1. After stating facts the judgment proceeded:
In the Munsif's court the Munsif freed the ancestral property from the obligation of the mortgage, but gave a decree by which the mortgage money was to be recovered from the pre-emptive property which by that time had passed into the possession of the family as joint family property. It is that decree which in appeal to-day the appellants ask us to restore.
2. The question, therefore, before us is whether in an ordinary case a Hindu father can encumber joint ancestral property to acquire the necessary funds to pre-empt other property. In our opinion he cannot do so. The first authority which was called to our notice by Mr. Sheo Prasad Sinha was the case of Palaniappa Chetty v. Deivasikamony Pandara A.I.R. 1917 P.C. 33. The passage on which reliance is placed is not an attempted definition of what is meant by 'benefit to the estate' but is a passage giving illustrations of what in the ordinary course would be likely to be accepted by a Court as instances of 'benefit to the estate'. Their Lordships of the Privy Council said : 'The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits'. Now all of those matters are rather in the nature of a shield; that is an expense which arises and which has to be met in order to keep alive the whole of the ancestral property or some portion of it. There is nothing in either of those illustrations which supports the view that a Hindu father can voluntarily go forward and initiate litigation for the purposes of extending the boundaries of his property, and having succeeded in that litigation and having obtained a pre-emption decree, which gives him liberty to do something, can thereby raise money and encumber the ancestral joint family estate. This particular passage quoted above was referred to by a Bench of this Court in a case to be found in Bhagwan Das Naick v. Mahadeo Prasad Pal A.I.R. 1923 All. 298, where the learned Judges having quoted what already appears above in inverted commas, gave this interpretation of their view of the passage. 'There is nothing in these remarks to encourage the notion that an adventure in the shape of a 'speculative suit which might possibly bring profit to the estate, could properly be regarded as a 'benefit to the estate1 or a 'legal necessity'. 'Their Lordships' observations rather import that any act for which the character of 'legal necessity' or 'benefit to the estate' can be claimed must necessarily be a defensive act, something undertaken for the protection of the estate already in posssssion, not an act done with the purpose of bringing fresh property in possession and 'which may or may not be successful under the chances attending upon litigation'. We agree with the view taken by this Court, and the position on the 10th of June, 1915 was that the father was under no obligation whatever to raise any money at all. There is no evidence that it was required for any protection of his estate. It was a voluntary act of acquisition, which might or might not have been a good bargain had he had the ready money to acquire the property, but was, in our opinion, certainly an act which he could not be permitted by Hindu law to do, if it involved, as it did, the creation of a mortgage of the joint ancestral family property.
3. The nature of a pre-emption decree has recently been considered in the case of Chatarbhuj v. Govind Ram A.I.R. 1923 All. 218. In that case a decree for pre-emption had been obtained and a mortgage of joint family property executed, and the question arose whether the pre-emption decree constituted an antecedent debt. The Court in giving judgment pronounced against the view that it was an antecedent debt and added : 'When all is said and done, the pre-emption decree merely gave Govind Ram the option of acquiring certain property at a certain price. He was laid under no obligation to acquire the property unless he chose. It seems to us that it would be very dangerous to hold that the money required to satisfy the pre-emption decree was an antecedent debt due from Govind Ram on the date on which each of these mortgages, respectively was executed.'
4. Mr. Haribans Sahai has brought to our attention the case of Tula Ram v. Tulshi Ram (1920) 42 All. 559. The facts of that case were that the lender was endeavouring to recover his money from the mortgagor on the ground that the lender had made due and proper enquiries and had been told and believed that the money was being applied in the purchase of certain property. Unknown to the mortgagee in the purchase money for the property had already been provided from some other source but he was not aware of that, and it was accepted that the purchase was a proper purchase and beneficial to the plaintiff. In our view what the Court was considering there was the consequences which were to follow from the enquiries made by the lender and the acts of the borrower in applying the money unknown to the lender for a different purpose from that for which he had professed to borrow. It seems to have been conceded that the Hindu father had a right to acquire fresh property and mortgage the ancestral property as a security for that loan. The 1917 case, Palaniappa Chetty v. Deivasikamony Pandara A.I.R. 1917 P.C. 33 which we have already referred to, was not brought to the attention of the Court and the transaction was not impeached by any one on the lines that the father had not the power to encumber the estate. We think that case does not controvert the general line of authority which is indicated in Palaniappa Chetty v. Deivasikamony Pandara A.I.R. 1917 P.C. 33, is continued in Bhagwan Das Naik v. Mahadeo Prasad Pal A.I.R. 1923 All. 298 and the reasoning and consideration of the nature of a pre-emption decree given in the case of Chatarbhuj v. Govind Ram A.I.R. 1923 All. 218 For these reasons wa are of opinion that the appeal must be allowed and the decision of the Munsif restored; and inasmuch as we think that the respondents should have accepted that decision as the right decision when it was given, the costs here must be paid by the respondents.