The pious obligation of the sons to pay the mortgage debt unless it is illegal or immoral, as established by Section 90 of the Transfer of Property Act and Order 34 Rule 6 of the Civil Procedure Code.

1. The Lower Courts have found that the suit mortgage was neither executed for an antecedent debt nor for any necessary purpose binding on the sons. It is therefore clear that the mortgage as a mortgage is not enforceable against the sons shares in the property mortgaged and no mortgage decree for sale of those shares can be passed against them. This is not controverted by the appellant.

2. It is however claimed for the appellant that a conditional decree for the recovery of any balance left, in case the net proceeds of the sale of the fathers share or the mortgaged property is found to be insufficient to pay the amount due to him should have been passed under Order 34, Rule 6, Civil Procedure Code, against the 1st defendant the mortgagor personally and against the ancestral properties of himself and his sons, as prayed for by him in his plaint.

3. That a conditional decree under Section 90 of the Transfer of Property Act can be passed in the mortgage suit itself without waiting for the mortgaged property to be sold to ascertain if any balance will be left over is clear from the observations of the Privy Council in Mu ammat Jauna Baku v. Raik Parmeshvar Narayan Mahthab Rai Bahadur (1918) 36 M.L.J. 215 p. 220 We think the same rule will apply under Order 34, Rule 6. In the present case it is not denied that the present claim against the mortgagor under the mortgage-deed is within time and is legally enforceable against him. A conditional personal decree for any balance should therefore have been passed against him in this suit.

4. Such a personal decree is in the nature of an ordinary money decree for a debt due by the father; and for such a decree, unless the debt is shown to be of an illegal or immoral character, the ancestral property in the hands of the sons will be liable on the basis of their pious obligation to pay their fathers just debts. It was recognised by the Privy Council itself in Suraj Bunsis case I.L.R. 5 Cal. 148 that in execution of a money decree against a Hindu father for a debt due by him joint ancestral property of himself and his sons can be sold and the purchaser will get a valid title to the sons shares as well, unless they show that the debt is of an illegal or immoral character, See page 171. It has also been decided in this Court that a creditor could join the sons in the suit on the fathers debt and obtain a decree making their shares in the family property liable, see Ramasami Nadan v. Ulaganatha Goundan (1898) I.L.R, 22 Mad. 19 F.B. This view was further developed in a later Full Bench in Mallesam Naidu v. Jugala Panda (1900) I.L.R.23 Mad. 292 where it was held that the cause of action against the father and the sons on the debt was one and the same. After these decisions it has been the practice to give decrees in suits against Hindu fathers on money claims not only personally against them but also against the joint family property of themselves and their undivided sons where such sons are made parties and do not allege and prove the illegality or immorality of such claims. That a similar decree could be given in mortgage suits under Section : 90 of the Transfer of Property Act corresponding to the present Rule 6 was expressly decided in Kishun Pershad Chowdhry v. Tippan Pershad Singh (1907) I.L.R. 34 Cal. 735 a similar view was taken in Addaika Pattar v. Natesa Pillai (1907) 17 M.L.J. 283 and an observation in support of it is also found in Sami Ayyangar v. Ponnammal (1897) I.L.R.Mad. 28, paga. 29.

5. It is argued however for the respondents that the recent decision of the Privy Council in Sahu Rams case (1917) I.L.R. 39 All. 487 : 33 M.L.J. 14 has entirely altered the law on the point and the observations of their Lordships in page 444 have been relied on. This Court has considered the effect of this ruling in two cases recently in Peda Venkanna v. Sreenivasa Deekshatulu (1917) I.L.R. 41 Mad. 136 : 33 M.L.J. 519 and in the Full Bench Armugham Chetty v. Muthu Kounden (1919) I.L.R. 42 Mad. 7