JUDGMENT

Din Mohammad, J. - The question referred to the Full Bench is:

Whether a Hindu son, in a suit to avoid the liability of the joint family property in his hands, in execution of a mortgage or a simple money decree obtained against his father, can go behind the decree so as to challenge the existence of the debt on which the decree is based?

2. The following pedigree may be helpful in understanding the circumstances in which this reference has arisen:

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3. This family was a joint Hindu family originally, but disrupted in 1918. A factory known as Chandu Lal Company was owned by the family to the extent of one-half, the other f half being owned by a stranger, Dev Raj. He transferred his share to one Sahib Earn. In the partition that took place in 1918, no share of the factory was allotted to Jai Dev. On 10th July 1924, he, however, purchased Sahib Ram's share and at the same time took on lease the other half share belonging to the remaining members of his own family. In 1929, certain disputes arose between Jai Dev and his lessors which were referred to the arbitration of one Lala Parkash Chander. On 27th January 1981, the arbitrator made an award settling a liability of Rs. 38,998 on Jai Dev in favour of Sahdeo and Prem Dev sons of Ghansham Das, Anand Dev, adopted son of Indar Dev, and Mahadev son of Hari Lal. It was, however, provided in the award that if Jai Dev hypothecated his property-situate at Mangali Pana Mahabbat in favour of the opposite party for Rs. 30,000, the sum so secured alone would be recoverable from him "with yearly interest and compound interest at the rate of 0-7-9 per cent, per mensem" and the balance shall be deemed to have been discharged. It was further directed that this mortgage amount would be repayable by yearly instalments of Rs. 8500 each in the month of May every year and that in case of default of three instalments the mortgagees would be entitled to recover the whole amount at once. This award was made a rule of the Court on 26th February 1931, and on 15th April 1931, a mortgage on the lines indicated above was executed in favour of the judgment-creditors. Jai Dev abided by the conditions of the mortgage for some time and paid the instalments in due course. Later, he made a default and as the result thereof three suits were instituted against him for recovery of the amounts due. Suit No. 105 of 1934 involved a sum of Rs. 10,500, suit No. 108 of 1936 was instituted for recovery of Rs. 3500 and Suit No. 39 of 1938 was lodged for recovery of Rs. 10,500. These suits were decreed as lodged and two of the decrees were even upheld by this Court on a compromise being effected between the parties. The decision of this Court in respect of these appeals was pronounced on 5th July 1938.

4. On 15th June 1939, the four sons of Jai Dev instituted a suit against Mahadev, Anand Dev, Sahdev and Prem Dev, impleading Jai Dev also as a pro forma defendant. The suit was for a declaration that the mortgage deed executed and registered on 15th April 1981, by Jai Dev in favour of the other defendants in respect of all the rights in the entire village ' Mangali Pana Mohabbat was without consideration and valid necessity, unlawful and unauthorised and was consequently null and void as against the plaintiffs' rights. It was further prayed that a declaration be granted that the decrees in Suits Nos. 105 of 1934, 108 of 1986 and 39 of 1988 on the foot of the aforesaid mortgage deed were also null and void and ineffectual as against the plaintiffs and that a permanent injunction be issued restraining the defendants from executing the aforesaid decrees against the ancestral property of the joint Hindu family composed of Jai Dev and his sons. This suit was resisted by the contesting defendants on various grounds including the non-maintainability of the suit. Thereupon, the trial Court framed two preliminary issues, one relating to the e sufficiency of the court-fee and the other to the competency of the suit on the allegat