Judgement

Appeal from a judgment and decree of the High Court (May 26, 1913) affirming the decree of the Subordinate Judge of Mainpuri.

The first six respondents were members of a joint Hindu family, governed by the Mitakshara, Bhup Singh being the father and the other five his sons and grandsons.

On January 6, 1883, Bhup Singh borrowed Rs.200 from one Bhagirath under a hypothecation bond which stated that the money was borrowed to meet the necessity of Bhup Singh. The bond provided for interest at Rs.18 per month, subject to half-yearly rests, and hypothecated a one-biswa share in a zamindari, the property of the joint family, but described as belonging to the borrower.

In 1884 Bhup Singh mortgaged the same property together with other joint family property to the father of the appellants. In 1893 the appellants, their father being dead, sued to enforce the mortgage of 1884, and a decree was made in their favour conditional upon their discharging the prior mortgage in favour of Bhagirath. They accordingly paid the amount due upon the bond into Court under 8. 83 of Act IV. of 1882 ; the Court paid the money over to Bhagirath, and the bond was made over to the appellants. The appellants executed their decree against the property comprised in their mortgage of 1884 and themselves became the purchasers.

In 1910 the appellants instituted the present suit upon the bond of 1883 against the respondents, namely, Bhup Singh, his sons and grandsons, together with certain persons who were in possession of part of the property under mortgages and sales subsequently made by Bhup Singh. They claimed Rs.15,000, together with further interest, and, in default of payment, a sale.

The defendants, so far as is material to the present decision, pleaded that the money was not borrowed for family necessity.

The Subordinate Judge found that it was not so borrowed, and dismissed the suit.

The High Court, after disposing of other contentions raised by the appellants, said " ii, is next urged that it lay upon the defendants to show that the debt was incurred for immorality, or for some other purpose not justified by Hindu law, and that unless this was proved the plaintiffs ought to get a decree. The Full Bench ruling of this Court in Chandradeo Singh v. Mata Prasad (1. L. R. 31 Allah. 176.) is contrary to that contention." The appeal was accordingly dismissed.

The High Court, considering that a substantial question of law was involved, gave leave to appeal.

1917. Jan. 25, 26. De Gruyther, K.C., and W. A. Raikes, for the appellants. It not being proved that the debt was tainted with immorality, the appellants were entitled to a decree. The view of the minority of two judges in Chandradeo Singh v. Mata Prasad (I. L. R. 31 Allah. 176.) was correct and that of the three judges forming the majority, erroneous. The power of the father of a Mitakshara joint family to alienate the joint family property so as to bind his sons rests upon the pious duty of the sons to discharge the debts of the father unless they are incurred for immoral purposes. The decisions of the Privy Council speak of an antecedent debt, but that expression connotes no distinction which, in the case of a mortgage, would exclude the debt which is the consideration for its execution. Lord Hobhouse in delivering the judgment of the Board in Musmmat Nanomi Bahuasin v. Modun Mohun (( 1885) L. R. 13Ind. Ap. 1.) said that " the sons cannot set up their rights against their fathers alienation for an antecedent debt, or against his creditors remedies for their debts," and this appears to include the remedies of a mortgagee upon his mortgage. The question as to whether the debt for which a mortgage is executed is an antecedent debt within the meaning of the various decisions of the Board has been a matter of great conflict of opinion in Indian High Courts. The decision, however, of the Calcutta High Court in Maheswar Butt Tewari v. Kishun Singh (I. L. R. 34 Calc. 184.) has not been overruled, and it