The central legal point established in the judgment is the interpretation and application of the doctrine of antecedent debts in the context of joint family property, as restricted by the Privy Council.

Spencer, J.

1. We must accept the learned District Judges findings of fact (1) that Exhibits B and C are genuine, (2) that family necessity has not been proved for the debts secured by Exhibit A apart from the fact that there was a prior debt due to the plaintiff secured by the previous instruments (Exhibits B and C) executed by the 1st defendant and 3rd defendant and their fathers which mortgaged the family property.

2. On the question of law, which is whether a prior mortgage over joint family property created by a father can be treated as an antecedent debt for the purpose of binding his sons interest in coparcener property in a subsequent mortgage between the same parties, I think we are bound to give the fullest effect to the words of Lord Shaw in Sahu Earn Chandra v. Bhup Singh (1917) 33 M.L.J. 14 If the arguments advanced before their Lordships are read with what preceded and followed this expression of the Judicial Committees opinion, there cannot be any doubt as to what was meant by the words " 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."

3. If the law were different from what it is here pronounced to be, it would be open to a father to create a mortgage over the joint estate of himself and his sons one day and the next day to execute a second mortgage over the same property citing the first mortgage as an antecedent debt to make the transaction binding on the sons interest. The effect would be to give the sanction of law to the very evil which the Privy Council seek to avoid when they speak of undue and improper extension of this exception in respect of antecedent debts to the managers power of mortgage.

4. The effect of the decision Sahu Bam Chandra v. Bhup Singh (1917) 33 M.L.J. 14 has been considered in a recent decision of this High Court in Peda Venkanna v. Sreenivasa Deekshatulu (1917) 33 M.L.J. 519.

5. The question that arose in that case was whether a creditor could proceed against the sons share during his fathers life-time to recover a debt upon a promissory note executed by the father after partition in renewal of a note executed before partition. It was held that the Privy Council decision was not intended to overrule the whole current of authorities on this topic. The learned Chief Justice observed that the latest Privy Council decision did not question a creditors right to bring the sons interest to sale for an antecedent debt. The new definition of what is an antecedent debt was not discussed in his judgment or in that of Kumaraswami Sastri, J., who sat with him. There was nothing said, nor could there be, to diminish the authority of this pronouncement by the Privy Council, and even if anything in earlier judgments of that tribunal can be cited as being difficult to reconcile with this, we should have to follow the more recent.

6. I consider that the appeal must be allowed to the extent of giving the plaintiff a decree in the usual mortgage form including costs of this suit throughout against the share of the deceased 1st defendant in the hands of his son the 2nd defendant allowing 6 months for payment and that as regards the 2nd defendants share the appeal must be dismissed with costs and a decree will be made accordingly.

Krishnan, J.

7. The learned District Judge has now found on the 1st issue that the prior mortgage deeds-Exhibits B and C are genuine and on the 2nd issue that Exhibit A is not binding at all on the 2nd defendant. The finding on the 1st issue is not objected to and must be accepted. The appellant has however contested the finding on the 2nd issue before us and we must consider it.

8. The 2nd defendant is not a party to Exhibit A; his share in the joint property mortgaged is sought to be made liable on the ground that his father executed Exhibit A, and that the consideration for it is binding on him. The consideration for Exhibit A as recited in