1. This is an appeal by the second defendant against a decree for sale passed in a mortgagee's suit. The second defendant is the undivided minor son of the first defendant who executed the suit mortgage bond (Ex. A) on 24th May, 1924, securing repayment of a sum of Rs. 11,000 borrowed in the manner and for the purposes set forth in Ex. A. Besides the two defendants, it is stated that there are two other members in their joint family, namely, the father and the uncle of the first defendant.
2. Ex. A purports to mortgage six items of properties which it would appear were all purchased in the name of the first defendant though he was only a junior member in the family. In respect of the first of these items, the document uses the following words 'property which I purchased as self-acquisition under a sale deed dated 27th March, 1919, etc.' In respect of other items, though a reference is made to the fact of purchase in the first defendant's name the term self-acquisition is not used. The mortgage bond is executed by the first defendant for himself and as guardian of the second defendant.
3. The suit was instituted against the two defendants only; and, in the first instance, an ex parte decree was passed against them. In proceedings to set aside the ex parte decree, the result of an order passed by this Court on appeal was that it was set aside only as against the second defendant and the original decree stood as against the first defendant. At the second trial, the learned Subordinate Judge passed a mortgage decree in the ordinary form against the second defendant also and provided for liberty to apply for a personal decree in due course. It is against the decree passed on the second hearing that this appeal has been filed.
4. It may be convenient at the outset to dispose of an objection taken with reference to the frame of the suit and the allegations in the plaint. It was argued that if the plaintiff wanted relief on the footing that the mortgaged properties are joint family properties, he should have added the father and the uncle of the first defendant as parties to the suit and in their absence the plaintiff must be limited to a remedy on the footing that the hypothecated properties are the self-acquisitions of the first defendant and that therefore no decree should be passed even against the second defendant on the assumption of the hypothecated properties being joint family properties. We are unable to accept this contention as well founded. It may no doubt be open to the plaintiff to implead as parties to his suit persons who are not parties to the mortgage and seek to bind them by the mortgage. But that is very different from saying that if he does not implead such persons as parties to his suit, the omission disentitles him to a decree even as against persons impleaded. The only result of the omission will be to leave the question open as against the non-impleaded parties and this is the view which the lower Court has adopted in this case.
5. It was next contended on behalf of the appellant that the plaint is framed only on the footing that the hypothecated properties are the self-acquired properties of the first defendant and that therefore no mortgage decree ought to be passed as against the second defendant. Whatever criticism the plaint may be open to, it is clear, as the lower Court points out, that by the time issues came to be framed in the case, the parties realised that the question of the second defendant's liability to be bound by the mortgage even on the assumption that the properties hypothecated were joint family properties was one of the matters to be tried in the suit; and issue 5 was accordingly framed in these terms. 'Is the mortgage sued on true, valid and binding on the minor second defendant?' In this view the second defendant cannot claim to have been in any manner prejudiced by the form of the plaint; and, now that the question raised by the 5th issue has been fully tried, there is no reason for declining to grant the plaintiff such relief as he may be entitled to on the assumption that the hypothecated properties are joint family properties.
6. A cognate argument to the above was advanced in the following form, namely, that as Ex. A purports to describe the hypothecated properties or at least one of them as the self-acquisition of the first defendant, the Court, must, on the authority of the decision in Balwant Singh v. R. Clancy (1912) 23 M.L.J. 18 : L.R. 39 IndAp 109 : I.L.R. 34 All. 296 , hold that it was not intended by the first defendant to deal with the properties in any other character and accordingly only the first defendant's interests in the hypothecated properties can be held bound. The decision in Balwant Singh v. R. Clancy (1912) 23 M.L.J. 18 : L.R. 39 IndAp 109 : I.L.R. 34 All. 296 has been considered in several decisions of this Court, where it has been pointed out, that the mere description of the property dealt with by the father as his self-acquisition does not conclude the question whether the son's interests if any in the property even on the assumption that it is joint family property would be bound by the transaction or not. In addition to these cases, we may refer to an earlier decision of the Privy Council in Daulat Ram v. Mehr Chand (1887) L.R. 147 IndAp 187 : I.L.R. 15 Cal. 70 , where two members of a joint Hindu family purported to mortgage certain properties describing them as solely belonging to them. Their Lordships nevertheless held that the other members of the family would be hound by that mortgage and the execution sale following thereon, when it was clear from the document taken as a whole that their interests also were intended to be conveyed and it was also found that the purpose of the debt was one binding upon them. In the present case, any ambiguity arising from the use of the expression self-acquisition is removed by the fact that the second defendant has been made a party to the document, represented by his father as guardian. The utmost that can be derived from the reference to the property as self-acquisition in the document is that the father might have claimed it to be his self-acquisition but as the creditor was not prepared to take any risk on that matter he insisted on the son also being expressly joined in the document, so that whatever interest the son might possess in the properties hypothecated even if they should be held to be joint family properties might be bound by the transaction. In this view there is no force in the objection raised on the strength of the decision of the Privy Council in Balwant Singh v. R. Clancy (1912) 23 M.L.J. 18 : L.R. 39 IndAp 109 : I.L.R. 34 All. 296 .
7. The main argument however on behalf of the appellant was directed to the question raised by the 5th issue; and the appellant's earned Counsel contended that as the first defendant was not the manager of the family because of his father's existence, the first defendant had no power to bind his son's share in the family property by a mortgage, even though it be to secure repayment of the first defendant's antecedent debts-In support of the contention, he relied on a decision of a Bench of this Court in Appeals Nos. 406 and 407 of 1930, Rayalu Aiyar v. Vairavan Chettiar (1936) M.W.. 866. That judgment, given on a similar document executed by the first defendant in this case, certainly supports the appellant's contention but having given the matter our most respectful attention and consideration we regret we are unable to take the same view. It may be convenient to clear the ground by referring at the outset to the connection between the Hindu Law doctrine as to the pious obligation of the son to pay the father's debts and the father's power to alienate joint family property including the son's share for the discharge of those debts.
8. As early as in Girdharee Lal v. Kantoo Lal (1874) L.R. 1 IndAp 321 , their Lordships quoted the following passage from the judgment of Knight Bruce, L.J., in Hanooman Prasad's case, namely:
The freedom of the son from the obligation to discharge the father's debt has respect to the nature of the debt and not to the nature of the estate, whether ancestral or acquired by the creator of the debt.
and proceed to explain this dictum as follows:
That is an authority to show that ancestral property which descends to a father under the Mitakshara Law is not exempted from liability to pay his debts because a son is born to him. It would be a pious duty on the part of the son to pay his father's debts, and it being the pious duty of the son to pay his father's debts, the ancestral property, in which the son as the son of his father acquires an interest by birth, is liable to the father's debts.
9. The same idea was expressed by Lord Hobhouse in the following sentence in Nanomi Babuasin v. Modun Mohuni
The decisions have established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against a creditor's remedies for their debts, if not tainted with immorality.
10. The result of this view has been to treat even the son's share in the joint family property as at the disposal of the father to the extent necessary to discharge the father's debts unless they are illegal or immoral. It is on this footing that under Section 266 of the old Civil Procedure Code and Section 60 of the Code of 1908 the Courts have held that a decree against the father can be executed even against the son's share in joint family property; and Section 53 of the Code of 1908 put the matter even more directly by providing that at the father's death joint property which under the Hindu Law would have been available for the satisfaction of his debts must be treated for the purpose of execution as assets descending to his undivided sons as legal representatives. Likewise, under the Insolvency Acts, Courts in India have held that the Official Assignee in the father's insolvency can exercise the power which the father has under the Hindu Law to sell even his son's share in joint family property for the discharge of his debts. And this view has now been affirmed by the Judicial Committee in Sat Narain v. Rai Bahadur Sri Kishen Das (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : I.L.R. 17 Lah. 644 from Lahore. It is thus on the principle of the liability of the son's share for the discharge of the father's debts that the father's power of disposal of the son's share for the satisfaction of those debts has been based. It is true that a distinction has been made between an involuntary sale of the father's property for the satisfaction of his debts and a voluntary disposition by him, by introducing the limitation that in the latter case the debt must be antecedent to the transfer of property and not contemporaneous with the transfer. As pointed out in the Full Bench judgment of this Court in Venkataramanayya Pantulu v. Venkataramana Doss Pantulu (1905) 16 M.L.J. 69 : I.L.R. 29 Mad. 200 , and the judgment of the Privy Council in Brij Narain v. Mangal Prasad (1923) 46 M.L.J. 23 : L.R. 51 IndAp 129 : I.L.R. 46 All. 95 this limitation was introduced on the principle of stare decisis; but in none of the cases has this power of the father been further limited by restricting it to cases in which he also happens to be the managing member of the joint family. A person who is the managing member has in that capacity another kind of power of disposition over joint family property, namely, that for purposes of family necessity or clear family benefit he may dispose of family property even to the extent of binding the shares of persons who are not his descendants. The two powers respectively possessed by the father and the manager have been contrasted in the judgment in Brij Narain v. Mangal Prasad : AIR1933Mad690 . The one arises out of the relationship of father and son; the other arises out of a representative character, whether de jure or de facto, where the transferor is in management of the family property. There is no doubt reference in more than one place in the judgment in Brij Narain v. Mangal Prasad (1923) 46 M.L.J. 23 : L.R. 51 IndAp 129 : I.L.R. 46 All. 95 to the father as manager, but that is only to contrast the position of the father manager with any manager who is not a father and could not have been intended to restrict the powers of the father as such to cases in which he also happens to be the manager. Their Lordships only purported to state the rule deducible from the earlier decisions of the Board and no such limitation is found in the earlier decisions.
11. It has sometimes been attempted to restrict the doctrine as to the pious obligation of the son to pay his father's debts to cases in which the father also happens to be the manager. If this limitation were well-founded it would no doubt also follow that the father's power of disposing of the son's share for the satisfaction of his own debts must be likewise limited; but the preponderance of authority is against the limiting of the doctrine of the pious obligation of the son to cases where the father also happens to be the manager. See Mutyala Virayya v. Parthasarathy Appa Rao : AIR1933Mad690 and Chhotey Lal v. Ganpat Rao I.L.R.(1934) 57 All. 176 . Even in Rayulu Aiyar v. Vairavan Chettiar (1936) M.W.N. 866 the learned judges gave a decree against the minor defendant as on a 'money claim'. There can indeed be no justification for any such limitation when it is remembered that the son's obligation to pay his father's debts was under the original Smritis independent of the possession of assets or joint family property. It depended purely upon the relationship of the father and son. It is only by case-law developed during the early part of the 19th century and by Statute law in the Bombay Presidency that the liability of the son for the father's debts was limited to assets and to joint family property. The true basis of the obligation therefore is the relationship of father and son and not the accident of the father being the manager of the joint Hindu family.
12. In view of these considerations, we find ourselves unable to accept the basis on which the decision in Rayulu Aiyar v. Vairavan Chettiar (1936) M.W.N. 866 has proceeded. The learned Judges say that so far as the transactions relating to joint family property are concerned, it is only the joint family manager and not the father that can be regarded as the guardian of minor members of the family and as competent to transfer their interests. This will undoubtedly be true so far as transactions sought to be supported on the basis of family necessity or benefit are concerned; but as we have endeavoured to show, the liability of the son's share in the family properties to be called upon to satisfy his father's debts exists independently of its liability to be sold or mortgaged for the purposes of the larger family. To the extent required for satisfying the father's debt, there can be no doubt that the father's creditor can attach and sell not merely the father's share of the joint family property but also the son's share and for this purpose it makes no difference that the father is only a junior member. If the creditor can so attach and sell, it seems to us to follow for the reasons that we have already stated that the father has the power to transfer the son's share also for the same purpose. Otherwise the creditor cannot reach the son's share as falling within the language of Section 60 or Section 53, Civil Procedure Code, which undoubtedly postulates that the father has got the power so to transfer.
13. We hold that the suit mortgage is binding upon the second defendant's share in the hypothecated properties to the extent to which the debts referred to in Ex. A are shown to be antecedent debts. The learned Subordinate Judge has pointed out that no serious attempt has been made to prove that the debts as such are not binding upon the son on the ground of illegality or immorality.
14. As stated already, the mortgage bond was executed to secure re-payment of a sum of Rs. 11,000. Out of this amount, we agree with the lower Court that all the items mentioned in Ex. A except the last may be regarded as antecedent debts or otherwise, binding on the son. As regards the last item of Rs. 2,430 the learned Judge rightly points out that a sum of Rs. 350 must be held to have passed for the discharge of antecedent debts, because it represents the amount disbursed to the creditors referred to in some of the previous items. In respect of the balance of Rs. 2,080 the document acknowledges it as cash then received. There is no doubt a further statement that it was required for discharging other debts incurred 'for the purpose of my family'; but no details are available as to the debts so discharged. The evidence of P.W. 3 as to the kind of enquiry which the lender's agent is said to have made for the purpose of satisfying himself that there were antecedent debts to be thus discharged is far from satisfactory. The creditor will not discharge the burden of proof lying upon him merely by saying that he found it inconvenient to press the father to give details of the debts which he had or proposed to discharge when the father said that it was a delicate matter. We must accordingly hold that the mortgage Ex. A is as such binding upon the share of the son the second defendant, in the hypothecated properties, only to the extent of Rs. 11,000 minus Rs. 2,080 or 8,920. This sum will carry interest as per the terms of the lower Court's judgment. In respect of the balance of Rs. 2,080 the plaintiff will be entitled to relief against the second defendant only upon a money claim and not on the mortgage as such. Adopting the course followed by Pandrang Row and K.S. Menon, JJ., in Vennimal Pillai v. P. & O. Banking Corporation, Ltd. (1936) M.W.N. 863, we would add a direction in the decree to the effect that if after the sale of the share of the first defendant in the hypothecated properties for the full amount of the decree already passed by the lower Court and of the second defendant's share in the hypothecated properties for the amount for which we are now giving the plaintiff a mortgage decree as against the second defendant, the amount of the decree is not fully discharged, the plaintiff will be entitled to proceed against the second defendant's interests in the hypothecated properties if any still remaining and against his interests in other joint family properties for the recovery of this sum of Rs. 2,080 with interest as per the terms of the lower Court's decree.
15. As regards the direction in Clause (5) of the lower Court's decree, relating to the liberty to apply for a personal decree, appellant's earned Counsel drew our attention to an inaccuracy which may perhaps mislead Court at later stages of this suit. As drafted, that clause provides for liberty to apply for a decree against the first defendant personally and the other properties of defendants 1 and 2. There is no objection to the general reference to the other properties of the first defendant but so far as the other properties of the second defendant are concerned, it ought to be made clear that the liability can attach only to the second defendant's share in family properties and not to properties which can be regarded as his own. Clause 5 of the lower Court's decree will be modified so as to make this clear.
16. We do not think it necessary to interfere with the direction of the lower Court as to costs. As regards the costs of this appeal we think it proper to direct that the appellant will pay the three-fourths of the first respondent's costs in the appeal and the appellant will himself pay the court-fee due to Government on the memorandum of appeal.