1. This is a suit on a mortgage executed by the 1st defendant. The 2nd defendant is the undivided son of the 1st defendant. The plaintiffs allege that the mortgage is enforceable against the son's interest in the family property. The 1st defendant did not defend the suit.
APPEAL NO. 115 of 1906.
2. The mortgage sued on, Exhibit A, recites the receipt of Rs. 3,000. It contains no reference to any earlier transaction, but the judge finds, and this apparently was not contested at the hearing of the appeal, that this mortgage was given in renewal of an earlier mortgage, Exhibit IX, for Rs. 1,500. It is not contended that the Rs. 3,000 referred to in Exhibit A was advanced when that document was executed. The plaintiff's case is that Rs. 2,200 was due from the father under Exhibit IX and a further advance of Rs. 800 was made at the time of the execution of Exhibit A. The 1st defendant admitted in his evidence the advance of Rs. 500 on that date. The written statement does net afford us much assistance as to the defence on which the 2nd defendant relies, but the defence put forward on his behalf in the hearing of the appeal was that the original debt under Exhibit IX was contracted for immoral purposes, and the original mortgage and the renewal thereof were consequently not binding on the family property; that the further advance made at the time Exhibit A was executed was for the expenses of the marriage of the 1st defendant's daughter and that this was a purpose not binding on the family. The District Judge gave a mortgage decree for the amount claimed less the Rs. 300, the alleged further advance under Exhibit A. The 2nd defendant appeals against the decree and the plaintiffs appeal against so much of the decree as disallowed the Rs. 300.
3. There was a good deal of argument with reference to the question whether the admissions made by the 1st defendant, Exhibit G, in a proceeding in an earlier suit in which the mortgage sued on was one of the items of property in question, were evidence against the son, and as to whether the recital in Exhibit B A was evidence against him. We do not think it necessary to s discuss these questions since it seems to us that the decree in favour of the plaintiffs must be upheld on the ground that it was for the 2nd defendant to make out that (1) the moneys were not in fact advanced, or, (2) if they were, that he was not liable for the original mortagage-debt under the pious obligation doctrine and that there was no family necessity for the further advance.
4. The plaintiffs, as they were entitled to, sued the 1st defendant, the father, and the 2nd defendant, the son. The 1st defendant allowed judgment to go against him by default. This being so, the father's liability must be taken to be established. As regards the son, the law which is applicable is to be found in the judgment of Sir Bhashyam Aiyangar in Periasawmi Mudaliar v. Seetharama Chettiar I. L. R. (1904) M. 243. After discussing the liability of the son for the payment of the father's debts, the judgment proceeds:
Though during the father's lifetime, the suit could not be brought against the son only, for recovery of a debt due by the father, yet the son may be joined as a party defendant in a suit brought against the father, and, if the plaintiff succeeds in the suit against both the father and the son, a sale of joint family property which takes place in execution of such decree will bind the son also - though such decree cannot be executed against him personally - and he will be precluded from bringing a suit to contest the sale on the ground that the debt was incurred for an illegal or immoral purpose - a plea which, if Veil founded, he ought to have advanced and established in the original suit, in which case the decree would have been against the father only and the suit would have been dismissed as against the son.' In Chidambara Mudaliar v. Koothaperumal I. L. R. (1904) M. 326 the learned judges observe : 'It is now established by a uniform course of decisions that a debt incurred by the father which is not shown to be illegal or immoral is, even during the lifetime of the father, binding upon the son's interests in the family property and that any alienation, voluntary or involuntary, made to discharge the debt is binding upon the son.' We think the trend of authority in this Presidency is in accordance with the view of the minority of the Full Bench in Chandra Deo Singh v. Mata Prasad I. L. R. (1909) A. 176.
5. It was not suggested that the creditor could rely on the family necessity for the advance under Exhibit IX on the ground that it was for the purpose of discharging an antecedent debt, if it was shewn that the antecedent debt was an 'illegal' or 'immoral' debt. Evidence was adduced for the purpose of showing that the antecedent debt was immoral. We agree with the District Judge that no reliance can be placed on the evidence of the it defendant as to this, and the evidence of the other witnesses seems to be worth very little. We are not prepared to say that it has been shown that the amount advanced to the 1st defendant on the 1st mortgage was for an illegal or an immoral purpose.
APPEAL NO. 95 OF 1906.
6. The plaintiff's case in that a fresh advance of Rs. 800 was made at the time Exhibit A was executed. The father has allowed judgment to go by default and the son has not shown that this further advance was not made. His contention is that the purpose for which the advance was made - the marriage of the 1t defendant's daughter - is not binding on the family. The question whether the marriage expenses of a daughter are a justifiable necessity, so as to bind the family, was considered by Mr. Justice Krishnaswami Aiyar, in a learned and exhaustive judgment in S.A. No. 1905 of 1907 - Devalapalli Kameswara v. Palavarapu Veeracharlu : (1910)20MLJ855 . We feel no doubt that the law on this question is correctly laid down in that judgment and we are prepared to follow it. It is not necessary for us to discuss the decision in Govindarajulu Narasimham v. Devarabhatta Venkatanarasayya I. L. R. (1903) M. 206. In that case the question arose with reference to a son in a Brahmin family. In the present case the question arises with reference to a daughter in a non-Brahmin family.
7. Appeal No. 115 of 1906 must be be dismissed with costs, and Appeal No. 95 of 1906 must be allowed with costs throughout. Time for redemption under the mortgage is extended to three months from this date.