1. The material facts to be considered in this case are as follows:
On the 8th of October, 1904, Bachu Singh, the defendant No. 2 executed a simple mortgage deed in favour of the first defendant Sheo Nandan Misir.
2. Admittedly the property which was hypothecated under this document was joint family property.
3. On the 22nd of September, 1916, with the object of satisfying the debt which was due under this earlier mortgage, Bachu Singh executed a mortgage with possession in favour of the same mortgagee. It was recited in this deed that the sum of Rs. 12,265 was owing on the earlier mortgage. A further sum of Rs. 400 was recited to have been taken in cash at the time of the execution of the mortgage for necessary expenses and for the completion of the document. The total mortgage debt secured upon this second mortgage was thus a sum of Rs. 12,725.
4. The suit out of which this appeal arises has been brought by the son and two grandsons of Bachu Singh for the purpose of avoiding this latter mortgage. There were allegations in the plaint to the effect that Bachu Singh, the defendant No. 2, is a man of licentious and extravagant habits. It was further alleged that the mortgage in suit had not been executed for legal necessity or for any other purpose which would be binding upon the plaintiffs. It was, therefore, prayed that the mortgage transaction of the 22nd of September, 1916, should be set aside. At the same time, the plaintiffs expressed their willingness to pay to the defendant No. 1 any sum which the court might find to be owing to him on the ground that it represented money which was taken for purposes binding upon the family.
5. In the result, the learned Subordinate Judge dismissed the suit for the setting aside of the mortgage. He has given the plaintiffs a decree for redemption on payment of the full amount, that is to say, Rs. 12,725.
6. The Subordinate Judge definitely found, and we agree with this finding, that there was no reliable proof whatever that Bachu Singh is a licentious or extravagant man. The evidence which was led by the plaintiffs on this point is altogether vague and unsatisfactory.
7. The plaintiffs come here in appeal and we have heard Dr. Agarwala at length on their behalf. In fact,, we have had the case up twice for argument.
8. It seems to us that this appeal is concluded by the principles which have been laid down by their Lordships of the Privy Council in their recent judgment in the case of Brij Narain v. Mangal Prasad (1923) I.L.R. 46 All. 95
9. The question to be considered is whether this mortgage, which the plaintiffs now seek to have set aside, was entered into for the purpose of discharging an antecedent debt.
10. It must be admitted that, as the law stood under the ruling in Sahu Ram Chandra's case (1917) I.L.R. 39 All. 437, the debt incurred under the earlier mortgage of 1904 would not have been treated as an antecedent debt for the simple reason that that debt was incurred by the father on the security of the joint family property.
11. The learned Subordinate Judge was, therefore, right in holding that this earlier mortgage debt could not constitute an antecedent debt within the meaning of the ruling just referred to. He dismissed the suit, however, on other grounds mainly concerned with the burden of proof. He was of opinion that the plaintiffs had failed to discharge, what he thought was, the onus which lay upon them, and it was for this reason that he ordered that a decree for redemption should be prepared.
12. Returning to the question of antecedent debt, it seems to us plain from this recent decision of their Lordships that the definition of 'antecedent debt' which was given in Sahu Ram Chandra's case (1917) I.L.R. 39 All. 437 has been materially altered. As we read this latest pronouncement of the Full Board of the Judicial Committee, we understand antecedent' debt to mean merely a debt which is antecedent in fact as well as in time, that is to say, a debt truly independent of and not part of the transaction impeached. In the concluding portion of the judgment, their Lordships laid down five propositions which govern all cases of this kind and the definition which has just been quoted is recited in proposition No. 4.
13. It cannot, therefore, be doubted that the debt which was raised by the mortgage of 1904, must now under this recent ruling be treated as an antecedent debt.
14. It has, however, been argued strenuously before us that we ought not to treat this earlier debt as an antecedent debt because, at the time the mortgage of 1916, was executed, no suit for the recovery of the debt owing under the earlier mortgage would have lain against the father. A suit to recover the money from the father as a personal debt would have been barred by the rule of limitation. We are asked, therefore, to hold that because in the year 1916, when the transaction which is now being impeached was entered into, the earlier debt had become time-barred, we ought to hold that the debt was not in reality an antecedent debt.
15. This is a question of some difficulty and there is no direct authority upon the point. There can of course be no doubt that a personal obligation incurred by the father in the year 1904 under a registered deed could not have been enforced after a period of six years had elapsed.
16. It is, however, well understood that though the remedy which the creditor has may be extinguished, the debt may nevertheless subsist, and, even after the period of limitation for a suit' for recovery of the debt has passed, the creditor has a right to receive the sum due to him from his debtor if the latter is disposed to pay him.
17. It is further clear that a payment made to discharge a time-barred debt could not in law be recovered by the debtor, and further it is to be observed that the payment of a time-barred debit by a Hindu father could not in any sense be treated as an improper act or, to use the stock phrase, a transaction tainted with immorality. In this recent case which was before their Lordships of the Privy Council, it is clear from the facts that the personal obligations incurred by the father were still enforceable inasmuch as the earlier debts had been contracted within a period of between two and three years prior to the date of the mortgage in suit.
18. Here, as we have pointed oui, the earlier debt was incurred in 1904, while the mortgage in suit is of the year 1916.
19. Bearing in mind, however, that the liability of the son for payment of the father's debts rests upon a pious duty, it may well be doubled whether the sons in this instance could be heard to say that they are not bound by the payment which their father made in order to discharge an earlier debt although, the recovery of that debt' was barred by the law of limitation.
20. It is well settled that an alienation made by a Hindu widow for the purpose of discharging a debt due by her husband is binding on the reversioner even though the recovery of the debt which was discharged had become time-barred at the time of the transfer made by the widow. This principle has been laid down in a number of cases e.g., Kondappa v. Sabba (1889) I.L.R. 18 Mad. 189, Chimnaji Govind Godbole v. Dinkar Dhondev Godbole (1886) I.L.R. 11 Bom. 320, and Udai Chandar Chuckerbutty v. Ashutosh Das Mozumdar (1893) I.L.R. 21 Calc. 190.
21. In these cases it was held that the discharge of a husband's debt, whether barred or not, was a pious duty of the widow and that an alienation made by her for the payment of such a debt would be binding upon the reversioners. It was said in the judgment in the Bombay case that the moral obligation resting upon the widow could not be obliterated by the circumstance that the law of limitation barred or did not bar a suit against the widow for the recovery of the debts. It is no breach of duty on the widow's part if she pays a debt which is time-barred.
22. If these principles hold good in the case of a widow, it appears to me that they ought to hold equally good in the case of a son who is also under the pious obligation of discharging the debts of his father.
23. It is true, as we have pointed out, that the father here is still alive, but under the recent Privy Council ruling that circumstance in no way affects the liability of the sons. It has now been definitely settled that the pious obligation which binds the sons can be enforced even in the life-time of the father.
24. It seems to me, therefore, that if the father in his life time chooses to discharge an antecedent debt, although the recovery of that debt would have been impossible under tihe law of limitation at the time the father discharges it, the sons ought to be held to be bound by the father's transaction. Clearly they cannot impeach the act of the father on the ground that it is tainted with immorality. As has been pointed out, there can be no suggestion of immorality regarding a transaction which is entered into for the purpose of discharging a debt although the debt is time-barred.
25. If the true rule is that the moral obligation to pay the debt is not removed by the circumstance that under the statute law the recovery of the debt has become time-barred, it is obvious in the present case that if the father had not paid off this antecedent debt in his lifetime, the obligation on the sons to pay it would still remain. It has, however, so happened that the father has before his death discharged the debt and so relieved his sons from the pious obligation just referred to. In these circumstances I think the proper view to take is that the debt which was discharged by this later mortgage of 1916 was an antecedent debt for which the sons were liable. In my opinion, therefore, the plaintiffs were not entitled to have this mortgage set aside.
26. With regard to the decree for redemption which has been passed by the court below, no objection has been raised in the memorandum of appeal. We notice, however, that the decree is not in proper form. According to the provisions of Order XXXIV, Rule 7, (see also appendix D, form No. 5, the form for a preliminary decree for redemption), the mortgage being a usufructuary mortgage in this case, the proper decree to pass was that if the money were not paid on or before the date fixed, the property would be sold. The office ought, therefore, to prepare a preliminary redemption decree in the proper form and allow six months from the date of this Court's decree to the plaintiffs to deposit the mortgage money.
27. The learned advocate for the plaintiffs has strongly urged that the present case must be distinguished from the recent Privy Council case on the ground that the personal remedy to enforce the debt under the deed, dated the 8th of October, 1904, in lieu of which the mortgage deed in suit was executed had become time-barred. While conceding that a conveyance by the father id lieu of his own antecedent debts is fully binding on his sons, he contends that debt must be a legal and subsisting debt at the time when the conveyance is made. He has pointed out that out of all the reported cases in which the doctrine of an antecedent debt has been affirmed, there is not a single case in which a debt on which the personal remedy of the father had become barred by time was treated as a good antecedent debt for upholding a conveyance in lieu of it.
28. There is certainly this thing to be said in favour of this contention that all the previous cases which have been brought to our notice were either cases in which a simple money decree had been obtained against the father and in execution of it the property had been sold at auction, or cases where before the expiry of the six years and before his personal liability had become barred by time, joint property was transferred by the father.
29. Reliance has been placed on the following passage in the judgment of Lord SHAW, in the case of Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437:-- 'Although the correct and general principle be that if the debt was not for the Benefit of an estate then the mortgagor should have no power either of mortgage or sale of that estate in order to meet such a debt, yet an exception has been made to cover the case of mortgage or sale by the father in consideration of an antecedent debt. This being an exception from the general and sound principle, their Lordships are of opinion that the exception should not be extended and should be very carefully guarded.'
30. The contention is that, there being no direct precedent for holding that the debt of the father on which the personal liability has become barred by time is such an antecedent debt as to support an alienation in lieu of it, the exception should not be extended.
31. It cannot be disputed that the strict Hindu law recognized no bar of limitation. On general principles, therefore, it would make no difference whether the remedy had become barred by the Statute of Limitation or not. But the argument on behalf of the plaintiffs is that though there may be a religious obligation on the sons to be bound by their father's debt, which is neither illegal nor immoral, nevertheless they are entitled to claim the benefit of statutory enactments. If a debt has ceased to be a legal and enforceable debt against the father the liability of the sons to pay it must also be deemed to have ceased. There cannot be much doubt that if a suit against the father were time-barred, the creditor would not be allowed to pursue his remedy against the sons on the basis of the doctrine of their pious obligation to pay it. This was clearly laid down in the case of Narsingh Misra v. Lalji (1901) I.L.R. 23 All. 206 and this principle has been consistently followed. Stanley, C.J., in his leading judgment in the Full Bench case of Chandradeo Singh v. Mata Prasad (1909) I.L.R. 31 All. 176, remarked:-- 'A son admittedly may be successfully sued for the debt of his father on the basis of his pious obligation to discharge his father's debts, provided that the suit be not barred by limitation, and a decree passed in such a suit may be enforced in execution by the sale of ancestral property of the family.'
32. On the other hand, it must also be conceded that when a debt becomes time-barred, the debt itself is not extinguished but the right to recover it becomes barred. There is nothing immoral or illegal in the debtor paying off such a time-barred debt. In fact, under Section 25, Sub-clause (c), of the Indian Contract Act 'a promise made in writing and signed by the person to be charged therewith to pay wholly or in part a debt of which a creditor might have enforced payment but for the law for the limitation of suits, is not considered void as being without consideration.' If, therefore, a father previous to the deed of transfer had given a promise in writing undertaking to pay his time-barred debt, his personal liability would be revived and such liability could be enforced against his sons.
33. The point pressed before us, however, is that in the preseni case the father had not in any such way revived his personal liability before the conveyance was executed, that is to say, there was no subsisting personal debt of the father which could have been legally enforced just before this deed of transfer and independently of it. It is pertinently asked whether a sale-deed by a father in lieu of some old debt, more than 12 years old, on which all remedies have become time-barred, would be considered to be a conveyance in lieu of an antecedent debt so as to bind the sons. I am not prepared to say that such a conveyance would be a good conveyance.
34. Knox and Piggott, JJ. In the case of Indar Singh v. Sarju Singh (1911) 8 A.L.J. 1099, laid down that a mortgage-deed executed by a father of a joint Hindu family in consideration of an antecedent debt which had become time-barred was not binding upon the sons. I am inclined to agree with the view expressed therein. When a debt has become time-barred it has ceased to be a legal debt, and, even though the Hindu law does not recognize the principle of limitation, I see no ground for holding that the sons cannot take advantage of the statute of limitation which makes such a debt unenforceable. If such a debt had been tried to be enforced against the father or the sons, the suit could not possibly have been decreed on the basis of any pious obligation. Can such an unenforceable obligation: be deemed to be an antecedent debt for validating a subsequent transfer?
35. The soundness of the decision in Indar Singh v. Sarju Singh was somewhat doubted in the case of Harihar Baksh Singh v. Bharat Prasad (1913) 20 Indian Cases 590, but the latter case was one in which previous to the transfer there had been a promise in writing by the father undertaking to pay his previous debt. On the same ground the case of Narayanasami Chetti v. Samidas Mudali (1883) I.L.R. 6 Mad. 293 is distinguishable inasmuch as there too the father had executed a promissory note in lieu of a previous time-barred debt. The same can be said about the case of Ram Kishan Rai v. Chedi Rai (1922) 20 A.L.J. 577. The cases where an alienation by a Hindu widow in lieu of time-barred debts of her husband was supported, may be distinguished on the ground that thereby she had conferred a spiritual benefit on her deceased husband.
36. I am, therefore, of opinion that if the previous debt of the father had become absolutely time-barred, a conveyance in lieu of it cannot be held to be binding on the sons. To hold so would be to extend the, applicability of the exception to an extent for which there is up to now no precedent.
37. This, however, does not dispose of the whole question. In the present case the previous mortgage debt had not become absolutely barred, by time. The creditor's remedy, if enforceable, was to realize his debt as against the security. All that had happened was that owing to the lapse of six years, a personal decree against the father in the event of the security proving insufficient, could not have been passed.
38. The question to be considered, therefore, is whether the mortgage debt per se as distinct from a personal debt of the father can be deemed to be an antecedent debt within the meaning of the exception.
39. The rule laid down in Suraj Bunsi Koer v. Sheo Proshad Singh (1879) 6 I.A. 88 was that, 'where joint ancestral property had passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property unless they show that the debts were contracted for immoral purposes and that the purchasers had notice that they were so contracted.'
40. Lord Hobhouse, in Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21, remarked that 'the decisions have for some time established the principle that the sons cannot 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. On this important question of the liability of the joint estate, their Lordships think that there is now no conflict of authority.'
41. In none of these cases any expression like the expression 'an antecedent unsecured debt' or the expression 'an antecedent personal debt' was used. Stanley, C.J., in the Pull Bench case of Chandradeo Singh v. Mata Prasad (1909) I.L.R. 31 All. 176, defined the expression 'antecedent debt' as meaning a debt which is not for the first time incurred at the time of a sale or mortgage, that is presently incurred, but a debt which existed prior to and independently of such sale or mortgage, though of course a bona fide debt, not colourably incurred for the purpose of forming a basis for a subsequent mortgage or sale or other similar object.
42. The case of Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437 was one where on the facts no antecedency arose. The debt had been incurred under the mortgage itself which was in suit and all other remedies excepting that of enforcing the security had gone. In view of a certain conflict of decisions in the various courts in India which was brought to their Lordships' notice, it was thought desirable to state the law comprehensively. According to the interpretation put on that case by the Allahabad High Court, two main propositions could be deduced from it: (1) The debt in order to be an antecedent debt must 'not only have been antecedently incurred, but incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate'; that is to say that ir must be a personal debt of the father and not a mortgage debt by him. And (2) while the father remains alive, 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 debt and not in respect of the debt having been principally incurred for the interest of the estate itself which they and their father jointly own, must fail, that is to bay, there could be no pious obligation to pay off the father's debt during the life-time of the father. It might be said that from the first proposition it logically followed that the debt being a personal debt of the father, must have been one incurred within six years of the transfer.
43. A Pull Bench of the Madras High Court in Arumugham Chetty v. Muthu Koundan (1919) I.L.R. 42 Mad. 711 came to the conclusion that the first proposition did not follow from Sahu Ram Chandra's case. 'A' Full Bench of the Patna High Court in the case of Mathura Misra v. Raj Kumar (1921) 62 Indian Cases 132 came to the same conclusion.
44. The case of Jogi Das v. Ganga Ram (1917) 21 C.W.N., 957 was also a case in which there was no antecedency in time between the debt and the conveyance.
45. Great reliance has been placed by the learned advocate for the respondents on the case of Chet Ram v. Ram Singh (1922) I.L.R. 44 All. 368. In that case the father had executed a mortgage in the year 1904 for a period of ten years. Within three years from its date he in 1907 sold his equity of redemption in the property to the mortgagees themselves. Their Lordships set aside the sale-deed and refused to treat the previous mortgage debt as an antecedent debt so as to justify the second alienation. It is strongly contended on behalf of the plaintiffs appellants that this case was expressly referred to in counsel's argument before their Lordships in a sublequent case to be presently referred to and was not disapproved of. It is urged that this case is intelligible only on the assumption that in order to be a good antecedent debt, there must be a personal liability of the father to pay it and it is suggested that the mortgage debt of 1904 was not treated as an antecedent debt because it was secured by a usufructuary mortgage under which the mortgagee had no right to sue for money against the father. It is said that if every previous mortgage debt were to be treated to be an antecedent, debt, then the sale-deed of the year 1907 could not have been set aside at all. I have carefully considered the force of this argument and have come to the conclusion that Chet Ram's case was decided not on this supposed ground but on the principle laid down in Sahu Ram Chandra's case. At page 373 Lord Shaw repelled the argument that 'although by the rules of the Mitakshara law a mortgage is at its date an invalid deed in so far as purporting to incumber the joint family property, yet when it purports to become a consideration for a sale, it then becomes a just and a. legal consideration on the principle of antecedent debt, and that the family property could not be affected by such an invalid mortgage, but it could be sold next year or next day to the mortgagee for an antecedent debt, namely, the mortgage debt itself.
46. The rule in Sahu Ram Chandra's case insisting that the obligation must not only have been antecedently incurred but incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate, was re-affirmed. The case of Jogi Das v. Ganga Ram was also quoted, where Lord Haldane had interpreted the judgment in the case of Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437, ''as one laying down in effect that joint property could not be alienated as against co-sharers by way of mortgage or otherwise except for necessity, or for payment' of an actual antecedent debt, quite distinct from the debt incurred in the mortgage itself, and that in consequence the transaction in that case could not stand,' and it was added that 'the very circumstance of a pious obligation does not validate the mortgage.'
47. The other rule laid down in Sahu Ram Chandra's case namely, that there could be no pious obligation during the father's lifetime, was also relied upon and the appellant's argument was not acceded to as the doctrine was being invoiced against grandsons in the life-time of the sons. I am unable to find any passage in the judgment in Chet Ram v. Ram Singh which would support the contention that the previous mortgage debt was not treated as an antecedent debt because the usufructuary mortgagee had no right to recover a money decree.
48. The question what is an antecedent debt has been recently considered by a Full Board of the Privy Council in Brij Narain v. Mangla Prasad (1923) I.L.R. 46 All. 95. Their Lordships, after referring to the previous authorities, have laid down certain propositions which they would wish to lay down as the result of those authorities. We are bound, therefore, to accept the most recent pronouncement as the final authority on the matter. I concede that on the actual facts of that case, the question which We have to consider in the present case did not directly arise, for the previous mortgage deeds were all deeds within six years of the mortgage deed in suit and the personal remedy of the mortgagor had not become barred by time. Nevertheless the five propositions laid down by their Lordships must be unreservedly accepted. In these five propositions I understand the basis of the liability of Hindu sons to be three-fold. That liability may either be based on the existence of a legal necessity or on the ground of the personal obligation of the sons to pay their father's debt or on the ground of the transfer being in lieu of an antecedent debt. I understand each of these to be a distinct and separate basis. It is true that the original foundation of the doctrine of antecedent debt might have been the pious obligation of the Hindu sons to pay their father's debit but by a long series of decisions it has been recognized as a distinct basis. Their Lordships define an antecedent debt as one which is antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of 'the transaction impeached. Their Lordships also add that the liability cannot be affected by the question whether the father, who contracted the debt or burdened the estate, is alive or dead.
49. The learned Judge a of this High Court had held that 'a mortgage per se could not be an antecedent debt for a mortgage is obviously a security which is not apart from the security of the estate over which it is constituted. If, therefore, it could not be shown that an anterior mortgage had been incurred in respect of an antecedent debt unconnected with the estate, then the anterior mortgage could not be held to be debt antecedent to the subsequent mortgage and that subsequent mortgage could not stand though its proceeds were entirely used to pay off the prior mortgage.'
50. Their Lordships of the Privy Council thought that if proper attention were paid to the word 'incurred' mentioned in the judgment in Sahu Ram Chandra's case, this High Court's interpretation on it was not correct. Their Lordships clearly held that a debt does not cease to be an antecedent debt merely because it is secured on the family property. Referring to the observations in Sahu Ram Chandra's case that there could be no pious obligations on the sons during the lifetime of the father, their Lordships felt bound to say that they did not think that those observations could be supported. A mortgage debt, therefore, can be an antecedent debt just as much as a simple money debt can be. Although in the particular case before their Lordships the personal liability of the father had not become barred by time when the deed in suit was executed, yet their Lordships do not at all lay stress on that fact or make it the basis of their decision. That this is so is supported by the following consideration. Their Lordships at page 937 express their entire agreement with the view of the learned Chief Justice in the Full Bench Madras case Arumugham Chetty v. Muthu Koundan (1919) I.L.R. 42 Mad. 711.
51. Now there can be no doubt that the Madras Full Bench case had not proceeded on the basis of the personal liability of the father being still subsisting. The Division Bench had referred two questions for the decision of the Full Bench: ''(1) Whether an independent debt, not immoral or illegal, contracted by the father on the security of the joint estate antecedent to the mortgage sued on can be treated as an antecedent debt so as to support the charge on the sons' share also to the extent of the same secured on the prior mortgage, and (2) in such a case can the former debt be treated as an antecedent debt for the purpose referred to, if the personal liability of the father under the earlier mortgage is not barred on the date of the suit on the document?' It is noteworthy that the learned Chief Justice, whose views have been approved of by their Lordships of the Privy Council, answered the first question in the affirmative and, therefore, thought it unnecessary to answer the second question at all. It is manifest that the learned Chief Justice treated a mortgage debt as a good antecedent debt, independently of the question whether the personal -liability of the father under the earlier mortgage had or had not become barred at the date of the mortgage deed in suit. These views having been approved of by their Lordships of the Privy Council, we are bound to give effect to them.
52. The conclusion to which I have come, therefore, is that although a debt, which has become absolutely barred by time and the liability to pay which has not been undertaken in a previous writing, cannot be deemed to be a good antecedent debt so as to validate a conveyance by the father in lieu of it, yet when the mortgage debt as such has not become time barred but only the personal remedy against the father is barred, it can still be a good antecedent debt so as to justify an alienation in lieu of it. I also, therefore, agree that the plaintiffs cannot avoid the mortgage.
53. The appeal is dismissed with costs.