1. This is an appeal by the plaintiff in a suit for a declaration that certain transactions consisting of three mortgages made by his father in respect of which an award decree had been obtained between him and his creditor and two sale-deeds of other properties were not binding on the plaintiff as they were without legal necessity as well as for immoral and illegal consideration.
2. The plaintiff was born in 1918. Some time before that, his father, who is defendant No. 4 in this case, had separated from his uncle and had got lands yielding about Rs. 1,800 per year. He had no business except cultivation of those lands. Very soon after the partition defendant No. 4 began to purchase properties out of the income of his lands and for that purpose he incurred several mortgage debts. The first debt was incurred in June, 1926, by mortgaging two of the lands, for Rs. 5,000 to defendant No. 1's father. About three months later he passed a second mortgage to the same person of other lands for Rs. 2,000, and in May, 1927, he passed a third mortgage of all the remaining lands in his possession to the same person, for Rs. 10,000. In the next year on July 7, 1928, he passed a sale-deed of two of his lands to defendant No. 1's father for Rs. 8,000, and about ten years later in 1938 he passed a sale-deed of one land to defendant No. 1 for Rs. 700. In respect of the three mortgage deeds defendant No. 1's father brought a suit against the plaintiff's father alone, the matter was referred to arbitration and an award decree was passed on December 20, 1928, under which Rs. 19,906 were to be paid to the plaintiff for the mortgage debt and Rs. 2,568 were to be paid for certain money debts. The amount was to be paid by several instalments, and in default of payment of two instalments, the whole amount was to be recovered by sale ofthe mortgaged property. The said property was also kept as a charge for the money debt. It was further provided that if there was any deficit after the sale, it was to be recovered personally from defendant No. 4.
3. On October 11, 1930, the then plaintiff, i.e. the present defendant No.1's father, brought a darkhast to recover Rs. 25,717 which comprised the decretal amount with interest. The mortgaged property was sold in execution and most of it was purchased by defendant No. 1's father himself. A sale certificate was granted to him on April 27, 1932. Two of the lands were purchased by defendants Nos. 2 and 3. The darkhast was finally disposed of as the decree was satisfied on September 21, 1932. Thereafter the present suit was brought by the plaintiff on August 26, 1939, after he became major. Defendant No. 1, his father having died in the meanwhile, wasimpleaded as the main defendant and the plaintiff's father was joined as defendant No. 4. The plaintiff asked for a partition and possession of his half share of the property sold in execution of the award decree as well as by the two private sales on the ground that the sales were not justified by legal necessity and that the transactions for which the debts were incurred by his father were also illegal and immoral. The defence was that all the properties in suit were not ancestral properties of the plaintiff's father but some were acquired by the father himself, that the transactions which were sought to be impeached were all justified by legal necessity, nor were the father's debts illegal or immoral, that the award decree as well as the, auction sale were binding on the son in any case on account of his pious obligation to discharge his father's debts, that the private sales were for legal necessity and that therefore the plaintiff was not entitled to any relief. Defendant No. 4, the father, supported the defendants in some particulars but he contended that there was no consideration for some of the suit transactions.
4. The material issues framed by the lower Court on those pleadings were whether the three mortgages were for legal necessity as well as for the payment of antecedent debts, whether the debts were proved to be illegal and immoral, whether the sale under the award decree was binding on the plaintiff, and whether the two sale-deeds passed by the plaintiff's father to defendant No. 1s father were for legal necessity and antecedent debts. The learned Judge held on the evidence that the first and the third mortgages were substantially not for legal necessity but the second mortgage was, and that none of the mortgage debts was bad on the ground of illegal or immoral consideration. He further held that even though the first and the third mortgages were not justified by legal necessity, the plaintiff cannot challenge the auction sale which took place under the award decree which was also a personal decree against the father because he was under a pious obligation to discharge the father's debts even though they might not be for legal necessity as they were not incurred for illegal or immoral purposes. With regard to the two sales the learned Judge was of the opinion that both of them were justified by legal necessity and were not incurred for illegal or immoral purpose and that therefore they were binding on the son. As a result the suit was dismissed.
5. The plaintiff has now come in appeal to this Court against the decree dismissing the suit. The finding of the lower Court that none of the debts or sale-deeds is vitiated by illegality or immorality has not been challenged by Mr. Jahagirdar who appeared for the plaintiff-appellant. The findings with regard to the first and the third mortgages were in his favour, and he attacked the finding about the second mortgage that it was for legal necessity. He further contended that the three mortgages being without legal necessity, the son's interest would not be bound by the auction sale in execution of the award decree, even though it was not proved that the debts were illegal or immoral. On that point of law Mr. Jahagirdar has addressed an elaborate argument before us and his contention in substance is that the present case is covered by the decision of the Privy Council in Brij Narain v.Mangla Prasad . The learned Judge below has held that that decision does not govern the facts of this case because in that case their Lordships were concerned with the binding nature of the mortgage on the son while here the question is whether he is bound by a sale which has already taken place in execution of the; mortgage decree. He has therefore held that the five propositions laid down in Brij Narain's case do not cover the case of setting aside an execution sale which is governed by certain previous decisions of their Lordships under which a son cannot challenge the transaction when the rights of an auction-purchaser had come into existence in execution of the decree. On that basis the learned Judge has distinguished the decisions in Jagdisk Prasad v. Hoshyar Singh I.L.R. (1928) All. 136. and Aswan v. Ganpat : Gampat v. Asman (1938) 40 Bora. L.R. 946 and has held that the present case is governed by the decisions in Gajadhar Pande v. Jadubir Pande I.L.R. (1924) 47 All. 122 and Jahan Singh v. Hardat Singh I.L.R. (1934) 57 All. 357 which were both cases where the mortgage decree had already been executed and the property passed into the hands of the auction-purchaser against whom the son cannot succeed even though the debts were not for legal necessity. Against this reasoning, the main contention of Mr. Jahagirdar before us has been that the five propositions in Brij Ndrain's case were meant to apply not only to mortgage debts and mortgage decrees but also to cases where a sale had taken place in execution of mortgage decrees. He further contends that proposition No. 2 applies only to the case of an unsecured debt and does not apply to the case of a mortgage which is governed by proposition No. 3. The second proposition is that if the managing member is the father and the other members; are the sons, the father may by incurring debt so long as it is not for an immoral purpose lay the estate open to be taken in execution proceedings upon a decree for payment of that debt; and the third proposition is that if he purports to burden the estate by a mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate. It is urged that the word ' debt' in proposition No. 2 must be construed as meaning an unsecured debt only because the case of a secured debt was expressly provided for in the next proposition. That being so, the estate is bound to be taken in execution proceedings only where it is sold in payment of an unsecured debt, but where there is a mortgage unless it was to discharge an antecedent debt, it would not bind the estate. In other words, the pious obligation of the son to discharge the father's debt cannot arise in the case of a mortgage debt unless it was to discharge an antecedent debt. For that argument Mr. Jahagirdar has placed reliance upon certain observations in the full bench case of Jagdish Prasad v. Hoshyar Singh (supra). In that case Mr. Justice Sulaiman, Acting Chief Justice, was of the opinion that the word ' debt' in the second proposition meant all kinds of debts, while the two other Judges, Mukerji and Boys JJ. took the view that it meant a money debt only. In a very recent decision of our High Court, Bharmappa Murdeppa v. Hanamantappa Tippanna : AIR1943Bom451 , an opinion is expressed by the learned Chief Justice, agreeing with Sulaiman Ag. C.J., that the word 'debt' in the second proposition covers all forms of debts including secured debts. We think, however, it is not necessary on the facts of the present case to decide this point, because in our opinion neither of these two propositions apply to cases where execution sales had already taken place. Even though Mukerji J. took the view in jagdish Prasad's case (supra) that the 'debt' meant a money debt only in the second proposition, he expressly states in his judgment that (p. 146):
their Lordships did not say anything about the rights of an auction purchaser at a Court sale and his right will have to be found from earlier decisions, unless we have some guide in the five propositions applicable to the particular case that may arise for decision.
6. Boys J. also observes (p. 163):-
I am not in, this case concerned tot consider what would be the consequences of a sale in pursuance of the execution proceedings or a voluntary sale by the father to satisfy the decree.
7. It will thus appear that in both the cases on which reliance has been placed on behalf of the appellant, i.e. Brij Narain v. Mangla Prasad (supra) as well as Jagdish Prasad v. Hoshyar Singh (supra), what was challenged was a mortgage or a mortgage decree and not a sale held in execution of that decree, and that makes a material difference with regard to the rights of the son as against the creditor. As early as 1879 in case of Suraj Bunsi Koer v. Sheo Proshad Singh I.L.R. (1878) 6 I.A. 88 their Lordships had laid down two propositions as deduced from the previous decision in Girdharee Lall v. Kantoo halt : Muddun Thakor v. Kantoo Lall (1874) L.R. 1 I.A. 321. They were, firstly, that where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they were able to show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted ; and, secondly, that the purchasers at an execution sale, being strangers to the suit, if they have no notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings. It is true that on the facts of that case it was held that the debts were illegal and immoral and that therefore the son was not bound. But in discussing the law on the point their Lordships reiterated those propositions which were established in Girdharee Lall's case (p. 333). Thereafter, following the decisions in Girdharee Lall v. Kantoo, Lall, Muddun Thakoor v. Kantoo Lall (supra), Suraj Bunsi Koer v. Sheo Proshad Singh (supra) and Mussamut Nanomi Babuasin v. Modun Mohun (1885) L.R. 13 I.A. 1, their Lordships in Bhagbut Pershad v. Mussumat Girja Koer (1888) L.R. 15 I.A. 99 reaffirmed the same principle. That was also a case of sale having taken place in execution of a mortgage decree, and it was held that where the sons claimed against a purchaser of an ancestral estate under an execution against their father upon a debt contracted by him, it was necessary for the sons to prove that the debt was contracted for an immoral purpose, and it was not necessary for the creditor to show that there was a proper enquiry or to prove that the money was borrowed in a case of necessity. Thereafter in Rai Babu Mahabir Pershad v. Rai Markunda Nath Sahai (1889) L.R. 17 I.A. 11, which was - also a case of a mortgage decree and a sale held thereunder, their Lordships followed Bhagbut Pershad v. Mussumat Girja Koer (supra). The Allahabad High Court followed all these decisions of the Privy Council in Jahan Singh v. Hardat Singh (1934) I.L.R. 57 All. 357. That was also a case similar to the present one where the property had passed outside the family in execution of a mortgage decree. A previous decision in Gajadhar Pande v. Jadubir Pande (1924) I.L.R. 47 All. 122 was followed and the full bench decision in Jagdish Prasad v.Hoshyar Singh (supra) was distinguished on the ground that in the latter case the sale had not taken place, and that therefore it did not fall within any of the propositions laid down in BrijNentis case. Very recently the Chief Court at Karachi has also decided to the same effect in Sugnomal v. Chuhermal [19391 A.I.R. Sind 297. All these authorities are uniform and there is no decision brought to our notice which is contrary to the principle reaffirmed in Bhagbut Pershad's case (supra).
8. Mr. Jahagirdar's contention, however, is that the former decisions must be deemed to have been impliedly overruled by their Lordships in Brij Narain's case in which they meant to lay down principles governing all cases. We think, however, that it would be too much to assume that their Lordships intended to depart from or overrule the previous decisions which had been consistently followed throughout without even referring to them in their judgment. Nor, indeed, was it necessary for their Lordships to express any opinion about the former decisions because in Brij Narain's case they were not concerned with the rights of an auction-purchaser having come into existence after execution sale. They were only considering the binding nature of a mortgage debt as between the sons and the father's creditors. Proposition No. 3 is quite clear on this point. All that their Lordships say therein is that if the father purports to burden the estate by a mortgage, it would not bind the estate unless the mortgage was to discharge an antecedent debt. That means that the mortgage would not be binding on the estate, but the pious obligation of the son to discharge the father's debt does not rest on any liability attaching to the estate; it is a personal obligation enforceable against all property inherited from the father. If, therefore, there is any decree against the father, whether a mortgage decree or a personal decree, it would be binding on the son on account of the pious obligation. It is urged that it is illogical to absolve the son in case of a mortgage or an unexecuted mortgage decree where the mortgage is without legal necessity and to bind him on the same mortgage if the decree is executed. The case law has, however, made a difference between the liability of the son for the mortgage and his liability on a decree on the same mortgage creating also a personal liability of the father. In the latter case it becomes a personal debt of the father which the son is bound to pay apart from legal necessity. As their Lordships have stated in Brij Narain's case the theory of antecedent debt represents more or less a desperate attempt to reconcile the conflict of principles between the rights of the son and the rights of the creditor. As their Lordships also observed in that case, ' in such a matter it is above all things necessary stare decisis, not to unsettle what had been settled by a long course of decisions '. It appears to us therefore that their Lordships did not intend to overrule the decisions relating to the rights of the auction-purchaser once the property had been sold under the mortgage decree. It is enough to say that the present case is governed by the decisions in Suraj Bunsi Koer's case (supra) and Bhagbut Per shad's case, and not by the decision in Brij Narain's case (supra).
9. It is, however, contended that in the present case the auction purchaser is not a stranger but the mortgagee himself, and he purchased the property with the knowledge that the three mortgages were without legal necessity, and therefore the decision in Suraj Bunsi Koer's case (supra) and the other decisions following it are not applicable. For that argument reliance is sought to be placed on the full bench decision in Luchmun Doss v. GiridhurChowdhry (1880) Cal. 855.. One of the answers to the questions referred to was that under the circumstances of that case the mortgagee could not be considered as a bona fide purchaser for value and would not be entitled to the property except to the extent of the father's interest as against the son. There it was held on the facts that the zurpeshgi lease given by the father to the mortgagee and the sub-lease taken by him was merely a device by the father to raise money and to continue in possession of the property and it was not shown for what purpose the money was raised. The mortgagee had obtained a mortgage decree against the father alone and had purchased the property himself at the execution sale. The question was whether he was entitled as a bona fide purchaser for value to hold the property as against the son even during the life-time or after the death of the father. The answer was that the mortgagee being not a bona fide purchaser for value was not entitled to the property as against the son except to the extent of the father's interest. In the first place, that case is distinguishable from the present case as it cannot be said that the mortgagee was not a bona fide purchaser for value even assuming there was no legal necessity. But even apart from that, the answer is capable of meaning that the mortgage debt as such was not binding on his son. If so, it would be quite correct. No reasons are mentioned for the answer given, and we are therefore left to speculate whether it was held that the mortgage decree as such was not binding on the son or whether even as a 'personal debt of the father for the deficit after the latter's interest was sold, it was not binding on the son. The Privy Council decisions in Mussamut Nanomi Babuasinv. Modun Mohun (supra) and Bhagbut Pershad v. Mussumat Girja Koer (supra), however, make it clear that even where the decree holder is the execution purchaser, he has not to prove legal necessity for the debt in order to make the sale binding on the son, but the latter has to prove its illegality or immorality for exempting his share from sale. We think, therefore, that the full bench decision in Luchman Dass v. Girdhur Chowdhry (supra) cannot help the appellant's case.
10. Mr. Jahagirdar has lastly relied on an unreported decision of this Court in Bhar-mappa Murdeppa v. Hanmantappa Tippanna : AIR1943Bom451 , (since reported), which I have referred to above. In distinguishing the decision in Jogindar Singh v. The Punjab and Sindh Bank, Ltd., Amritsar I.L.R. (1939) Lah. 96 from the facts of that case, the learned Chief Justice has observed that the Lahore view under which the son's interest is liable to be sold even though a sale had not taken place had a certain attraction inasmuch as it holds that the father's interest and the son's interest can be sold in one sale instead of two different sales one after the other. A distinction was made between a mortgage decree with the stipulation that if the entire amount was not satisfied, the plaintiff was to recover from the defendant personally, and a mortgage decree directing that on sale of the property the mortgagee was to be at liberty to apply for a personal decree for the balance not recovered, and the opinion was expressed that in the former case the son's interest cannot be sold along with the father's. The property was not sold in execution and the rights of the auction purchaser had not therefore arisen. The decision, therefore, does not govern the present case. But even so, it would appear that the former decision of our Court in Dattatraya Vishnu v. Vishnu Narayan I.L.R. (1911) Bom. 68 : 13 Bom. L.R. 1161 was not brought to the notice of the Court. In that case it was observed, following the earlier decisions of the Privy Council as well as of our own High Court that in most cases the practice was to direct a single sale in such circumstances and that such a single sale would not be illegal. It is difficult to say why a decree which directs that the property mortgaged by the father should be sold in execution of the mortgage decree against him and the deficit, if any, to be recovered from him personally should not be regarded by itself as a personal decree against the father for the deficit entitling the decree-holder to sell the son's interest also in one sale. The decree-holder would be at liberty to sell the father's interest in the mortgaged property, and thereafter he would be entitled to sell the remaining property including the son's interest therein because of the personal decree against the father. Instead of having two sales, i.e. the first sale of the father's interest in the mortgaged property and a subsequent sale of the son's interest in the remaining property, there is no reason why the whole of the property cannot be sold in one sale when it is not established that the debt was not binding upon the son. We are of the opinion that in the present case there is a personal decree against the father, and that therefore the son's interest in the property is bound on account of his pious obligation to discharge the debt. Whether the father's interest should be sold first before selling the son's interest is an academic question as the whole property has been already sold.
11. We therefore hold that the learned Judge below was right in his decision that the son's interest was properly sold in the execution sale.
12. The next point is with respect to the sale of two fields by the father on July 7, 1928. Two Survey Nos. 142/2 and 63|2B were sold thereby, for Rs. 8,000 to defendant No. 1's father. It is recited in the sale-deed, exhibit 76, that Rs. 3,000 had been previously taken by the vendor and Rs. 5,000 were paid before the Sub-Registrar. The consideration for the sale is stated to be the loss in the kamat, i.e. agricultural establishment, for the1 future kamat expenses and for the payment of the debts owed by the vendor to people. It is stated that there was no other alternative left but to sell the land and hence the sale-deed was passed. According to law this sale-deed would not be binding on the son unless it was either justified by legal necessity or was made for paying antecedent debts. The learned Judge is of the opinion that it is justified by legal necessity. He relies upon the deposition of the father, defendant No. 4, in which he has stated that there were several debts which he owed to people and this particular sale-deed was made in order to make payments to them. Then the learned Judge relies upon the fact that there were decrees obtained by defendant No. 1's father against defendant No. 4 and also by one Shivbasappa which decrees were for an aggregate amount of Rs. 7,000. It appears that the first Survey No. 142/2 was purchased by the father on April 10, 1928, for Rs. 5,200, and the second field, Survey No. 63|2B, was purchased in 1921 for about Rs. 2,500. The learned Judge is of the opinion that this purchase must have been made with ancestral funds, and we think that that view is correct, because there is nothing to show that defendant No. 4 had any moneys of his own from which he could have made those purchases. In fact, it appears that he was in the habit of purchasing and selling lands from time to time. Whatever may be the legal character of the purchaser originally made, once he purchased the lands and incorporated them in the family estate, he would be entitled to sell them only if there was legal necessity or if the sales were made for paying antecedent debts. It may be noted that this sale-deed, exhibit 76, was passed on July 7, 1928, within about fourteen months after the passing of the third mortgage for Rs. 10,000. The field, Survey No. 142|2, was purchased, as I said, on April 10, 1923, and it was sold away within three months by the sale-deed in July, 1928. This circumstance would certainly throw a heavy burden on the creditor to prove that there was necessity for the sale, and the statements made by defendant No. 4 in his evidence do not satisfy us that those two lands were sold for payments of these debts. None of the creditors mentioned by defendant No. 4 has been examined, and defendant No.1's gumasta admits in his deposition that defendant No. 4 at the time of the sale did not give them details of the amounts required for the several purposes, and that the purchaser did not make any enquiry about the details. It is to be noted here that these two properties were sold to defendant No. 1's father not to pay off his previous debts, but as the recital in the deed is, to pay off the debts of other persons. It was, therefore, necessary for the purchaser to make enquiry as to the nature of those debts and the purpose for which the sale was to be made. Admittedly no enquiry was made, and there does not seem to be reliable evidence of any legal necessity in fact. There is no doubt on the evidence that as a matter of fact this amount of Rs. 8,000 had not been utilised for the purpose of paying debts of the alleged creditors. It is true that the creditor is not bound to see to the application of the money which he lends, but at the same time he is bound to make reasonable enquiries and be satisfied that there was necessity. We think, therefore, that the burden which lay on the purchaser has not been satisfactorily discharged by him and that it has not been proved that this sale has taken place in discharge of any antecedent debt or that there was any legal necessity for the same.. The plaintiff is not, therefore, bound by this sale transaction, and he would be entitled to a half share in these lands by partition.
13. As a result, therefore, the decree of the lower Court is varied by directing that the sale-deed, exhibit 76, dated July 7, 1928, is not binding on the plaintiff and that he is entitled to a half share by partition in Survey Nos. 142/ 2 and 63|2B. The rest of the decree is confirmed. The plaintiff will get mesne profits of these two survey numbers from the date of the suit. Costs in proportion in both the Courts.