Walsh, Acting C.J.
1. The question referred to this Full Bench, having been amended during the argument, is as follows: 'Whether a time-barred debt can constitute a valid antecedent debt as consideration for a sale deed given by a father of a joint Hindu family alienating joint ancestral family property?'
2. I entertain no doubt that that question ought to be answered in the affirmative and I do not propose to add to the reasons given by my brothers.
3. This question has been referred to a Full Bench by reason of a conflict in authority, understood to exist between the decision in Ram Kishan Rai v. Chhedi Rai (1922) I.L.R. 44 All. 628, and certain older decisions of this Court, more particularly Dalip Singh v. Kundan Lal (1913) I.L.R. 35 All. 207. In this latter case the learned Judges quoted with approval and purported to follow; an older decision of a Bench of this Court, of which I was myself a member, in the case of Indar Singh v. Sarju Singh (1911) 8 A.L.J. 1099. I apprehend that the result of the decision which we are today pronouncing will be to overrule this case, as also Dalip Singh's case. I, therefore, feel it incumbent upon me to say a few words in explanation of my own position; otherwise I should have been content to leave this question to be decided on the authority of the Hindu Judges who are members of this Bench. As a matter of fact, I should unhesitatingly have concurred with the learned Judges who, decided Ram Kishan Rai's case (1922) I.L.R. 44 All. 628. Under Section 25 of the Indian Contract Act a Hindu father, like.any other person, can enter into a valid contract by promising to pay a debt formerly incurred by himself, the payment of which can no longer be enforced by reason of the; law governing the limitation of suits. If a Hindu father enters into a contract of this nature, he incurs a legal liability personal to himself from the date of this new contract. The liability does not, as it seems to me, differ in principle from that which the father incurred when he contracted the debt originally. The sons, therefore, can be made liable in a suit upon a promissory note or simple bond executed by their father, the consideration for which was a previous debt which was statute-barred when the said bond or promissory note was executed. It does not seem to me, however, that this principle of law suffices to determine the question which the Court had to decide in Indar Singh v. Sarju Singh (1911) 8 A.L.J. 1099. Suppose a Hindu father, instead of giving a simple money bond in satisfaction of the statute-barred debt, enters into a contract of mortgage which involves an alienation of joint ancestral property belonging to himself and his sons. The real meaning of the decision in Indar Singh's case is that, in the opinion of the learned Judges who decided that case, the antecedent debt of his own in satisfaction of which a Hindu father may make an alienation of joint ancestral family property which his sons cannot question except on the plea that such debt was contracted for immoral purposes, must be an antecedent liability which is still enforceable against the father on the date on which the alienation of joint family property is effected. We were really applying the principle laid down by the majority of the Full Bench of this Court in Chandradeo's case (1909) I.L.R. 31 All. 176 and subsequently affirmed by their Lordships of the Privy Council, subject to this, that we interpreted the words 'antecedent debt' in that case as equivalent to 'a subsisting liability, previously incurred.' On the date on which the Hindu father, in the case which we are supposing, executed the contract of mortgage, he was under no liability enforceable against him by law; he created a liability enforceable against himself when he signed the contract of mortgage. That liability we treated as being on the same footing as the liability which the father might incur by raising a loan on the security of joint family property under the very contract of mortgage which he was signing. We held, in effect, that a liability against the father, which only came into existence when he signed the contract of mortgage, could not be treated as an antecedent liability validating an alienation of joint family property on the principle laid down in Chandradeo's ease. I have now has an opportunity of considering the entire question in the light of the arguments which have been addressed to us and of the opinions expressed by the senior Hindu Judge who is a member of this Bench. Undoubtedly the pious duty of Hindu sons to discharge their father's debts, not tainted with immorality, cannot be affected by the usual statute of limitation. In the case of Brij Narain v. Mongol Prasad (1923) I.L.R. 46 All. 95, 104, their Lordships of the Privy Council have summed up the law on this question of alienations of co-parcenary property by the manager of a joint undivided estate. They have expressly laid it down that, if such manager is the father, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceedings upon a decree for payment of that debt. It seems to me to follow that if the father, instead of waiting for a decree to be passed and the estate to be taken in execution, himself sells a portion of that estate in order to satisfy a previous debt of his own, not incurred for immoral purposes, the sons, by reason of their pious duty, can no more challenge a voluntary alienation of this sort than they could have done an auction-sale in execution of a simple money decree. In this view of the case, it seems to me that the principle of the antecedent debt can no longer be rightly interpreted as it was done by us in the case of Indar Singh v. Sarju Singh (1911) 8 A.L.J. 1099, as if the expression were equivalent to an existing liability antecedently incurred. Stress must be laid on the fact that the debt was one incurred by the father prior to and altogether independently of the alienation of the joint family estate by which he proposes to satisfy it. I concur, therefore, in the answer proposed to the question before us for decision.
Kanhaiya Lal, J.
4. The question for consideration in this case is whether a time-barred debt can constitute a valid antecedent debt for the purpose of supporting an alienation by the father of ancestral or joint family property.
5. Under the Hindu law it is well recognized that the father has a larger power of disposal over the ancestral and Joint family property than an ordinary manager, the reason being that his sons and grandsons are under a pious obligation to discharge his just and lawful debts which may have remained unpaid. Apart from the question of family necessity or common benefit, it is open to the father to pay such a debt by ah alienation of the joint family property, though the debt may have-become barred by limitation, because what can be revived by the father and may be recovered from him by the attachment and sale of the family property, can also be recovered from his sons and grandsons, that is to say, from the joint family estate in their possession.
6. In the view of the Hindu lawyers a debt due is not merely an obligation but a sin, the consequences of which follow, the debtor in the next life. Vrihaspati says: 'He who, having received a sum lent or the like, does not repay it to the owner, will be born hereafter in his creditor's house a slave, a servant, a woman, or a quadruped.' Narada similarly says: 'When a devotee or a man who maintained a sacrificial fire dies without having discharged his debt, the whole merit of his devotions, or of his perpetual fire, belongs to his creditors.'
7. The duty of relieving a person from the evil consequences of his debts remaining unpaid, therefore, lies very heavily upon his sons and grandsons; and the only limitations which the law recognizes are that the debts must not be illegal or immoral and that the obligation would only be enforceable against the family estate. Narada says that 'Fathers desire offspring for their own sake, reflecting that this son will redeem them from every debt whatsoever due to superior and inferior beings.' In fact the older the debt the greater the responsibility on the descendants of the man who leaves the debt unpaid. Vrihaspati accordingly lays down: 'The father's debt must be first paid, and next the debt contracted by the man himself, but the debt of the paternal grandfather must even be paid before either of these.' To the same effect is a dictum of Katyayana who declares: 'The Judge shall compel a son to pay the debt of his father, provided he be involved in no distress, be capable of property and liable to bear the burden, but in no other case shall he compel the son to pay his father's debt.'
8. A further restriction has now been introduced by the law of limitation. A son is not liable for the payment of a debt due by his father, if it was not legally recoverable from him had he been alive. But a time-barred debt may be revived by the father, and when so revived, it stands on the same footing as a debt enforceable against him in his life-time. Under Section 25 of the Indian Contract Act, IX of 1872, it is open to a person against whom a debt has become barred by time to make a promise in writing to pay that debt, and such a promise would form a good consideration for a sale made to pay that debt. Under Sections 60 and 61 of that Act, a creditor can lawfully appropriate a payment, not made for any specific purpose, towards a debt barred by time. A contract in writing to pay such a debt may for certain purposes be treated as an independent contract; but the liability which it renews is a liability which existed from, before though for the time being it may have ceased to be enforceable. The Hindu law did not recognize any rule of limitation for the recovery of debts. Every debt which was lawful was binding and recoverable from the debtor, irrespective of the period which may have elapsed since the original liability was incurred, and no restriction on its recovery was recognized beyond this that at no time more than double the amount of the principal money could be claimed.
9. A debt may become irrecoverable under the law now in force by reason of the lapse of the period of limitation, but the debt exists all the same, and if a person chooses to pay a time-barred debt in the manner permitted by Section 25 of the Indian Contract Act, the debt which he chooses to pay remains the same debt, though by reason of the contract which he enters into, it assumes a new garb and gains a fresh vitality.'
10. As pointed out in Subramania Aiyar v. Gopala Aiyar (1909) I.L.R. 33 Mad. 308, a right to receive the payment of a debt, as distinct from a right to enforce its payment, subsists, even after the remedy by action has become barred by time; and if the debt exists, and the debtor is willing to pay it by an alienation of the family property, such an alienation, if otherwise valid, can bind his sons and grandsons to the same extent as if the said debt had been revived by the debtor and was sought to be recovered by the creditor by the attachment and sale of the family estate.
11. In Narayanasami Chetti v. Samidas Mudali (1883) I.L.R. 6 Mad. 293, it was held that the liability of a Hindu son to pay the money due on a promissory note executed by his deceased father in consideration of his debt, which had been declared barred by limitation, could be validly enforced against the assets of the father. In Sheoram Pande v. Sheoratan Pande (1921) I.L.R. 43 All. 293 it was pointed out that in the matter of the pious obligation, the Hindu law made no difference between a time-barred debt and a debt which was not so barred; and in Ram Kishan Rai v. Chhedi Rai (1922) I.L.R. 44 All. 604 (606), it was similarly held that, inasmuch as the Hindu law did not recognize any rule as to the extinction of claims by the efflux of time, the sons in a joint Hindu family were not exempt from the payment of bonds executed by their father merely because such bonds were given by way of a renewal of other bonds which at the time of the execution of the former were barred by limitation. The same principle was recognized in Hari Har Bakhsh Singh v. Bharat Prasad (1913) 16 Oudh Cases 185 and Muthusawmi v. Subramanya (1912) 14 Indian Cases 69. A promise to pay a barred debt is in fact neither illegal nor immoral; and a son cannot escape liability merely because the debt, which his father had agreed in writing to pay, was one the payment of which he could have legally avoided.
12. Our attention has been drawn to the decisions in Indar Singh v. Sarju Singh (1911) 8 A.L.J. 1099 and Dalip Singh v. Kundan Lal (1913) I.L.R. 35 All. 207. In the former case Knox, J., who delivered the judgment of the Bench, after pointing out that he had not been referred to any text of Hindu law, or any precedent bearing upon the point, observed: 'There is no doubt that the Hindu law did not recognize the principle of-limitation with reference to debts; at the same time the fact remains that if the creditor had tried to sue for the debt at the time that the mortgage was entered into, or if the father had executed a mortgage on the basis of an acknowledgment of such time-barred debt, the debt could not have been recovered or the mortgage lien enforced in our courts.'
13. It is difficult to understand the latter observation, because if the father had executed a mortgage on the basis of such a time-barred debt, or an acknowledgment had been made before the debt had become barred by time, a suit for the recovery of the debt either on the foot of that mortgage or on the foot of that acknowledgment could have been easily maintainable. It. may, however, be assumed that the acknowledgment therein referred to was an acknowledgment made or supposed to have been made after the debt had become barred by time; but even if that was so, the debt, if revived by a mortgage in writing, would, for the purpose of enforcing the pious obligation, be a good and valid debt, unless it was shown to have been taken for an illegal or immoral purpose. In the second case, the ground of distinction between cases where legal necessity is proved and those where an antecedent debt is proved to have existed, does not appear to have been recognized. A debt taken for legal necessity, whether taken by a father or by any other manager, is binding on all the members of the joint family, but an alienation made to pay an antecedent debt, not so taken by a manager who is not the father, is not so binding. The rule which enforces an alienation made to pay an antecedent debt, not shown to have been taken for legal necessity or common benefit, nor shown to have been taken for an illegal or an immoral purpose, rests entirely on the theory of pious obligation; and where such a pious obligation exists, an alienation made to pay such an antecedent debt by a father is held to be binding on his sons and grandsons.
14. A reference has also been made to the decision in Naro Gopal Kulkarni v. Paragauda (1916) I.L.R. 41 Bom. 347, but in that case a time-barred debt was held sufficient to support an alienation by a father of his interest in the joint family property, and the. question now at issue was not definitely considered.
15. It is argued that a time-barred debt is not a vyavaharik debt within the meaning of the text of Ushanas, cited in the Mitakshara. But a debt revived by the father cannot be regarded as an avyavaharik debt, or a debt not recognized by law or usage, either under the old Hindu law or under the law now in force.
16. The case of an alienation effected by a Hindu widow to pay a debt due by her deceased husband, if barred by time, presents a useful analogy for the purpose of guiding the decision of this question. It is well settled that a Hindu widow is competent to transfer the property which she has received from her husband to pay a debt due by him though it may have been barred by limitation, so as to bind the reversionary heirs of her husband: Udai Chunder Chuckerbutty v. A&hutosh; Das Mozumdar (1893) I.L.R. 21 Calc. 190, Chimnaji Govind Godbole v. Dinkar Dhondev Godbole (1886) I.L.R. 11 Bom. 320, Kondappa v. Subba (1889) I.L.R. 13 Mad. 189, Bhagwat Bhaskar v. Nivratti Sakharam (1914) I.L.R. 39 Bom. 113 and Sheoram Pande v. Sheoratan Pande (1921) I.L.R. 43 All. 604 (606). The principle underlying that rule is that she is under a pious obligation, in a reasonable measure, to promote the spiritual benefit of her husband whose estate she has inherited; and one of the ways in which this benefit can be promoted is by getting him released from the penalty or sin of leaving his debts unpaid. A son is in a more independent position because he acquires a right in the family property by birth, but he too is under a pious obligation to save his father from a similar penalty and to pay the debts due by him, if not illegal or tainted with vice. If a Hindu: widow can validly alienate property to pay time-barred debts flue by her husband, a Hindu father can similarly alienate property to pay the time-barred debts due by him in order to release himself from the sin of having left them unpaid so as to bind his sons and grandsons. In Shib Nath v. The Alliance Bank of Simla (1914) 25 Indian Cases 480 it was accordingly held that under the Hindu law the payment of a debt due by the father, though time-barred, was a pious duty, and such a debt was a good antecedent debt however old it might be. A debt which was barred by time and has been revived stands on the same footing as a debt which is not time-barred; and if it is enforceable against the father, it is also enforceable against his sons and grandsons, provided it was not taken for an illegal or immoral purpose. An alienation made to pay such a debt is, therefore, valid and can bind the interests of the sons and grandsons of the person making the alienation.
17. My reply to the question is, therefore, in the affirmative.
18. The answer to the question referred to us lies in a very brief compass. It is settled law that a father can alienate joint family property in lieu of his own antecedent debt when such debt was neither illegal nor immoral. Does a debt cease to be a debt because its recovery is barred by the statute of limitation? Clearly riot. Limitation extinguishes the remedy, but except in the case covered by Section 28 of the Limitation Act, does not destroy the right. Section 28 applies only to suits for possession of property and has no application to the case of a debt. Hindu law, moreover, recognizes no limitation for debts. Even under the Contract Act a time-barred debt is still recognized as a valid consideration for a contract.
19. There is another way of looking at the matter which1 leads to the same result. The sons' liability admittedly arose from the pious obligation which lies on them to pay their father's debt. Now a pious obligation is necessarily independent of a modern statute of limitations. It may be legal to evade payment of a just debt by taking shelter under the law of limitation, but such conduct is generally regarded as dishonest, and this is still more the case under the Hindu system of law under which the obligation of payment of debts is elevated into a religious duty.
20. For these reasons I concur in answering the question in the affirmative.
21. I also agree in answering the question put to us in the affirmative.
22. I shall add just a few words. According to the Mitakshara law as translated by Colebrook, Chapter 5, page 188, a son is asked to relinquish his own share in the property so that the debts of his father may be paid off. This is really the foundation of the principle that a Hindu father may alienate the joint family property in order to pay oft his own antecedent debts, although such debts may not have been incurred for the benefit of the family. A debt does not cease to be a debt by being barred by limitation. Even under Anglo-Indian law a barred debt forms a good consideration for a fresh contract. Under the Hindu law, which knew of no rule of limitation for the enforcement of a debt, the rule would apply with much more force. It, therefore, seems clear to me that a father can alienate family property in order to pay off his antecedent debts, though such debts cannot be enforced in British Courts of law on account of the rule of limitation.
23. The order of the Court is that the question be answered in the affirmative and the appeal remitted to Mr. Justice Daniels and Justice Dalal for final disposal.