Stuart and Kanhaiya Lal, JJ.
1. This appeal arises out of an execution proceeding and the question for consideration is whether the property in dispute was liable to attachment and sale in execution of a decree, obtained against Kallu Singh personally. The objectors are the son and grandsons of Kallu Singh, who had been exempted by the decree from liability. They contest the right of the decree-holders to attach the family property.
2. It appears that Kallu Singh, Nathu Singh and Maru Singh took a lease of certain property from Pirthi Singh and executed a mortgage to secure the payment of the lease money. The mortgage purported to hypothecate certain properties belonging to the lessees. As the lease money was not paid, a suit was filad by the lessor for the recovery of the money due to him against Kallu Singh and the present respondents, who are the legal representatives of the other lessees. The present respondents paid the entire decretal money and saved their property and the property of Kallu Singh from sale.
3. They then filed a suit for the recovery of the share of the lease money; payable by Kallu Singh, making the son and grandsons of Kallu Singh, namely the present appellants, parties to that suit. The latter contested the claim on the ground that the lease was not taken for the benefit of the family and that they were not liable to pay the money due under the decree. The finding of the court in that suit was that the lease was a speculative and risky transaction, not binding on the family. The claim of the respondents was accordingly decreed against Kallu Singh personally and the present appellants were exempted from liability.
4. In execution of that decree the property, which had been hypothecated by Kallu Singh for the payment of the rent secured by the lease, was attached and sought to be brought to sale in satisfaction thereof. The appellants objected to the said attachment, urging that they had already been exempted from liability under that decree; but the courts below held that by reason of the pious obligation that rested on them to pay the debts due by Kallu Singh, the decree could be executed against the entire family property.
5. The liability of a son or grandson to pay a debt by his ancestor, which is not-tainted with immorality or was not taken for illegal purposes, cannot, however, be enforced so long as the original debtor is alive and is capable of paying his debts. According to Vrihaspati, if the father is no longer alive, the debt must be paid by his sons. Vishnu, says:-- 'If he who best contracted the debt, should die, or become a religious ascetic, or remain abroad for twenty years, the debt shall be discharged by his sons or grandsons, but not by remoter descendants against their will.' A similar injunction is laid down by Narada, who declares:-- 'After the father's death his sons, whether divided or joint, must discharge his debt in proportion to their shares.' So says Yajnavalkya:-- 'If a father has gone abroad or died or is subdued by calamity, his debt shall be paid by his sons and grandsons. On their denial the debt must be proved by witnesses.' Commenting on this passage, the author of the Mitakshara observes:-- 'If the father, without paying the debt which is due, dies or goes to a distant country, or is afflicted with an incurable disease an the like, then his debts must be paid by his son and grandson by reason of their sonship and grandsonship, even if no assets of the father or of the grandfather have been left. The liability will be in this order. In default of father, the Son, and in default of son, the son's son must pay. In case of denial by the son or grandson, the debt being proved by the testimony of witnesses and the like, must be paid by them.' He then goes on to discuss how far a debt due by the father could be enforced, if he has gone abroad, and says:-- 'By the text 'If a father has gone abroad' the payment is merely enjoined, but the specific time for payment, as declared by Narada, is to be observed. The father, or, if the family be undivided, the uncle or the elder brother, having gone abroad, the son shall not be forced to discharge the debt until twenty years have elapsed.' It is obvious, therefore, that the liability of a son to pay the debt due by his father cannot be enforced, until the father has died or has gone abroad and has been so long absent as to render a reasonable expectation of his return practically impossible, or has become physically disabled by reason of disease to earn his living and discharge his liabilities. As West and Buhler point out:-- 'It is impossible that of the numerous texts, treating of debts contracted for the family, and of the sons' liability as survivors of their father, all should have omitted to mention their liability during the father's life, had the liability been recognized.' (West and Buhler's Hindu Law, 4th edition, p. 598.)
6. During the life-time of the father, apart from any question of family benefit or necessity, the liability of a son to pay a debt due by his father is only contingent. The existence of that liability, contingent or vested, has been utilized to build up the doctrine of antecedent debt to validate a mortgage or sale effected by the father to pay such debt; and in many cases, a creditor has been allowed to recover a debt due by the father from the entire family property, if not tainted with immorality, as if the liability were concurrent. In Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437 their Lordships of the Privy Council remarked that too little weight had been attached to the consideration that so far as the joint family estate was concerned, the law had been invoked for the benefit of third parties, whose rights in, or with regard to, it had been acquired in good faith, and not for the protection of the creditors. They repelled the attempt made to support the mortgage on the theory of pious obligation and observed:-- 'While the father remains in life, the attempt to affect the sons' and grandsons' shares in the property in respect merely of their pious obligation to pay off their father's debts, and not in respect of the debt having been truly incurred for the interest of the estate itself which they with their father jointly own, must fail; and the simplest of all reasons may be assigned for this, namely that before the father's death he may pay off the debt, or after his death, there may be ample personal estate, belonging to the father himself, out of which the debt may be discharged.'
7. If the attempt to enforce a mortgage on the theory of pious obligation fails, the right to attach the family property during the life-time of the father on the strength of that pious obligation can be still less recognized, because if no pious obligation exists, it must be as insufficient to support the one as to support the other.
8. In Jai Narain v. Bajrang Bahadur (1918) 48 Indian Cases 914 and Ram Singh v. Chet Ram (1919) I.L.R. 41 All. 529 it was held in respect of certain antecedent debts, credited by a transferee in a subsequent transaction, that there was no pious obligation on the sons or grandsons of the transferor to pay those debts, while their father was alive. In Bharath Singh v. Prag Singh (1917) 20 Oudh Cases 811 it was held that where there was no suggestion that the debt was incurred for the benefit of the family, it was only the father's share, and not the entire family property inclusive of the share of the sons, that could be sold in execution of a personal decree against the father while the father was alive. In Manna Lal v. Bhagwan Din and Sheodhan Singh v. Bhagwan Singh (1921) I.L.R. 48 All. 496 the same view was adopted.
9. The lower appellate court relies on the decision in Sripat Singh v. Tagore (1916) L.R. 44 I.A. 1; but that was a case in which the property had passed out of the family by an auction sale held in satisfaction of a debt which was found to be binding on the family, and different considerations were therefore applicable. It cites a passage from that judgment, which forms a part of the statement of the grounds of action rather than of decision, and the question now at issue was not in issue there. A reference has also been made to the decisions in Gadadhar v. Ghana Shyam Das (1917) 47 Indian Gases 212 and Hari Ram v. Bishnath Singh (1900) I.L.R. 22 All. 408 but in the former case the property had already passed out by sale, and in the latter case the debt was found to. have been incurred for the benefit of the family.
10. The decisions in Madhusudan Das v. Iswari (1920) I.L.R. 48 Calc 341 Peda Venkanna v. Sreenivasa Deekshatulu (1917) I.L.R. 41 Mad. 136 and Hanmant Kashinath v. Ganesh Annaji (1918) I.L.R. 43 Bom. 612 have also been brought to our notice, along with a decision of this Court in Mohan Lal v. Bala Prasad Ex. F.A. No. 158 of 1920. But all those decisions proceed on the principle that the decision of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R., 39 All. 437 could not be deemed to have overruled the previous decisions of their Lordships in the earlier cases, and in two of them the learned Judges profess to abide by the earlier decisions till there was some further pronouncement on the part of their Lordships. It is necessary here to observe that the earlier cases were either cases) in which the property had passed out of the family by sale, to which different considerations applied, or cases in which an attempt had been made to enforce a mortgage, after the death of the mortgagor, against his sons.
11. In Girdharee Lall v. Kantoo Lall (1874) I.R. 1 I.A. 321 the property had already passed out of the family for a consideration, the bulk of which had been taken for valid necessity. In Mussamut Nanomi Babuasin v. Modun Mohun (1885) I.R. 13 I.A.. 1 their Lordships of the Privy Council pointed out that sufficient care had not always been taken to distinguish between the question how far the entirety of the joint estate was liable to answer the father's debt and the question how far the sons could be precluded by proceedings taken by or against the father alone from disputing that liability, and they declared that the decisions had for some time established the principle that the sons could not set up their rights against their father's alienation for an antecedent debt or against his creditor's remedies for their debts, if not tainted with immorality. In Bhagbut Pershad v. Musumat Girja Koer (1888) L.R. 15 I.A. 99 Meenakshi Naidu v. Immudi Kanaka Ramaya Kounden (1888) L.R. 16 I.A. 1 and Rai Babu Mahabir Pershad v. Rai Markunda Nath Sahai (1889) L.R. 17 I.A. 11 the ancestal property had similarly passed out of the family by virtue of execution sates, the validity of which could not have been questioned except on the ground that the debts in satisfaction of which the sales took place had been incurred for illegal or immoral purposes. It is unnecessary to refer to the decisions in Karan Singh v. Bhup Singh (1904) I.L.R. 27 All. 16 Babu Singh v. Bihari Lal (1908) I.L.R. 30 All. 156 and Indar Pal v. The Imperial Bank (1915) I.L.R. 37 All. 214 because the authority of those decisions has been shaken by the later decision of their Lordships of the Privy Council in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437.
12. If a further pronouncement was needed, it is supplied by the recent decision of their Lordships in Chet Ram v. Ram Singh (1922) I.L.R. 44 All. 368 where the view taken by this Court in Ram Singh v. Chet Ram (1919) I.L.R. 41 All. 529 on this matter has been affirmed. In that case a mortgage of the family property made by a grandfather was followed by a sale by him of the equity of redemption to the mortgagee three years later, which was attested by his sons and on the validity of the mortgage and the subsequent sale being questioned by the grandsons of the mortgagor or vendor, their Lordships repelled the contention that although by the rules ol the Mitakshara a mortgage was at its date an invalid deed in so far as purporting to encumber the joint family property, yet when it purported to be the consideration of a sale, it became then a just and legal consideration on the principle of 'anlecedent debt.' They then proceeded to consider whethor by reason of the doctrine of pious obligation the liabihty of the family property could be enforced, and after referring to their decision in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All., 437 in which a similar appeal to the pious obligation doctrine was made during the father's life-time, observed that the doctrine could not be invoked against grandsons in the life-time of sons. The doctrine of antecedent debt, resting as it does on the theory of pious obligation, is only intended for the protection of third parties, who may have acquired rights in good faith in the family property, and if a vendee cannot invoke it for validating a sale effected in lieu of an invalid antecedent mortgage in his own favour, it is still less open to a creditor, whose mortgage has been declared to be invalid, to recover the debt represented by that mortgage, while the mortgagor is alive, from the shares of his sons, who have been exempted from liability, out of the very property the mortgage of which has been declared to be unenforceable. The debt, for the payment of which this liability is sought to be enforced, is in no sense an antecedent debt. It is the very debt, for the repayment of which the mortgage was made; and if the doctrine of pious obligation cannot be invoked to support the mortgage, it can hardly be invoked during the father's life-time to enforce the liability of the family property other than the interest of the debtor for its repayment.
13. We allow the appeal accordingly, and modifying the order passed by the courts below, direct that the execution shall not proceed against the shares of the appellants in the family property, such shares being two-thirds of the property attached and sought to be sold. The appellants will get their costs from the decree-holders respondents here and hitherto. The execution can proceed against the remaining one-third share of Kallu Singh.