In the case of a Hindu joint family consisting of a father and sons when a mortgage has been created by the father of joint property, and a decree has been obtained on the basis of the mortgage, the only ground on which the sons can challenge the mortgage and the decree is that the debt was incurred for illegal or immoral purposes and that for this purpose it is immaterial whether the mortgaged property has actually been brought to sale in execution of the decree or not.

Falshaw, J.

1. The facts from which this reference has arisen are as follows.

2. Murari Lal, who formed a Joint Hindu Family along with his son Faqir Chand, mortgaged certain property on the 7th of June 1949 with Shrimati Harnam Kaur for Rs. 75,000/-, the mortgage deed containing a clause to the effect that if the mortgagee had to bring a suit for the recovery of the money and the entire claim was not satisfied from the mortgaged property, the mortgagee could recover the balance from his person and all other property belonging to him and the joint family. The suit was instituted by the mortgagee in which, on the 20th o£ April 1953, a preliminary decree for Rs. 95,000/- was passed.

3. About a month before the decree was passed Faqir Chand the son of the mortgagor, instituted a declaratory suit challenging the mortgage by his father on the grounds that the mortgaged property was joint family property and that the mortgage was without legal necessity, and that in fact the debt was incurred for illegal and immoral purposes. The passing of the decree materially changed the situation and consequently, in June 1954, an amended plaint was filed in which, in addition to a declaration that the mortgage was bad, a declaration was also sought that the decree obtained by the mortgagee was not binding on the plaintiff, and as a consequential relief an injunction was sought restraining the mortgagee from proceeding with the sale of the mortgaged property in execution o£ the decree.

4. The suit of Faqir Chand was dismissed by the trial Court on the ground which was conceded by the plaintiff that there was no evidence that the mortgage debt was incurred for illegal or immoral purposes, and on the finding that once a decree had been obtained on the basis of the mortgage the plaintiff could not challenge it merely on the ground that it was not for legal necessity.

5. When the plaintiffs appeal came before Bishan Narain and S. B. Capoor JJ. on the 3rd of April 1959 they thought it necessary to refer it to a Full Bench in view of the fact that there appeared to be a conflict oE authority, and although no question has been formulated by them, the question which We are required to answer may be formulated as follows;--

"Whether when a mortgage has been created On Joint Family property by a father who constitutes a Joint Hindu Family along with a son or sons, and a decree has been obtained by the mortgagee on the basis of the mortgage, it is open to a son to challenge the mortgage and the decree merely on the ground that the debt was incurred without legal necessity, or whether he must prove that the debt was incurred for illegal or immoral purposes."

6. The starting point of the argument may ba said to be the decision of their Lordships of the Privy Council in Brij Narain V/s. Mangla Prasad, 513 Ind App 129: (AIR 1924 PC 50). In that case the managing member of a Joint Hindu Family governed by Mitakshara law and consisting of himself and two minor sons mortgaged part of the ancestral property in 1908, the mortgage having been expressed to have been executed in order to pay off two prior mortgages on the same properly executed in 1905 and 1907. In a suit by the sons against their father and the mortgagees it was held that the liability under the earlier mortgages was an antecedent debt and consequently binding upon the sons. In reaching this decision their Lordships sought to clarify the earlier conflicts by framing the following five propositions:-

-

(1) The managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but

(2) If he is the father and the other members are the sons he may, by incurring a debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.

(3) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind