1. This is a defendant's appeal from an order of remand passed by the Civil Judge of Jaunpur in an appeal from the decision of the Additional Munsif of Jaunpur, dated 6th January 1937. Jagdeo, father of the plaintiffs, Earn Sanmukh Misir and others, made a mortgage in favour of Rajeshwar Dube, defendant, in the year 1928, mortgaging certain joint family property. The mortgagee sued for mortgagee possession of the property. The only defendant to the suit was Jagdeo, mortgagor. One of the pleas which Jagdeo raised in that case was that he was representing the joint family of himself and his sons and that the mortgage was without legal necessity. The trial Court of the Munsif framed an issue about legal necessity and found that except for a sum of Rs. 15 the mortgage was for legal necessity. In the end the suit for mortgagee possession was decreed. Subsequently, the sons of the mortgagor brought a suit for a declaration that the mortgage made by their father was not binding upon them as it was without consideration and without legal necessity and further that if any consideration was paid it was given for immoral purposes. The trial Court of the Munsif dismissed the suit on the ground that the sons were effectively represented by their father in the previous suit on the mortgage and the decision in that suit operated as res judicata in the subsequent suit by the sons. In appeal the learned Civil Judge reversed the decision of the Munsif, holding that the sons were not parties to the previous litigation and the pleas on which the sons now seek to avoid the alienation were not open to the father and consequently the interest of the sons remained unaffected by the judgment against the father in the previous case. The lower Appellate Court accordingly remanded the case to the trial Court for decision on the merits. Hence this second appeal.
2. In appeal before me learned Counsel for the mortgagee appellant has referred to the cases in Kazim Ali Khan v. Om Prakash : AIR1937All731 and Dharup Raj Misir v. Ram Audesh Missir : AIR1935All452 and has contended that because the father was previously sued in a representative capacity therefore the decision against Mm in that suit would bind the sons. The cases referred to above are no authority for the contention that a decree passed against the father for a debt contracted by him, even though the debt be not for family necessity or be illusory, immoral or illegal operates as res judicata and is binding upon the sons. Although it may not be legally necessary to implead the other coparceners in a suit by or against the manager, yet they would be proper parties to such a suit. Further, the right of the coparceners to object not on the ground of non-joinder but on the ground of the debt being not binding on them or as, being tainted with illegality or immorality is not affected by the proceedings to which they have not been made parties. It makes no difference that in the present case the father did as a matter of fact raise the plea about want of legal necessity and the trial Court wrongly allowed him to raise it and also gave a finding on it. It is elementary law that it is not open to an alienor to impeach his own alienation. In Debi Singh v. Jia Ram (1903) 25 All. 214 Banerji J. observed as follows:
In the cage of Hindu sons who were not party to the proceedings (under which the sale took place in execution of a decree obtained on foot of a mortgage made by the father) the mere fact of the sale having been held and confirmed does not preclude them from questioning the validity of it upon grounds which under the Hindu law would relieve them of the obligation which that law imposes upon them to pay their father's debts;
in other words that the debt was not of such a nature as to justify a sale of their interests also. The learned Judge relied' in support of his view on the following obseri. nations of their Lordships of the Privy Council in Nanomi Babuasin v. Modhun Mohun (1886) 13 Cal. 21:
It appears to their Lordships that sufficient care has not always been taken to distinguish between the question how far the entirety of the joint estate is liable to answer the father's debt and the question how far the sons can be precluded by proceedings taken by or against the father alone from disputing the liability. If the debt was of a nature to support a sale of the entirety he might legally have sold it without suit or the creditor might legally procure a sale of it by suit. All that the sons can claim is that not being parties to the sale or execution proceeding they ought not to be debarred from trying the fact or nature of the debt in a suit of their own.
2. Reference may also be made to the observations in Ram Krishna Narayan v. Vinayak narayan (1910) 34 Bom. 354 at p. 357, Ramasamayyan v. Virasami Ayyar (1898) 21 Mad. 222 at p. 225 and Surya Prosad v. Golab Chand (1900) 27 Cal. 724 at p. 743 where it was held that if a son after a decree being obtained against the father upon a mortgage executed by the latter sues to have it declared that his share, is not liable to satisfy the decree he cannot succeed unless he proves that the debt was contracted for immoral or illegal purpose or was of an illusory character. For the reasons stated above I hold that the suit of the sons is not barred by the rule of res judicata and the decision of the lower Appellate Court is correct. The appeal thus fails and is dismissed with costs. Leave to file Letters Patent appeal is refused.