as in the state of the authorities it must be, it appears to their Lordships to apply, and to apply to the case where the father's debts have been incurred irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family property." Here again the words have been chosen with some deliberation by Lord Shaw. It is not the decision of Lord Shaw that the exception applies only where the father's debts have been incurred on his personal responsibility, but that it applies where these debts have been incurred irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family property. The distinction is a vital one, and ought not to be ignored. Where A borrows money from B on his personal security but on a secret understanding that he will, after a decent interval, grant a mortgage of joint family properties to B, and does in fact grant a mortgage of joint family properties to B, can it be suggested that the mortgage is enforceable against the joint family? The transaction falls strictly within the exception stated by Lord Shaw as interpreted by Mr. Kulwant Sahay, and yet there can be no reasonable doubt that the Courts in India will deny effect to a mortgage so brought into existence. The true solution of the problem is that here (as throughout the judgment) Lord Shaw is insisting upon real dissociation in fact. Where A borrows money to day," whether on personal security or on mortgage of joint family properties, and agrees to give a mortgage of joint family properties an hour, a day, or a year after, then, whatever may be the form of the transaction, in substance and in reality the borrowing was on the security of the mortgage sought to be enforced against the joint family properties, and, as such, it cannot stand. But it was argued that, on a strict reading of this passage, the case does not fall within the exception if the debts have been incurred on the credit obtainable from immoveable assets which do not personally belong to the father but are joint family property. To this argument, there are two answers, first, that a strict reading of the passage, apart from the context, will clearly lead to a result not contemplated by Lord Shaw, as, when the father incurs a debt on his personal responsibility, that is to say, irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family property, but incurs it on a secret understanding with the creditor that a mortgage of joint family properties will follow; and, secondly, that where the father incurs a debt for the first time on a mortgage of the joint family properties, the debt is in substance incurred irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family properties, for it is settled law that such a mortgage cannot be enforced against the joint family; but that the case is otherwise (and that is the case contemplated by Lord Shaw) where there is a secret understanding that another mortgage of joint family properties will follow. In such a case, the debt has truly been incurred on the security of the joint family properties, and that is the mischief which the Courts of law must be quick to prevent.
29. The last passage, on which reliance has been placed, runs as follows :--" To permit him to do so" (that is to say, to permit the father to obtain money for his own purposes upon the security of the joint family properties) 'would enable him to sacrifice those rights which he was bound to conserve. This would be equivalent to sanctioning a plain and, it might be, a deliberate breach of trust." Now there is no difficulty in understanding what is the breach of trust contemplated by Lord Shaw in this passage, for he himself Bays, in another passage: "The Courts in India, wherever such antecedency is found to be unreal and is merely a cover for what is essentially a breach of trust, will not be slow to deny effect to a mortgage so brought into existence." Now, how is the father permitted to raise money for his own purpose on the security of joint family properties? Only where he borrows money either on his personal security or on the mortgage of joint family properties on a secret understanding that another mortgage of joint family properties will follow. There would be a deliberate breach of trust in a transaction of this nature where the antecedency is unreal, and, according to the decision of Lord Shaw, the Courts will dency effect to a mortgage so brought into existence. But is there a deliberate breach of trust when the father raises money on the security of joint family properties, and there is no secret understanding that another mortgage of joint family properties will follow? I think not, for such a mortgage is wholly ineffectual to create any charge on the joint family properties; and, it must not be forgotten that, before the decision of Lord Shaw, the Courts frequently enforced the security, not against the joint family properties, but against the share of the father in the joint family properties. I have do doubt whatever that the passages relied upon by Mr. Kulwant Sahay are an answer to the arguments advanced before the Board, an answer which was summed up in a striking sentence at the close of the judgment.
30. But it was argued that it involves a violation of the rules of logic to suggest that though the mortgage executed by the father in the first instance is unenforceable, still, if care be taken to have a renewal of that mortgage, it becomes enforceable. I take it that legal rules are established in accordance with the results of experience and the dictates of policy rather than by a compliance with the deduction of a strict logic. As has been said more than once, the life of the law is not logic, but experience. But, in truth, the rules of logic remain untouched. It is one thing to deny validity to a mortgage executed by the father to raise money for his own purpose, and another thing to give effect to a mortgage executed by the father, to discharge an obligation antecedently incurred. The transactions are entirely different and are based on rules, between which there is no sort of logical connection. The subsequent development of the doctrine of antecedent debt" was foreshadowed in the celebrated judgment of the Lord Justice Knight Bruce in the case of Hunoomanpersaud Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147. "It is obvious, however," said the learned Lord Justice, "that it might be unreasonable to require such proof," that is to say, proof of necessity for the loan, "from one not an original party, after a lapse of time, and enjoyment and apparent acquieseence; consequently if, as is the case here, as to part of the charge it be created by substitution of a new security for an older one where the consideration for the older one was an old precedent debt of an ancestor not previously questioned, a presumption of the kind contended for by the appellant would be reasonable." If this passage be accepted as the authority on which the doctrine of antecedent debt rests, then the principle would appear to be that the fact that there is an antecedent debt not previously questioned bars an enquiry into the question whether it was incurred for the benefit of the family or for justifying necessity. A mortgage of joint family properties is not binding on the family, unless it is shown that the mortgage was for the benefits of the family or for justifying necessity. But a mortgage of joint family properties in order to discharge an obligation antecedently incurred is binding on the family, because the fact that there is an antecedent debt not previously questioned bars an enquiry into the question whether the antecedent debt was incurred for a legal necessity. So the rules of logic remain unviolated.
31. But if we are obliged to have recourse to logic, I may ask why is it that a personal obligation incurred antecedently to the mortgage may support the mortgage, whereas an obligation antecedently incurred, but incurred on the security of joint family properties, will fail to support the subsequent mortgage. In either case, whatever the form of the antecedent transaction may he, the obligation is in substance a personal one, and I can see no reason whatever to deny validity to a mortgage when it is given to discharge an obligation antecedently incurred but incurred on the security of joint family properties. The rule is founded On principle and is covered by authorities. To depart from it now would be to cause serious hardship to persons who have lent money and have acquired title on the faith and security of the case law of the last fifty years; and, as I am clearly of opinion that the decision in Sahu Rarn Chandra's case 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) does not involve a departure from the rule on which the Courts in this country have acted for the last fifty years, I must answer the question put to the Full Bench in the affirmative.
Adami, J.
32. The learned arguments addressed to us by Mr. Kulwant Sahay have failed to convince me that the opinion expressed by Das, J., in the Order of Reference, to which I was a party, is incorrect, and that opinion receives the strongest confirmation from the decision of the learned Judges of the Madras High Court in the case of Arumugham Chetty v. Muthu Koundan 62 Ind. Cas. 625 : 42 M. 711 : 9 L.W. 585 : (1919) M.W.N. 409 : 37 M.L.J. 166 : 26 M.L.T. 96, where the point now in question before this Court was more fully and carefully considered than in any of the other cases to which our attention has been drawn.
33. In the case of Sahu Ram Chandra v, Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) the mortgage sued upon was executed on the same day the loan was contracted, and there was no prior simple or mortgage debt; the question was whether the payment of the money before the execution of the mortgage constituted a debt which was antecedent to the debt contracted under the mortgage deed so as to bind the sons. It was held that a loan made to the father on the occasion of a grant by him of mortgage on the family estate is not an antecedent debt. After pointing out that the exception relating to antecedent debts, being an exception from the general and sound principle that if a debt contracted by the father is not for the benefit of the joint family estate, he should have no power either of mortgage or sale of the estate to meet such a debt, is an exception which should not be extended and should be very carefully guarded, their Lordships say:
To call a borrowing made on the occasion of the grant of a mortgage an antecedent debt is to extend unduly and improperly the whole scope of the exception on that topic. As to this unfortunately there has been much difference of view in the Courts in India.
34. Their Lordships then set forth the limits of the principle of the exception, to form a guide to the settlement of the conflict of authority in India on the subject of antecedent debt, and cite certain cases in which the conflict of authority is shown.
35. In none of those cases is any distinction made between an antecedent debt which is secured on the joint family properties and an unsecured antecedent debt. In Chandradeo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A. 170 : 6 A.L.J. 263 the main question involved was whether a debt incurred at the time of the execution of a mortgage for the purpose of securing such debt was an "antecedent debt," and Stanley, C.J., whose judgment their Lordships of the Privy Council have cited with approval, mentioned that there had been a conflict in the decisions of the Allahabad and other High Courts on this question.
36. It is evident then that in Sahu Ram. Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) the question of distinction between a secured and an unsecured antecedent debt for the purpose of the exception did not arise for decision, and in fact in the long series of decisions by all the Courts since the ease of Hunoomanpersaud Panday v. Musammat Babooee Munraj Koonwsree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 no such distinction has been made; on the other hand, in many eases the antecedent debt allowed to come within the exception has been a debt secured by mortgage of the joint family properties.
37. In expressing the danger of allowing any extension of the exception relating to antecedent debt, I do not believe that their Lordships of the Judicial Committee intended at the same time to impose new and narrower limits to its application, which would not only disturb the settled law but would also have a most unfortunate effect in unsettling vested rights throughout the country.
38. I have had the advantage of reading the judgments of my learned brothers Jwala Prasad, J., Das J., and Bucknill, J, and agree with the opinions and reasons expressed and put forward by them.
39. I would answer the question put to the Full Bench in the affirmative.
40. In the suit giving rise to the appeal now under our consideration, the plaintiffs sought to enforce the mortgage against the joint family property now belonging to all the defendants on the strength of antecedent debts contracted by the father or grandfather of some only of the defendants. The exception as to antecedent debt binds only the sons or grandsons of the person who contracted the debt, hence in the present case the undivided shares in the joint family property of those defendants who are not sons or grandsons of the executants of the mortgages cannot be the subject of a suit on a mortgage based on the antecedent debt of the father or grandfather of other members of the joint family.
41. The point that all the defendants were not sons or grandsons of the executants of the mortgage-bonds was not brought to our notice by the respondents during the hearing of the second appeal, but has been raised here by Mr. Kulwant Sahay. There can be no doubt that the contention is sound and that the suit against the entire joint family property in the hands of the defendants was not maintainable.
42. I agree, therefore that the appeal must be dismissed.
Bucknill, J.
43. I take it that the whole question for consideration here circles round what was intended to be the ambit of the decision of their Lordships of the Privy Council in the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.). The immediate question referred to this Bench is, whether their Lordships' decision restricted the liability of a joint family estate charged by the father to meet an antecedent debt to cases in which such antecedent debt, besides being disassociated from the subsequent debt both in time and in fact, is also incurred only upon the personal liability of the father, and not by way of a charge upon the joint family estate. I confess that I have found it extremely difficult to discover any clear logical processes of mind in the reasons which have at different times and in different Courts been suggested for the framework from which has been built up the position in which the law relating to this doctrine of antecedent debt is now said to stand. Indeed, as has been said, it may be that it is impossible to hope and useless to look for any lucid explanation; and in any case I certainly feel that in this branch of law, which is to me largely novel, no investigation made by myself could be of any substantial value, I suppose, however, that the basis of the ideas which have attached themselves to the attempts to explain the history of antecedent debt, may be thought to lie in a principle of the Mitakshara Law that a son is bound to pay his father's debts to the extent of the property taken by him through his father, provided that such debts have not been incurred for immoral purposes. That this principle conflicts and seems hard to co-ordinate with another principle of the Mitakshara Law, namely, that a son takes a present vested interest jointly with his father in the ancestral estate needs no comment. Whether one may properly, connect with these principles a surmise that the reason why an antecedent debt incurred by a father will support a mortgage of the joint family property is because the antecedent debt, when it was originally incurred, passed without question and may have become, from lapse of time or for other reasons which present difficulty, to be regarded as unassailable, I find it very difficult to assert with any confidence. Unless some intelligible explanation (not apparent to me) can be brought forward, it is difficult to understand why the view held as to the liability of a joint family estate charged in respect of an antecedent debt should be restricted to cases in which such antecedent debt was one incurred wholly apart from any pledge of ancestral property.
44. A possible solution of the distinction, which I venture to propose, is that an antecedent debt incurred wholly apart from the hypothecation of ancestral property is a debt which the father is legally capable of contracting and is intrinsically a valid transaction, whilst an antecedent debt incurred by granting a charge over ancestral property is one which the father is legally incapable of contracting and is intrinsically an invalid tram action.
45. In other words, if one so cares to put it, the latter must rank much on the same footing as a debt for immoral purposes. This may, of course, be at once open to the criticism that the father, when illegally incurring the antecedent debt by charging the ancestral property, also burdens himself with a valid personal liability; the only reply which I can offer to this objection is that, though he may do so, the whole transaction may possibly be regarded as so deeply tinged with the invalid charge on the ancestral property as to place it, so far as the son's obligation to meet it is concerned, on a lower footing than a valid personal antecedent debt contracted by the father and unaccompanied by any charge on the ancestral estate. And even so the son's personal liability to meet the father's personal liability may remain, though the mortgage is unenforceable. There is yet one more possibility which suggests itself: it may be that it is not thought that a mortgage effected on ancestral property, which is created for the primary purpose of paying off or replacing an antecedent mortgage of ancestral property, can be regarded as disassociated in time and in fast from the earlier transaction: but if one assumes this surmise to be correct, one is at once thrown back to the question as to why this disassociation in both time and in fact is regarded as of vital importance; to that query I have only been able to offer the speculative reply which I have indicated above.
46. It will be Been, therefore, that I have experienced very considerable theoretical difficulties in endeavouring to approach this subject in an orderly fashion.
47. A proper consideration of the practical effect of their Lordships' judgment is not perhaps so troublesome; but it is by no means free from uncertainty. It is common ground that the actual point before their Lordships for decision was whether a loan made to a father on the occasion of a grant by him of mortgage on the family estate could be regarded as an antecedent debt: this question was answered by the ruling that in order to validate such a transaction of mortgage, there must be real disassociation in fact as well as actual antecedency in time.
48. But whilst deciding this issue their Lordships went further and set forth what I quote in the following sentences: "The exception" (i.e., the obligation imposed upon the issue of the father by a sale of or charge on the joint family testate by him) "appears to their Lordships to apply to the ease where the father's debts have been incurred irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family property" and then, after explaining why their Lordships thought that the principle enunciated by this dictum should be extended no further, their Lordships go on to say: "The limits of the principle of the exception have been thus set forth, because in their Lordships' opinion they form a guide to the settlement of the conflict of authority in India on the subject of antecedent debt."
49. What was meant by the expression "conflict" it is difficult to analyze completely, but it has been said, and perhaps rightly, that though there were no doubt conflicting views on a variety of the incidences pertinent to the doctrine of antecedent debt, it is doubtful if one had clearly arisen as to any differentiation (in capacity for supporting a subsequent debt), between antecedent debts contracted by the father connected with, or apart from, a charge on the joint family estate. Unfortunately but perhaps unavoidably, these phrases, which seem to contemplate the enunciation of a principle that the validity of the father's alienation for an antecedent debt is inapplicable where such antecedent debt has been contracted on the security of the family property, have, far from composing the position, given rise immediately to a sharp conflict of opinion in the High Courts of India.
50. In 1918 the High Court of Allahabad took the view in Brij Narain Rai v. Mangla Prasad 50 Ind. Cas. 101 : 41 A. 235 : 17 A.L.J. 249 : 1 U.P.L.R. (A.) 49 that their Lordships of the Privy Council laid it down with binding effect that a father can only effectively sell or charge the ancestral estate in sash a manner as to bind his issue where the sale or charge has been made in order to discharge an obligation not only antecedent in fact and in time, but incurred irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family property. On the other hand in 1919 in Madras a Fall Bench of five Judges has come to the conclusion in the ease of Arumugham Chetty v. Muthu Koundan 62 Ind. Cas. 625 : 42 M. 711 : 9 L.W. 585 : (1919) M.W.N. 409 : 37 M.L.J. 166 : 26 M.L.T. 96 that their Lordships of the Privy Council did not lay down in principle the restriction that the validity of the father's alienation for an antecedent: debt is inapplicable where such antecedent debt has been contracted on the security of the family property, and, farther, that if their Lordships of the Privy Council really intended to express any opinion to that effect, their Lordships' observations were made obiter and were not binding in India as authority.
51. So far as this Court is concerned, there has already been a great divergence of opinion and so far as I can ascertain, four Judges have expressed their views in consonance with those which have been held in Madras but, on the other hand, the learned Chief Justice and three other Judges have followed the view entertained in Allahabad : these decisions have been given in cases before Divisional Benches.
52. If I could see any grounds (other than those which I have hypothetically suggested and in which I have little confidence) for understanding why the view attributed to their Lordships of the Privy Council should have been taken by them, I should have had felt less difficulty in the case; but I find nowhere any reason given for this restricted attitude. I venture with much diffidence to think that their Lordships of the Privy Council had no real intention of limiting the applicability of the doctrine of antecedent debt in the way suggested and that the view of what took place as described by the Full Bench of the High Court of Madras is correct. I agree, therefore, with the opinion of the majority of this Bench as to the Reference. The appeal, itself, should be dismissed.