John Beaumont, Kt., C.J.
1. This is an appeal by defendant No. 4 against a decision of the First Class Subordinate Judge of Belgaum. The plaintiff was suing to enforce a mortgage for securing the sum of Rs. 9,200 dated August 13, 1928, executed in his favour by defendant No. 1 purporting to act for himself and as guardian of defendant No. 4, though he was not such guardian. The defence was that the mortgage was not binding on any of the defendants other than defendant No. 1 because it was not for legal necessity or for the benefit of the estate. The learned Judge held that the mortgage was binding on all the defendants.
2. Defendant No., 1 was the manager of the joint family which comprised defendants Nos. 2 and 3, who were his sons, and defendant No. 4, who was the son of a deceased brother of defendant No. 1. The contention of defendant No. 4 in this appeal is that the mortgage in suit was procured in order to pay off antecedent debts of defendant No. 1 and that those antecedent debts were not incurred for the benefit of the estate and accordingly they are not binding on him.
3. There is a very well established distinction between the powers of a manager in respect of the shares of coparceners who are his sons and in respect of the shares of other coparceners. The manager who is a father can charge the joint family property with the payment of his own antecedent debts not tainted with immorality because the sons are under a pious obligation to discharge their father's debts and that obligation can be enforced against the family property ; but a manager who is not a father has no right to mortgage the family property for the payment of his own debts. A full board of the Privy Council considered the whole matter in Brij Narain v. Mmgta Prosod , and recognized the existence of that distinction.
4. Mr. Jahagirdar for respondent No. 1 has contended that the plaintiff is not bound to prove that the antecedent debts were for necessity. He says that once he establishes that the mortgage was raised in order to pay off the antecedent debts of defendant No. 1, it is unnecessary to consider whether those debts were incurred for necessity or not. That argument really ignores the distinction to which I have just referred between a manager who is a father and any other manager. Mr. Jahagirdar has however pressed upon us in support of his argument the decision of the Privy Council in Niladri Sahu v. Mahant Chaturbhuj Das . The members of the Board in that case had all been members of the full board which decided Brij Narain v. Mangla Prasad, so that it is plain that the later decision cannot have been intended to conflict in any way with the earlier decision The facts in Niladri Sahu v. Mahant Chaturbhuj Das were that the shebait of a math had raised certain monies which were spent upon the math. They were secured by bonds and carried interest at a high rate. The mortgage which was in suit in that case was raised by the shebait in order to pay off the previous debts and the mortgage was raised at a lower rate of interest. The Privy Council held that even if the original debts were not incurred for the benefit of the math nevertheless the raising of a loam on more advantageous terms itself constituted the requisite benefit to the estate, and that it was not necessary therefore for the mortgagee to establish that the original debt had been for necessity. It is however quite plain from the reasoning of the Privy Council that they considered that the original debts were a charge upon the temple property. It would be for the benefit of the property to pay off an existing charge by raising monies at a lower rate of interest, but obviously it would not be for the benefit of the property to in cumber it in order to pay off debts which were not a charge on the property, and, though the fact does not emerge from the judgment, I think it plain that the Board must have been satisfied in that case that the original debts were a charge upon the property. Therefore, in my opinion, the decision in Niladri Sahu v. Mahant Chaturbhuj Das does not obviate the necessity of considering whether the antecedent debts in this case were incurred for necessity and were therefore binding upon defendant No. 4 who was not a son of the manager who incurred such debts.
5. A great part of the prior debt was raised on a promissory note dated September 13, 1923, and the money was raised, according to the terms of the note and the evidence given in this case, in order to purchase certain land. There is clear evidence that the purchase of this land was beneficial to the estate, although no doubt a manager is not justified in purchasing property merely because the purchase is a prudent one. In order to establish necessity, it is necessary to go rather further than that as decided in the full bench ruling of this Court in Hemraj v. Nathu : AIR1935Bom295 . But it is also to be noticed that the father of defendant No. 4 was alive and, according to the, evidence of defendant No. 1, he approved of the purchase, and the land purchased was cultivated in connection with other family property. It is true that defendant No. 4 was alive at the time of this purchase and therefore, being in his own right a coparcener, he was not technically bound by the consent of his father. But the fact that his father consented to the sale, coupled with the evidence as to its beneficial nature, is, I think, sufficient to establish that it was for the benefit of the estate so as to bind the coparceners.
6. Then a sum of Rs. 1,500 was raised on a promissory note dated November 24, 1925. The sum purports to have been raised for the protection of the family or for the needs of the family. There is evidence, as the learned Judge held, that the family was in need at that time and again defendant No. 4's father was alive, although it is not shown by positive evidence that he approved of the loan. The members of the family seem to have been on good terms with each other, and there is no evidence to show that he disapproved of the loan. I see no reason to disagree with the learned Judge's view that it was for the benefit of the estate so as to bind the coparceners.
7. Then a sum of Rs. 1,000 was raised on a promissory note (exhibit 76) dated May 11, 1926, and that purports to have been raised for performing some ceremony of the children. Now the evidence of defendant No. 1 is that one of his daughters and a sister of defendant No. 4 were married at the same time and that this loan was required for the purpose. The promissory note is dated May 11, 1926, and I think that the evidence of the mother of defendant No. 4 and of Gurvaya establishes that the marriages took place just about that time. The mother of defendant No. 4 says that her husband, i.e. the father of one of the brides, died at Dassera, some five or six months after the marriages, so that evidence fixes the date of the marriages as somewhere about May. It is true that there is no evidence as to the exact amount spent on the marriages; but at this distance of time one cannot expect to have evidence of the exact amount spent. I see no reason to differ from the learned Judge's view that necessity is established as to that sum also.
8. The only other sum is the sum of Rs. 520 which the plaintiff says that he was told was required for household expenses. The learned Judge held that the principle of the decision of the Privy Council in Sri Krishan Das v. Nathu Ram I.L.R. (1926) All.149 : 29 Bom. L.R. 825. applied to that sum. That was a case of a sale alleged to be for necessity and the Privy Council held that if it were shown that a sale was necessary, the sale could not be impugned by showing that part of the purchase money had not been applied for the benefit of the family and the sale must either be upheld on set aside and could not be held good in part and bad in part. In my opinion that principle does not apply to the case of a mortgage, but I think that a mortgage may be good to the extent that the mortgage money is applied for the benefit of the estate and bad beyond that amount. But having regard to the smallness of the sum involved in this case, it is in my opinion unnecessary to give any special directions as to this sum. Mr. Gumaste for the appellant does not dispute that.
9. In the result I think the appeal fails and must be dismissed with costs. Appellant to pay the costs of respondent No. 1. Court-fees to be recovered from the appellant.
10. I agree and have nothing to add.