1. The plaintiffs, who are the appellants in this Court, sued Gobind Ram and his minor sons upon two mortgages of the 9th of September 1911 and the 25th of June 1912. The question in issue in the Court below and again in this Court was whether the joint ancestral property in the hands of Gobind Ram can be made liable for the whole, or for any part, of the consideration under these two deeds. The essential circumstances are as follows: On the 20th of July 1911 Gobind Ram had obtained a pre-emption decree entitling him to acquire certain property in a village called Loharra, on condition of his depositing a sum of Rs. 1,072, within a prescribed time. He borrowed this amount from the plaintiffs under the deed of September the 9th, 1911, by hypothecating under the said deed not only the share in village Loharra which he proposed to acquire, but also certain ancestral family property in his hands. He did not confine himself to raising the money necessary to acquire the property in Loharra under the pre-emption decree. He borrowed Rs. 1,246 more in order to pay off 2 promissory-notes. He as knowledged the previous receipt of Rs. 82 for incidental expenses and other unspecified necessities and he was paid Rs. 1,100 in cash and on registration. The total consideration for this bond, therefore, comes to Rs. 3,500. Subsequently, there was an appeal in the preemption case and the result was that, in order to secure the benefit of the pre-emption decree, Gobind Ram had to pay a further sum of Rs. 750, For this purpose, he executed the second of the two mortgages in suit for a nominal consideration of Rs. 800 of which;Rs. 45 was received in cash and Rs. 5 was set down as due on account of the interest on the older bond of September, the 9th, 1911. The Court below has held that the property acquired by Gobind Ram in village Loharra is liable for the full amount of the debt due under both mortgages according to their terms, and this finding is not challenged by the defendants. With regard to the remainder of the consideration, the finding is that two antecedent debts due under a promissory note, for a total sum of Rs. 1,246 were in fast paid up out of the consideration of Rs. 3,500 received under the bond of September the 9th 1911. Consequently, the whole of the property hypothecated under the deed, including the joint ancestral family property, has been made liable for this amount. To this part of the decree again, the defendants have submitted. The appeal before us is by the plaintiffs. They contend:
2. Firstly, that the joint ancestral family property ought to have been made liable at least for the two sums of Rs. 1,072 and Rs. 750 applied to the satisfaction of the pre-emption decree. Secondly, that the sum of Rs. 1,100 paid in cash at the registration of the older deed was, in fast, borrowed in order to pay off the antecedent untenured debts and was applied to that purpose. On the first paint, there is one authority of this Court, the case of Nathu v. Kundan Lal 8 Ind. Cas. 836 : 33 A. 313 : 7 A.L.J. 1182, which appears to support the contention of the plaintiffs, We do not think that this decision can be regarded as good law in view of the subsequent pronouncements of their Lordships of the Privy Council on the question of antecedent debt to which it is not necessary for us to refer in detail. When all is said and done, the pre-emption decree merely gave Gobind Ram the option of acquiring certain property at a certain prize. He was laid under no obligation to acquire the property unless he chose. It seems to us that it would be very dangerous to hold that the money required to satisfy the pre-emption decree was an antecedent debt due from Gobind Ram on the date on which each of these mortgages respectively was executed.
3. On the second point, we have some to the conclusion that we cannot some to a decision without exercising our power under Order XLI Rule 27 of the Civil Procedure Code to call for certain further evidence. We find that, as early in the trial of the suit as the 29th of January, 1919, the plaintiffs had made a full disclosure of their case regarding this item of Rs. 1,100. They mentioned the names of four creditors of Gobind Ram for whose satisfaction they allege the money to have been borrowed and who they allege to have been actually paid off by means of this money. The case was set down for hearing on the 20th of March 1919 and, on the 7th of March the plaintiffs applied for summonses to issue against the four creditors whom they had already named to the Court. Summonses were duly served but the witnesses in question did not present themselves before the Court at the hearing of the 20th of March 1919. The plaintiffs applied for an adjournment to enable them to summon these witnesses but were refused. We cannot agree with the Court below that there were any laches on the part of the plaintiffs in this matter. So far as appears from the record, they did their best to get these witnesses before the Court. We think this is a case in which the Court from whose decree the appeal before us is preferred has refused to admit evidence which ought to have been admitted. We accordingly send down the case to the Court below with directions to afford the plaintiffs a further opportunity of requiring the attendance of those four -witnesses in such manner as they may think proper. The witnesses should be directed not merely to attend the Court to give evidence, but to bring with them any documents in their possession relating to the alleged transactions between them and Gobind Ram. When this evidence has been duly recorded the record should be returned and sent down for further hearing of the appeal to this Court on the earliest convenient date. The four witnesses in question are Bal Makund, Ganga Nath, Mansukh Ram and Jai Jai Ram mentioned in the Court's rubkar of the 29th of January 1919 and summoned at the trial under the plaintiff's application of the 7th of March 1919.
4. I agree. With reference to the case of Nathhu v. Kundan Lal 8 Ind. Cas. 836 : 33 A. 313 : 7 A.L.J. 1182 which has been relied or, I find a difficulty in following the reasoning contained in the judgment.
5. Whatever else it may be, a condition providing that the payment of a sum of money shall depend upon enforcing or taking up a pre-emption decree is certainly not a debt. The transaction, no doubt, was antecedent, but it does not result in debt. There is no person to enforce it if the pre emptor does not choose to act upon this plea. I entirely agree with what my brother has said that the passage in the judgment of their Lordships of the Privy Council, Sahu Ram Chandra v. Bhup Singh 39 Ind Cas. 280 : 39 A. 437 at p, 449 : 21 C, W.N. 698) 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N, 439) 22 M.L.T, 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) clearly shows that the decision in Nathu v. Kundan Lal 8 Ind. Cas. 836 : 33 A. 313 : 7 A.L.J. 1182 ought not any longer to be followed 'In truth' runs the opinion of Lord Shaw 'to give true effect to the doctrine of antecedence in time there must be also real dissociation in fast.' In Nathu v. Kundan Lal 8 Ind. Cas. 836 : 33 A. 313 : 7 A.L.J. 1182 and in the case before us, there is not only no such dissociation in fact, but there is the most intimate association. In the previous decision of this Court, reliance was placed in the judgment upon the fact that the condition of the decree had been actually complied with and the property had been acquired as the result of the money borrowed in the mortgage transaction which was in question. That seems to me to be exactly the vice against which the Privy Council have warned the Courts of India. On the other hand, it seems to me that the decision in Kapildeo v. Thakur Prasad 21 Ind Cas 868 : 33 A. 17 : 11 A.L.J. 931 marks vary clearly the other side of the dividing line, there being in that case an obligation incurred antecedent in time and dissociated in fact, either to take up the purchase at auction or to pay compensation for default,