1. This appeal arises out of a suit; for sale brought upon three mortgages. The first of these is dated the 25th of June, 1894,, and is for Rs. 6,200, the second dated the 30th of March, 1895, is for Rs. 3,000 and the third is dated the 8th of July, 1895, and is for Rs. 2,000. The suit was brought not-only against the mortgagor but also against his sons and grandsons. The latter contested: the claim and urged that their interests in the mortgaged property could not be affected by the mortgages.
2. The Court below found in respect of the first mortgage of the 8th of July, 1895, that necessity for incurring the loan for the benefit of the joint family had been established and made a decree for the amount of that mortgage to be realised by sale of the mortgaged, property. As regards this part of the decree there is no controversy in this appeal.
3. As regards the second mortgage, namely, that of the 30th of March, 1895, the Court below was of opinion that although the debt was not tainted with immorality, it had not been proved that it was incurred for family necessity. The claim in respect of that mortgage was accordingly dismissed. In view of the recent Full Bench ruling in Chandra Deo Singh v. Mata Prasad 6 A.L.J. 263 : 1 Ind. Cas. 479 : 31 A. 176 (F.B,) and the opinion of the majority of the Judges constituting the Full Bench, it must be held that the Court below has rightly decided that the burden of proof was upon the plaintiff. As the plaintiff failed to prove that the mortgage was made for the benefit of the family his claim was rightly dismissed. Mr. Sundar Lal, the learned Advocate for the appellant, does not contest the correctness of the lower Court's finding as to the non-existence of necessity for the loan. He, however, raises the question whether in respect of this debt a decree should not be passed for sale of the father's interests in the mortgaged property, the debt not being tainted with immorality. This question I will consider later.
4. It is conceded that having regard to the fact that the period of limitation for a personal decree against the father expired before the suit was instituted, a decree for the recovery of the amount of this bond personally from the father and generally from the family property cannot be passed, the claim for such a decree being time-barred.
5. There remains the mortgage of the 25th of June, 1894, the amount secured by which was Rs. 6,200. This amount consists of a sum of Rs. 3,116-4-3 due under previous mortgages, dated the 4th of February, 1893, and the 24th of March, 1893, and a sum of Rs. 3,083-11-9 paid in cash on the date of the mortgage. The lower Court held that out of the sum of Rs. 3,083-11-9 mentioned above, necessity for incurring the loan had been proved to the extent of Rs. 1,500, only. On this point no argument has been addressed to us impugning the finding of the Court below. The learned Subordinate Judge, however, has overlooked the fact that Rs. 3,116-4-3, part of the consideration for this mortgage, consisted of antecedent debts for which the mortgagor was competent to mortgage the whole of the family property, the debt not being tainted with immorality. Mr. Chaudhri for the respondents concedes that the Court below ought to have passed a decree for this sum of Rs. 3,116-4-3 and interest thereon from the date of the mortgage, in addition to the amount for which a decree has been made on account of this mortgage. The appeal, therefore, should succeed so far as the item of Rs. 3,116-4-3 mentioned above, and interest thereon is concerned. It is urged on behalf of the appellant that in respect of all the three mortgages a decree should be passed for sale of the interests of the mortgagor in the mortgaged property. In the view which I held in the Full Bench case referred to above this contention would be sound, but I feel myself bound by the decision of the majority of the Full Bench. The Calcutta High Court has no doubt held that in a case like this a decree may be made for the sale of the father's interest in the mortgaged property, but according to the view of the majority of the learned Judges who constituted the Bull Bench of this Court it would be inconsistent to hold that the interest of the father can be sold and that the father was competent to make a mortgage of his own interest only. The learned Chief Justice said in his judgment 'It follows from this that if the mortgage in suit is not binding in toto it is not binding as to the mortgagor's share in the mortgaged property;' and the opinions of the other learned Judges seem to be to the same effect. In their opinion this conclusion is in consonance with the decision of their Lordships of the Privy Council in Balgobind Das v. Narain Lal 15 A. 339 : 20 I.A. 116 The plaintiff is not, therefore, entitled to a decree for sale of the interests of the father in their mortgaged property. As regards the mortgage of the 25th of June, 1894, also the claim for a personal decree was time-barred, having been instituted after the expiry of 6 years from the date on which the debt; became due. Therefore, the only decree which the plaintiff can get as regards that mortgage is a decree for Rs. 3,116-4-3, and interest thereon in addition to the amount for which the Court below has made a decree in respect of that mortgage.
6. The result is that the appeal will be allowed so far that to the amount decreed by the Court below in respect of the first mortgage dated the 25th June, 18894, should be added the sum of Rs. 3,116-4-3 mentioned above and the decree will be for the principal sum of Rs. 4, 616-4-3 together with interest thereon at the stipulated rate from the date of the mortgage, namely the 25th of June, 1894, to the date fixed for payment and there after at the rate of 6 per cent, per annum. In other respects the decree of the Court below in regard to this mortgage will be upheld. As regards the mortgage of the 30th of March, 1895, the claim will stand dismissed. As regards to the whole mortgage of the 8th of July, 1895, the plaintiff will be entitled to the amount secured by that mortgage together with interest from the 8th of July, 1895, to the date hereafter fixed for payment at the rate stipulated in the mortgage and thereafter at 6 per cent. per annum. The costs in this Court and the Court below will be paid by the parties in proportion to the failure and success, including in this Court fees on the higher scale. We fix the first of October, 1909, as the date for payment of the mortgage money. The decree of this Court will be drawn up in the form prescribed by Order 34 of the Code of Civil Procedure and should separately specify the amount due upon each of the mortgages in respect of which the claim is decreed and the property to be sold for realisation of that amount.
John Stanley, C.J.
7. I agree in the proposed order. As to the contention that the father's share at least in the mortgaged property is liable to be sold, it seems to me that this question is concluded by the decision of the Privy Council in Balgobind Das v. Namin Lal 15 A. 339 : 20 I.A. 116. It was in that case held that according to the law as administered by the Courts of this Province a member of a joint family cannot validly mortgage his undivided share in ancestral property held in co-parcenary on his own private account without the consent of his co-sharers. In view of this decision we are bound to hold that the mortgage by the father which was not made to satisfy an antecedent debt or for a legal necessity of the family is not binding even as to his share in the ancestral property comprised in it.