1. The facts of the case are that a portion of plot No. 44 belonged to a joint Hindu family consisting of Salik Pande and his sons Bam Jag and Gajadhar. The father was the manager and Gajadhar was a minor. On the 2nd of July, 1890, the father and his son Ram Jag made a simple mortgage of the property in favour of Jagannath. Subsequently on the 31st of January, 1900, the father and some other co-sharers mortgaged the entire plot with possession to one Mangru. In 1903 Jagannath filed a suit for sale on the basis of his mortgage-deed, and obtained a decree for sale against the mortgagors alone. To that suit Gajadhar was not made a party. The property was sold in execution of the decree and was purchased by the decree-holder himself. The decree-holder subsequently sold the share purchased by him to Jadubir Pande, who got mutation of names effected in his favour.
2. It is however a fact that inasmuch as the plot in question was in the possession of the subsequent mortgagee, Jadubir Pande could not have obtained actual and effective possession over the property. Gajadhar and other minor members of his family brought this suit for a declaration that the execution sale, the auction-purchase and the transfer to Jadubir were not binding on them inasmuch as the mortgage of 1890 had been executed without any legal necessity. There was no allegation that the debt had been tainted wibh any illegality or immorality. The Court below decreed the claim. On appeal a learned Judge of this Court has dismissed the suit. He came to the conclusion that when the property had been sold in auction in execution of a decree against the father, then it was not open to his sons and grandsons to have the sale set aside on the mere ground that the debt on the basis of which the decree had been obtained had been without any legal necessity or not in lieu of any antecedent debt. It was further necessary for the plaintiffs to establish that that debt had been tainted with illegality or immorality. This was the view expressed by one of us in the case of Ram Chandar v. Haji Md. Nur A.I.R. 1923 All. 591, and is quite in conformity with the latest pronouncement of their Lordships of the Privy Council in the case of Brij Narain v. Mangla Prasad A.I.R. 1924 P.C. 50. In that case their Lordships entirely agreed with the view of the learned Chief Justice in the Full Bonch Madras case of Arumugham Chetty v. Muthu Koundan (1919) 42 Mad. 711 where it had bean held by him that an independent debt, neither immoral nor illegal, contracted by a father on the security of the joint family estate, antecedent to a mortgage sued on, could be treated as an antecedent debt so as to support a charge on the sons' shares also to the extent of the sums secured on the prior mortgage. That finding drew no distinction between a secured debt and a simple money debt. On the other hand that was a case expressly of a mortgage-debt. Their Lordships of the Privy Council at page 139 in 51 Indian Appeals laid down certain propositions as the result of the authorities referred to by them. The second proposition stands as follows:
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 proceeding upon a decree in payment of that debt.
3. 'It is obvious that if the word 'debt' in this proposition includes both a mortgage debt and a simple money debt, the appellants' contention cannot prevail, because the father, having incurred the mortgage-debt in question which was not for an immoral purpose, did lay the estate open to be taken in execution of the mortgage decree passed for the payment of that debt. The learned Vakil for the appellants, however, contends before us that the word 'debt' there only means a simple money debt and not a mortgage-debt, and relies on the wording of the proposition No. 5 where it is stated that there is no rule that the result is affected by the question whether the father, who contracted the debt or burdens the estate is alive or dead. In our opinion this argument cannot be accepted. Their Lordships in the proposition No. 5 were clearly referring to all the previous contingencies and had therefore to use both the expressions.
4. It is not necessary for us to consider what logical results would follow from this interpretation of the second proposition. The propositions have been laid down recently in order to settle further disputes, and we are bound to accept them as they stand. I am therefore clearly of opinion that it is not open to the present plaintiffs to have the decree, the auction sale and the subsequent transfer set aside specially when rights of a third party have come in without establishing that; the secured debt had been tainted with illegality or immorality. The mere fact that they were no parties to the litigation or that the debt was not incurred for legal necessity or in lieu of an antecedent debt, is no ground for setting aside the decree and the subsequent sale.
5. I entirely agree, I wish to say just a few words having regard to the importance of the question involved. The two propositions, viz., a father cannot borrow money on the security of the joint family property without establishing the case of legal necessity, and he can allow the very property to be sold in satisfaction of a debt of his own, not incurred for family necessity, if the debt be not secured on any family property, would appear to be contradictory on principle. Yet there can be no doubt that such is the Anglo-Hindu Law established beyond all possible controversy. The pure Hindu Law did not regard a loan secured on a mortgage, as different from a loan without such security. It prohibited a sale or gift of family property only without justification. Under Anglo-Indian law a mortgage became to be regarded as an alienation and hence the rule of Hindu Law against an alienation by the father was applied. This will probably explain the contradictory nature of the two rules. It would follow from these two propositions, which are undoubtedly correct, that where a debt is incurred on the security of the family property and to realise the debt the property is sold, the result is the same as if the family property had been sold in execution of a simple money decree obtained against the father for a debt purely personal to himself. Such being the case we can easily see why their Lordships of the Privy Council did not make any mention of a case where property is sold out of the family in execution of a mortgage decree obtained against the father alone. If they were not of opinion that the word 'debts' in proposition No. 2 at page 139 Brij Narain Rai v. Mangla Prasad Rai A.I.R. 1924 P.C. 50 did not include both a simple debt, and a secured debt, they would certainly have said something, whatever it might be, as regards a debt secured by mortgage, where a decree had been passed on foot of it and the decree had been executed effectually by sale. I entirely agree that the propositions of law have been clearly laid down for the purpose of guidance of the Courts in India by their Lordships of the Privy Council, and we ought loyally to administer them as good law till the propositions are re-considered (if ever) and a contrary opinion is expressed.
6. The order of the Court is that the appeal is dismissed with costs.