1. These are two suits upon mortgage documents executed by 1st defendant, whose sons are defendants 2 to 5. The appellant is a transferee from the 1st mortgagee, the plaintiff in O.S. No. 40 of 1918 and the 6th defendant in O.S. No. 43 of 1915, which is the 2nd mortgagee's suit. The 3rd mortg igee is the 7th defendant in both suits.
2. The District judge dismissed O.S. No. 40 of 1918, holding that the mortgage deeds were not properly attested and therefore invalid I think he was right in preferring the evidence of the two witnesses whose names appear on the documents as attestors when they say that the executant did not sign in their presence to the evidence of the executant and the sister and the daughter of one mortgagee, the daughter being herself a mortgagee under one of the deeds, as the latter are likely to be interested in keeping the property in the hands of relations rather than allowing it to pass into the possession of the 2nd and 3rd mortgagees who are strangers.
3. No doubt the 5th plaintiff's witness who is a pleader practising at Bellary is related to the executant and Parikshita Rao the other signatory who is now dead was a friend of the executant and lived in his village, but they seem nevertheless to have spoken the truth on a matter which was necessarily within their knowledge, and the appearance of document suggests that their signatures were affixed at a different time, as indeed they say they were.
4. Though the suit documents are not valid as mortgages they can be enforced as bonds against the 1st defendant personally and the family property in the hands of defendants 1 to 5.
5. It is argued by the vakil for respondents 2 to 5 that their shares should not be made liable during the life time of their father the 1st respondent, for the reason that sons are not bound by any pious obligation to pay off their father's debts so long as he is alive. He relies on the Privy Council decisions in Sahu Ram Chandra v. Bhup Singh I.L.R. (1917) All. 437 . and Chet Ram v. Ram Singh (1922) 43 M.L.J. 98 as establishing this principle.
6. I do not think it is necessary for the plaintiff to invoke the doctrine of 'pious obligation' here. It has always been held in this presidency since the Full Bench decision of Ponnappa Pillai v. Pappuvayyangar I.L.R.(1881) Mad. P. 1 (F.B.) in which Girdharee Lall's case was considered, that so long as a Hindu family remains undivided a creditor can proceed against the interest of the sons in the ancestral property for the debts of their father which have not been contracted for illegal or immoral purposes as has been pointed out by the learned Chief justice in Peda venkanna v. Sreenivasa Deekshalulu I.L.R. (1917) Mad. 136 the prevailing judgment of Sir Charles Turner, C.J., in this Full Bench case received the approval of the Privy Council in Muttayan v. Zamindar of Sivagiri I.L.R. (1882) Mad. 1. This principle was again confirmed by another Full Bench of this Court in Ramasami Nadan v. Ulaganalha Gonndan 8 M.L.J. 312 (F.B.) and two Benches of this Court have taken the same view in Snbramania Aiyar v. Shaw Wallace & Co., Madras (1920) 38 M.L.J. p. 402 , and Kandasami Goundou v. Kuppa Moopan 38 M.L.J. 203, after considering Sahu Ram Chandra v. Bhup Singh I.L.R. (1917) All. 437 and deciding that the Privy Council did not intend to alter the existing law in this respect. The Bombay High Court has come to the same conclusion in Hanmant Kashinath v. Ganesh Annaji I.L.R. (1919) Bom. 612. In Mayne's Hindu law in paragraph 307 the passage occurs:
This limitation of the son's liability (the learned author in referring to a son's want of obligation to liquidate his father's debts during the father's life time) has however ceased to be of any importance in view of the recent decisions which enable a creditor during the life of the father to enforce his claims by decree and execution against the entire family property and reference is made in the foot note to Khalilul Rahman v. Gobind Parshad 9), Ramasami Nadan v. Ulaganatha Goundan 8 M.L.J. 312 (F.B.), and Govind v. Sakharam (1901) I.L.R. 28 Bom. 383.
7. The principle is explained in Hanmant Kashinath v. Ganesh Annaji I.L.R(1919) . 43 Bom. 612 as due to a decree holder's right being co-extensive with the power of a debtor-father to alienate ancestral immoveable property for the satisfaction of his antecedent debts, not being tainted with illegality or immorality. In the present case it is clear from Exhibit A that there was an antecedent debt of Rs. 2,000 incurred by the father for cultivation expenses.
8. If the sons effect a bona fide partition at a time anterior to the date when the debt is contracted their responsibility is different and the father's creditor cannot then proceed against their divided shares. See Krishnasami Kouan v. Ramasami, Ayyar M.L.J. 127 Peda Venkanna v. Sreenivasa Deekshatulu 33 M.L.J. 519 and Kani Venkatareddi v. Chelluri Satyanarayana Moorthi (1920) 40 M.L.J. 473, but the present condition of the family of these respondents is joint. They are therefore all liable, the father personally and the sons in respect of the ancestral properties in their possession and the suit is in time.
9. In modification of the Lower Court's decree in O.S. No. 40 of 1918 a decree will be given accordingly with interest at 6 per cent from date of plaint to date of realisation against the 1st respondent personally and against his share of the family properties and against the shares of respondents 2 to 5 to the extent that the decree remains unsatisfied by the father, with costs throughout.
10. In other respects appeal No. 177 of 1920 is dismissed. Appellant to pay the costs of 6th and 7th respondents in A.S. No. 177 (1 set.). Appeal No. 176 is dismissed. No separate costs.
11. Original Suit No. 40 of 1915 was brought by the plaintiff on a mortgage deed executed in his favour by the 1st defendant, making the 6th defendant, a prior mortgagee, and the 7th defendant, a subsequent mortgagee, parties to the action. The defendants 2 to 5 are the sons of the 1st defendant. The District Judge of Bellary dismissed the suit and the Plaintiff preferred A.S. No. 102 of 1918. The High Court allowed the appeal and set aside the decree of the District Judge, and remanded the suit to the lower court with directions to pass a proper decree after raising necessary issues on the claims of the 6th and 7th defendants. The District Judge of Bellary has allowed the claim of the 7th defendant and dismissed that of the 6th defendant on the ground that the mortgage deeds relied on by him were not proved to have been property executed as required by law.
12. The 6th defendant has appealed against that decree in A.S. No. 176 of 1920. During the pendency of the said A.S. No.102 of 19lb the 6th defendant brought O.S. No. 40 of 1918 impleading his mortgagor as 1st defendant and his undivided sons, as defendants 2 to 5, and the plaintiff in O.S. No. 40 of 1915 as 6th defendant and the 3rd mortgagee as 7th defendant. The suit was dismissed on the ground that the execution of the mortgage deeds was not proved according to law and the plaintiff has preferred A.S. No, 177 of 1920. In both the appeals the same person Swami Rao is the appellant, and the questions involved are the same.
13. The appellant's case is that of the two mortgage deeds relied on by him, one was executed to his adoptive father Venkoba Rao on 10th August 1912 by the 1st defendant and the other was executed in favour of Gundamma the daughter of the said Venkoba Rao on the same date, by the 1st defendant and that he is the transferee of both mortgages. He contends that the execution of the documents was witnessed by two persons, and that the District Judge erred in disbelieving the evidence of the two witnesses who speak to the execution. Of the two attesting witnesses one is Mr. Gundu Rao, a pleader practising in the Bellary District. His evidence is that the documents after execution by the 1st defendant were taken to him and he attested them and that he did not see executant sign the documents. It is urged that the pleader's evidence that he did not see the actual execution of the documents cannot be relied upon in as much as two witnesses Gundamma and Tolasamma speak to the execution of the document in the presence of the pleader and the other attesting witness. It is quite open to this Court to find that the execution was witnessed by the attesting witnesses even though they may not speak to the fact, if there is other and satisfactory evidence on record to show that the attesting witnesses did witness the execution - vide Brahmadat Tewari v. Chandau Bibi (1916) 20 Cal. W. N 192 . But there is no reason why the pleader who appears to have no interest hostile to the appellant should swear falsely that he did not see the actual execution but put his signature to the documents on the assurance that they had been signed by the 1st defendant. It must be remembered that before the date of the Privy Council decision which laid down that the execution of the mortgage deeds in the absence of attesting witnesses would not be fulfilling the requirements of the law, it was a common practice to take documents round after execution in order to get the attestation of a number of witnesses, and that this practice must have been resorted to in this case as well as is clear from the way in which both Gundu Rao and the other attesting witness Parikshitha Rao were examined at the original trial in O.S. No. 40 of 1915. They were examined in chief by the appellant's pleader who evidently asked them whether they attested the documents and when they replied that they were not present when the executant signed them he contended himself by eliciting that the execution was admitted to them by the mortgagor. It is significant that the examination-in-chief stopped with the answer. 'I asked if he had signed them and he said he had.' Much reliance cannot be placed upon the evidence of Tolasamma, P.W. 6 who is a sister of Venkoba the mortgagee, and it is not likely, that she would have carefully noticed whether the mortgagor signed the documents after they were engrossed even though he might have been aware that documents were being written in the hall of the house of her brother Venkoba Rao. The next witness, P. W 7 is Gundamma, who is said to be 23 years of age in 1918, when she was examined as a witness. She must have been a young girl of about 16 years of age on the date of the execution of the documents. She was then said to be a widow, and it is most unlikely that a young brahmin widow would have been present at the place where the documents were being written and where a number of men were present. I do not think that the evidence of these two women can, in any way, outweigh the evidence of Gundu Rao, a pleader and Parikshitha Rao, a stranger. It has been urged that Parikshitha Rao was a man belonging to the same village as the 1st defendant and therefore interested in not speaking the truth. He is dead, and his evidence is marked Ex. Ill and there is no reason why he should have said something which was not true. No doubt the 1st defendant swears that he signed the two mortgage deeds Exs. A & B in O.S. No. 40 of 1918 in the presence of the two attesting witnesses. It is urged on behalf of the appellant that it is most unlikely that the 1st defendant would support the mortgagee against the interests of the sons, defendants 2 to 5, who hotly contest the validity of the appellant's mortgages. It is suggested by Mr. Govindaraghava Aiyar, that the 1st defendant was anxious that the appellant who is his relation should get the benefit of the mortgages as he feared that there would be nothing left after satisfying the mortgages in favour of the plaintiff and the 7th defendant in O.S. No. 40 of 1915. The appellant's mortgages are prior in date to those of the other two mortgages. In these circumstances it cannot be said that the learned District Judge has not correctly appreciated the evidence in the case. The mortgage documents not having been proved to have been validly executed the appeals fail and must be dismissed.
14. Mr. Narayana Murthi, who appears for the appellant, asks for a personal decree against the 1st defendant and against the shares of the defendants 2 to 5 in the family property. The personal remedy against the 1st defendant is not barred.
15. On behalf of the sons it has been urged that such a decree could not be passed, The vakil for the sons puts forward these propositions: (1) The father in a joint Hindu family has no power to alienate the son's share unless there is family necessity. (2) The father's power to alienate is confined only to cases where there is an antecedent debt to be discharged. (3) A creditor cannot proceed against the shares of the sons in execution of a decree against the father. (4) In no case can the son's shares be made liable during the life time of the father if the debt was neither antecedent nor for necessity. It has been very vehemently urged that the three decisions of the Privy Council reported in Sahu Ram Chandra v. Bhup Singh I.L.R. (1917) All. 437 jogi Das v. Ganga Ram (1917) 21 Cal. W.N. 957 and Chetram v. Ram, Singh (1922) 43 M.L.J. 98 support the contention, that, as long as the father is alive, no decree can be passed against the son's share for a debt incurred by the father, and no execution can be levied against the son's share for a decree passed against the father. As the law stands at present a creditor can proceed against the shares of the sons in the family property in execution of a decree obtained against the father without proving either family necessity or that the debt was incurred to discharge an antecedent debt. We have to see whether the three Privy Council decisions relied on by the vakil have really altered the law on this point. In Sahu Ram Chandra v. Bhup Singh I.L.R. (1917) All. 437 the facts were one Bhup Singh, the 1st defendant, father of defendants 2, 3 and 4, and the grand-father of defendants 5 and 6, on the 21st February 1882, mortgaged the family property to Sahu Ram Chandra. The suit which gave rise to the appeal to the Privy Council was brought by Ram Chandra in July 1910 making Bhup Singh his sons and grandsons, defendants. The question was whether Bhup Singh was justified in executing the mortgage deeds so as to bind the sons. Their Lordships held that a loan made to the father on the occasion of a grant by him of mortgage on the family estate was not an antecedent debt. In the course of their judgment they quote the following passage from the judgment in Suraj Bunsi Koer's case I.L.R.(1880) Cal. 198. (1). 'That where joint ancestral property has 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 purchaser had notice that they were so contracted. 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' and observe; 'Their Lordships desire to record their adhesion to the following comment made on this pronouncement by Sir John Stanley in the case of Chandradeo Singh v. Mata Prasad I.L.R.(1909) 3 All 179. The learned Chief Justice stated: 'The first of these propositions, it will be observed, deals with cases where joint ancestral property has 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. It deals with cases in which ancestral property has passed out of the family, and with no other cases, and the words 'antecedent debt' seem to have been used advisedly. Likewise the second proposition deals with the case of a purchase at an execution sale. Neither proposition touches a case in which a mortgagee of a Hindu father seeks to enforce his mortgage as against the sons.' It is quite clear from this passage that their Lordsihps did not intend to alter the law as it stood as regards the right of an execution creditor to proceed against the son's share in execution of a money decree obtained against the father. At page 444 their Lordships further observe: 'Although the correct and general principle be that if the debt was not for the benefit of an estate then the manager 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 a general and sound principle, their Lordships are of opinion that the exception should not be extended and should be very carefully guarded.' In order to justify an alienation by the father there should be an antecedent debt. But the contention of the sons is that, so long' as the father is alive, the share of the sons cannot be proceeded against in execution of a decree obtained against the father and that the court cannot pass a decree against the sons' shares also in a suit brought against the father and sons on a debt contracted by the father, and the learned vakil relies very strongly upon the following passage of their Lordships in the case cited above: 'while the father, however, remains in life, the attempt to affect the sons' and grandsons' share in the property in respect merely of their pious obligation to pay off their father's debts, and not in respect of the debt having been truly incurred for the interest of the estate itself, which they with their father jointly own, that attempt must fail; and the simplest of all reasons may be assigned for this, namely, that before the father's death he may pay off the debt, or after his death there may be ample personal estate belonging to the father himself out of which the debt may be discharged. In short, the responsibility to meet the father's debts is one thing, and the validity of a mortgage over the joint estate is quite another thing. Accordingly, the case founded merely upon pious obligation and so strenuously argued before the Board, fails in the present instance by reason of the fact that Bhup Singh who contracted the debt, is still alive and that there is a concurrent finding by both the courts below to the effect that the plaintiffs have failed to prove that the debt of Rs. 200/-for which the mortgage was granted, was incurred for any legal necessity or benefit to the estate.' This case was followed in Jogi Das v. Ganga Ram (1917) 21 C.W.N. 957 (P.C.). Lord Haldane delivering the judgment of their Lordships of the Privy Council referred to the case of Sahu Ram Chandra v. Bhup Singh I.L.R(1917) . All. 437 in the following terms: 'In that case it was laid down in effect that the joint property could not be alienated as against co-sharers by way of mortgage, or otherwise, except for interest or for payment of actual antecedent debt, quite distinct from the debt incurred in the mortgage itself, and that in execution the transaction could not stand, and it was added that the mere circumstances of a pious obligation does not validate the mortgage. In the recent case of Chet Ram v. Rain Singh (1922) 43 M.L.J. 98, Lord Shaw in delivering the judgment of their Lordships quotes with approval the third passage in Sahu Ram's Case extracted above. There was no contention in that case that 'the sons were not liable during their father's life-time for debts contracted by him. The only question in controversy was whether an alienation by a father could be supported on the ground that there was an antecedent debt when the debt was not really antecedent but only antecedent in point of time' Their Lordships held that in order to constitute an antecedent debt to justify an alienation the debt should not be merely antecedent in point of time but that it should be antecedent in fact.
16. A careful examination of these cases shows that there is no warrant for saying that their Lordships intended to alter the law as regards the liability of the son's share for the father's debt. The law has been settled for over a generation as regards this point. In Meenakshi Naidu v. Immudi Ramiah Koundan (1887) I.L.R. 12 Mad. 142 (P.C.) , it was laid down by the Privy Council that a father's debt could be impeached only on the ground that the debt was illegal or immoral, and the sons could not set aside a sale by the Court in execution of a decree obtained against the father. In Khalilul Raman v. Govind Pershad (1892) I.L.R. 20 Cal. 328, the learned Judges of the Calcutta High Court stated the law thus:
In this case the mortgage-creditor sues first a mortgagor and his sons, and second, the son of a deceased mortgagor and seeks his remedy against the ancestral property of all members of a joint family. It is certain that he is entitled to a decree against the mortgagor in respect of his own share. It is also clear that the mortgage, so far as it was contracted to pay a debt not illegal or immoral, existing when the mortgage debt was contracted, is good against the shares of the sons of each mortgagor. No authority need be cited for this. It is also now established that a decree for the personal debt of the father, not illegal or immoral, may be enforced by sale in execution in his lifetime of the entire joint family estate. Meenakshi Naidu v. Immudi Ramiah Koundan (1888) I.L.R. 12 Mad. 142 (P.C.). This is one of the advances lately made on the older law which made the son's shares liable in respect of the pious duty to pay the father's debts, after his natural or civil death. They quote the following passage from Mine's Hindu Law, para. 283, page 309 of the IV edition. 'But I imagine that no suit could be brought directly against sons, based solely on their liability to pay the debt of their father until he was either actually or civilly dead, so that the estate had legally vested in the sons,' and remark, 'recent decisions in this Court are not quite in accordance with this opinion.' So it may be taken to be settled law that the son's share could be proceeded against in execution of a decree obtained against the father. It follows from that that a Court could pass a decree against the son's share of the family property. 'It is now settled that the sons may be bound by proper proceedings taken by the creditor against the father to enforce more money debt due to him, although the sons are not made parties to the suit.' Mayne's Hindu Law, p. 413, 8th edition. Sahu Ravi's case has been considered in three recent cases by the Madras High Court. In Peda Venkanna v. Srinivasa Dikshilalu I.L.R. (1917) Mad. 136, the learned Chief Justice and Kumara swami Sastri, J. distinctly overruled the contention that the sons are not bound to pay the father's debt as long as he is alive. The learned Chief Justice Sir John Wallis observes at p. 141,. 'As it appears to me that the creditor's right to bring the son's shares to sale for an antecedent debt and the long line of decisions which support it were not considered by their Lordships in the recent case, I think it should not be treated as overruling them, and that, if we are to depart from what has been the settled law of this and other High Courts for so many years, it should be in deference to a clear expression of their Lordships' opinion with reference to this particular, question and not on any inference from the reasons given by their Lordships in setting a conflict in the Indian Courts on another'. Kumaraswami Sastri, J. observes at p. 142; 'The second appeal should be allowed not on the broad question raised by Mr. Parlhasarathi Iyengar as to the non-liability of a son to pay his father's debts during the father's lifetime, a conclusion which according to appellant's counsel, is the logical result of the recent decision of their Lordships of the Privy Council in Sahu Ram Chandra v. Bhup Sigh I.L.R. (1917) All. 437 but on the narrower one that a son is not after partition liable to be proceeded against in respect of a simple personal debt incurred by the father before a partition whatever his rights may have been if they had continued joint,' Sahu Ram's case was considered by the Full Bench in the case reported in Arumugam Chetty v. Muthu Kavundan I.L.R. (1919) Mad. 711 and by a Division Bench in Kandasami Kavundan v. Kuppu Moopan I.L.R. (1920) Mad. 421. In the latter case the learned Judges observe at p. 423,' We are bound by these views and must hold that the observation in Sahu Ram's case does not alter the law on the point we are considering and we must follow the rule in the earlier cases. In fact such a point was not raised at all before the Privy Council : the point that their Lordships were considering was whether the mortgage was as such binding on the sons and whether a mortgage decree could be passed against them.' Sahu Ram's case was considered by the Bombay High Court in Hanumant Kashinath v. Ganesh Aunaji I.L.R. (1919) Bom. 612. After discussing it and the case in Peda Venkanna v. Srinivasa Dikshitalu I.L.R. (1917) Mad. 136 the learned Judges observe: 'The Judgment thus so far from throwing doubt on the well established remedies of the creditor in execution impliedly recognises them.' In that case a money decree was obtained against a Hindu father for his failure to account as a trustee and in execution the ancestral property was attached. The sons having applied to raise the attachment on the ground that the money debt in the decree against their father was tainted with illegality and immorality and that their shares could not be made liable in execution during the lifetime of their father. It was held that the decretal debt of the father for breach of civil duty as trustee was not Avyavaharika and held further that the shares of the sons in the ancestral property could be attached and sold during the life-time of the father for the satisfaction of his personal debt not tainted with illegality or immorality.' In Madhusudan Das Mohunt v. Iswari Day Debi I.L.R.(1921) Cal. 341 Richardson, J., observes at page 349; 'As it appears to me, the language of their Lordships in Sahu Ram Chandra's case shows that, they did not intend to alter the law applicable to such a case as the present.' Their Lordships' purpose was to dissipate the uncertainties which had gathered round the term 'antecedent debt in connection with voluntary alienations by the father of immoveable family property. The cases before their Lordships was that of a mortgage.' Both the learned Judges held that the Judgment in that case did not alter the law and that a decree passed against the father personally could be executed against the family property including the shares of the sons. So, it is quite clear, from all these cases that a creditor who obtains a personal decree against the father could execute the decree against the shares of the sons and that the Court could pass a decree for a personal debt of the father against the son's shares as well. In Kandaswami Kavundan v. Kuppu Moopan I.L.R. (1920) R. 421 Oldfield, J., and Krishnan, J., indicate how this is to be done. At p. 424, they observe: 'In the present case though the plaintiff prayed expressly for a decree under Order 34, Rule 6 against the ancestral property the sons did not plead or prove that the debt was illegal or immoral. They cannot be given a fresh opportunity for the purpose. The plaintiff is therefore entitled to a decree as he asks for under Rule 6 against the 1st defendant personally and against the ancestral property of himself and his sons'. It is urged by the appellant that in the case of one document there was an antecedent debt and in the case of the other the debt was incurred to pay off some other debts. Ex. A does mention, that a debt of Rs. 2,000 had been previously incurred. But Ex. B does not clearly make out tint there was a previous debt. It is unnecessary to decide the question whether there were antecedent debts or not as no mortgage decree is to be given.
17. The appellant will have a personal decree against the 1st defendant and for any unsatisfied portion thereof after selling the 1st defendant's share, against the shares of the defendants two to five. With this modification of the lower Court's decree the appeals are dismissed.
18. In the result appeal 176 is dismissed without costs, the appellant has failed on a technical point. The plaintiff in O.S. No. 40 of 1915 made the appellant a party to the suit. The subsequent mortgagees, that is, the plaintiff and the seventh defendant in O.S. No. 40 of 1915 did not contest the validity of the mortgages. In the circumstances the respondents 6 and 7 are not entitled to their costs in appeal.
19. A.S. No. 177 of 1920 is allowed only as regards the personal remedy of the 1st defendant and liability of the sons shares in the family property. First defendant will pay the suit amount with interest at six per cent from the date of plaint to date of realisation together with costs throughout and defendants 2 to 5 will pay out of the family assets the portion of the amount of the decree not satisfied out of the 1st defendant's share. Appellant will pay the costs of this appeal One set to respondents 6 and 7.