Walter George Salis Schwabe, K.C., C.J.
1. The petitioners are the infant sons of two brothers who traded in partnership and became insolvent. They were in possession of joint family property to shares in which the sons had on birth became entitled.
2. The question raised in this insolvency petition is whether the son's shares in the joint family property of a Hindu governed by the Mitakshara Law can be made liable during their lathers' lifetime to the fathers' debts other than Avyavaharika, that is, those tainted with illegality or immorality, for the fathers having become insolvent, the Official Assignee claims to have recourse to the joint family property including, if necessary, the sons' undivided shares therein. He alleges that the fathers could themselves alienate the property and pay such debts and that he can exercise that right in the interests of the faher's creditors.
3. There can be no doubt that this has been supposed! to be in accordance with the Hindu Law for a very long time past and that Indian Courts have acted upon this view so regularly and continuously that it has been accepted as a well-known principle of law, and that a very large number of titles to property, where there had been sales of joint property by a father's creditors, or by the Official Assignee on his insolvency has been accepted as good and not in any way open to question.
4. We are now asked to say that all this is wrong, and that the son's obligation to pay his father's debts comes into operation only on his death and that the son's share in the joint family property is immune until such time, except when the debt was incurred by the father for the benefit or the family, that is to say, as agent acting within the scope of his authority. It is said that the principle on which the law has proceeded is that a son is under a pious obligation to pay his father's debts and so save his father's soul from the penalties which the Hindu religion recognises as falling to the lot of those who leave this world with debts unpaid, and that it having been pointed out in two recent decisions of the Privy Council that, as it cannot at any time be predicated with certainty that any one will die without himself having discharged his debts, that pious obligation cannot come into operation during the lifetime of the father, and it must follow that the son's share in the joint family property cannot during the father's lifetime in any way be made liable for the father's separate debts. Logical though this may be, it is by no means a convincing argument. Once a proposition of law has been established and acted upon over a period of time, it is too late to uproot it by a re-examination of the rationes decidendi of the cases by which the proposition was first established, and a conclusion that those rationes were erroneous at the time and no longer bring conviction to the existing judicial mind. Further, the principle enunciated by Lord Halsbury in Quinn v. Leathem (1901) A C 495 are particularly apposite when trying to apply the rules of logic on a re-examination of the principles of the reported decisions on Hindu Law and; their application to a particular set of circumstances. He stated them thus: ' There are two observations of a general character which 1 wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the' particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decided. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.'
5. If this matter were coming before us as a case of first impression and without the large mass of authority with which it is surrounded, I should enquire by an examination of the original texts of the Smrithis and Mitakshara and the commentaries thereon whether it appeared that son's property was or was not liable for his father's debts during the father's lifetime. If I found that the answer to this question depended on pious obligation 1 should wish to be satisfied whether that pious obligation was such that it only comes into operation on the father's death. On general principles a son's property cannot be taken to pay his father's debts and it would be necessary to show first that the Mitakshara makes some exception on account of which that general principle does not apply to Hindus, and then to discover how far that exception extends. I should on that enquiry soon come to a passage in Yagnavalkya which has been rendered, ' If a father has gone abroad or is dead or is subdued by calamity, his debts shall be paid by his sons and grandsons.' Based on that passage the author of the Mitakshara lays down, ' If a father without paying the debt which is due dies, or goes to a different country, or is afflicted with an incurable disease and the like, then his debt must be paid by his sons and grandsons by reason of their sonship and grandsonship even if no assets of the father or the grandfather have been left,' and later to a statement in Jagannatha which explains passages in Vishnu and Yajnavalkya which include the case of a father being wholly immersed in vice, as referring to a state of combined insolvency and insolence.' The matter for consideration would be whether such expressions must not be taken to include a case of declared insolvency which view, if accepted, would be sufficient to determine the present case. But I think we are relieved from the burden of this enquiry because certain principles have been too long established for this Court, at any rate, to question them. In 1886 in Nanomi Babuasin v. Modun Mohun (1885) LR 13 IA 1 , Lord Hobhouse who delivered the opinion of the Board said, ' Destructive as it may be of the principle of independent co-parcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against his creditor's remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate their Lordships think that there is now no conflict of authority.' In 1916 in Sripat Singh v. Tagore 44 C 524 (PC) Lord Buckmaster said, ' In every other event,' that is, except where the debt was incurred for illegal or immoral purposes, .' It is open to the execution-creditor to sell the whole of the estate in satisfaction of the judgment obtained against the father alone.' Between those dates the principle has been acted upon by the Privy Council and all the Courts of India. It is true that in all the cases of the Privy Council the question arose as between the alienees of the family property and the sons or their representatives, but I can find no indication that those cases were decided as has been suggested here, on the consideration of the rights of the alienees as bona fide purchasers for value without notice. Indian Courts have not understood those cases as being limited in that way, for they have applied the principle to cases of execution against the son's share in the family property and to the rights of Official Assignee on the father's insolvency and even to determining the firms of decree in suits against the father when it is desired to make the son's share answerable for the decree.
6. In 1917 came the decision in Sahuram Chander v. Bhup Singh 33 MLJ l4 (PC). This case actually decided that the rule already established, that an alienation by the father of family property can only bind the son's interest in that property when the alienation was for the purpose of discharging an antecedent debt, must be limited in its application to cases where the antecedent debt was incurred wholly apart from security of the joint family property. But their Lordships did state their view that the pious duty of a son to discharge his father's debts only arose on his father's death. It is to be observed that in that case the claim against father for repayment of the money due was long since barred by limitation, and that Board was, therefore not considering the question whether if a decree had been obtained in respect of that debt or the father had become insolvent, it was a debt for which the son's share in the family property could have been made liable. Further, in recognising the principle that the father can alienate joint family property to secure payment of an antecedent debt, it would seem that the Board must have recognised that the son's share can be made in the father's lifetime liable to pay his father's debts although such debts were not incurred for the benefit of the family. Indeed, in my view, this case is really an authority in favour of the Official Assignee who is dealing with antecedent debts, for if the father can alienate the family property to pay those debts, it seems to follow that the Official Assignee standing in his shoes can do the same. Based, however, on the statement in this case that the pious obligation only arises on the death of the father attempts were made all over India to raise once more the question which it was thought had been set at rest by Nanomi Babuasin v. Madan Mohun ILR (1886) Cal 21 (PC) and to get a finding that in no case where the debt was not incurred on behalf of the family could the son's share be reached during the father's lifetime. These attempts failed see, for instance, Peda Venkanna v. Srinivasa Deekshathulu 33 MLJ 519, Kandaswami Gowndan v. Kuppu Moopan 38 MLJ 203, Subramania Iyer v. Shaw Wallace and Co., Madras (1919) 38 MLJ 402 and Hanumat Kashinath v. Ganesh Annaji ILR (1918) 43 Bom 612. Sahuram's case was followed by the Privy Council in Jogi Das v. Ganga Ram (1917) 21 CWN 957 (PC) where Lord Haldane quoted it as authority for the proposition that the mere circumstance of a pious obligation did not validate the mortgage otherwise invalid. In 1922 in Chetram v. Ram Singh 43 MLJ 98 (PC), it was held following Sahuram's case that the mortgage of the family property not being for an antecedent debt the mortgage and the subsequent sale of the equity of redemption did not bind the sons or grandsons shares in the family property and it was further held that the grandsons were not under a pious obligation to repay to the vendees of the equity as a condition of recovering the property the money received by their grandfather. Lord Shaw in delivering the opinion of the Board quoted with approval Lord Haldane's interpretation of his, Lord Shaw's judgment in Sahuram's case but he added: 'In the present case the doctrine' (that is, of pious obligation) ' is invoked against grandsons and in the lifetime of sons. Nothing more need be said. The invocation of the doctrine entirely fails. ' Based on this observation attempts once more have been made in all the Indian Courts to throw doubt on the principle established in Nanomi's case and I think opportunely re-stated in Sripat Singh v. Tagore 44 C 524(PC) by Lord Buckmaster. In Calcutta and Madras this has failed, see Madhusudan Das Mohant v. Iswara Dayi ILR (1921) C 341. The Official Assignee of Madras v. Ramachandra Aiyar 43 MLJ 569 and Sama Rao v. Vannaji Vapujee 43 MLJ 745.
7. By reason of the numerous cases pending in insolvency and otherwise, this petition has been referred to a Bench, and I have directed it to be heard by this Court as at present constituted. In my judgment, the cases of Sahuram and Chetram were not intended to and did not alter the law as laid down in a long series of cases referred to above, and the Official Assignee is entitled to succeed on this petition. On this point until the Privy Council has definitely otherwise decreed, the law in this Presidency must be considered to remain unaltered in this respect.
8. Since the argument in this case, a judgment of the Allahabad High Court in Kishen Singh v. Chhajju Singh ILR (1922) A 90 has been published. In that case in a suit against a father and sons in respect of rent due under a large lease to the father it was held that the lease was not taken for the benefit of the family, and was a speculative and risky transaction not binding on the family, and the sons were accordingly dismissed from the suit and a decree was given against the father alone, and in execution of that decree certain family property which had been hypothecated by the father as security for payment of the rent due under the lease, was attached and the son's interest therein was sought to be brought to sale in satisfaction of the decree. It was held that this could not be allowed and, in my judgment, this decision is right in that the debt having been held as Avyavaharika, execution could not be allowed against the sons in any form it being a debt for which they had expressly been found to be not liable and for which their property could not be made liable. But as I read the judgment, it goes much further and indeed seems to accept as correct practically all the arguments which had been so clearly and ably addressed to us in this case by Mr. Tirunarayana Chari. It seems to lay down definitely that the pious obligation of a Hindu son to pay his father's debt does not arise until after the death of the father and it treats the cases of Sahuram and Chetram as being authorities for this proposition and speaks of cases such as Girdhari Lal Kanto Lal (1875) LR 1 IA 321 and cases following Nanomi's case as having their authority shaken by these later Privy Council decisions, and with those parts of the judgment for the reasons given above 1 do not agree. Where a suit having been brought on a mortgage by the father of family property in which his sons are joined as parties, it is held that the sons' shares in the family property could nevertheless be taken in execution of the decree against the father is a point on which it is not necessary to express an opinion and I should not desire to do so without having the matter fully argued. It would no doubt be a curious and anomalous position if the sons' shares were not bound by the mortgage, but were liable to be taken in execution for the mortgage debt. But that is not a question which We are called upon to decide.
9. I. P. No. 179 of 1921--The petition will be referred back to insolvency Judge with these directions. He will deal with the costs.
10. I. P. No. 201 of 1919 is referred back to the Insolvency judge for disposal as we have not sufficient facts before us to deal with it. a-
11. In the year 1917, the case of Sahu->atn Chandra v. Bhup Singh (1917) LR 44 IA 126, was decided by the Privy Council. I set out the head-note as it appears at page 126 of 44 I. A. as clearly showing the propositions which the learned reporter conceived that case to establish. ' The father of a joint Hindu family governed by the Mitakshara can only sell or mortgage the joint family property so as to bind his sons in two cases, namely (1) where the alienation is for family necessity, (2) where the alienation is made to discharge a debt which (a) was antecedent to the alienation, (b) was incurred wholly apart from the security of the joint family property and (c) is not proved to have been incurred for immoral purposes. Further during the father's life an alienation by him is effective only in the first case, since its validity in the second case rests upon the pious duty of the sons to discharge their father's debt, and that duty arises only ' upon his death. ' As to the first main proposition there has never been any question, nor as to the proposition (2) (c). As regards the proposition (2) (a) their Lordships refer to the conflict of authority which existed in India as to whether money paid in consideration of a mortgage of ancestral property effected by the father could be treated as being antecedent within the meaning of the rules and they hold that it could not and that the debt must not only be antecedent in time, but must be a dissociated and distinct transaction. The proposition (2) (b) may or may not have been new law when it was promulgated. But it is safe to say that it embodied a principle which was not present to the mind of the Indian Courts and had not been applied by them. A Full Bench of five Judges of this Court in Arumugam Chetty v. Muthu Gounden (37 MLJ 166 (FB) , was so much impressed with the possible effect of the application of this principle upon existing titles that they treated that proposition as an obiter dictum and upheld a mortgage where the antecedent debt relied upon was a prior mortgage of the joint family estate independent in fact and prior in time to the mortgage sued upon. The decision of the Board in Chetram v. Ram Singh (1922) LR 49 IA 228 re-affirmed the proposition and although they do not expressly overrule the decision of the Madras Full Bench, it was cited to them by Mr. De Gruyther in argument, and I cannot doubt that they must be taken to have disapproved it. But we are really concerned in this case with the last proposition, namely, that the pious obligation, as it is Commonly called of the sons to discharge their father's debts, which the Hindu Law undoubtedly imposes upon them and grandsons, does not arise till the death of the father.
12. The difficulty which we are called upon to solve arises in this way. ,The Official Assignee seeks to alienate the joint family property of the family of which the insolvents were the managers including the assets of the minor sons in satisfaction of the debts of the insolvents so far as they are neither immoral nor illegal within the meaning of the rule. The minor sons seek by this motion to restrain him from doing so. It was decided by a Bench of this Court consisting of two members of the present Bench in The Official Assignee of Madras v. Ramachandra Aiyar 43 MLJ 569, that the Official Assignee, though it cannot be said that the shares of the minors actually vest in him, has nevertheless the same rights of disposition of the family property in satisfaction of the debts of the manager as the manager would himself have been entitled to exercise if he had not been adjudicated an insolvent. I think that we should follow that decision which was only a re-statement of the effect of a long series of decisions in India beginning with the well known judgment of Latham, J. in Fakirchand Motichand v. Motichand Harruckchand ILR 7 B 438. Indeed I do not gather that the correctness of that decision was challenged in the lucid and able argument of Mr. Tirunarayanachari. His contention really is that on the true view of the authorities the father himself would not in the circumstances have the right to alienate these properties. There can be no doubt that a series of decisions of the Privy Council has established that a sale of the family property by the father to his creditor or in execution levied by the father's creditor on the family property cannot be set aside by the sons. That has been interpreted by the High Courts of India to involve the further proposition that the sons are not only bound by the completed sale or execution proceedings when the property purports to have passed to the creditor, but cannot resist the steps taken by the creditor to bring about the transfer of the ownership of the property himself. The cases are set out in note (1) at page 410, Section 307, of the 9th Edition of Mayne on Hindu Law. Mr. Tirunarayanachari's argument falls mainly under two heads: (1) he contends that all these decisions whether of the Privy Council or of the Indian Courts are based on the supposition that the pious obligation devolves upon the sons not only upon the death but during the lifetime of the father. It is only just to observe that the leading case of Girdhari Lal v. Kantoo Lal (1875) L.R. 1 IndAp 321, undoubtedly appears to proceed on that footing. He conteinds that as the pious obligation has been authoritatively denied by the latest Privy Council decisions to exist during the father's lifetime, these cases are no longer to be regarded as binding where the father is alive. (2) He argues that even if the older decisions of the Privy Council which are set out at page 410 of Mayne on Hindu Law are binding, they are all cases where the property by alienation or execution had already come into the hands of the creditor and that the liability of the sons should be confined to such cases. He supports this by saying that Sahuram's case (1917) LR 44 IA 126 , has given a new ground on which the liability of the sons can be supported in cases of a completed transfer and excluded in cases where the transfer is not yet completed. He has been at a little difficulty to find a proper legal label for his position, speaking sometimes of an equity and sometimes of a doctrine in the nature of estoppel. However, let us turn to the passages in the judgment of the Board in Sahu Ram's case (1917) LR 44 IA 126, on which he relies. At page 132 the Board say this: ' They desire in the first place to make it clear that much if not all of the law on the subject has arisen from the necessity of protecting the rights of third persons, say, the purchasers of the property who have taken their title for onerous consideration and in good faith, ' and at page 133 is the following passage: 'A perusal of the numerous authorities will show that where a joint family property has been sold out and out or where a decree in execution of the mortgage has been obtained against the property, and rights have thus sprung up with regard to the joint family estate, these rights are not to be defeated by the members of the joint family simply questioning the transaction entered into by its head.' Their Lordships then refer to the well known summary of Sir James Colville in Suraj Bunsi Koer v. Sheo Pershad Singh (1882) LR 6 IA 88, which begins with the words, ' where joint ancestral property has passed out of a joint family, ' words repeated by Sir John Stanley, C. J. in the case of Chandradeo Singh v. Mata Prasad (1909) ILR 31 All 176 (FB). So far as I can ascertain, it is the fact that all the Privy Council cases do deal with executed sales and not with mere proceedings to enforce the creditor's rights. But it is difficult to see in principle what reason there can he for holding that such a distinction should be drawn. If a creditor can hold what he has got, it is difficult to see why his hand should be stayed in attempting to get it
13. The argument that because the decision in Sahuram's case (1917) LR 44 IA 136 , has removed the basis which underlies the earlier decisions of the Privy Council beginning with Girdhari Lal's case (1875) L.R. 1 IA 321, therefore the decisions themselves are to be disregarded, is one that I confess does not appeal to me strongly. The last thing I look for in Hindu Law is logical consistency, compounded as that law is, of ancient texts, thousands of years old, qualified and interpreted by a series of commentaries and by decisions of the Indian Courts and the Privy Council to temper and modify their application to the conditions of modern Indian life. It seems logically unanswerable to say that as the pious obligation of the son is based on the duty to remove his father from hell, that obligation cannot arise until the father by means of his death has reached hell. But the matter is not so simple as that, for Vishnu and Yajnavalkya as cited by Jagannatha both accept the father's becoming a sanyasi or being wholly immersed in vice or his suffering from incurable disease or being mad or being extremely aged (these last three qualifications come from Katyayana and Vrihaspati), as also giving rise to the son's liability to pay his father's debts. It possible enough to say that the early authorities treat these conditions as equivalent to physical death, but at any rate the doctrine of actual residence in put is gone, and it may be that that is the solution of this difficulty namely, that one is entitled to treat insolvency, as equivalent to a kind of civil death of the father which would thereby invoke the pious obligation of the sons. It is worth remarking that Jagannatha in his comment on the phrase ' immersed in vice ' includes under that head a state of insolvency and insolence in which the father has abandoned all attempt to satisfy his creditors. He does not of course use ' insolvency' in the technical sense of a person who has been actually adjudicated by a Court of Law. If this enunciation of the Hindu Law is correct, it seems to me that it will apply a fortiori to a case where there had been such a formal adjudication.
14. The next observation I have to make is that there are at least two decisions of the Privy Council in which the son's liability was enforced during the lifetime of the father, although it is true that it was after the property had passed to the creditor. One was Nanomi Babuasin v. Modun Mohun (1885) ILR 13 C 21 (PC), and the other was Sripat Singh v. Tagore (1916) LR 44 IA 1. In each of these cases language was used which appears to imply that their Lordships who decided it had no intention of restricting the son's obligations to cases where property has actually passed. And in each case the decision contains statements which if they are correct law establish the liability of the sons in such a case as the present. In Nanomi Babuasin v. Modun Mohun (1885) ILR 13 C 21 (PC) Lord Hobhouse says this at page 35: 'Destructive as it may be of the principle of independent co-parcenary rights in the sons, the decisions have for sometime established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt or against his creditors' remedies for their debts if not tainted with immorality. ' In Sripat Singh v. Tagore (1916) LR 44 IA 1, Lord Buckmaster says this at page 4, ' in every other event' (that is, except where the debt was incurred for illegal or immoral purposes), ' it is open to the execution creditor to sell the whole of the estate in satisfaction of the judgment obtained against the father alone. ' It seems to me impossible to hold that these pronouncements mean that the creditor can hold the property against the sons if he has actually got it, but can be resisted in his attempts to take the legal steps necessary to get it. I. have already said that I do not look for logic in Hindu. Law, but I think that such a state of things is repugnant not merely to logic but to a sense of practical justice and convenience. I think that the matter is admirably put by Shah, J. in Hanumanth Kashinath v. Ganesh Annaji (1919) ILR 43 B 612, 'I am, therefore, of opinion that in the absence of a definite and explicit pronouncement on the point, this Court is bound in spite of the observations in Sahuram's case (1917) LR 44 IA 126 to follow the Indian decisions and the decisions of the Privy Council to which I have referred, and to hold that the decree-holder's right to proceed against the ancestral immoveable property in execution during the debtor's lifetime is co-extensive with the debtor's power to alienate it under the Mitakshara for the satisfaction of his antecedent debts not tainted with illegality or immorality.' Since the argument was concluded, our attention has been drawn to the case of Kishan Singh v. Chhaju Singh I.L.R.(1922) All. 490, and it is indisputable that the reasoning on which the judgment in that case proceeds is opposed to the conclusion and reasoning of Scott, C. J. and Shah, J. in Hanumanth Kashinath v. Ganesh Annaji I.L.R. (1919) B 612 and in effect adopts the line of argument taken by Mr. Tirunarayanachari in this case before us. The actual decision can be distinguished on a very simple ground The decree was passed in a suit in which the sons and grandsons had been made parties and the Court which passed the decree expressly exempted them and gave judgment against the father only. It was then sought notwithstanding the decree to bind the sons' and grandson's shares in execution, the decree not having been appealed from. I conceive that the decision can be upheld on the ground that even supposing the decree to be wrong, as long as it stood execution could not be sought on the footing that it was to be treated as a nullity in so far as it exonerated the sons and grandsons.
15. I respectfully agree with the High Court of Bombay that the only course open to a Court in this country is to follow the earlier decisions and hold that the father manager or the creditor or the Official Assignee standing in his shoes has the power to alienate joint family property in satisfaction of an antecedent debt of the father manager not tainted with illegality or immorality. If the Privy Council had thought that the earlier decisions of the Board and the mass of decisions of the Indian Courts which had been built upon them were erroneous or were to be restricted in the manner suggested in Kishen v. Chhaju Singh I.L.R.(1922) All. 490, they could easily have said so, as the whole subject has been before them for review in Sahuram's case and Chetram's case. They would then have pointed out that the dicta of Lord Hobhouse and Lord Buckmaster in Nanomi Babuasin's case and Sripat Singh's case respectively which entirely support the decisions in the Indian Courts down to Sahuram's case, travelled outside their legitimate scope in the decisions involved. They have not done so and until we are given further guidance I think that our plain duty is to take it as a settled rule that the father during his lifetime and any one who during his lifetime stands in his shoes can validly alienate the whole of the joint family property in satisfaction of antecedent debts not tainted with illegality or immorality, and that it would be travelling outside our legitimate function to consider a rule so well established as abrogated because the supposed basis on which it rests has been disturbed by the more recent pronouncements of the Privy Council.
16. Since I wrote this judgment and submitted it to my Lord the Chief Justice, I have had the advantage of perusing his judgment, and I desire to say that I respectfully agree with his observations on the case of Kishen Singh v. Chhajju Singh ILR (1922) All 90 .
17. In this case the question for our decision is whether the Official Assignee is entitled to sell the whole of the joint ancestral estate of an insolvent Hindu father including the shares of his sons the parties being governed by the Mitakshara Law, in realising the assets of the insolvent for distribution among the creditors. It is not disputed that if the father has the right to sell the whole joint estate to pay off his antecedent debts that power can be exercised by the Official Assignee. This was so decided recently by this Court in Official Assignee of Madras v. Ramachandra Aiyar ILR (1912) M 54. The question for our consideration then narrows itself into whether a Hindu father is entitled to alienate the joint ancestral estate of himself and his sons to pay off an antecedent debt of his. As pointed out by the learned Chief Justice, it has been taken as the settled law in this country that he could do so provided that the debt was not an illegal or immoral one, ever since the decisions of the Privy Council in Girdhari Lal's case and in Nanomi Babuasin's case, the latest ruling of the Privy Council on the point being in Sripat Singh v. Tagore (1916) LR 44 IA 1. Now it is contended before us that the recent decisions of the Privy Council in Sahuram's case, followed in Chetram's case have altered the law on the point and has abrogated the doctrine of the Hindu father's right to alienate the joint ancestral property of himself and of his sons to pay off a proper antecedent debt of his.
18. To decide this question we have to consider the cases of Sahuram and of Chetram very carefully. Taking Sahuram's case first, that was a suit brought to enforce a mortgage given about 20 years prior to suit by one Bhup Singh to one Bhagirath for Rs. 200 paid in cash. Sahuram the plaintiff obtained the rights under that mortgage by paying off Bhagirath's mortgage and sued Bhup Singh and his sons and grandsons and others to recover Rs. 15,000 by sale of the property mortgaged which consisted of joint ancestral properties belonging to Bhup Singh and his sons and grandsons. It was found by the Lower Court that no legal necessity for the mortgage had been proved. Before the Privy Council it was argued however that even though legal necessity was not proved as there was no proof by the sons that the debt was of an illegal or immoral character, they had no defence to the suit as the father was entitled to mortgage the ancestral estate for an antecedent debt of his, quite apart from any legal necessity. The Privy Council had to consider then the scope of the doctrine of ' antecedent debt' to see if it applied to the facts of the case and their Lordships held that a mortgage debt borrowed on the security of the ancestral property itself could not be treated in any way as an antecedent debt within the meaning of that doctrine and they accordingly repelled the argument that the case was one to which the doctrine applied. They did not however, say that the father could not sell or charge the joint ancestral estate where the debt was not only antecedently incurred by him, but incurred wholly apart from the security of the joint property. In fact if they were holding that the father could not sell the joint estate for an antecedent debt of his because the sons' pious duty arose only after the father's death they would have said so in clear terms and there would have been no necessity to consider the scope of the rule of ' antecedent debts '. On the other hand their Lordships have in more than one place in their judgment stated that they make an exception in favour of the father's power to sell for an antecedent debt. Their Lordships on p. 444 of I.L.R. 39 A 437 say this ' although the correct and general principle be that 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.' Here they clearly recognise the existence of the rule of antecedent debts and do not in any way abrogate it as suggested. Again on page 447 their Lordships say ' In their Lordship's opinion these expressions which have been the subject of so much difference of legal opinion, do not give any connivance 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 in order to discharge an obligation not only antecedently incurred but incurred wholly apart from the ownership of the joint estate of the security afforded or supposed to be available by such joint estate. The exception being allowed as in the state of authorities it must he. 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.' I have quoted these passages at length to show that their Lordships expressly exempted from the purview of their decision the exceptional case of the father being able to alienate joint ancestral property of himself and his sons for a proper antecedent debt. How after such expressions of opinion by their Lordships themselves in their judgment the case could be treated as an authority for doing away with the doctrine of antecedent debt altogether, I entirely fail to see.
19. The main decision in Sahuram's case was that a mortgage on ancestral property could under no circumstances be treated as an antecedent debt to justify an alienation of ancestral property and that beyond the power given to the father by this doctrine to deal with the son's share in the joint estate neither the father nor his creditors could rely merely upon the general rule of the son's pious duty to pay his father's debt to have recourse to the son's share of the joint estate to pay the father's debt. These propositions were reaffirmed in Chetram's case and any attempt like the one made by the Full Bench of this Court in Arumugam Chetty v. Muthu Goundan 37 MLJ 166 (FB) to treat the ruling of the Privy Council as an obiter dictum must be abandoned. I agree with Coutts Trotter, J., that that Full Bench decision must be treated as erroneous, for though it is not expressly overruled by the Privy Council it is clearly in conflict with their Lordship's view which has been re-affirmed in Chetram's case.
20. The passage that has given trouble in dealing with the question before us is the one on page 444 of I. L. 39 All. where their Lordships say that the prior obligation of the sons to pay off their father's debt cannot and does not arise till the death of the father. Now it is argued that the father's power to sell the ancestral estate including the shares of his sons for an antecedent debt and the creditors right to have recourse to such estate for payment of his debt are founded upon the theory of the son's pious obligation and if that pious obligation is treated as not arising during the father's lifetime the father cannot deal with the son's shares in the joint estate nor the creditor while the father is alive.
21. The doctrine of 'antecedent debt' was no doubt evolved from the ' pious obligation ' theory, see Nanomi's case and that theory originally was that the son was under a duty to save his father's soul from the penalties prescribed by Hindu Sastras for a man who dies without paying off his debts. Such a duty would only arise after the father's death as the Privy Council justly point out. But the theory was extended at a very early stage even by the Hindu Smrithi. writers themselves like Vishnu and Yagnavalkya to cases of persons who became sanyasis or suffered from incurable disease or went away to foreign country and so forth. These are all cases where the pious obligation was taken to arise before the death of the debtor-father. Other restrictions and changes were introduced into the doctrine by the case-law of the country till it has now become crystallised as the doctrine of the ' antecedent debt'. That doctrine has become a definite and independent doctrine in Hindu Law which has been acted upon for many years and any attempt to do away with it now by referring to its origin and arguing that its development was illogical can hardly be supported. In the paragraph referred to in page 444 of I.L.R. 39 Allahabad as I read it, the Privy Council was repelling the attempt to base a claim against the sons ' merely ' on account of their pious obligation to pay off their father's debt quite apart from any antecedent debt. Their Lordships use the word ' merely ' in that paragraph and again lower down use the same word when they say ' accordingly the case founded merely upon pious obligation ... fails.' I understand their Lordships to refer in that para. the attempt to enlarge the scope of the son's liability beyond the limits of the doctrine of ' antecedent debt ' by recourse to their pious duty as originally understood. Those observations, in my opinion, do not touch the doctrine of antecedent debt as otherwise the judgment will become self contradictory.
22. Chetram's case does not advance the position any further. It was a case of a sale by a father of ancestral estate being set aside. The mortgage which formed part of the consideration for the sale was according to their Lordship's view already expressed in Sahuram's case not an ' antecedent debt'. The balance of the sale price was paid in cash, that of course was not a debt at all. The sale not being for proper legal necessity or for antecedent debts necessarily failed. It was argued that where the sale failed a debt arose, at least as regards the cash paid, which the father was bound to re-pay and that constituted an antecedent debt for which the creditor could have recourse to the ancestral estate and were it not for the fact that their Lordships were abrogating the doctrine of antecedent debts they would have given a decree for that amount against the ancestral estate. This is not so. There was no debt at all in existence to apply the doctrine of antecedent debt, the application of the doctrine of the son's pious duty by itself to make the sons liable during their father's life-time their Lordships had repudiated, see also Jogi Das v. Ganga Ram (1916) 21 C.W.N. 957 (P.C.).
23. The conclusions I have come to agree with the conclusions of the Calcutta and Bombay High Court see Madhusudhan Das Mohunt v. Iswari Dasi Debi ILR (1922) C 341 and Hanumanth Keshinath v. Ganesh Annaji ILR (1919) B 612 and are in accordance with the previous rulings of this Court, cited by the learned Chief Justice in his judgment. Our attention was, however, drawn to a recent case in the Allahabad Court Kishen Singh v. Chhajju Singh I.L.R.(1923) All. 90 which is in petitioner's favour. In that case it was decided at the trial of the suit itself that the sons and grandsons who were parties to the litigation and their estate were not liable for the suit debt. The question could then hardly be re-opened in execution. I therefore agree with the learned Chief Justice that the decision is right, but in so far as the views of the learned Judges are against the views I have expressed above I regret with all respect I am unable to follow them.
24. I have come to the conclusion that the Official Assignee can sell the joint ancestral estate of the insolvent and his sons to pay such of the debts of the insolvent which are not shown by the sons to be illegal or immoral debts, and I agree to the order proposed by the learned Chief Justice.