1. The suit out of which this appeal arises was brought by the appellant as plaintiff to enforce a mortgage executed in his favour by the deceased father of the 1st defendant and the brother of the 2nd defendant as manager of a joint family. The mortgage-deed, Ex. A, was executed on the 18th March, 1927. The money advanced under the security of the mortgage was Rs. 1,000 and it was advanced to enable the mortgagor to pay the balance of Rs. 1,000 due in respect of a sale-deed, Ex. B, dated 9th February, 1927, which was registered on 6th April, 1927. Both the lower Courts held that the mortgage-deed was not executed for necessity, and this means that the mortgage is not binding on the half share of the 2nd defendant. Since this finding has not been challenged in appeal, the mortgage will not be binding on the share of the 1st defendant also unless it is proved that the debt to pay which the mortgage money was advanced was an antecedent debt. The question of antecedence was not raised in the plaint but was argued at the trial of the suit and evidence was adduced in support of the contention that the debt incurred in respect of the sale-deed was antecedent to the mortgage-debt. Both the lower Courts, however, held that the sale under Ex. B and the mortgage transaction evidenced by Ex. A were not independent transactions but were part of the same transaction. The learned District Munsiff also held that there was no consideration for the mortgage and dismissed the suit. But the learned Subordinate Judge, holding that there was consideration, allowed the appeal in part and gave a preliminary decree for sale against the one-fourth share in the mortgaged property of the 1st defendant's father for the realisation of Rs. 1,000 with costs and interest.
2. The first contention of the appellant is that the lower Court should have held that the money was borrowed on the mortgage to discharge an antecedent debt and that the decree should consequently have been given against the half share in the mortgaged property of the mortgagor and the 1st defendant, his son. The facts regarding the connection between the purchase of the property under the sale-deed Ex. B, by the respondent's father and the advance of the money under the mortgage Ex. A executed on 18th March, 1927, are, as stated already, that the sale-deed was executed on 9th February, 1927, on which date a sum of Rs. 1,000 was paid towards the purchase money while Rs. 1,000 remained to be paid; that the mortgage was executed on 18th March, 1927, with the recital that the money was advanced for the purchase of lands; that the money under the mortgage was paid although it is not found when; and that finally on 6th April, 1927, Rs. 1,000 was paid towards the sale-deed Ex. B which was registered on that date. The learned District Munsiff did not discuss the question of the antecedence of this debt covered by the sale-deed but observed simply that an antecedent debt means antecedent in fact as well as in time, i.e., it must be truly independent of and not part of the transaction impeached. The learned Subordinate; Judge also pointed out that 'a debt that is claimed to be antecedent for the purpose of making a son liable must be antecedent not merely in point of time, but also in substance,' and he found that the debt incurred in the purchase of lands was not an antecedent debt because the purchase of the lands under Ex. B was not concluded until the registration of the deed on 6th April, 1927, i.e., after the execution of the mortgage-deed. It is argued by learned Counsel for the appellant that the learned Subordinate Judge should have held that the debt came into existence on 9th February, 1927, and that as it was prior to the execution of the mortgage-deed, it should have been found to be an antecedent debt. It is also argued that it is not the case that the liability on the part of the mortgagor to pay the balance of the consideration under the sale-deed came into existence only on 6th April, 1927, since the evidence is that he was put into possession of the land purchased by him as soon as the sale-deed was executed, on 9th February, 1927.
3. The mortgagor may have been liable to pay the balance of Rs. 1,000, in the circumstances of the case, even before the registration of the deed. But it does not follow necessarily, even then, that the execution of the sale-deed and the mortgage-deed were separate transactions and distinct in time and substance. In support of his contention, learned Counsel has referred me to a decision of Horwill, J., reported in Mariyappa v. Ramanuja : AIR1938Mad465 . and he contends that this decision should be followed in preference to cases cited on the other side, viz., Ramkaran Thakur v. Baldeo Thakur : AIR1938Pat44 . and Chitradhar Narain Das V. Khidar Thakur : AIR1938Pat437 . Mariyappa v. Ramanuja : AIR1938Mad465 . was a case in which A, mortgaged certain items of property which he had purchased, and also other items to B in order to find the purchase money for the items of property which he had bought. The mortgage was later in date than the sale. Horwill, J., found that the sale and the mortgage were distinct transactions and that the purchase money constituted an antecedent debt in relation to the money advanced under the mortgage-deed. No doubt there is some similarity between the facts of this case and the facts of the case now in question; but it was pointed out in Bamkaran Thakur v. Baldeo Thakur : AIR1938Pat44 . , that the question whether a debt is antecedent or not is primarily a question of fact, and Horwill, J., in the case decided by him observes:
These two acts can however amount to one transaction only if the parties to the mortgage and the sale looked upon them as one transaction; but there seems to be no evidence in this case that the vendor had anything to do with the mortgage or, more important still, that the plaintiff had anything to do with the sale.
In the present case, the fact that the mortgage-deed was executed between the dates of the execution of the sale-deed and the registration of it together with the payment of the balance under the sale-deed, which was the consideration for the mortgage, indicates very strongly that the two transactions were closely connected. The learned Subordinate Judge has held on a consideration of the facts and circumstances that the debt was not an antecedent debt, and, in the circumstances of the case, especially in the absence of the evidence which has not been printed, it does not seem to me to be possible to say that that this finding is wrong. It does not follow, because it has been held on the facts in Mariyappa v. Ramanuja : AIR1938Mad465 . and on the facts in another decision of a Bench of this Court to which I have been referred-Damodaram Chetty v. Bansilal Abeerchand (1926) 55 M.L.J. 471 : I.L.R. 51 Mad. 711. -that the debts were antecedent debts, that therefore on the. facts of this case it must be held that the debt in respect of the sale-deed was a debt antecedent to the mortgage debt. On the facts the finding of the learned Subordinate Judge was justified and was not wrong in principle or on authority.
4. It is next argued for the appellant that even if the decree must only be against the one-fourth share of the father in the mortgaged property, it should be amended to be not merely against his one-fourth share but against his 'right, title and interest' in the mortgaged property at the time of the mortgage. The object of this contention is said to be to enable the appellant in execution of the decree to obtain, if the facts and circumstances justify it, not only his one-fourth share in partition of the mortgaged property, but the father's interest in the mortgaged property. It is plain that until the father's share in the mortgaged property has been sold no question of the appellant's right to any other part either of the mortgaged property or any other property of the family can arise. He can only proceed, whether by sale or by an application for partition or both, against the share of the father in the other properties of the family, if any, if and when he has failed to realise the amount due under the mortgage by the sale of the mortgaged property subject to sale.
5. It is finally argued that the respondent-1st defendant should not have been heard to say that the mortgage was not binding on his share of the mortgaged property in view of the fact that he was in enjoyment of the property purchased with the mortgage money. There is, in my opinion, no substance in this contention and the case to which I have been referred to in support of it Sohan Lal v. Atal Nath I.L.R. (1933) All. 142. relates to an entirely different kind of suit. That was a case in which a minor was sued for the recovery of money borrowed by his guardian with which the guardian had purchased property which the minor was enjoying on the date of suit. It was held in effect that the minor could not refuse to return either the money or the property. That, of course, is an entirely different case from the present which was brought to enforce a mortgage. 'Whether the appellant had other remedies open to him need not be considered here. It is clear that the 1st defendant was entitled to resist the suit on the mortgage on the ground that the mortgage was not binding on him since it was not for necessity or executed to pay an antecedent debt. It is clear also that the appellant in a suit to enforce the mortgage cannot, as learned Counsel contends on his behalf, be given a charge on the property purchased with the mortgage money to the extent of the 1st defendant's share in the family property.
6. The decree of the lower appellate Court is, therefore, confirmed and the appeal is dismissed, but without costs as the minors are represented by a Court guardian whose fees have already been paid by the appellant.