Judgement

Appeal (No. 51 of 1922) from a decree of the High Court (August 14, 1919) affirming a decree of the Subordinate Judge of Ghazipur (December 23, 1915).

The suit was brought) in 1915 by the two first respondents, minors suing by their mother, for a declaration that a decree passed in 1912 against their father Sita Ram and themselves upon a mortgage for Rs. 11,000 executed by him on March 4, 1903, was not binding upon the plaintiffs. The plaint alleged that the mortgage had been executed by their father upon the joint family property without necessity so as to bind them, and that they had not been properly represented in the suit in which the decree had been made ex parte. Both when the mortgage was executed and the suit was brought Sita Ram and the plaintiffs formed a joint Hindu family governed by the Mitakshara. The defendants to the suit were the mortgagees, the appellant and the fourth respondent, and Sita Ram, the fifth respondent.

The mortgage was upon ancestral property of the joint family, and was expressed to be made in order to discharge mortgages upon the same property made in 1905 and 1907 by Sita Ram ; it was found by the High Court that the whole of the sum advanced had been applied to that purpose.

It was found in both Courts that the plaintiffs had not been properly represented in the suit which resulted in the decree of 1912.

The trial judge made a decree setting aside the decree.

Upon appeal the learned judges of the High Court (Tudball and Muhammad Rafique JJ.) dealt with the question whether the money borrowed under the mortgage of 1908 was money raised to discharge " an antecedent debt " within the meaning of the Mitakshara law. They were of opinion that observations in the judgment of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh (L. R. 44 I. A. 126.) established that a mortgage by the managing member of a joint Hindu family upon its property could not constitute an " antecedent debt " to validate a later mortgage, and consequently that that decision was fatal to the validity of the mortgage of 1908.

The judgment of the High Court is reported at I. L. R. 41 A. 235. It was then urged on behalf of the mortgagees that the mortgages of 1905 and 1907 might have been binding upon the estate as having been incurred for an antecedent debt within the limited meaning attributed to that expression in the observations in the above appeal. The High Court accordingly remanded the case to the trial judge to record an additional finding on that question, directing him that to support the mortgage of 1908 the earlier mortgages must have been made to discharge obligations incurred not only antecedently but also wholly irrespective of the ownership of the joint family estate.

The Subordinate Judge, after hearing further evidence, found that Sita Ram had borrowed the money in 1905 and 1907 on the security of the joint family estate, and not merely upon his personal security.

Upon return of the finding to the High Court the learned judges held that the mortgages of 1905 and 1907 did not constitute antecedent debts, and made a decree dismissing the appeal.

The present appeal was first argued in April, 1923, and was ordered to be re-argued before a Full Board.

1923. Oct. 18, 20. De Gruyther K.C. and Dube for the appellant. The liability under the mortgages of 1905 and 1907 was an antecedent debt which rendered the mortgage of 1908 binding upon the sons. The appellant concedes that if the debt due from the father had been incurred as part of the mortgage transaction which is impeached, the debt could not have been an " antecedent debt" so as to validate the mortgage. The actual decision of the Board in Sahu Ram Chandra v. Bhup Singh (L. R. 44 I. A. 126.) went no further. For the reasons stated by the Full Bench of the Madras High Court in Armugham Chetty v. Muthu Koundan (( 1919) I. L. R. 42 M. 711.) the observations in the judgment of the Board cannot be treated as authority for the view that an earlier and i