1. This appeal is against the decision of the lower appellate Court in a suit by three minor sons in a Hindu joint family to set aside a sale of joint family property by their father and to recover the property. The original Court dismissed the suit holding that the sale was binding on the plaintiffs. The lower appellate Court held that it was not binding on the plaintiffs' share, and decreed them possession under certain conditions. Defendant 1, the alienee, appeals and the plaintiffs have put in a memorandum of objections.
2. The sale deed is Ex. 1 dated 11th May 1922 and is for Rs. 2,500. It was executed by the father and two adult brothers of the plaintiffs, all the members of the family who were then majors, for themselves and on behalf of their minor brothers, the plaintiffs. The main consideration recited in it is a mortgage debt evidenced by Ex. 3, executed on 2nd July 1920 by the above members of the joint family in favour of their maternal uncles for a principal sum of Rs. 1,800 with interest payable monthly at nine annas per Rs. 100 per mensem. The period for Redemption was fixed as 1st July 1924. The amount due on Ex. 3 on the date of Ex. 1 was Rs. 2,038-5-9. It is admitted that this mortgage debt has not yet been paid off. In view chiefly of the fact that the mortgage had not be come payable on the date of Ex. 1 and that it was at a very low rate of interest which he finds to be less than the income of the lands sold to discharge it, the Subordinate Judge held that the sale was not a prudent and justifiable act and therefore did not bind the minor plaintiffs.
3. This finding is attacked by the appellant as involving fundamental errors of law on two main grounds: first, that apart from the question of justification, the mortgage was an 'antecedent debt' by the plaintiffs' father and manager, which the plaintiffs are bound to discharge, and secondly, that if justification is necessary, there is sufficient justification. I have so far heard argument on the first point, a point which the lower appellate Court has omitted to consider although it was raised in the first Court. It is now settled law that when the father of a joint family has alienated joint family property for an antecedent debt, that is, a debt dissociated in time and fact from the sale itself, and the property has passed to the alienees, the joint family cannot recover except upon proof that the debt was. for immoral or illegal purposes. The plaintiffs insist that it is essential for the application of this doctrine that the debt should have become payable and have been paid by the alienee, that is, that the alienee cannot succeed unless he has paid the full consideration and discharged the antecedent debt. The plaintiffs contend that the above proposition of law has been reached by the Courts in an endeavour to do justice to a bona fide alienee for value who has parted with his cash and has perhaps for a long time enjoyed the property, on the consideration that he should not be incontinently turned out because certain minor members of the family who have presumably received and benefited by the value received choose to attack the transaction. They therefore argue that this legal principle cannot apply to a case where the so-called antecedent debt had not even become payable and the alienee has not parted with cash, and urge that unless such an interpretation is given to the principle, the father could sell the joint family properties for merely nominal debts, receiving no consideration at all from the alienee and leaving the joint family as before still under liability to the creditors for the debts. The family, they urge, must have had its quid proque and must have been in fact relieved of its debt. That seems not an unreasonable proposition, but as the proposition of law which I am considering is deduced from the Mitakshara law, which is not always such as to commend itself to one's reason, I have rather to consider whether the respondents' contentions find any support in the law as expounded by the Courts.
4. Before considering this, I shall state the case of the appellant regarding the nonpayment of the mortgage debt. He claims that the debt became ripe in 1922 and that he tendered the amount due to the mortgagees in 1922 on 5th October 1922, but that they refused to receive it. He contends that he has always had the money ready for them and is even now ready to pay. Now, I cannot accept his contention that the money was due in 1922. The date given in the document for redemption is 1st July 1924. It is remarkable that the appellant does not seem to have again tendered the amount after 1st July 192-1. Possibly the reason was that this suit had been filed before that, the plaint having been put in on 4th December 1922, and that the mortgagees, who admit they are conducting this suit on behalf of the plaintiffs, would in any case have refused the tender. The fact therefore is that on the date of the plaint, the mortgage debt had not become payable or been paid and that therefore the liability for the mortgage still rested and still does rest on the joint family, except so far as they have an implied covenant of indemnity from the appellant for all expenses they may be put to in connexion with it.
5. The main question of law is the appellant's contention that it is sufficient defence to the suit that his alienation was in discharge of an antecedent debt by the father. It is not disputed that the debt, Ex. 3, was dissociated in time and fact from the alienation, and it is not pleaded that it was for immoral or illegal purposes. Prima facie then, Ex. 1, being an alienation of joint family property by the father in order to discharge an antecedent debt of his own, is binding on the joint family. The respondent urges, as I have said, that 'antecedent debt' must mean either a debt that has become payable or a debt which has actually been discharged by the alienee, and not one in which money was payable in the future or one which has not been discharged. This is obviously an important qualification of the usual meaning of 'debt' which is
a sum of money which is now payable or will become payable in the future by reason of a present obligation : see Webb v. Stenton  11 Q.B.D. 518 at p. 527.
6. A debt which has not matured is all the same a debt in ordinary legal parlance. Therefore prima facie, the phrase 'antecedent debt' includes a mortgage debt which is not yet payable, unless the law has somehow declared that it does not. It follows a fortiori that the word 'debt' does not ordinarily mean actual discharge of a debt and that it will not mean so here unless there is authoritative legal pronouncement to that effect. The legal doctrine of antecedent debt is, as has been repeatedly pointed out, the result of an endeavour to reconcile the Mitakshara prohibition of alienation of joint family property by a single member except for necessity with the pious obligation of the sons of the joint family to pay the debts of their father which are not illegal or immoral. The latest pronouncement by a specially Full Board of the Privy Council on the subject is in Brij Narain v. Mangla Prasad A.I.R. 1924 P.C. 50 which in its guarded declaration of disagreement with the previous ruling of the Privy Council in Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61 which was followed in Chet Ram v. Ram Singh A.I.R. 1922 P.C. 247 and in its categorical announcement of propositions at p. 104 was evidently intended to be definitive and final. The first question therefore is : Can I gather from this ruling any support for the respondents' interpretation of 'antecedent debt?' On the contrary it appears to me to repel it.
7. Their Lordships, while differing from some of the observations in Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61 approved of that decision generally if it is taken to decide not more than what was necessary for the case, namely:
that the incurring of the debt was there the creation of the mortgage itself.
8. There is no suggestion here that a mortgage is not an antecedent debt until it becomes payable or has actually been paid off. On the contrary, the creation of the mortgage amounted to an incurring of the debt. The same principle is embodied in No. 2 of the propositions laid down at p. 104, which states that a father may by incurring the debt, so long as it is not for any immoral purpose, lay the estate open to the payment of the debt itself. Therefore, it is the incurring of the debt which lays the estate open and brings the obligation for the debt to bear on the joint family estate. Similarly in proposition No. 3, there is no hint that the debt must have become payable or must have been paid. The ruling in Brij Narain v. Mangla Prasad approves entirely the opinion of the learned Chief Justice of this Court in Arumugham Chetty v. Muthu Koutidaii  42 Mad. 711 and there again there is no suggestion that the word 'incurred ' has anything beyond its ordinary meaning, namely that the debt has been contracted. There are no doubt stray expressions or facts in other cases which may be used to support the respondents' contention. In Brij Narain v. Mangla Prasad a mortgage decree had in fact been obtained, but that circumstance is never relied on by the Privy Council for supporting the general proposition laid down at p. 104. In Lal Bahadur v. Ambika Prasad another Privy Council decision which follows Brij Narain v. Mangla Prasad, the debts for which the alienation was made had as a matter of fact been paid, but again this circumstance is not relied on for the purpose of proving that these were antecedent debts. In Sahu Ramchandra v. Bhup Singh, at p. 144 (of 39 All.) the Privy Council says:
They desire, in the first place, to make it clear that much if not all of the law upon this subject has arisen from the necessity of protecting the right of third persons, say, the purchasers of the property, who have taken their title for onerous consideration and in good faith.
9. To my mind this does not necessarily limply that the consideration must have already been paid. The rulings in Nara-singh Misra v. Lalhi Misra  23 All. 208 and Peda Venkanna v. Srinivasa Deekshatulu  41 Mad. 136 are cited for the proposition that the son's pious obligation does not begin until the father has failed to satisfy the debt. Of these one can only say that no such distinction appears in the statement of the law on this point laid down at p. 103 (of 46 All.) Brij Narain v. Mangla Prasad. So far therefore as I can see, the test of an antecedent debt has never been declared by the Privy Council to be its payability or actual payment, and no case has been cited to me in which it was directly decided that it is necessary to prove that an antecedent debt must become payable or have been paid. In Bandhu Ram v. Ram Kishum Senar : AIR1923All535 a decision of the Allahabad High Court no allusion was made to the Privy Council cases in Chet Ram v. Ram Singh and Brij Narain v. Mangla Prasad, and the question of antecedent debt was never raised at all. It cannot be argued that that question could not have been raised when Brij Narain v. Mangla Prasad itself recognizes the strong current of authority allowing it to be raised. The Privy Council case in Ramsundar Lal v. Lachmi Narain A.I.R. 1929 P.C. 143 has been quoted. But there again the plea of antecedent debt was never raised or considered, and the minors were non-suited on other grounds which were sufficient to dispose of the case. There seems to me therefore no substance in this contention raised by the respondents.
10. The second contention advanced by them is that though the minors cannot impeach the necessity for or the nature of the alienation, that is, though they cannot plead that the alienation was not for family necessity, it is open to them to plead that the family necessity might have been relieved in some other way, and that it was neither a prudent nor a necessary act of the father to alienate. This appears to me equally untenable on the authorities. It is in effect saying that the alienee has in all cases of alienation to prove either necessity or prudence. That I have no doubt, is not the law. 'It is wholly opposed to the dictum of Sir John Stanley in Chandradeo Singh v. Mata Prasad  31 All. 176 which has bean approved of by the Privy Council in the case in 39 All. already cited, where he says (p. 189) that
the son cannot impeach an alienation of ancestral joint family property made by a father...the object of which is to pay
an antecedent debt of the father not tainted with immorality. This is also the language of the Privy Council in two ' early cases Suraj Bunsi Koer v. Sheo Persad Singh  5 Cal. 148 and Namuni Babusin v. Madhum Mohun  13 Cal. 21 cited with approval in the Brij Narain v. Mangla Prasad case. The statement of the law is put in Suraj Bansi Koer v. Sheo Persad Singh  5 Cal. 148 as
where joint ancestral property has passed out of the joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt or under a sale in execution of a decree for the father's debt, his sons cannot recover that property unless they show that the debts were contracted for immoral purposes.
11. What the sons cannot impeach is the alienation if the consideration was an antecedent debt. Here the consideration undoubtedly was an antecedent debt. Therefore the alienation cannot be impeached except on the ground that the debt was contracted for immoral purposes, which has not been pleaded.
12. The respondents attempted to erect this contention into an attack on the alienation as being mala fide, and to call in aid the dictum from 39 All. already cited, that the law on this subject was designed to protect alienees 'for onerous consideration and in good faith;' but this is however an aspect of the case which was never put forward in the Courts below, nor is there any issue or finding on the question of good faith. I am not prepared to allow such a point to be raised in second appeal, even if I assume that it could, after the decision in Brij Narain v. Mangla Prasad be taken as a point of law at all.
13. The result is that the alienation is not open to attack and must stand. It is admitted that the sums due under Exs. 4 and 6, also antecedent debts of the father and the cash payment of Rs. 200 have been paid and that the sums of Rs. 115 and Rs. 21-5-6 were not paid. The sums not paid are so trifling that their non-payment does not affect the general purposes of the alienation which was to pay off antecedent debts. The alienation must therefore stand. It is a matter of equity to ensure now that defendant 1 do now pay off and get discharged, the mortgage Ex. 3 with interest up to date at 10 annas per cent per month according to the stipulation in the deed and do pay also to the vendor these two sums of Rs. 115 and Rs. 21-5-6. This decision is sufficient to decide the appeal and I do not go into the other points raised but not argued.
14. I direct that if the amount so due on the mortgage and those other two sums are paid into the trial Court, the District Munsif's Court, Kulitalai, within two months from date of receipt of this Court's decree by the trial Court the appeal is allowed and the suit will stand dismissed with costs throughout. The memo of cross-objections (not argued) is dismissed without costs.