Judgement

Appeal (No. 62 of 1921) from a judgment and decree of the High Court (March 11, 1919) varying a decree of the Subordinate Judge of Meerut (March 31, 1916).

The suit was brought in 1915 by the respondents to recover possession of certain immovable property. The property in suit had been ancestral property of a Hindu (Mitakshara) joint family, consisting of Amar Singh (till his death in 1909), his two sons (who were made formal defendants), and his grandsons the respondents. In 1904 Amar Singh executed a usufructuary mortgage for ten years over part of the property in favour of the principal defendants to secure an advance of Rs.8000 then made to Amar Singh. In 1907 Amar Singh sold to the mortgagees the equity of redemption for Rs.l3,500, of which Rs.8000 was applied to discharge the mortgage debt, and Rs.5500 was paid to Amar Singh.

The facts more fully appear from the judgment.

The Subordinate Judge found that there was no legal necessity for incurring the mortgage, or for selling the equity. He, however, took the view that under the Mitakshara law the debt was an " antecedent debt " for which Amar Singh was competent to alienate the joint property. As regards the Rs.5500 received upon the sale, the learned judge held that the plaintiffs had failed to prove that it was applied to immoral purposes, and that consequently by Hindu law they were under a pious duty to pay that sum to the defendants. He made a decree dismissing the claim as to a 16/27 share of the property; as to the remaining 11/27 the decree set aside the sale and provided that the plaintiffs should have possession if within three months they paid Rs.5500 to the vendees, but that otherwise their claim to that share should also be dismissed.

Upon appeal to the High Court the decree was varied. The learned judges (Rafique and Lindsay JJ.), dealing first with the question of antecedent debt, referred to the judgment of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh (L. R. 44 1. A. 126.) and said " In the present case the sum of Rs.8000 was borrowed by Amar Singh on the security of the joint estate. There is nothing to show that the money was advanced on his personal credit; on the contrary, the mortgage was a usufructuary mortgage under which Amar Singh was under no personal liability. Applying therefore the test laid down in the case mentioned we find that the mortgage of 1904 cannot be considered to be an antecedent debt." Dealing with the question of pious obligation, they held that there was in Hindu law no obligation upon grandsons to pay the debts of their grandfather while their own fathers were living. In support of that view they referred to Vijnaneswaras commentary on Yajnavalkya II., 50. It being conceded however that Rs.1000 had been applied to discharge a personal debt of Amar Singh to a bank at Meerut, it was held that the plaintiffs were bound to pay that amount as a condition to recovering the property.

The appeal to the High Court is reported at I. L. R. 41 A. 529.

The defendants (vendees) appealed to the Privy Council; there was no appeal by the plaintiffs as to the Rs. 1000.

1922. Feb. 17; March 10, 13. De Gruyther K.C. and S. Hyam for the appellant. Even if as the result of the decision of the Board in Sahu Ram Chandra v. Bhup Singh (L. R. 44 I.A. 135.) there was no antecedent debt and consequently the sale cannot be set aside, yet the plaintiffs were not entitled to recover the property without repayment. The above decision did not affect the principle that the creditor could bring ancestral estate to sale in execution, and bind the shares both of sons and grandson. That principle is well established Muddun Takoor v. Kantoo Lal (( 1874) L. R. 1 I. A. 321, 331.); Bhaghat Per shad v. Girja Koer (( 1888) L. R. 15 I. A. 99.) ; Suraj Bunsi Koer v. Sheo Prashad Singh (( 1879) L. R. 6 I. A. 88.) ; Nanomi v. Modan Mohun (( 1885) L. R. 13 I. A. 1.) ; Badri Prasad v. Madan Lal (( 1893) I. L. R. 15 A. 75(F. B.).) ; Ramasami Nadan v. Ulag