1. We must accept the learned District Judge's findings of fact (1) that Exhibits B and C are genuine, (2) that family necessity has not been proved for the debts secured by Exhibit A apart from the fact that there was a prior debt due to the plaintiff secured by the previous instruments (Exhibits B and C) executed by the 1st defendant and 3rd defendant and their fathers which mortgaged the family property.
2. On the question of law, which is whether a prior mortgage over joint family property created by a father can be treated as an antecedent debt for the purpose of binding his sons' interest in co-parcenary property in a subsequent mortgage between the same parties, I think we are bound to give the fullest effect to the words of Lord Shaw in Sahu Earn Chandra v. Bhup Singh (1917) 33 M.L.J. 14 If the arguments advanced before their Lordships are read with what preceded and followed this expression of the Judicial Committee's opinion, there cannot be any doubt as to what was meant by the words ' an obligation not only 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.'
3. If the law were different from what it is here pronounced to be, it would be open to a father to create a mortgage over the joint estate of himself and his sons one day and the next day to execute a second mortgage over the same property citing the first mortgage as an' antecedent debt to make the transaction binding on the sons' interest. The effect would be to give the sanction of law to the very evil which the Privy Council seek to avoid when they speak of undue and improper extension of this exception in respect of antecedent debts to the manager's power of mortgage.
4. The effect of the decision Sahu Bam Chandra v. Bhup Singh (1917) 33 M.L.J. 14 has been considered in a recent decision of this High Court in Peda Venkanna v. Sreenivasa Deekshatulu : (1917)33MLJ519 .
5. The question that arose in that case was whether a creditor could proceed against the sons' share during his father's life-time to recover a debt upon a promissory note executed by the father after partition in renewal of a note executed before partition. It was held that the Privy Council decision was not intended to overrule the whole current of authorities on this topic. The learned Chief Justice observed that the latest Privy Council decision did not question a creditor's right to bring the sons' interest to sale for an antecedent debt. The new definition of what is an 'antecedent debt was not discussed in his judgment or in that of Kumaraswami Sastri, J., who sat with him. There was nothing said, nor could there be, to diminish the authority of this pronouncement by the Privy Council, and even if anything in earlier judgments of that tribunal can be cited as being difficult to reconcile with this, we should have to follow the more recent.
6. I consider that the appeal must be allowed to the extent of giving the plaintiff a decree in the usual mortgage form including costs of this suit throughout against the share of the deceased 1st defendant in the hands of his son the 2nd defendant allowing 6 months for payment and that as regards the 2nd defendant's share the appeal must be dismissed with costs and a decree will be made accordingly.
7. The learned District Judge has now found on the 1st issue that the prior mortgage deeds-Exhibits B and C are genuine and on the 2nd issue that Exhibit A is not binding at all on the 2nd defendant. The finding on the 1st issue is not objected to and must be accepted. The appellant has however contested the finding on the 2nd issue before us and we must consider it.
8. The 2nd defendant is not a party to Exhibit A; his share in the joint property mortgaged is sought to be made liable on the ground that his father executed Exhibit A, and that the consideration for it is binding on him. The consideration for Exhibit A as recited in it consists of two parts, viz., Rs. 1,000 said to have been borrowed by the father at various times to pay household expenses and the Government assessment on the joint estate and Rs. 2,000 to pay off the prior mortgage on the same property under Exhibit B. It is now found that there was no necessity to borrow either of the sums. Exhibit B was executed for paying off the mortgage under Exhibit G and that again to pay off the mortgage under Exhibit F. No evidence was given to show that there was any necessity to borrow under Exhibit F; and therefore Exhibit A also is not shown to be justified by necessity. This finding that Exhibit A was not proved to have been executed for any necessary purposes of the joint family was not seriously contested before us. The appellant has based his claim to make Exhibit A binding on the 2n1i defendant on the ground that it was executed by his father for antecedent debts.' That a mortgage interest can be created on joint property by the father alone, so as to bind the son, to pay off his antecedent debts is not disputed. But the question is whether the consideration for which Exhibit A was executed can be held to be ' antecedent debts.' As regerds the Rs. 1,000 it is not clear whether there was a debt at all before Exhibit A, and whether the moneys were not paid as consideration for the mortgage itself; the alleged paddus were not produced at all. We must take it that plaintiff has not established the existence of any debts for Rs. 1,000 antecedent in time to and dissociated in fact from the mortgage sued on, and therefore as laid down by the Privy Council in Sahu Ram Chandra v. Bhup Singh I.L.R. (1917) All 437, his claim to enforce Exhibit A on that ground against the son to the extent of Rs, 1,000 fails. The question whether the previous mortgages should not be treated as antecedent debts is a more difficult one. As stated already, Exhibit A was partly to pay off Exhibit B and that again to pay off Exhibit C which was to pay off Exhibit P. They are all mortgages on the same joint family property; Exhibits A and B were in favour of plaintiff; but Exhibits C and F were in favour of third parties. If any of these deeds created a valid charge on the sons' share as having been executed for an antecedent debt itself the subsequent ones no doubt will also be binding to the extent that they were executed for paying off such- a valid charge. It is not shown that there was any antecedent debt to pay off which, Exhibit F was executed; but the argument has been that each prior mortgage was an antecedent debt for the one next in time. This argument must fail under the recent ruling of the Privy Council in Sahu Ram Chandra v. Bhup Singh I.L.R. (1917) All 437. Their Lordships make it clear that a debt borrowed by the father on the security of the joint family estate cannot be treated as a debt of the father within the meaning of the doctrine in question. The say ' in their Lordship's opinion these expessions, which have been the subject of so much difference of legal opinion, do not give any countenance to the idea that the joint family estate can be effectively sold, or charged in such a manner as to bind the issue of the father, except where the sale or charge has been made to discharge an obligation not only 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. The exception being allowed as in the state of authorities it must be, it appears to their Lordships to apply and to apply only to the case where the father's debts have been incurred irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family property.' Their Lordships observed in an earlier part of their judgment 'this (that is, the doctrine of the validity of mortgages or sales by the father for antecedent debts against his sons) being an exception from a general and sound principle their Lordships are of opinion that the exception should not be extended and should be very carefully guarded.' There cannot be any doubt on their language that they meant to restrict the doctrine to cases of antecedent debts borrowed on the father's sole responsibility with no obligation on the joint family or on its properties. We are bound to follow this expression of opinion which is quite clear, as pointed out by Mr. Ramesam, and we cannot consider any arguments about its correctness.
9. The lower Court's finding that Exhibit A is not binding on the 2nd defendant's share of the property must therefore be accepted.
10. The 1st defendant, the father being himself the executant of Exhibit A, the liability of his half share in the plaint property is not disputed. His death after the decree in the District Court cannot in any way affect the liability. Eecitals in Exhibit A are good evidence against its executant and as there is no proof that such recitals are false the claim must be taken to be proved against the father. There must be a mortgage decree as prayed for, with the variation that only half the plaint property will be made liable.
11. I agree to the order proposed by my learned brother.