1. This appeal raises some interesting questions under Hindu Law. The circumstances leading to this appeal may be briefly set out as follows; Sitaram Agarwal of Arvi owned considerable property, both moveable and immoveable. He adopted one Kisanlal as a son. After the adoption of Kisanlal, a son named Mangilal was born to him from his wife Parubai. After the death of Sitaram in 1914, his two sons Kisanlal and Mangilal succeeded to the property by right of survivorship. They continued to enjoy the property as coparceners till 1938. In that year, there was a partition between Kisanlal and Mangilal and, in that partition, Kisanlal was awarded 1/4th share and Mangilal 3/4th share in the joint family property. Mangilal got 13 malguzari villages and lands to the tune of about 1600 acres in addition to cash and moveable of considerable value. Mangilal had two wives, Saraswatibai and Trivcnibai. A daughter was born to Mangilal from Saraswatibai, called Durgabai. Saraswatibai died on 11-6-1943. The plaintiff was born to Mangilal from Trivenibai on 1-11-46. Fields S. Nos. 1, 2, 4 and 18 of mouza Mohommadpur, measuring 95.19 acres and assessed at Rs. 158/-, formed part of the property belonging to Mangilal. Mangilal was a malguzar of this village and originally the lands were sir lands. They, having come under personal cultivation, became his khudkasht lands. It appears that Durgabai claimed ownership in respect of these lands on the ground that they were the stridhan property of her mother Saraswatibai and that she got them by inheritance from her mother. On 15-4-1944 Mangilal executed a document styled as receipt in favour of defendant No, 1 Lilabai Vrijpaliji Bhate for Rs. 8700/-. The consideration of Rs. 8700/- was made up as follows:
(i) Rs. 2000/- in the form of two hundis of Rs. 1000/- each dated 6-4-1944. The hundis were drawn by Ramji Vrijpal, the son of Lilabai, on Jayantilal Memichand of Bombay.
(ii) Rs. 200/- paid in cash on 11-4-1944.
(iii) Rs. 6500/- paid in cash on 15-4-1944.
The document stipulated that in case the amount of Rs. 8700/- advanced by Lilabai was not paid on 1-6-1944, defendant No. 1 was to enjoy the land from generation to generation as occupancy tenant. Mangilal did not pay the amount on the stipulated date. Defendant No. I Lilabai, therefore, filed a suit for specific performance against Mangilal (Civil Suit No. 9-A of 1946). This suit was instituted on 21-6-1946, that is to say, before the birth of the present plaintiff which, as stated above, took place on 1-11-1946. Durgabai was added as a parly and described as defendant No. 2 in the suit on the ground that she was claiming title in respect of the same property. It may be mentioned at this stage that Durgabai had already filed a suit (Civil Suit No. 38-A of 1944) against Mangilal in respect of the same property for possession. Although Durgabai was added as a party, Lilabai definitely asserted that Saraswatibai had no interest in the land; and, therefore, Dorgabai did not and could not succeed to the same property. She also asserted that Durgabai was a benamidar and that Mangilal Was the real owner of the property and was, in that capacity, in possession and enjoyment of the same. In the alternative, Litabai asked for the refund of the sum of Rs. 8700/- paid by her to Mangilal. Pending the said suit, Durgabai's Civil Suit No. 38-A of 1944 came to be dismissed. It is not, therefore, necessary to refer to the contentions put forward by Durgabai in the suit filed by Lilabai. Mangilal resisted the suit on several grounds. He contended that no consideration passed under the receipt, dated 15-4-1944. He asserted that the transaction underlying the receipt was nominal, sham and not intended to be acted upon. He admitted that Ramji Vrijpalji, the son of Lilabai gave him two hundis of Rs. 1000/- each, but he denied that these advances formed part of the consideration of the receipt. He speci fiscally denied having received payments of Rs. 200/- and Rs. 8700/- on 11-4-1944 and 15-4-1944 respectively, as alleged by Lilabai. Mangilal denied that the properties belonged to Durgabai.
2. The trial Court held that the suit properties belonged to Mangilal and not to Durgabai. It further held that the transaction underlying the receipt was neither sham nor colourable nor intended to be inoperative. It also held that a consideration of Rs. 8700/- was received by Mangilal under the said receipt. Consequently, the trial Court decreed Lilabai's claim for specific performance- Mangilal preferred First Appeal No. 118 of 1947 in the High Court of Nagpur. Pending the appeal, he died on 21-11-1951. The present plaintiff was then a minor being a boy of about five years. Trivenibai, who has been added as defendant No. 2 in the present suit, filed applications (Exhibits D-19 and D-20) praying that the present plaintiff and she herself should be substituted in place of the deceased Mangilal. Those .applications having been granted the names of the present plaintiff and Trivenibai were substituted and Trivenibai was shown as the guardian of the present plaintiff. Eventually the appeal was dismissed. The plaintiff filed Civil Suit No. 6-A of 1954, which has given rise to this appeal, on 12-7-1954, against Lilabai, the decree-holder for a declaration that the decree obtained in Civil Suit No. 9-A of 1946 is not binding on him. He impleaded his mother Trivenibai as a pro forma defendant to the suit. The present plaintiff and Trivenibai preferred an appeal by special leave to the Supreme Court. The Supreme Court upheld the decision of High Court and the judgment of the Supreme Court is reported in Trivenibai v. Smt. Lilabai, : AIR1959SC620 . Pending the present suit, Lilabai obtained a lease from the Court in execution of the decree for specific performance and also secured possession of the properties. Thereafter the plaintiff amended the plaint and asked for the relief of possession.
3. It will now be convenient to summarise the allegations made by the plaintiff in support of Ms prayer for setting aside the decree obtained by Lilabai in Civil Suit No. 9-A of 1946. The property in suit formed part of the joint family property of the plaintiff and Mangilal. This property was originally the ancestral property of Sitaram and that after Sitarama's death, it came into the hands of Krishanlal and Mangilal by survivorship and in the partition between Krishanlal and Mangilal, the suit property fell to the share of the latter. No consideration passed under the receipt, dated 15-4-1944, and the receipt was passed to save the property for the family from the threat held out by Durgabai to claim the property for herself. Assuming that the consideration passed, the transaction amounted to a transaction of loan. The plaintiff, therefore, was not bound by the decree for specific performance passed in favour of Lilabai.
4. Defendant No. 2 did not appear to contest the suit. Defendant No. 1 resisted the suit on several grounds: (1) he contended that the agreement was for real and valuable consideration. The transaction was not sham and colourable. (2) the plaintiff was not born when the receipt was executed by his father Mangilal. It is not, therefore, open to him to challenge the said transaction. The plaintiff was not even born when the suit was filed against Mangilal for specific performance. The plaintiff has, therefore, no right to challenge the decree that was eventually passed in the said suit. (3) The agreement for lease was passed for an antecedent debt. Therefore, the decree for specific performance passed in Civil Suit No. 9-A of 1946 is binding upon the plaintiff. (4) The property in suit was not the ancestral property of Mangilal. The plaintiff, therefore, did not and could not get the same by right of survivorship. He got it by inheritance. (5) The plaintiff cannot raise the question as to whether the receipt was supported by consideration since that question was raised by his father in civil suit No. 9-A of 1946 and decided against him. The decision in Civil Suit No. 9-A of 1946 operated as res judicata against the plaintiff on that question. (6) The plaintiff was liable to pay the sum borrowed by his father under his pious obligation arising under Hindu Law. Defendant No. 1 Lilabai could have been competent to proceed against those fields in execution of a money decree that she could have obtained against the plaintiff's father for the debt of Rs. 8700/.
5. The trial Court held that the plaintiff failed to prove that the property was ancestral and that he got it by right of survivorship. On the other hand, it took the view that the property was Mangilal's self-acquired property and, therefore, the plaintiff got it by inheritance. It also held that it was not open to the plaintiff to challenge the consideration for the receipt inasmuch as that question was finally adjudicated in Civil Suit No. 9-A of 1946. Mangilal represented the plaintiff in that suit. It also came to the conclusion that the plaintiff, not having been born at the time of the agreement of sale and also on the date of the institution of the suit, had no right to impeach the transaction as also the decree for specific performance. It has also held that the debt for which the agreement of sale was passed was an antecedent debt and even if, therefore, the plaintiff had a right to challenge the alienation, he could not successfully do so since it was supported by the antecedent debt of the father. Consequently, it dismissed the plaintiff's suit It is against that decision that the plantiff has come up in appeal.
6. Mr. Bobde, learned Counsel for the plaintiff, contended that the trial Court was wrong in holding that the suit property was the self-acquired property of Mangilal and the plaintiff got it by right of inheritance. Before dealing with the evidence on this point, it will be convenient to refer to the respective cases that were put forward by the parties on this point. At paragraph No. 1 of the plaint, it was alleged that the suit property was allotted to Mangilal as his share of the ancestral and joint family property. In her written statement, all that defendant No. 1 contended was
'It is denied that Mangilal's father Sitaramji owned any ancestral or joint family property and that Mangilal held any ancestral or joint family property'.
It will thus be seen that the only contention raised by defendant No. 1 was that the property, in suit was not the ancestral property of Mangilal. In other words, it was denied that the suit property at any time belonged to Sitaramji. It was never suggested that the suit property was the self-acquired property of Mangilal. In view of this state of the pleadings, the only burden that lay upon the plaintiff was to prove that the suit property formed part of the property held by Ms grandfather Sh- ramji. Issue No. 1 which arose on these pleadings was rightly framed and it runs thus:
'Whether the deceased Mangilal owned the suit fields Nos. 1, 2, 4 and 18 of village Mohomadpur as part of his share of the ancestral property allotted to him in the partition between his brother and himself, on 5th February 1939?'
Kisanlai, the adoptive son of Sitaramji, has been examined for the plaintiff and he stated that in the partition between him and Mangilal in the year 1938, he (Kisanlai) got one-fourth share in the-joint family property and Mangilal got the remaining share. In the partition between Krishanlal and Mangilal, Mangilal got in all 13 villages and about 1600 acres of land. It is in evidence that Sitaramji died in about the year 1914. Exhibit P-3 is a certified copy of the Bandobast khasra for the years 1910-11. The name of the owner in column No. 5 is shown as Sitaram Ramaratan Marwari. Under Section 80 of the C. P. Land Revenue Act, the entries in the record-of-rights can be presumed to be correct until the contrary is shown. The provisions of Section 80, Sub-section (3), of the C. P. Land Revenue Act correspond to the provisions of Section 135J of the Bombay Land Revenue Code.
7. In Shankarrao Daggdujirao v. Shambhu Nathu , it has been held that an entry in the record of rights shall be presumed to be true by virtue of Section 135-J of the Bombay Land Revenue Code and proper effect must be given to the statutory presumption. It is pointed out that such presumption shall be available even in a second appeal. In view of this position in law and in view of the fact that no evidence has been adduced to rebut the statutory presumption, it must be held as proved that the lands in suit belonged to Sitaram Ramaratan. This was the only question raised by defendant No. 1 in her written statement, and it was not necessary for the plaintiff to adduce evidence to prove as to what transpired between 1910-11 upto 1938 when the partition took place or upto 1940-41 for which the extract has been produced on behalf of defendant No. 1 to which reference will be made later. The learned trial Judge has observed that no evidence has been adduced to show that the property continued to belong to the family after 1910-11 and till 1940-41. It is nobody's case that the property went out of the family during that period. A slate ot' affair which is shown to exist at one time in the past is presumed to continue as it was. In his plaint, the plaintiff had alleged that Mangilal 'got the suit property in a partition between him and his brother Kisanlal. (After discussing the evidence (rest of this Para to Para 8), His Lordship proceeded:) We, therefore, feel no hesitation in holding that the suit properly was the ancestral property of Mangilal and that the plaintiff would get it by survivorship on the death of his father Mangilal. It may also be pointed out that in his Written statement to the suit filed by Durgabai (Exhibit P-6) Mangilal asserted that the suit pro-I property was not the property of Saraswatibai. This statement can be used as admission against defendant No. 1 because defendant No. 1 is claiming from Mangilal himself. If defendant No. 1 in the previous suit had taken up the position that the suit property belonged to Saraswatibai evidently she would have been non-suited because on the death of Saraswatibai, it is! not her husband Mangilal who would inherit the same but Sara-swatibai's daughter Durgabai would be the only rightful owner under Mitakshar Hindu Law. Having obtained a decree in the previous suit on the basis that the suit property belonged to Mangilal and not to Saraswatibai, it will not now be open to defendant No. I. to turn round and say that the property belonged to Saraswatibai and, therefore, it becomes the self-acquired property of Mangilal, he having inherited the same from Saraswatibai. Defendant No. 1 cannot be allowed to approbate and reprobate. It must be said to the credit of defendant No. 1 that he did not propose to make any such acrobatic tricks and it was given to the learned trial Judge to make out a case which did not arise on the pleadings and was not and could not have been sponsored by the contesting defendant.
9. Mr. Bobde contended that the plaintiff is not bound by the decision taken in Civil Suit No. 9-A of 1946 on the question as to whether the agreement of sale was supported by consideration. Assuming that the plaintiff cannot challenge the finding on that question, he proceeded to make a distinction between consideration and debt and argued that it is always open to the son to contend that, in fact, the debt did not exist and the proof of consideration is not the proof of debt. He also pointed out that the plaintiff was substituted as the legal representative of Mangilal and the only defence that was open to the plaintiff was the one that was also open to Mangilal. That being the case, the decision in the earlier suit cannot operate as res judicata on the question of the existence of debt as against the plaintiff.
10. In order to appreciate these arguments it is necessary to refer to a few more facts that transpired in the previous litigation. In the original plaint in Civil Suit No, 9-A of 1946, all that was alleged was that Mangilal owed a sum of Rs. 8700/-to the plaintiff and that since he did not repay the same on the stipulated date, that is, 1-6-1944, the contract of lease had become operative from mat date. No details were given as to when and how the debt was incurred. Mangilal, therefore, asked for further and better particulars. It was in pursuance of this demand that defendant No. 1 gave the following particulars:
(1) Rs. 2000/- on 6-4-1944 in the form of two him is of Rs. 1000/- each given by Lilabai to Maogi-lal. These hundis were drawn by Ramji Vrijpal, the son of Lilabai, at the instance of Lilabai on Jayantilal Nemichand of Bombay in favour of Mangilal. Mangilal sold both these hundis at Arvi and received the full amount of Rs. 2000/- on them.
(2) Rs. 200/- on 11-4-1944 paid by Lilabai to Mangilal in cash at Arvi.
(3) Rs. 6500/- were paid by Lilabai to Mangilal on 15-4-1944 at Arvi in cash when the receipt in suit was executed by him in plaintiff's favour. In reply to certain interrogatories that were put by Lilabai, Mangilal stated as follows:
'I have not yet returned to the plaintiff's son Ramji Vrijpal the amount of the two hundis of Rs. 2000/- given by him to me on dated 6-4-1944'. It is significant to remember that Mangilal had disputed the receipt of the two items, namely, of Rs. 200/- and Rs. 6500/-. One of the issues that was framed, therefore, was: 'Did the plaintiff (Lilabai) pay Rs. 200/- on 11-4-1944 and Rs- 6500/- on 15-4-1944 in cash to defendant No. 1 (Mangilal) at Arvi?'
The other issue that was raised on the pleadings of Mangilal was issue No. 6 (A) which ran thus:
'Did defendant No. 1 execute the chithi Exhibit P-1 as a bogus, sham and collusive document in order to shield the property from his creditors and was it not intended to be acted upon?' The trial Court held that Lilabai succeeded in proving the two payments that were disputed by Mangilal, namely, of Rs. 200/- and Rs. 6500/-. The trial Court also negatived Mangilal's contention that the transaction was sham, colourable and not intended to be operative. These findings were substantially approved by the High Court. It was also contended on behalf of Mangilal that the receipt purported to effect a present demise and in view of the fact that it was not registered, no action could be founded thereon and, in fact, the document would be rendered inadmissible. That was the main issue that was raised before the Supreme Court and the Supreme Court also took the view that properly construed the transaction did not amount to a present demise but only an agreement of lease. It is on that basis that the plaintiff's suit for specific performance was decreed. Mr. Bobde's argument was that it is one thing to say that the agreement of sale was supported by consideration and quite another that the loans were incurred by Mangilal. Mr. Bobde pointed out that the proof of the consideration for the agreement of sale may largely depend upon the admissions made by the executant. In this particular case, Mangilal had contended that the transaction was bogus and colourable and not intended to be acted upon. Mangilal having failed to substantiate these allegations, the Court was entitled to act on the admissions made by Mangilal. and very little evidence would be required to come to the conclusion that the consideration was supplied by certain monies advanced by Ramji on behalf of Lilabai to Mangital. In this connection, Mr. Bobde emphasised the fact that the plaintiff was substituted in place of his father as the latter's legal representative and no defence was open to him in his capacity as a legal representative which was also not open to Mangilal. The position of a legal representative, who is brought on record under Order 22, Rule 4, of the Code of Civil Procedure is well settled. Order 22, Rule 4(2), speci fiscally says: 'Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.'
It has been held in Dareppa v. Mallappa : AIR1947Bom307 as follows:
'It is not open to a legal representative of a deceased defendant impleaded under Order 22, Rule 4 to assert his own individual or hostile title to the suit. Therefore, in a mortgagee's 'suit on the mortgage of watan land, if the deceased defendant was estopped from challenging his own right to mortgage the watan land beyond his life time his legal representative cannot plead that his father could not mortgage the watan land beyond his lifetime. If a legal representative wants to raise any new point which the deceased party could not have raised he must get himself impleaded in his personal capacity or challenge the decree in a separate suit.'
Similar view was taken by the Nagpur High Court in Shankar Rao v. Kamtaprasad, wherein it was held:
'When a mortgage decree is passed against the father as manager of a joint Hindu family the son is bound by the rule of res judicata only with respect -to a plea which was open to the father equally with the son that is, a plea available to the joint family, whether expressly or constructively decided.' If we examine the question as to which of the pleas that were open to the father equally with the son or, to put it differently, the pleas which were available to the joint family, we will notice that there were three such pleas as follows: (1) the fact of agreement, (2) whether it was sham and colourable transaction and (3) whether the agreement was supported by consideration. All these three questions were raised by the father and decided in the previous litigation. We do not, however, think that the findings on these issues necessarily imply a finding that the debts were incurred or existed at the time when the agreement of sale was executed. Consideration is a term of wider connotation as is clear from its definition con-'tained in Section 2(d) of the Contract Act. It is true that in the previous case there is a finding that, as a matter of fact, sums were advanced at different times totalling Rs. 8700/-. The mere fact, however, that advances have been made, does not necessarily mean that they were intended as loans or debts. Assuming for a moment that the findings recorded in the earlier suit imply a finding that the debts were, in fact, incurred by the father, still the question, is whether it is open to the son to challenge those findings in a suit filed by him and contend that, in fact, the debts which are supposed to bolster up the agreement on the ground that they were antecedent debts, did not exist in point of fact. Sir Dinshah Mulla in his Hindu Law, Section 294-A page 442, has observed: 'The sons being under a pious obligation to pay the father's debt, the entire joint family property is liable to be attached and sold in execution of the decree against the father, unless they show that the debt for which the decree was passed was incurred by the father for an immoral or illegal purpose or successfully challenge the existence of the debt on which the decree is based..... The party against whom the order is made will then, under Order 21, Rule 63, be entitled to bring a suit in which the whole question as to whether there was a debt or not, or whether it was immoral or not, will be determined.'
Again at page 447, Section 294-B, the learned author observes:
'The same principles apply where the sale is sought to be set aside on, the ground that there was in reality no debt owing by the father and that the decree was obtained by collusion between the creditor and the father.'
11. At page 421, Section 334, Sub-section (5), of Mayne's Hindu Law, the position was stated in the following terms by the learned author:
'Where a sale or mortgage is made by the father alone in order to satisfy his antecedent debt, or when in execution of a decree for money or on a mortgage by the father, the ancestral property is sold, the sons, not being parties, are entitled to have the nature of the debt tried in a suit of their own.'
In the foot-note added by N. Chandrasekhara Aiyar, J., who edited the 11th Edition, we find the following observation:
'It is however submitted that when a decree is passed against the father without fraud or collusion, the existence of the debt itself cannot be challenged by the sons. The decree is evidence of the debt; and creates of its own force a debt due by the father.'
In the same way, the Editor of the 12th Edition of Mulla's Hindu Law, has added the following foot-note on page 442:
'It was held in Surendra Nath v. Saralia Hindi Mahajani School, AIR 1950 EP 282 that where a creditor obtained a decree for debt against the father the sons cannot question the existence of the debt except by showing that the decree was obtained by fraud or collusion. At any rate the burden of proving non-existence of debt would be upon the sons.'
Unlike, however, the editor of the 11th Edition of Mayne's Hindu Law, the editor of the 12th Edition of Mulla's Hindu Law has not expressed 'his approval to the statement contained in the judgment of the East Punjab High Court. In view of the foot-note added by N. Chandrasekhara Aiyar to Section 334, Sub-section (5), of Mayne's Hindu Law, the question was exhaustively discussed by the Full Bench of the Lahore High Court in Maha Deo v. Ranbir Singh, ILR (1945) Lah 67: AIR 1944 Lah 220, Din Mohammad, J., who delivered the judgment of the Full Bench of the Lahore High Court, examined the position in the first place on the basis of the original text as contained in Colebrook's Translation of 'A Digest of Hindu Law on Contracts and Successions' and then on the decisions of the Privy Council and also the other High Courts. He formulated his conclusions, at p. 87 (of ILR Lah): (at p. 228 of AIR) of the Report as follows:
'From a review of the above authorities it is obvious that the proposition advanced by the sons has ample support. Even the modern commentators on Hindu Law, have invariably favoured this view. In Trevelyan'a Hindu Law, third edition, the following passage occurs at pages 343-344; 'Where the sons are not parties to the suit, they are entitled to have an opportunity, either in a fresh suit or in proceedings for execution of the decree, of raising such questions and of asserting such rights as they could have raised and asserted if they had been made parties. They can dispute the factum of the debt, or they can show that the debt was incurred for illegal or immoral purposes, or that it does not bind them otherwise.'
'Again at page 345, the learned author says:
'The interests of the sons pass in a sale of coparcenary property in execution of a decree against their father, except only:
(1) When their interests are not sold.
(2) When the sons prove that the debt was contracted for an illegal or immoral purpose, and the execution creditor purchases, or, if a stranger purchases, and has notice of, or upon inquiry could have ascertained, the illegal or immoral character of the debt upon which the decree was based. They could also dispute the fact of the debt.'
In our view, the position of law enunciated in the Lahore case is correct and is consistent with the pronouncements of the Judicial Committee in Mt. Nanomi Babuasin v. Modun Mohun, 13 Ind App 1 (PC):
'The circumstances of the present case do not call for any enquiry as to the exact extent to which the sons are precluded by a decree and execution proceedings against their father from calling into question the validity of the sale on the ground that the debt which formed the foundation of it was incurred for immoral purposes, or was merely illusory and fictitious. All the sons can claim is that, not being parties to the sale or execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own.'
12. We are unable to understand how a distinction can be made between a case where the sons are entitled to ignore a decree on the ground of fraud, collusion, illegality or immorality of a debt and where they challenged the very existence of the debt. The capacity to attack the debt on the ground of illegality or immorality presupposes the existence of the debt. If that were not so, we would be landing ourselves in a very anomalous position, namely, a person obtaining a decree on the strength of a debt, which never existed, would be in a much stronger position than the one whose decree is challenged on the ground of illegality or immorality. Their Lordships of the Lahore High Court also repelled the argument that the contention of the son was barred by Explanation VI to Section 11 of the Code of Civil Procedure. Explanation VI to Section 11 is obviously inapplicable because in a suit filed by the son to challenge the alienation of a father, the interests of the son are antithetical to those of the father. Mr. Adhikari relied upon an observation contained in Sidheshwar Mukherjee v. Bhubneshwar Prasad, : 1SCR177 to the following effect:
'According to the view taken by the Privy Council in Nanomi Babuasin's case, 13 Ind App 1 (PC) all that the son can claim in such cases is that not being made party to the sale or execution proceeding, he ought not to be barred from trying the nature of the debt or his liability to pay the same in any suit or proceeding started by him or to which he might be made a party.'
It was contended that this observation must be interpreted to lay down a limitation to the rule stated in Nanomi Babuasin's case, 13 Ind App 1 and in view of this limitation it is no longer open to challenge the existence of the debt in the suit filed by him for setting aside the decree obtained against the father. We are unable to accept this line of reasoning. The only question that was before the Supreme Court in the above case was Whether in order to attract the application of pious obligation it was necessary that the father should also be the manager of the family and it was held that that was not necessary. Reference was made to Nanomi Babuasin's case, 13 Ind App 1 in a general way and it was stated that the son is not barred from trying the nature of the debt or liability to pay the same. Their Lordships never considered, nor was it necessary for them to do so, the question as to what defences were open to the son when he chooses to challenge the decree passed against the father or the sale held in execution of a decree passed against the father. We must, therefore, hold that it is open to the plain-tiff to challenge the very existence of the debt, at any rate, as a foundation for the theory of the antecedent debt.
13. Let us now examine the evidence led for the plaintiff to prove the loans alleged to have been advanced by the defendant No. 1 to Mangilal. (After discussing the evidence. His Lordship concluded:) In view of the financial condition of Ramjibhai and in view of the fact that there is little likelihood of Lilabai of having any separate fund of her own and further in view of the scanty materials placed before us, it is not possible to hold that the loans were advanced to Mangilal by defendant No. 1 as has been sought to be made out in the present case and as was sought to be made out in the earlier case.
14. Assuming that the existence of debts has been satisfactorily proved, the next question for consideration is whether there were any antecedent debts. In this connection Mr. Adhikari pointed out that although the bulk of the amount of consideration, namely, Rs. 6500/- was advanced on the date of the agreement, the date for the repayment of the entire sum of Rs. 8700/- was fixed as 1-6-1944. According to him, the agreement of sale came into existence only on the failure of Mangilal to repay the money on 1-6-1944. That means that the agreement of lease came into operation after 1-6-1944. Taking this as the operative date for the agreement of lease Mr. Adhikari contended that the entire sum of Rs. 8700/- must be deemed to be antecedent in fact as also in time to the date when the agreement of sale came into force. It is not disputed that Rs. 6500/- were advanced on the date of the agreement. The date of the advance of Rs. 2000/- on the basis of two hundis is stated to be 6-4-1944. This is admittedly the date on which the hundis are drawn. There is no evidence to show on what date Mangilal actually encashed those hundis. Even in the prior suit, no issue was framed nor was any evidence led in regard to the date when Mangilal received the sums under the two hundis. Even the interval between the date of the drawing of the hundis, which is 6-4-1944, and the date of the agreement, which is 15-4-1944, is very small. It is, therefore, clear that no evidence has been led to show that in fact the advances under the two hundis were received by Mangilal before 15-4-1944. In any case, the bulk of the consideration, namely, Rs. 6500/- was paid on the date of the agreement. It is true that the agreement, as an agreement of lease, was to come into operation on a subsequent date, still that circumstance by itself is not sufficient for holding that the transaction of loan and the transaction of the agreement of lease are independent of each other. The leading case on this question is Panchaiti Akhara Udasi Nirwani v. Surajpal Singh decided by the Privy Council and reported in It was held in that case that a Hindu father who purchases property subject to mortgage and retains a part of the consideration to answer tbe amount due on the mortgage but does not pay off the mortgage, does not hereby become indebted to the mortgagee in respect of that sum for he is under no liability to him in respect of it. Hence a subsequent borrowing by such a purchaser from the mortgagee himself on a fresh mortgage to free the property from the prior encumbrance is not a mortgage to pay off an antecedent debt and would not bind his son. It is also held that where at the time of execution of the promissory notes in respect of certain loans there is an intention and a promise to secure them by a subsequent mortgage and such a mortgage is later on executed to cover such debts, the whole transaction is conceived and carried out as part of the same bargain, and hence such a mortgage is not one to discharge an antecedent debt which would bind the son of the mortgagor. In this connection, we may also refer to Ram Sarup v. Bharat Singh, ILR 43 All 703: AIR 1921 All 113. The facts of that case were as follows: The father of a joint Hindu family first borrowed Rs. 500/- on a promissory note. It was stated in the note that the money was borrowed in order that it might form part of a mortgage thereafter to be executed. He then, having borrowed some more money from the mortgagee executed a mortgage of the joint family property for Rs. 1,000/-. There was no satisfactory evidence that any of the money purporting to be secured by this mortgage was borrowed for family necessities or that any part of the debt was incurred apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate. Subsequently, the mortgagor borrowed more money on promissory notes and executed a second mortgage for Rs. 5,000/- consolidating all the previous debts. It was held in that case that on suit by the mortgagee for sale on the basis of the second mortgage it was not proved that any of the money purporting to be secured by this mortgage was an 'antecedent debt' within the meaning of the ruling in Sahu Ram Chandra v. Bhup Singh, ILR 39 All 437: AIR 1917 PC 61.
15. The decision cited above proceeded on the dictum laid down by the Privy Council in 44 Ind App 126: AIR 1917 PC 61. Their Lordships have observed:
'In truth, in order to validate such a transaction of mortgage there must, to give true effect to the doctrine of antecedence in time, be also real dissociation in fact. The Courts in India, wherever such antecedence is found to be unreal and is merely a cover for what is essentially a breach of trust, will not be slow to deny effect to a mortgage so brought into existence.'
Applying these principles to the facts of this case, it is clear that at any rate the bulk of the consideration, that is, Rs. 6500/- proceeded on the date of the agreement itself. There is no clear evidence with regard to the dates of the other two items, namely, of Rs. 2000/- and Rs. 200/-. These debts were made repayable on a subsequent date, that is, 1-6-1944 and it was on this date that the document would operate as an agreement of sale in case the debts were not repaid before that date. In these circumstances, it is impossible to hold that the transaction which was of a loan, was dissociated from the transaction of an agreement of lease. In fact, the two formed part of the same transaction and the transaction of the agreement was to come into operation only in the event of the loans not having been repaid. The two, therefore, must be deemed to be parts of one whole. There is no dissociation in fact between the two and the agreement is intended as mode of satisfaction of the loan. We, therefore, feel no hesitation in holding that defendant No. 1 has failed to prove that the agreement of sale was executed for an antecedent debt in the strict sense of that expression as used in Hindu Law for the purpose of upholding the alienation effected by the father.
16. Now comes the most important question and we confess that the solution of that question is far from being easy. What is sought to be supported in the present case on the ground of antecedent debt is not an alienation by the father but an agreement to alienate the property by way of lease. It is not the case of defendant No. 1 that the agreement of sale is supported by legal necessity or justifiable necessity. Had it been a case of an agreement of sale which is entered into by the manager or the father for a legal necessity there would have been no difficulty in holding that the agreement was capable of being speci fiscally enforced against the members of the joint family including minor sons. Sir Dinshah Mulla, in Section 242 at p. 364, note 4, under the heading 'Specific performance of contract of sale entered into by manager' observes:
'Where a manager enters into a contract for the sale of immovable property belonging to the joint family for a legal necessity, but subsequently refuses to complete the sale, the Court may, in a suit for specific performance brought by the purchaser, decree specific performance of the contract, though some of the members of the joint family are minors,'
The position relating to the power of the father to alienate the property so as to bind the interests of the sons for his antecedent debts is equally well settled. This position has been put very succinctly at paragraph 295, pages 453 to 460 by Sir Dinshah Mulla in his Hindu Law. We were not, however, shown a single case wherein the agreement entered into by the father for alienating the family properties for his antecedent debts has been speci fiscally enforced in a Court of law on that ground. We have, therefore, to decide the question on the basis of general principles. Mr. Adhikari contended that when the father has entered into an agreement to alienate the property he must be deemed to have intended to exercise that power and if the agreement can be speci fiscally enforced against the father, the alienation arising out of the execution of the decree must be considered as the alienation of the father and if antecedent debt is proved, then the son will have no right to challenge that alienation. The proposition as formulated by Mr. Adhikari requires to be considered from different points of view. In the first place, it must be noted that ihe right of a Hindu father to alienate the joint family properties for an antecedent debt incurred by him for his own benefit is his special privilege arising out of his position as the father. Secondly, the doctrine of antecedent debt as a supporting prop can be available only in respect of an alienation and not for a mere agreement to alienate. If the father does not choose to exercise that privilege it is difficult to hold, on general principle that he can be compelled to exercise that power so as to put the interests of his sons in jeopardy. Finally, it must be borne in mind that an agreement to lease or sell the property by itself does not create an interest in the property in favour of the promisee. The question, therefore, that arises for consideration is, if a decree for specific performance is passed against the father, whether that decree can take retrospective effect from the date of the agreement. There is the further question which requires To be investigated and it is this that even the decree' for specific performance does not amount to a transfer and unless a deed of transfer is executed, either by the party or by the Court, under O. 21, R. 34, of the Code of Civil Procedure, there is no Valid transfer. Therefore, if an effective transfer has taken place only after the execution of the deed of transfer, can it be said that this transfer is in exercise of the special powers given to the father under Hindu Law? Considering the question on principle, we should think that the execution of a transfer in exercise of the special privilege of the father must be an act of his volition. Incidentally, the date of the effect of the transfer will have a bearing upon the question as to whether the plain-tiff who was born after the date of the agreement and even after the date of the institution of the suit, can challenge the decree which would result in the alienation of Ihe property.
17. In 44 Ind App 126: AIR 1917 PC 61 their Lordships of the Privy Council pointed out that the power of the father to alienate the property in consideration of the antecedent debt is an exception to the general rule, namely, that no manager, qua manager can alienate the property except for a justifiable necessity. On pp. 131 and 132 (of Ind App): (on p. 63 of AIR) Lord Shaw, who delivered the judgment of the Court, observed:
'Although the correct and general principle be that if the debt was not for the benefit of an estate then the manager should have no power either of mortgage or sale of that estate in order to meet such a debt, yet an exception has been made to cover the case of mortgage or sale by the father in consideration of an antecedent debt.'
The decision in Sahu Ram Chandra's case, 44 Ind App 126: AIR 1917 PC 61 was explained in the 'subsequent case of Brij Narain v. Mangla Prasad, 51 Ind App 129: AIR 1924 PC 50 and some of the formulations in that case were dissented from in the latter case. One such proposition was that the attempt to affect the sons' and grandsons' share in the property in respect of pious obligation to pay off the father's debt during father's lifetime must fail and the second was that the power given to the father to alienate the property has arisen from the necessity of protecting the rights of third persons. Although on these two points the Full Board of the Privy Council differed from the view taken in Sahu Ramchandra's case, 44 Ind App 126; AIR 1917 PC 61 still the general proposition that the power of the father to alienate the property is an exception to the general rule remains unaffected. Taking their stand on this basis, their Lordships in Sahu Ram Chandra's case, 44 Ind App 126: AIR 1917 PC 61 proceeded to observe:
'This being an exception from a general and sound principle, their Lordship are of opinion that the exception should not be extended and should be very carefully guarded.'
We do not find any observation in 51 Ind App 129: AIR 1924 PC 50 to whittle down the effect of these two important observations. In fact, in Brij Narain's case, 51 Ind App 129: AIR 1924 PC 50 also, their Lordships pointed out that the law on the subject of what binds an estate when the manager of the joint family estate is the father, and the other members are the sons, is in a slate which is somewhat illogical and in the absence of binding authority could not be accepted. They then proceeded to point out the anomaly inherent in the situation and pointed out that the term 'antecedent debt' represents a more or less desperate attempt to reconcile the conflicting principles. Finally, they based their decision on the principle of stare decisis. At p. 137 (of Ind App): (at p. 55 of AIR), their Lordships observed.
'In such a matter as the present it is above all things necessary stare decisis, not to unsettle What has been settled by a long course of decisions.'
Although the cases supporting the alienation made by the father on the support of antecedent debt are legion, not a single case was cited where the doctrine of antecedent debt was invoked to support an agreement to alienate. We are, therefore, reluctant to extend the principle of antecedent debt for the purpose of enforcing an agreement by putting it on a par with legal necessity. It is one thing to say that an agreement of transfer can be specific fiscally enforced when it is entered into for a legal necessity and quite another to say that it can as well be enforced on the ground that the father has executed the same on the basis of an antecedent debt incurred by him for his personal benefit. The second alternative involves the extension of the principle of antecedent debt and we are not prepared to countenance any further extension of the doctrine of antecedent debts and pious obligation. After having executed the agreement, the father may not choose to alienate the property in fulfilment of the same. It is true that in execution of a decree for an unsecured debt obtained against the father, the property in the hands of the son can be subjected to an involuntary sale. In such a case. the question neither of legal necessity nor of antecedent debts arises for consideration. The only remedy of the son is to challenge the debt on the ground that it was incurred for an illegal or immoral purpose. But as soon as the father effects a voluntary alienation, the position becomes different and the question then arises whether the alienation is supported by an antecedent debt. This is the anomaly to which reference was made in Brij Narain's case 51 Ind App 129 : AIR 1924 PC 50. Whatever that may be, the distinction between an involuntary sale of the father's property for the satisfaction of his own debt and a voluntary disposition by him, is real and in the latter case the voluntary alienation can be supported on the ground of antecedent debt. In this connection, we may refer to a decision of the Allahabad High Court in Mt. Rameshra v. Kalpoo Rai, ILR 46 All 264: AIR 1924 All 538. That case arose soon after the case of 51 Ind App 129: AIR 1924 PC 50. In that case it was held that:
'An uncle, acting as manager of a joint family, is not entitled to sell the share of his nephew in the joint family property in order to discharge a debt incurred by his own father, even though the said father be also the grandfather of the nephew whose property is alienated.'
After referring to Brij Narain's case, 51 Ind App 129: AIR 1924 PC 50 in their judgment their Lordships observed:
'There is nothing in the principles laid down by their Lordships of the Privy Council in the case above quoted to warrant the view that an uncle acting as manager of a joint family is entitled to sell the share of his nephew in the joint family property in order to discharge a debt incurred by his own father, even though the said father be also the grand-father of the nephew whose property is alienated.'
It must be remembered that, in the above case, the debt was incurred by the grandfather, but the alienation was not effected by the father but by his uncle. The debt of the grandfather is on the same footing as of the father and both these debts are binding on the sons and grandsons upon the basis of a pious obligation. The Allahabad High Court, however, refused to countenance the alienation on the ground that the alienation is effected not by the father but by the uncle. It is clear that the father could not alienate the property for the satisfaction of the debt incurred by his father because the debt though incurred by the grandfather amounted to an antecedent debt. We are on general principles of Hindu Law, inclined to the view that a mere agreement cannot be put into force on the ground that the agreement was effected by the father for a consideration which was formed by his own antecedent debts.
18. Mr. Adhikari relied upon the analogy of the insolvency of the father and contended that just as on the insolvency of the father, his power to alienate the joint family property for his antecedent debts passes on to the official assignee or the receiver as the case may be, in the same way, the right of the father to execute a sale deed in pursuance of an agreement must pass on to the Court when a decree for specific performance has come to be passed provided, of course, it was supported by an antecedent debt. Sir Dinshah Mulla has discussed this question at Section 265(2), pages 400 to 403 of the Hindu Law. It is not necessary to refer to the cases which made distinction between the position arising under the Presidency Towns Insolvency Act and the position arising under the Provincial Insolvency Act in detail. It is sufficient to state that whereas it was held that the power of the father to alienate the property for his antecedent debts was held to have vested in the official assignee under Section 52(2) of the Presidency Towns Insolvency Act, such a position was not accepted under Section 25-A of the Provincial Insolvency Act by some of the High Court and, in particular, by the Madras and Calcutta High Court. The Legislature, therefore, intervened and incorporated a new section (Section 28A) which provided that the insolvent's property comprises certain capacity:
'The property of the insolvent shall comprise and shall always be deemed to have comprised also the capacity to exercise and to take proceedings for exercising all such powers in order or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge.'
19. In a recent case, the Supreme Court held that where a Hindu father who has mortgaged the joint family property for an antecedent debt which is not illegal or immoral becomes insolvent and the receiver sells the property, the interest of his sons in the property also vests in the purchaser. Nageswaraswami v. Viswasundara Rao, : 4SCR894 . We cannot, however forget that these decisions have proceeded on the interpretation of the words of Section 52(2) of the Presidency Towns Insolvency Act and Section 28A of the Provincial Insolvency Act and not on general principles prevailing in Hindu Law. On the other hand, the very fact that the Madras and the Calcutta High Courts held that the power of the father for alienating the property for antecedent debt does not vest in the receiver and that the Legislature had to intervene to make a special provision in that connection, is indicative that the power of the father is a special privilege given to him, qua 'father, and it is the father and father alone who must exercise it by a voluntary act of transfer.
20. What remains now to be considered is the question as to whether the incident that the agreement was executed by Mangilal before the birth of the plaintiff makes any difference to bis right to challenge the agreement. A mere agreement to alienate creates no interest. We cannot, therefore, consider the analogy of a case where the father alienated the property before the birth of a son. At the time when the son was born on 1-11-1946 the property continued to be vested in the father and as soon as the plaintiff was born, a coparcener was introduced in the family who had the capacity of taking the property by right of survivorship on the death of the father. In our view, the fact that the plaintiff was born after the institution of the suit also makes no difference to his right to challenge the agreement. Mr. Adhikari contended that the decree that was passed in a suit for specific performance will take effect from the institution of the suit. He went further and stated that the transfer deed effected in execution of the decree will also go back to the date of the institution of the suit. Mr. Adhikari drew our attention to the decision of the Calcutta High Court in Jahar Lal Bhutra v. Bhupendra Nath Basu, ILR 49 Cal 495: AIR 1922 Cal 412, In that case, the only question for consideration was whether the plaintiffs, who had obtained a decree for specific performance, could claim precedence over the defendant who purchased the property pendente lite and it is in that context that their Lordships observed at p. 499 (of ILR Cal): (at p. 414 of AIR) as follows:
'Consequently, when such a suit for specific performance is ended by a final decree transferring the title, that title relates back to the date of the agreement on which the suit is based, and the Court will not permit its decree to be rendered nugatory by intermediate conveyances.'
We are unable to understand how this observation supports Mr. Adhikari's argument that in every case the decree for specific performance as also the eventual execution of that decree goes back to the date of the agreement. Special mode has been laid down in Order 21, Rule 34, of the Code of Civil Procedure with regard to the execution of a decree for specific performance. It is clear that till the transfer deed is effected in pursuance of Order 21, Rule 34, of the Code of Civil Procedure, there is no valid transfer and before a valid transfer takes into effect, the plaintiff has been born in the family and is entitled to claim his share as a co-sharer during the lifetime of the father.
21. If that is so, the effect of the death of the father during the pendency of the litigation will be that the plaintiff would take the entire property by survivorship and the decree, therefore, cannot be availed of even against the share of the father. There is also a further difficulty in the way of the defendant No. 1 getting specific performance in respect of the father's undivided half share in the suit property. A lease executed by a co sharer is not binding on the other cosharers and it is open to the other cosharers to eject the lessee vide Kailash Pat v. Brij Gopal, : AIR1950All405 . In addition to the above position 'arising hi general law there is a special position arising under the Central Provinces Tenancy Act and it has been held by the Nagpur High Court in Sumera v. Pemchand, AIR 1918 Nag 164 and Maroti Kunbi v. Bapuji, AIR 1925 Nag 120 that there can be no tenancy within the meaning of the Central Provinces Tenancy Act of a share of land, if that share is not defined by metes and bounds.
22. Mr. Adhikari urged that if the decree is to be set aside, then a condition should be imposed upon the plaintiff that he pays back the amount of consideration of Rs. 8700/- received by his father. He pointed out that defendant No. 1 had prayed in the alternative in the previous suit that a money decree should be awarded to her, and the alternative prayer was not granted because the relief of specific performance was given to her. There is considerable substance in this line of reasoning. At fhe same time, in view of our finding that defendant No. 1 has failed to establish the existence of the debt, it will be difficult for us to impose an equitable condition, namely, that the decree should be set aside only in the event of plaintiff paying the sum of Rs. 8700/-. There is a further difficulty in the way of defendant No. 1 and it is this that defendant No. 1 has secured possession of the properties during the pendency of the present suit. The plaintiff will, therefore, be entitled to future mesne profits from the institution of the suit till the recovery of possession and we were told that the amount of future mesne profits will be considerably more than the sum of Rs. 8700/-. Considering the circumstances of the case, we are inclined to the view that the plaintiff should not be called upon to refund the sum of Rs. 8700/- as a condition for setting aside the decree for specific performance nor should he be entitled to claim future mesne profits in respect of the property in suit.
23. The result is that the appeal succeeds. The decree for specific performance in Civil Suit No. 9-A of 1946 is set aside, Defendant No. 1 is directed to deliver possession of the suit properties to the plaintiff forthwith. In the peculiar circumstances of the case, we direct that the parties should bear their respective costs of this appeal as also of the suit in the Courts below.
24. Appeal allowed.