1. [His Lordship, after setting out facts, continued:] The first question is, whether the suit is barred by res judicata by reason of suit No. 116 of 1910, in which all questions relating to the mortgage were decided as between the fathers of the plaintiffs and the mortgagees, the defendants. We are now only concerned with plaintiffs Nos. 1 and 2, sons of Pandurang; the other plaintiffs not being born at the date of the suit in 1910. The property is ancestral property and the trying Judge decided that the suit was not barred by res judieata, on the short ground that the present plaintiffs were not parties to the suit of 1910, and they claim not through their fathers but in their own right and that the grandsons take an inherent interest in the ancestral property as such.
2. The learned District Judge was of opinion that the defendant in the former suit (the fathers of the present plaintiffs) were held to be litigating in respect of a private right claimed in common for themselves and their children, and the present suit is, therefore, barred by Section 11, expl. 6, of the Civil Procedure Code. It is contended on behalf of the appellants that Section 11, expl. 6, has no reference to the facts of the present litigation, that all coparceners are necessary parties to a mortgage suit and that the present plaintiffs were not represented by their fathers. I have already pointed out that plaintiffs Nos. 1 and 2, the sons of Pandurang, who was defendant No. 1 in 1910, were alone born in 1910 and the question whether they were bound by the decree was considered in that suit. Exhibit 33 is the judgment of the appellate Court (District Court of Thana). In that suit, issue No. 3 was, whether the share of defendant No. 1's (Pandurang's) sons is responsible for the debt. The finding was in the affirmative The learned Judge said that though the minors were no parties, the Hindu joint family is represented in all its transactions by its karta and the sons by their father. Order XXXIV, Rule 1, does not interfere with the rule of Hindu law that the Hindu father can represent his sons. Having regard to the late stage when such an objection was raised for the first time, this contention cannot be allowed. The minor sons of defendant No. 1 are sufficiently represented by their father defendant No. 1. Compare Ramkrishna v. Vinayak Narayan I.L.R(1910) . 34 Bom. 354 . In that case the minor was not a party to the suit but he was represented by the adult members of the family and it was held that they represented him: of Govind v. Sakharam I.L.R(1904) . 28 Bom. 383 which, however, is not the case of a suit on a mortgage'. So far as appears from the report of the case in the High Court (Pandurang Narayan v. Bhagwandas Atmaramshet I.L.R(1919) . 44 Bom. 341 this point was not taken in the second appeal. It is argued on behalf of the appellants that Ramkrishna v. Vinayak Narayan rests on Ramasamayyan v. Virasami Ayyar I.L.R(1898) Mad. 222 and Lala Surja Prosad v. Golab Chand I.L.R.(1900) Cal. 724 and that this latter case was upset in Lala Suraj Prosad v. Golab Chand I.L.R(1901). Cal. 517. Ramkrishna v. Vinayak, however, has never been dissented from and is still good law and binding on me. Reference is also made to Ramchandra Narayan v. Shripatrao I.L.R(1915) . 40 Bom. 248 where it was held that the abatement of a suit by one member of an undivided Hindu family did not deprive his coparceners of the right to sue for redemption there being no indication that the suit was brought in any representative capacity. That, however, was the case of an adult coparcener, a brother, and not of the father and a minor son.
3. The appellants further relied on Debi Prosad Sahi v. Dharamjit Narayan Singh I.L.R(1914) . Cal. 727 where it was held that the karta of a joint Hindu family was bound in a suit on a mortgage to join as a party-one of the members of the family who had a joint interest with him in the mortgage. That also is the case of a major and the objection as regards parties was taken in the suit itself. The appellants also rely on Padmakar Vinayak Joshi v. Mahadev Krishna Joshi I.L.R.(1885) 10 Bom. 21 where the major brother of the plaintiffs during their minority had brought a suit to redeem the property in suit, which had been dismissed. It was held that the second redemption suit by plaintiffs was not barred as they were not sufficiently represented in the previous suit.
4. The respondents realy on Sheo Shankar Ram v. Jaddo Kunwar I.L.R.(1914) All. 383 where it was held by the Privy Council that the plaintiffs who sued to redeem a mortgage after foreclosure, on the plea that they had not been parties to the mortgage suit, were properly and effectively represented in the suit by the managing members of the joint Hindu family of which the plaintiffs were also members. Their Lordships saw no reason to dissent from the Indian decisions which showed that there were occasions including foreclosure actions when the manager of the joint Hindu family so effectively represented all the other members, that the family as a whole was bound, and were of opinion that it was clear on the facts of this case, on the findings of their Lordships, that it was a case where that principle ought to be applied. There was not the slightest ground for suggesting that the managers of the joint family did not act in any way in the interest of the family itself.
5. It is contended that this case was one where a foreclosure decree had been passed, which distinguishes it from the present ease. But the remarks of their Lordships of the Privy Council appear to be of general application. In the present case the father of the minor plaintiffs Nos. 1 and 2 was the principal contesting defendant and took every possible objection to the suit which he could have taken-including the objection that his minor sons should be made parties, though this seems to have been taken at a late stage of the case-as appears from the judgment of the first appellate Court, Exhibit 33. If the minor plaintiffs had been brought on the record they would have been represented by their father Pandurang and the result of the suit would have been the same. In these circumstances, in view of the rulings in Sheo Shanhar Ram v. Jaddo Kunwar and Ramkrishna v. Vinayak Narayan. I am of opinion that the plaintiffs must be held to have been represented by their father Pandurang in the previous litigation and, therefore, the matter 1b res judicata and cannot be re-opened. I am of this opinion apart from Section 11, Explanation 6, of the Civil Procedure Code, the applicability of which is perhaps doubtful. This is sufficient for the disposal of the appeal, but as the other question, namely, the maintainability of the suit has been argued at some length I will deal briefly with that also.
6. As to the maintainability of the present suit both the Courts below are of opinion that it is not maintainable, as the mortgage was for an antecedent debt and binding on the plaintiffs. The point has been argued at great length. The consideration of the mortgage in question was admitted and it was held by the High Court in Pandurang v. Bhagwandas that the object of this alienation by way of mortgage was to pay off the antecedent debts incurred by the father (Narayan) prior to the mortgage, These debts were partly due to the mortgagee himself and partly to others. This finding would appear to be a finding which concludes the matter, but the gist of the argument of the learned pleader for the appellants is that the observations of Shah J. in Pandurang v. Bhagwandas must be held to be incorrect in view of the rules laid down by the Privy Council in the subsequent case of Brij Narain v. Mangla Prasad .
7. In spite, however, of the lengthy and elaborate arguments advanced by the learned pleader for the appellants I am unable to see that Brij Narain's case overrules or dissents from any opinion expressed in Pandurang v. Bhagwandas. on the contrary, it supports the view expressed by Shah J. Five propositions were laid down by the Privy Council in Brij Narain's case, They are as follows (p. 139) :-
(1.) The managing member of a joint undivided estate cannot alienate or burden the estate qua manages1 except for purposes of necessity; but
(2.) If he is the father and the other members are the sons he 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.
(3.) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate
(4,) Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached.
(5.) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.
8. We are not concerned with the first and the fifth propositions. As it was not contended by the father of the present plaintiffs that the debt was for an immoral purpose the second proposition will apply. The consideration was admitted as is shown by the report in Pandurang v. Bhagwandas and it consisted of Rs. 700 due to the mortgagee and Rs. 799 borrowed to pay off debts due to others, It was held by this Court that the object of this alienation by way of mortgage was to pay off the antecedent debts incurred by the father prior to the mortgage, These debts were partly due to the mortgagee and partly to others. I see no reason to suppose that the view of this Court that these were antecedent debts in fact as well as in time is not in accordance with the fourth proposition laid down by the Privy Council in Brij Nayarain s case.
9. The learned pleader for the appellants has relied on a Full Bench case of the Allahabad High Court in Jagdish Prasad v. Hoshyar Singh : AIR1928All596 in which it is laid down that the word ' debt' in proposition No. 2 in Brij Narain'e case does not include mortgage debt. In that case, however, it was held that there was no antecedent debt, whereas in the present case there is a finding of this Court that there was an antecedent debt, and the presort case ia distinctly covered by proposition No. 3 in Brij Narain's case, which lays down that if the father purports to burden the estate by a mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate. The mortgage in the present case being to discharge an antecedent debt, will bind the estate. In these circumstances I am of opinion that the case is distinctly within the ruling in Brij Narain's case. The mortgage debt is, therefore, binding on the minor plaintiffs, and the suit is consequently not maintainable. The appeal will, therefore, be dismissed with costs.