1. The Lower Courts have found that the suit mortgage was neither executed for an antecedent debt nor for any necessary purpose binding on the sons. It is therefore clear that the mortgage as a mortgage is not enforceable against the sons shares in the property mortgaged and no mortgage decree for sale of those shares can be passed against them. This is not controverted by the appellant.
2. It is however claimed for the appellant that a conditional decree for the recovery of any balance left, in case the net proceeds of the sale of the father's share or the mortgaged property is found to be insufficient to pay the amount due to him should have been passed under Order 34, Rule 6, Civil Procedure Code, against the 1st defendant the mortgagor personally and against the ancestral properties of himself and his sons, as prayed for by him in his plaint.
3. That a conditional decree under Section 90 of the Transfer of Property Act can be passed in the mortgage suit itself without waiting for the mortgaged property to be sold to ascertain if any balance will be left over is clear from the observations of the Privy Council in Mu ammat Jauna Baku v. Raik Parmeshvar Narayan Mahthab Rai Bahadur (1918) 36 M.L.J. 215 We think the same rule will apply under Order 34, Rule 6. In the present case it is not denied that the present claim against the mortgagor under the mortgage-deed is within time and is legally enforceable against him. A conditional personal decree for any balance should therefore have been passed against him in this suit.
4. Such a personal decree is in the nature of an ordinary money decree for a debt due by the father; and for such a decree, unless the debt is shown to be of an illegal or immoral character, the ancestral property in the hands of the sons will be liable on the basis of their pious obligation to pay their father's just debts. It was recognised by the Privy Council itself in Suraj Bunsi's case I.L.R. 5 Cal. 148 that in execution of a money decree against a Hindu father for a debt due by him joint ancestral property of himself and his sons can be sold and the purchaser will get a valid title to the son's shares as well, unless they show that the debt is of an illegal or immoral character, See page 171. It has also been decided in this Court that a creditor could join the sons in the suit on the father's debt and obtain a decree making their shares in the family property liable, see Ramasami Nadan v. Ulaganatha Goundan I.L.R (1898) Mad. 19. This view was further developed in a later Full Bench in Mallesam Naidu v. Jugala Panda I.L.R (1900) Mad. 292 where it was held that the cause of action against the father and the sons on the debt was one and the same. After these decisions it has been the practice to give decrees in suits against Hindu fathers on money claims not only personally against them but also against the joint family property of themselves and their undivided sons where such sons are made parties and do not allege and prove the illegality or immorality of such claims. That a similar decree could be given in mortgage suits under Section : 90 of the Transfer of Property Act corresponding to the present Rule 6 was expressly decided in Kishun Pershad Chowdhry v. Tippan Pershad Singh I.L.R (1907) Cal. 735 a similar view was taken in Addaika Pattar v. Natesa Pillai (1907) 17 M.L.J. 283 and an observation in support of it is also found in Sami Ayyangar v. Ponnammal I.L.R (1897) Mad. 28.
5. It is argued however for the respondents that the recent decision of the Privy Council in Sahu Ram's case I.L.R.(1917) All. 487 : 33 M.L.J. 14 has entirely altered the law on the point and the observations of their Lordships in page 444 have been relied on. This Court has considered the effect of this ruling in two cases recently in Peda Venkanna v. Sreenivasa Deekshatulu I.L.R.(1917) Mad. 136 : 33 M.L.J. 519 and in the Full Bench Armugham Chetty v. Muthu Kounden I.L.R.(1919)Mad. 711 and it was held that the pious obligation of the sons did arise during the father's lifetime and that the debt involved in a mortgage was an antecedent debt which attracted the pious obligation of the sons to pay even though the mortgage as a transfer of an interest in joint ancestral property failed. The mortgage as an alienation of the property may fail if there was no necessity for it and no debt really antecedent to the mortgage transaction; but the sons will nevertheless be under a pious obligation to pay the mortgage debt qua debt unless it is an illegal or immoral one. 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.
6. In the present case through 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 first defendant personally and against the ancestral property of himself and his sons.
7. The further point raised in this case is that the father's share liable for the mortgage decree is a one fourth share and not a one fifth share as one of his sons now on record the fifth defendant was born after the mortgage was executed. This is not denied and therefore the decree of the lower Courts should be modified by also stating that a 1/4th share of the mortgaged property is saleable under the mortgage decree. With the above modifications the second appeal is dismissed but without costs.