1. This is an appeal by the son of a Hindu mortgagor for a declaration that a mortgage-deed on the basis of which a decree had been obtained by the mortgagee and the mortgaged property had been sold was not binding on the family because there was no legal necessity for the transaction. The decree was obtained on 15th September 1927, and the property was sold on 21st March 1930, and the sale was confirmed later on. But before possession of the property could be delivered to the auction-purchaser, who was the mortgagee decree-holder himself, the present suit was instituted. It was before the filing of the written statement that possession also was formally taken by the auction-purchaser.
2. Both the Courts below have dismissed the claim, The trial Court found on the issue relating to legal necessity that the transaction was for legal necessity. The lower appellate Court however has not gone into this question, but has thrown out the suit on the simple ground that the son had failed to prove that the debt had been tainted with immorality or illegality. The main points urged in appeal before us on be half of the plaintiff are : (1) that the son must show immorality or illegality, and (2) that possession not having been delivered to the auction-purchaser at the time of the suit, he was not protected, particularly as he was the mortgagee himself. There is not the least doubt that a transferee from the manager of a joint Hindu family is bound to show legal necessity for the trans for before he can bind the family. On the other hand, it has been held that where property has passed out of the joint Hindu family under an execution sale, it is no longer incumbent on the purchaser to prove legal necessity and that the sons cannot set aside the sale without showing illegality or immorality. A direct case in point is that of Gajadhar Pande v. Jadubir Pande : AIR1925All180 , decided by Mukerji, J., and myself where we held that on a suit brought by the sons for a declaration that the mortgage and the auction sale were not binding upon them; upon the ground that the mortgage, was not executed for legal necessity, the plaintiffs could not succeed without showing that the debt of the father was one tainted with immorality, and that there was no distinction in such cases between a debt secured by a mortgage and an unsecured debt.
3. The learned advocate for the appellant however contends before us that there are certain observations in the judgment of two learned Judges in Jagadish Prasad v. Hoshyar Singh : AIR1928All596 , which either over rule this case or shake its authority. There is no doubt that there are some observations which suggest a contrary conclusion, while the third member of the Bench adhered to the view previously expressed. Suraj Bansi Koer v. Sheo Pershad Singh (1880) 5 Cal. 148, was a case where a suit had been brought on behalf of the minor sons to set aside a sale in execution of a decree obtained upon a mortgage executed by their father of certain immovable property belonging to a joint family governed by the Mitakshara law. The property was sold at auction on 28th July 1870, and the suit was instituted within a month of that date, namely, 27th August 1870. It is not clear that the sale had been actually confirmed nor does it appear that possession had been delivered to the auction-purchaser during that short time. Their Lordships approved of the previous pronouncement in Muddun Thakur v. Kantoo Lal (1875) 1 I.A. 321, viz.:
A purchaser under an execution is not bound to go further back than to say that there was a decree against the father; and that the property was property liable to satisfy the decree, if the decree had been given properly against the father. In such a case, one who has bona fide purchased the estate under the execution and bona fide paid a valuable consideration for the property, is protected against the suit of the sons seeking to set aside all that has been done under the decree and execution and to recover back the estate as joint ancestral property.
4. Their Lordships then summarised the law in the following terms:
Where joint ancestral property has passed out of 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, and secondly, that the purchasers at an execution sale, being strangers to the suit, if they have not notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings.
5. In that case, although the auction-purchasers had taken the property at sale in execution of a mortgage decree, they were held to be protected because immorality or illegality had not been shown. They were considered to be on the same footing as a purchaser in lieu of an antecedent debt of the father. Bhagbut Pershad Singh v. Girja Koer (1888) 15 Cal. 717, was a case where also a suit had been brought on behalf of the infant children of the mortgagors to recover possession of the property which had been sold in execution of a mortgage decree obtained by the mortgagee under a bond under which the property had been charged as security for the amount claimed. Their Lordships held that as it was not a case of a joint family consisting of brothers only, but it was one consisting of father and children, the sons were liable to pay debts of their father unless incurred for immoral or illegal purposes. Their Lordships quoted with approval the previous pronouncements in the two earlier cases. In Nanomi Babuasin v. Modun Mohun (1886) 13 Cal. 21, their Lordships of the Privy Council again held that the principle was well established that the sons cannot set up their rights against their father's alienation for an antecedent debt or against his creditors' remedies for their debts if not tainted with immorality. Their Lordships then concluded:
Where sons claim against a purchaser of an ancestral estate under an execution against their father upon a debt contracted by him it is-Necessary for the sons to prove that the debt was contracted for an immoral purpose and it is not necessary for the creditors to show that there was a proper inquiry or to prove that money was borrowed in a case of necessity.
6. A distinction between a private alienation and an auction sale can be easily pointed out. In the case of a private alienation the transferee has plenty of opportunity to make inquires, and satisfy himself as to the necessity for the debt. In the case of an auction sale there is hardly any such opportunity. Furthermore, if a father can, voluntarily transfer property in order to pay off his antecedent debt, the Court may also compel him to do the same by means of a compulsory sale. After the sale has taken place under the authority of the Court, the matter passes beyond the stage of a mere private contract or private transfer, and therefore different considerations apply. The case of Sahu Ram Chunder v. Bhup Singh 1917 P.C. 1917 P.C. 61, was somewhat differently understood in India. Accordingly their Lordships had to review the position so far as alienations were concerned, in Jagadish Prasad v. Hoshyar Singh : AIR1928All596 . The second proposition laid down by their Lordships in this case was in the following terms:
If he is the father and the reversionaries 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 proceedings upon a decree for payment of that debt.
7. On the strength of observations made by Mukerji and Boys, JJ., in the Full Bench case of Jagadish Prasad v. Hoshyar Singh : AIR1928All596 it. Is contended that this proposition is confined to the case of a debt other than a mortgage debt and that by necessary inference it implies that there is no such principle when the auction sale takes place in execution of a mortgage decree. If the point had arisen for consideration in the Full Bench case we would have been bound to follow the opinion of the majority or to refer, the case once again to a Full Bench, But in the Full Bench case the suit was instituted by the sons soon after the mortgage decree had been obtained and before any auction sale took place. The Lucknow Court had held that, even where only a decree has been obtained the sons must show immorality or illegality. All the Judges constituting the Full Bench held that this was not so and that the transferee must show legal necessity if the auction-sale has not taken place. All other; observations made as to what, would I be the position if an auction sale has taken place were no more than obiter dicta and therefore although they are I entitled to great weight they are not, binding upon us. As a matter of fact, as the point did not arise in the Full Bench case it cannot be said that the decision in Gahadhar Pande v. Jadubir Pande : AIR1925All180 , has been directly over-ruled. Sir Dinshaw Mulla in his Priciples of Hindu Law has discussed the various authorities at considerable length in para. 296 and has rightly pointed out that there is no distinction between a secured and an unsecured debt so far as auction-purchasers are concerned, but that there is a distinction between a stranger purchaser and a mortgagee purchaser, namely, that in the case of a stranger the sons must further show that he had notice that the debt was tainted with illegality or immorality whereas in the case of the mortgagee, constructive notice is presumed.
8. It seems to me that their Lordships of the Privy Council in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50, were summarising the propositions of law which followed from the authorities quoted by their Lordships. The case of Bhagabut Pershad Singh v. Girja Koer (1988) 15 Cal. 717, which was that of an auction-purchaser in execution of a mortgage decree was one of the cases quoted by their Lordships with approval. It therefore appears to me impossible to infer that their Lordships intended to over-rule their own previous decisions and intended to lay down that an auction-purchaser in execution of a mortgage decree must further establish, whether he is a stranger or the mortgagee himself, that the mortgage debt 'had been taken for legal necessity. In the case before their Lordships the mortgagee had only obtained a decree for sale and had not proceeded to get the property sold and the sons' suit was for the avoidance of the mortgage decree and not for the setting aside of any Court sale. It is therefore still more unlikely that their Lordships would over rule the previous decisions on the question of auction sales when that point was not directly raised in Brij Narain Rai v. Mangla Prasad Rai 1924 O.C. 50. lam therefore of opinion that the case decided in Gagadhar Pande v. Jadubir Pande : AIR1925All180 , is in accordance with the rule of law laid down by their Lordships of the Privy Council in Suraj Bansi Koer v. Sheo Pershad Singh (1880) 5 148 and Bhagabut Pershad Singh v. Girja Koer (1988) 15 Cal. 717, and must be followed.
9. The next point urged is that inasmuch as delivery of possession had not taken place when the suit was instituted, that principle does not apply. The contention is that so long as possession has not been delivered the property has not passed out of the family. Now, their Lordships have laid down that purchasers at an auction-sale, who are strangers, are not bound to make inquiry beyond what appears on the face of the proceedings and that therefore the sons must show that they had notice that the debts had been contracted for immoral or illegal purposes. So far as strangers are concerned, it makes no difference whether only the sale has taken place and has been confirmed or whether delivery of possession of property also has been made to them. The protection given to them is based on the principle that they are not bound to make inquiry beyond what appears on the face of the proceeding and that therefore if they had no notice of the illegality or immorality tainting the debt they are protected. It is therefore impossible to draw a distinction that the strangers would not be protected if, although the sale has been confirmed, delivery of possession has not been made when the sons' suit is instituted. It would follow that whether delivery of possession has taken place or not, so long as the property has passed to the auction-purchasers by virtue of the sale and its confirmation, they are entitled to protect themselves unless it is established that they had notice.
10. If therefore in the case of auction-purchasers who are strangers no distinction can be drawn when possession has not been delivered, it would follow that on the same principle there should be no distinction in the case of an auction-purchaser who is not a stranger to the suit. Similarly, there can be no distinction whether the auction-sale has taken place in execution of a simple money debt or in the case of a mortgage debt. Their Lordships when laying down the proposition of law did not say:
When joint ancestral property has passed out of possession of a joint family
When such property has passed out of joint family under a sale in execution of a decree.
11. That, in my opinion, implies that when the property has become vested in the auction-purchaser on confirmation of sale the principle laid down by their Lordships is applicable. As regards the debt, whether the debt had been incurred for immoral or illegal purposes the findings of both the Courts below are against the appellant. It was incumbent on the son not only to show that the father was of an immoral character or that he was in need of money for gambling transactions, but that the money raised was actually applied for such purposes so as to become tainted. All that the plaintiff's father said in this case was that he had borrowed this money for certain satta transactions. Now, a satta transaction need not be a gambling transaction if either of the parties intends to make delivery of the goods in case of breach of contract. It can be a gambling transaction only if it is the common intention of both the parties that in no event would delivery take place and that only differences would be settled between them. The father's evidence falls short of saying this. It must accordingly be held that the finding of the lower appellate Court is binding upon us. I would therefore dismiss the appeal.
Rachhpal Singh, J.
12. I agree. I think that the proposition is well settled that where a father has contracted a debt for his own personal benefit, the creditor may obtain a money decree against the father alone, and may enforce the decree by attachment and sale of the entire co-parcenary property including the sons' interest therein. The sons may not be parties to the suit, but nevertheless they are bound by the sale by reason of their pious duty to pay their father's debt. They can recover their share in the property only in case they are able to establish that the debt was contracted by the father for immoral or illegal purposes. As explained by Sir D. Mulla in his Hindu Law, p. 346 (1932 Edition), the fundamental principle is where joint family property is sold in execution of a decree, though obtained against the father alone, and for a debt contracted by him for his own personal benefit, the sons cannot claim to recover their share of the property unless they show that the debt was contracted by the father for an immoral or illegal purpose. This proposition of law has not been disputed before us by the learned Counsel for the appellant. He has however contended that it will not be applicable to a case where the joint ancestral property has been sold in an execution of a mortgage decree against the father. I find myself1 unable to agree with this contention. In my opinion, the above rule also covers the case where in execution of a mortgage decree against the father the family property is sold. The sons can only avoid the sale if they are able to show that there was no debt due by their father or that the mortgage debt was incurred by the father for immoral or illegal purpose. The ground of their liability in both the cases is, as pointed out by Sir D.F. Mulla in his Hindu Law, p. 365, the same and it is that the sons must show some ground which would free them from liability as sons in a joint Hindu family to pay their father's debt, namely, the non-existence of the debt or its immoral character.
13. The question came up for consideration before this Court in Gajadhar Pande v. Jadubir Pande : AIR1925All180 . In that case the father of a joint Hindu family had executed a mortgage of some of the joint ancestral property, not to pay off any antecedent debt nor for the purpose of immorality. The mortgagee sued on his mortgage and obtained a decree and brought the mortgage property to sale. The son? were not parties to the suit. The property was sold at a Court sale. Thereafter the sons instituted a suit for a declaration that the mortgage and the sale were not binding upon them. A Bench of two learned Judges of this Court, of which one of us (my Lord the Chief Justice) was a party, held that in a suit by the sons for a declaration that the mortgage and the auction-sale were not binding upon them upon the ground that the mortgage was not executed for legal necessity, the plaintiffs could not succeed without showing that the debt of the father was tainted with immorality and that there was no distinction in such cases between a debt secured by a mortgage and an unsecured debt. The contention which has been raised before us was put forward in that case. In repelling it, Sulaiman, C.J., remarked:
The learned vakil for the appellants however contends before us that the word debt there [in Rule 2 laid down by their Lordships of the Privy Council in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50 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 proposition No. 5 were clearly referring to all the previous contingencies and had therefore to use both the expressions.
14. Agreed with the view mentioned above and expressed the following opinion:
It will follow from these two propositions, which are undoubtedly correct, that where a debt is incurred on the security of the family property, and to realize the debt the property is sold the result is the same as if the family property has 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 of opinion that the word 'debt' in proposition No. 2 did not include both a simple and a secured debt, they would certainly have said something....
15. This case was decided in 1925. The next case in which this question was considered is Lal Singh v. Jagraj Singh : AIR1928All86 . In this case Iqbal Ahmad, J., made certain observations which are in conflict with the view expressed in Gajadhar Pande v. Jadubir Pande : AIR1925All180 . At p. 557 (of 50 All), Iqbal Ahmad, J., observed:
But in view of the observations of their Lordships in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50, I have no hesitation in holding that their Lordships never intended to decide, or to lay down as a general proposition of universal application, that after the passing of a decree for sale the members of the joint family who were no parties to the suit for the sale of the family property cannot challenge that decree without proving that the debt secured by the mortgage was contracted for immoral purposes.
16. At the same page he also remarked:
The second proposition of law laid down at p. 104 (of 50 All) appears to me to be restricted to the case of a simple money debt incurred by and a simple money decree obtained against the father and has no reference to a decree for sale, and that proposition is based upon the obligation of Hindu sons to pay debts due from their father.
17. It appears to me, if I may say so with great respect, that these observations were obiter dicta and were not necessary for the decision of the case in which they were made. In that case, a son after the mortgagee had obtained a decree, but before it had been executed, sued to have the decree set aside upon the ground that the property concerned was ancestral and that there was no legal necessity for incurring the debt to secure which the mortgage had been executed. He did not allege that the debt was tainted with immorality. On the other hand, Gajadhar Pande v. Jadubir Pande : AIR1925All180 , was a case, in which a sale had taken place in execution of a mortgage decree and the sons had sued to set aside that sale and it was held that the sale could not be set aside, after the property had passed out of the family, unless the sons could show that the debt in respect of which the mortgage decree was passed, was tainted with immorality. A perusal of the case reported as Lal Singh v. Jagraj Singh : AIR1928All86 , would show that the proposition of law laid down in Gajadhar Pande v. Jadubir Pande 1925 All. 180, was not disputed by the parties. At p. 547 (of 50 All) of Lal Singh v. Jagraj Singh : AIR1928All86 , we find the following observations:
It is admitted on the other hand that if a decree has been obtained upon a mortgage by the mortgagee, or upon a simple money debt by a creditor, and as the result of either of these decrees the ancestral property has by sale passed into the hands of a third party, the absent son, or a minor son, who was not represented, cannot recover the property in the hands of a third person without alleging that the debt for which it was incurred was tainted with immorality, or, in other words, without showing that the pious obligation of a Hindu son to discharge his father's debt does not apply to this transaction, because there is no pious obligation to pay debts tainted with immorality.
18. In view of this position which was accepted by the son in that case, there can be no doubt that the observations of Iqbal Ahmad, J., were mere obiter dicta. The next case in which the question was considered is Jagadish Prasad v. Hoshyar Singh : AIR1928All596 , which is a Full Bench case in which dissenting views were expressed. Sulaiman, C.J., expressed the opinion that the word 'debt' used in the proposition No. 2 in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50, was comprehensive enough to include both a mortgage debt and a simple money debt. Mukerji and Boys, JJ., expressed a contrary view and held that Rule 2 in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50, was confined to cases of simple money debts only and did not include a secured debt.
19. In my opinion the view taken by a Bench of two learned Judges of this Court in Gajadhar Pande v. Jadubir Pande : AIR1925All180 , is still good law and must therefore prevail. It appears to me that the authority of that case has not been shaken by the observations made by Mukerji and Boys, JJ., in the Full Bench ruling reported as Jagadish Prasad v. Hoshyar Singh : AIR1928All596 . The reason is that I consider that the opinions expressed by the learned Judges as to whether or no the case of a secured debt came within Rule 2, in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50, were also obiter dicta and are therefore not binding on us. The facts of the case reported as Jagadish Prasad v. Hoshyar Singh : AIR1928All596 , were these : A father of a joint family had created a mortgage of ancestral property. The creditor sued the father alone and obtained a mortgage decree. Before the sale could take place, the sons instituted a suit for a declaration that the mortgage was not binding upon them. The only question for consideration was whether in that case the mortgagee decree-holder could proceed with the sale without establishing that the mortgage debt was contracted without family necessity. The point was decided against the mortgagee and it was held that before the sale takes place, the mortgagee must, in order to bind the sons who were not parties to the suit in which a decree had been obtained, prove that the debt was binding upon the sons. It was not necessary for the purpose of disposing of that case to go into the question as to whether or not a secured debt came within the purview of Rule 2 in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50. The reason why the learned Judges who decided the above-mentioned Full Bench case went into this question is that they were not in agreement with the view expressed in Gouri Shankar v. Jang Bahadur Singh 1924 Oudh. 394, to the effect that after a mortgage decree had been obtained against a Hindu father, his sons could avoid the decree only by showing that the debt was not binding upon them. The view of this Court is that before a sale takes place in such a case, it is the mortgagee who has to show that the debt is binding on the sons. But once a sale has taken place, the rights of third parties come in and then different considerations prevail.
20. Speaking for myself, and with the utmost respect for the contrary view taken by some of the learned Judges, I can see no reason for holding that their Lordships of the Privy Council in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50, intended to lay down that Rule 2, was restricted to unsecured debts. It may be pointed out that in Suraj Bansi Koer v. Sheo Pershad Singh (1880) 5 Cal. 148, (see p. 170), their Lordships of the Privy Council affirmed the propositions that where the joint ancestral property has passed out of a joint family, under a sale in execution of a decree for the father's debt, sons cannot recover the property unless they show that the debts were contracted for immoral purposes.
21. It may be pointed out that the case of Suraj Bansi Koer v. Sheo Pershad Singh (1880) 5 Cal. 148, was one in which the property had passed out of the joint family in execution of a mortgage decree against the father. Had their Lordships intended that Rule 2, in Brij Narain Rai v. Mangla Prasad Rai 1924 P.C. 50, case was to be restricted to the case of an unsecured debt we would have expected them to make some observations about the view expressed by them in Suraj Bansi Koer v. Sheo Pershad Singh (1880) 5 Cal. 148. It appears on a perusal of the ruling in 1924 P C 50 (8), that their Lordships found the law on the subject of what binds the estate when the manager of the joint family is father and the reversioners are the sons, to be illogical. They further found that certain questions, rightly or wrongly, had been decided in a particular manner and they considered it undesirable to disturb the view which had prevailed for a long time. In this state of affairs, they laid down certain rules for the guidance of the Courts in India. The first rule lays down that a managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purpose of necessity. The second rule is that where the managing co-parcener is the father and the reversioners are sons he may by incurring debt, so long as it is not for purposes immoral, lay the estate open to be taken in execution proceedings upon a decree for payment of that debt.
22. The third rule is that if he purports to burden the estate by mortgage, then, unless the mortgage is to discharge antecedent debt, it would not bind the estate. The fourth rule is that antecedent means antecedent in fact as well as in time. The fifth rule is that there is no rule that this result is affected by the question whether the father, who contracted or burdens the estate is alive or dead. All these rules are independent of each other and were laid down with a view to set at rest conflicting decisions as regards those points. The first rule was made because their Lordships wanted to lay down that a managing co-parcener of an estate had no power to alienate or burden the estate qua manager except for necessity. The third rule was laid down because there was conflict as regards the question whether it was within the competence of a manager to mortgage the joint property to discharge antecedent debt. The fourth rule was laid down because there were conflicting decisions on the question as to what was the meaning of 'antecedent debt.' The fifth rule was made because there was conflict whether the pious obligation of a son to pay his father's debts existed during his lifetime or after his death. The second rule is one which was laid down to govern cases where the estate was liable to be taken in execution. proceedings under a decree in payment of a debt incurred by a father for a purpose neither immoral nor illegal. It would, in my opinion, govern all the cases in which the family estate has been attached and sold in execution proceedings under a decree against the father whether the debt be secured or unsecured.
23. The case assumes a different aspect, after the family estate has been sold in execution of a decree against a father, whether it be a simple money decree or a mortgage decree, because the rights of third party intervene. Their Lordships of the Privy Council in Suraj Bansi Koer v. Sheo Pershad Singh (1880) 5 Cal. 148, quoted with approval the following view taken by them in Muddun Thakur v. Kantoo Lal (1875) 1 I.A. 321:
A purchaser under an execution is surely not bound to go back beyond the decree to ascertain whether the Court was right in giving decree, or having given it, in putting up the property for sale under execution upon it. It had already been shown that it a decree was a proper one, the interest of the sons as well as the interest of the father in the property, although it was ancestral, was liable for the payments of their father's debt. The purchaser under execution, it appears to their Lordships, was not bound to be further back than to see that there was a decree against the father that the property was property liable to satisfy the decree, if the decree had given properly against them; and he having enquired into that, and bona fide purchased the estate under the execution and bona fide paid a valuable consideration for it, the plaintiffs are not entitled to come in and to set aside all that has been done under the decree and execution and to recover back the estate from the defendant.
24. An auction-purchaser purchases property and pays full value for it. After the auction-sale the property passes out of the family and the auction purchaser becomes its owner. He has no interest at all in the question as to whether the sale was made in pursuance of a decree for payment of a secured or unsecured debt. He is entitled to keep the property which he has purchased and it is for the person who seeks to get it back from the purchaser to show that he has a right to get it back. The auction-purchaser in the first instance, it appears to me, is under no liability to show that the property of the judgment-debtor could be sold. If the sons of the judgment-debtor seek to deprive the auction-purchaser of the property which he has purchased and for which he has paid, then they must show that they have a right to get it back. This they can only do by showing that no debt was due from their father or that the debt in payment of which the property was sold was immoral and illegal and therefore the family estate could not be sold in execution of a decree against their father.
25. For the reasons given above I am of opinion that the appeal must be dismissed.