Sadasiva Aiyar, J.
1. The plaintiff is the appellant. The suit was brought to obtain a mortgage decree for sale on the mortgage document Exhibit H, dated 11th May 1903, executed by the 1st defendant to the plaintiff for Rs. 1,150. The defendants Nos. 2 and 3 are the undivided sons of the 1st defendant. The 3rd defendant is still a minor, while the 2nd defendant was a minor on the date of the mortgage-bond Exhibit H.
2. According to the recital in Exhibit H the sum of Rs. 1,150 mentioned in it as consideration is made up as follows: (a) Rs. 833-8 0 being the sum due on the registered mortgage-bond Exhibit G of 1899; (6) Rs. 130-1-0 due on the simple debt bond of 1902 Exhibit K; (c) Rs. 42 received by the 1st defendant for excavating a well in the family garden; (d) Rs. 100 for discharging the debt of Nattukottai Karuppan Chettyar; (e) Rs. 43-7-0 received for excavating the well already mentioned and for family expenses; Total Rs. 1,150.
3. The 1st defendant (the father) as usual remained ex parte. His sons (the defendants Nos. 2 and 3) contended that their two-third share in the mortgaged properties cannot be affected by the mortgage because 'the suit debt was not contracted either for family benefit or for any necessity binding on the family' (4th paragraph of the written statement).
4. It will be seen from the written statement that the defendants Nos. 2 and 3 did not question the genuineness of the mortgage-deed Exhibit H or the existence of the debts, that is, the passing of consideration for Exhibit H, nor did they plead that the document was legally invalid as a mortgage for any reason. Their defence was confined to the contention that the mortgaged debt was not binding on their shares of the mortgaged property.
5. As the 1st defendant remained ex parte, the District Munsif had to raise the point for determination as to his execution of the document in order to give a decision against him. On 11th June 1915, a single consolidated issue was raised by the District Munsif as follows: 'Whether the suit document is genuine and supported by consideration and binding on the 2nd and 3rd defendants' shares.' In the judgment of the District Munsif, the issue has been split up into two as follows: (1) Whether the suit document is genuine and supported by consideration, and (2) whether the suit document is binding on the 2nd and 3rd defendants' shares. The Munsif notes in paragraph 6 of his judgment that issue II was the only one really contested by the contesting defendants Nos. 2 and 3, whose Vakil noted on Exhibit H that he admitted its genuineness. The Vakil also noted on the documents Exhibits A to G that he admitted their genuineness. The plaintiff, who was not even cross examined, proved the genuineness of Exhibits J and K. Clearly Mr. R. Srinivasa Rao, b. a., b. l., who appeared as Vakil for the defendants Nos. 2 and 3 before the District Munsif, did not deny the genuineness or validity as a mortgage document of the deed Exhibit H sued on or of the other documents Exhibits A to G. The Munsif found on the 1st issue (which was not contested by the contesting defendants) in the plaintiff's favour, and he found on the 2nd issue that the suit document is binding on the shares of the defendants Nos. 2 and 3 to the extent of Rs. 1.108-9-0 out of the principal sum of Rs. 1,150 mentioned in Exhibit H, the sum of Rs. 43-7-0 received in cash on the date of Exhibit H not having been proved to have been borrowed for family necessity. The District Munsif held that the remaining Rs. 1,106-9-0 constituted antecedent debts and hence the mortgage was binding to that extent on the shares of defendants Nos. 2 and 3 also He gave a mortgage decree accordingly for that sum and interest.
6. On appeal, the same Vakil who had appeared for the appellants in the District Munsif's Court was allowed to contend that Exhibit H was not proved to be valid as a mortgage because it had not been proved by the evidence of an attesting witness under Section 68 of the Evidence Act, and the other mortgage documents Exhibits B, C, E, F and G had also not been so proved by the evidence of an attesting witness for each of the documents or by proof that the attestation of one attesting witness was in his handwriting under Section 69 of the Evidence Act. I might add that in the grounds of appeal to the lower Appellate Court, no express reference is made to the necessity of the proof of any of these documents by an attesting witness or to the necessity of the proof of an attesting witness's handwriting.
7. The District Judge accepted this contention and held that Exhibits B, C and E to H were inadmissible in evidence as not properly proved. Yet, he upheld, rather inconsistently, the decree of the District Munsif so far as it directed the sale of the 1st defendant's share in the mortgaged properties, that is, just as if Exhibit II had been properly proved as a mortgage document, so far as the 1st defendant's share was concerned.
8. I am clear that the contesting defendants Nos. 2 and 3 did not dispute either the genuineness or the legal validity as mortgage documents of the deeds Exhibits B, C and E to II before the District Munsif. So far as the suit document Exhibit H is concerned, I think that Order VIII, Rules 3 to 5 (introduced into the new Civil Procedure Code), casting, as they do, the obligation on contesting defendants to make specific denials of facts alleged in the plaint and providing, as they do, that evasive denials are insufficient, precluded the defendants Nos. 2 and 3 from raising the question that Exhibit H did not create a valid mortgage or was not properly proved. Under Section 58 of the Evidence Act, no fact need be proved which the parties have agreed to admit or which by any rule of pleading in force at the time, they are deemed to have admitted by their pleadings, though the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions. The District Court is, no doubt, given a discretion under this section to require proof of these documents B, C and E to H, but, in my opinion, it would not have exercised its discretion properly if it called for such proof, notwithstanding what took place before the District Munsif. Assuming, however, that its discretion to call for proof would have been properly exercised, it did not call for such proof but decided at once that the documents had not been proved, The affidavits of three witnesses filed in this Court on behalf of the plaintiff establish that the District Munsif dispensed with the evidence, as the contesting defendants' vakil did not require formal proof of the documents Exhibits B, C and E to H. I would, there fore, set aside the finding of the District Judge on the first issue and hold that the suit document, Exhibit H, is genuine and supported by consideration.
9. I now come to the 2nd issue, namely, whether the debt is binding on the 2nd and 3rd defendants, assuming that the documents B, C and E to H are valid mortgage documents supported by consideration.
10. The first document Exhibit B was executed by the 1st defendant to S. Koundan for Rs. 75 in 1891. Before the personal remedy under that document was barred, the 1st defendant executed Exhibit C (which superseded B) in 1895 for Rs. 115 to the same', S. Koundan. Then Exhibit E is a mortgage-deed by the 1st defendant to Chinnu Mudali in 1896 for Rs. 50. Exhibit P is a mortgage deed executed in the year 1897 by the 1st defendant to Palaniandi Chettiar for Rs. 400 to discharge Exhibits C and E and for further sums borrowed. Exhibit G is dated 1899 for Rs. 700 to discharge Exhibit F and for monies borrowed in cash, and it was executed to the plaintiff Arumugam Chetty. Exhibits J and K are simple debt bonds for Rs. 50 and 120 respectively dated in 19C0 and 1902, Exhibit K superseding Exhibit J. The plaint document, Exhibit H, was executed for Rs. 1,150 due to the plaintiff, partly under Exhibits G (Rs. 833-8-0) (within six years, of Exhibit G, and partly under Exhibit K. (Rs. 130-1-0) (within three years of Exhibit K) and partly under oral loans (Rs 143) (Total Rs. 1, 106-9-0), the remaining Rs. 43-7-0 borrowed in cash on the date of Exhibit H being disallowed by the District Munsif.
11. The District Judge has disallowed the plaintiff's claim against the shares of the defendants Nos. 2 and 3 in respect of almost the whole of this entire amount of Rs. 1,106 9-0. He has allowed only the amount of Rs. 130-1-0 (due under the simple debt bond Exhibit K) out of the above sum of Rs. 1,106-9-0. The District Judge's reason is that the term antecedent debt', as explained in the Privy Council decision in Rahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A.P 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M. L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 does not cover the debt due under Exhibit G (Rs. 833-8 0) and that the antecedent oral debts amounting to Rg. 143-10 are not proved. I have already held that the defendants Nos. 2 and 3 did not deny and must be deemed to have admitted the existence of all the debts which made up the Rs. 1,106 9 0.
12. The learned District Judge does not explain why, according to the Privy Council decision in Sahu Ram Chanira v. Bhup Singh 39 Ind. Cas. 280 : 39 A.P 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J: 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 the money due under the mortgage document Exhibit G would not constitute an antecedent debt. Mr. Sitarama Rao who appeared for the respondents Nos. 1 and 2 has, however, ably argued before us that according to that decision, no debt secured by a mortgage of the ancestral family property would constitute 'antecedent debt' of the father and that such a debt could not, there' fore, support an alienation by the father so as to bind his sons' interests. It seems to be rather a startling proposition that while an antecedent debt of a simple character, whether contracted orally or under a simple debt bond, can support a subsequent mortgage or sale of the sons' share also in the ancestral property, the fact that the antecedent creditor got the additional security of a mortgage deprives the subsequent alienee of the right given by the Hindu Law to rely upon the antecedent character of the debt discharged by the consideration paid for his alienation. The point directly decided in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 is that a loan, contemporaneous with or just previous to the date of a mortgage transaction, could not be treated as an antecedent debt, as was erroneously held by Boddam and Bashyam Aiyangar, JJ., in Chidambara Mudaliar v. Koothaperumal 27 M.P 326 a view which had already been overruled by this Court in Venkataramanaya Pantulu v. Venhataramana Doss Pantulu 29 M.P 200 : 1 M.L.T. 28 : 16 M.L.J. 69, Mr. Sitarama Rao relies, however, on the following passages found in their Lordships' judgment: 'The law was thus stated by Lord Hobhouse in Nanomi Babuasin v. Modhun Mohun 13 C.P 21 : 13 I.A. 1 : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 632 : 6 Ind. Dec. (N.S.) 510: '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 * * if not tainted with immorality.' In their Lordships' opinion, these expressions...do not give any countenance 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 or the security afforded or sup-posed to be available by such joint estate.' I think that having regard to the context, their Lordships only meant that if the so-called antecedent debt is so shortly before the execution of the mortgage, say two hours or two days, as to establish that it was incurred on the credit, or security available by the joint family immoveable assets, such a debt is not an antecedent debt and the mortgage deed executed for such a so called antecedent debt would not affect the sons' share. On the same page 447* their Lordships say: 'to call a borrowing made on the occasion of the grant of a mortgage an antecedent debt is to extend unduly and improperly the whole scope of the exception on that topic.' At page 448* their Lordships say: 'It is said that the transaction substantially is that the father got the Rs. 200 into his hands and that when he granted the mortgage he was accordingly an 'antecedent debtor.' Their Lordships are of opinion that this contention cannot be upheld.' Thus, their Lordships were only considering the question whether the debt incurred on the security of the mortgage was itself an antecedent debt so as to support that mortgage, and not whether a debt previously incurred which is really and substantially (and not in mere name and technically) a debt antecedent to the mortgage sued on 'could not be called an antecedent debt, when considering the validity of the later security deed. The antecedent mortgage debt may not be able to support itself as a mortgage security as regards the sons' share secured under it, but that it ceases to be an antecedent debt so as to support the later alienation by mortgage is, as I said before, not only a startling proposition but seems to be devoid of any support from the language of their Lordships.
13. In Peda Venkanna v. Sreenivasa Deefahatulu 43 Ind. Cas. 225 : 22 M.L.T. 334 : 33 M.L.J. 519 : 6 L.W. 649 : (1918) M.W.N. 65 my Lord the Chief Justice considered the above Privy Council decision in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J: 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 and remarked as follows in answer to the argument that no suit could be brought during the lifetime of the father against the sons on a debt incurred by the father and which was neither illegal nor immoral--As to this, Lord Halsbury's well known observations in Quinn v. Leathern (1901) A.C.495 : 70 L.J.P.C. 76 : 85 L.T. 289 : 50 W.R. 179 : 65 J.P. 708 : 17 T.L.R. 749 that a case is only an authority for what it decides, and not for every proposition that may seem to follow logically from it, appears to me to apply with special force. That the Indian Courts have interpreted the earlier decisions ending with Nanomi Babuasin v. Modhun Mohun 13 C.P 21 : 13 I.A. 1 : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 632 : 6 Ind. Dec. (N.S.) 510 in which last case it is stated that the sons cannot set up their rights against his creditor's remedies for their debts if not tainted with immorality, as authorising suits for such debts against the son as well as the father may be seen, as regards Calcutta, from the Full Bench decision in Luchmun Dass v. Giridhur Chowdhry 5 C.P 855 : 6 C.L.R. 473 : 3 Shome L.R. 143 : 2 Ind. Dec. (N.S.) 1152' and then my Lord proceeds to refer to other oases and finally holds that the Privy Council could not have meant to overrule all those decisions, Though the case of Peda Venkanna v. Sreenivasa Deekshatulu 43 Ind. Cas. 225 : 41 M.P 136 : 22 M.L.T. 334 : 33 M.L.J. 519 : 6 L.W. 649 : (1918) M.W.N. 65 did not raise the particular point now in question, I have referred to it to show that the language of their Lordships relied on by Mr. Sitarama Rao before us, namely, an obligation incurred wholly apart from the security afforded by the joint estate', refers to the obligation under the suit bond on which a particular suit is brought and which is sought to be treated as an antecedent debt and not a prior antecedent obligation of the father, though that prior obligation was accompanied by a charge on the joint estate. I might further add that as the father's personal liability under the prior obligation under Exhibit G had not been barred on the date of the suit document Exhibit H, there was in this case an obligation wholly apart from the security afforded by the joint estate which could form an antecedent debt and could be used as the foundation to support Exhibit H to that extent, against the shares of the sons, even if their Lordships of the Privy Council intended by their language that a secured debt as such could never constitute an antecedent debt. While, on principle, the fact of the debt being barred on the personal covenant should make no difference, I have raised this point for consideration because, even if one is ultimately constrained by the language of their Lordships of the Privy Council to treat a debt which is altogether a mortgage debt as not being an antecedent debt, that doctrine (which, as I said before, is to my mind a startling doctrine) may not be extended an inch beyond what is absolutely necessitated by their Lordships' language.
14. Mr. B. Sitarama Rao, however, relied upon the decision of Spencer and Krishnan, JJ., reported as Badagala Jogi Naidu v. Bendalam Papiah Naidu 48 Ind. Cas. 289 : 35 M.L.J. 382, where the learned Judges state that an antecedent debt which was also a mortgage debt could not be relied on as an antecedent debt to support the subsequent mortgage. I feel grave doubts as to whether the language of their Lordships of the Privy Council, when interpreted with reference to the facts of the Privy Council case, was intended to lay down such a proposition and as I have above tried to show, their Lordships were only dealing with the Question whether a particular loan incurred on security of the joint estate and, therefore, not incurred wholly apart from the security afforded by the said joint estate would affect the sons' shares in the joint estate. Their Lordships were not considering at all the question whether if a really antecedent debt had also been accompanied by a mortgage security, it would or would not constitute as antecedent debt capable of supporting a subsequent alienation of the sons' shares by a mortgage bond executed for the discharge of that antecedent debt (and for fresh loans) so far as that antecedent debt was concerned.
15. As, however, the question is an important one which must frequently occur and as my view is opposed to the decision of the Division Bench in Badagala Jogi Naidu v. Bendalam Papiah Naidu 48 Ind. Cas. 289 : 35 M.L.J. 382 I would refer the following questions for the decision of a Full Bench:
(1) Whether an independent debt, not immoral or illegal, contracted by the father on the security of the joint estate antecedent to the mortgage sued on can be treated as an antecedent debt so as to support the charge on the sons' shares also to the extent of the sums secured on the prior mortgage?
(2) In such a case, can the former debt be treated as an antecedent debt for the purpose referred to, if the personal liability of the father under the earlier mortgage is not barred on the date of the suit document.
16. I entirely agree with my learned brother that it was not open to defendants Nos. 2 and 3 to take the point before the Appellate Court that the mortgages. A to H had not been proved. Their Vakil did not deny the accuracy of the District Munsif's endorsement and his note as to the effect of the Vakil's admission, and I am quite unable to understand why the District Judge did not give full effect to that admission. I must express my disapproval of the conduct of the Vakil concerned in putting forward such a contention in the Appellate Court after having invited the plaintiff not to prove the documents by the witnesses whom he had in attendance. On the question of law raised by Mr. Sitarama Rao, I agree with my learned brother that it should be referred to a Full Bench. We have been much pressed with the language used by their Lordships of the Privy Council in the case reported as Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J: 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 and we have felt the same difficulty as was felt by the learned Chief Justice in Peda Venkanna v. Sreenivasa Deekshatulu 43 Ind. Cas. 225 : 41 M.P 136 : 22 M.L.T. 334 : 33 M.L.J. 519 : (1918) M.W.N. 65. In that case the learned Chief Justice, applying the observation of Lord Halsbury in Quinn v. Leathern (1901) A.C. 495 : 70 L.J.P.C. 76 : 85 L.T. 289 : 50 W.R. 179 : 65 J.P. 708 : 17 T.L.R. 749 declined to apply their Lordships' judgment to any proposition beyond that which arose in the case. The point actually decided was that a mortgage transaction by a father would bind his sons' shares during his lifetime only when the debt forming the consideration for the document was antecedent. No question is raised in this case before us which is at variance with that ruling.
17. We are asked, however, to apply the words on page 447 Page of 39 A. -Ed.: 'The exception being allowed, it appears to their Lordships to apply, and to apply to the case where the father's debts have been incurred irrespective of the credit obtainable from immoveable assets that are joint family property,' and to say that each prior mortgage in this case is wholly invalid as consideration for the later mortgage because its security depended on the joint family property. This proposition seems to me to entail a contradiction between their Lordships' decision and the supposed result of the dictum. Their Lordships clearly say that an existing antecedent debt not secured on a family property is good consideration for a mortgage of the family property. Clearly, therefore, if no farther transaction was entered into the mortgage would be binding on the family. It seems to me to be impossible to argue that, if subsequently the father finds it necessary to borrow another sum of money without security and then some time later creates a mortgage on the family property both for the old mortgage debt and the unsecured loan, that mortgage debt is not good consideration as against the sons on the ground that it was not incurred wholly apart from the ownership of the joint estate. I cannot understand how a debt that was once binding ceases to be binding by renewal.
18. My learned brother has raised the point that apart from the security, there is a personal liability in every mortgage and that, therefore, even though as a mortgage the antecedent debt might be had, still as long as the personal remedy was not barred, the debt is a good antecedent debt apart from the mortgage security and can thus form consideration for the new mortgage binding on the sons. Speaking for myself, this distinction seems to me to be too artificial, but it has, if I may say so, the merit of meeting the difficulty raised on an extreme construction of their Lordships' language. I, therefore, agree with my learned brother that 'his do form part of our reference.
19. This second appeal came on for hearing on the 12th March 1919.
20. Mr. T. Narasimha Aiyangar, for the Appellant.--There are two exceptions to the rule against alienations as enunciated in Nanomi Babaasin v. Moihun Mohun 13 C.P 21 : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 632 : 6 Ind. Dec. (N.S.) 510 viz., family necessity and antecedent debt. The latter exception must be kept within proper limits and not unduly extended [Suraj Buhsi Koer v. Sheo Persad Singh 61. A.P 88 : 2 Ind. Dec. (N.S.) 705 So far as these two tests are satisfied, it is immaterial whether the alienation is an out an-out sale or only a partial alienation by way of mortgage. In Hunnooman-persaud Panday v. Musammab Babooee Munraj 6 M.I.A 393 : 18 W.R. 81 Foot Note: Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 the prior debt was a mortgage-debt and it was held that a charge could be created for the father's debt.
21. What is an antecedent debt is. considered in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 21 C.W.N. 698 : 1 P.L.W. 557 : 19 Bom. L.R. 498 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 Chidambara Mudaliar v. Koothapeturnal 27 M.P 228 Venkataramanaya Pantulu v. Venkataramana Doss Pantulu 1 M.L.T. 28 : 16 M.L.J. 69 and Chandra Deo Singh v. Mata Prosad 1 Ind. Cas. 479 : 6 A.L.J. 263. Brij Naram Rai v. Mangla Prosad 50 Ind. Cas. 101 : 17 A.L.J. 249 : 1 U.P.L.R. (H.C.) 49 considers Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A.P 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 19 Bom. L.R. 498 should not be extended beyond what it actually decides. The only question was whether the debt in that particular case was antecedent. The other observations were beside the point.
22. In Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 44 I.A. 126 the only question was whether the debt was antecedent and it was decided. The rest is all obiter. Do you concede that?]
23. What the Privy Council say has to be followed see Muttayan Chetti v. Zamindar of Sivagiri 4 Sar. P.C.J. 354 : 12 C.L.R. 169 : 6 Ind. Jur. 486 : 5 Shome L.R. 57 : 2 Ind. Dee. (n.s.) 279 even though decisions of the High Courts are overruled even without mention.
Sadasiva Aiyar, J.
24. If as a mortgage-debt it is not binding, why should it bind as an ordinary debt, assuming the act of the father to be a breach of trust?]
25. On the basis of the pious duty of the sons which depends on joint status. Where there is a remedy by partition, this pious duty, which is a mere equity in the creditor's favour, would not arise. There is a distinction between a sale for a mere money debt and a sale for a secured debt of the father. In the one case, the equity in the creditor's favour arises. In the other case it does not. The Privy Council have laid down the rules in order to protest third parties on the one hand and the sons on the other.
26. You cannot protect the sons and the alienee at the same time. To hold that an alienation by way of mortgage is a breach of trust would be including every such alienation.
27. The Privy Council say so, Girdharee Lall v. Kantoo Lall 22 W.R. 56 : 3 Sar. P.C.J. 380. If the mortgage debt was incurred by the father for enabling him to sell the joint family property, the debt will not be binding.
Sadasiva Aiyar, J.
28. The pious obligation exists whether the father is alive or dead. I do not think that the Privy Council go to the extent of saying that a debt to which the pious obligation must attach is deprived of that equity, merely because it is made a charge on the joint family property.]
29. Where there is a personal remedy and it is barred, there is only the alienation and that will not be binding.
30. This reference raises the question whether the rule as to the validity of a father's alienation for an antecedent debt is inapplicable where the antecedent debt itself has been contracted on the security of the family property, as held in Badagala Jogi Naidu v. Bendalam Papiah Naidu 48 Ind. Cas. 289 : 35 M.L.J. 382 on the authority of certain observations of the Privy Council in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 21 C.W.N. 698 : 19 Bom. L.R. 498 : 44 I.A. 126 The question is of great importance owing to the far reaching consequences of our decision and has received our anxious consideration.
31. The appeal to the Privy Council was filed to challenge the decision of the majority of the Allahabad High Court in Chandra Deo Singh v. Mala Prasad 1 Ind. Cas. 479 : 31 A.P 176 : 6 A.L.J. 263, dissenting from the view taken in Khalil-ul-Rahman v. Gobind Pershad 20 C.P 328 : 10 Ind. Dec. (N.S.) 223 and Chidambara Mudaliar v. Keothaperumal 27 M.P 228 and agreeing with the later Madras decision in Venkataramanaya Pantulu v. Venkataramana Doss Pantulu 29 M.P 200 : 1 M.L.T. 28 : 16 M.L.J. 69, that there must he an antecedent debt to support the father's alienation. In their judgment disposing of this most controverted question their Lordships frequently referred with approval to the exhaustive judgment of Sir John Stanley, C.J., in the case first mentioned, and, even as will be shown, adopted his enunciation of the true rule as to antecedency in terms which, it is to be noted, do not contain the further restriction now contended for.
32. We have next to consider the observations relied on in the judgment and the context in which they occur. Their Lordships in the course of their judgment had pointed out that the rule validating an alienation by the father for an antecedent debt of his own which was neither illegal nor immoral was an exception to the general rule of the Mitakshara which should not be extended, and, after referring to their earlier decisions and setting out the well known passage in Nanomi Babuasin v. Modhun Mohun 13 C.P 21 : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 632 : 6 Ind. Dec. (N.S.) 510 in which it is laid down that the sons cannot set up their rights against the father's alienation for an antecedent debt, they proceeded to observe: 'In their Lordships' opinion these expressions, which have been the subject of so much difference of legal opinion, do not give any countenance 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 or the security afforded or supposed to be available by such joint estate. The exception being allowed, as in the state of the authorities it must be, it appears to their Lordships to apply, and to apply, 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. In their view of the rights of a father and his creditors, if the principle were extended further, then the exception would be made so wide as in effect to extinguish the sound and wholesome principle itself, namely, that no manager, guardian, or trustee can be entitled for his own purposes to dispose of the estate which is under his charge. In short, it may be said that the rule of this part of the Mitakshara Law is that the joint family estate is in this position: under his management he can neither obtain money for his own purposes for it, nor can he obtain money for his own purposes upon it. To permit him to do so would enable him to sacrifice those rights which he was bound to conserve. This would be equivalent to sanctioning a plain and, it might be, a deliberate breach of trust. The Mitakshara Law does not warrant or legalise any such transaction.
The limits of the principle of the exception have been thus set forth because in their Lordships' opinion they form a guide to the settlement of the conflict of authority in India on the subject of antecedent debt.
33. It is very important to observe that their Lordships expressly say that they are only laying down the true principle for their guidance in the decision of the point before them, and this, I think, goes to show that they did not intend to decide anything else, as for instance, the application of that principle to cases which were not before them. If they intended to go further their observations were made obiter and are not binding on us as authority. In the rest of their judgment they strictly confined themselves to the decision of the question before them, the necessity that the debt should be antecedent, and in answering this question they adopted the language of Sir John Stanley in Chandradeo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A.P 176 : 6 A.L.J. 263: 'The true rule is that a son cannot impeach an alienation of ancestral joint family property made by the father, for which, the consideration is an antecedent debt of the father not tainted with immorality or the object of which is to pay such a debt...the doctrine has no application to a case in which no antecedent debt of the father, that is, a debt antecedent to the alienation in question, is concerned as the consideration or object of the alienation.' As already observed, there is no mention in this rule of the further restriction now contended for. Their Lordships went on to deal with the argument that the antecedency might be only of an hour or a day or a year, and observed that there must, to give true effect to the doctrine of antecedency in time, be also real dissociation in fact, and that the Courts would not be slow to deny effect to the mortgage where the antecedency was found to he unreal and to be merely a cover for what was essentially a breach of trust. These observations were strictly germane to the question as to the necessity of a real antecedency in fact, but they do not cover the further proposition that the antecedent debt must be one which was not incurred on the security of the joint family property.
34. In the passage already cited their Lordships did, in my opinion, lay down that in principle there should be such a further restriction, and they proceeded to decide the only question before them in accordance with the principle so laid down. They do not refer to any earlier case in which this further restriction had been laid down or even suggested, and possibly they were led to state the principle in these terms for the purpose in hand with reference to the considerations urged by Sir John Stanley in contesting the opinion expressed by Boddam and Bhashyam Aiyangar, J.I., in Chidambara Mudaliar v. Koothaperuma 127 M.P 228, that to insist on the debt being antecedent would not really afford any, protection to the son.
35. Those learned Judges observed in Chidambara Mudaliar v. Koothaperuma 127 M.P 228; 'On principle it is difficult to make any distinction between a mortgage given for an antecedent debt and a mortgage given for a debt then incurred, for in either case the debt is binding upon the son, and the enforcement of the security exonerates the son from the burden of the father's debt. Such a distinction does not really, afford any promotion to the son, for his, share in the mortgaged property can, as a general rule, be seized and brought to sale, even in the latter case, for the recovery of the debt as a personal debt, due by the father (though also secured by a mortgage), unless such share has been validly alienated in favour of a third party, since the date of the mortgage but prior to its attachment.'
36. The learned Judges who overruled, this decision in Venkataramanaya Pantulu v. Venkataramana Doss Pantulu 29 M.P 200 : 1 M.L.T. 28 : 16 M.L.J. 69 did not apparently differ in principle from this statement but considered themselves bound by authority to hold that the debt must in fact be antecedent. It was, however, contested by Sir John Stanley, in Chandra Deo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A.P 176 : 6 A.L.J. 263 in the judgment already mentioned, at page 202 Page of 31 A.-Ed.:__'This observation is plausible, but it is capable, I think, of ready refutation. The remedy of the creditor on the basis of the son's pious duty is not co extensive with his remedy on foot of a binding security. In principle the statement is opposed to the rule of the Mitakshara. In practice it would not be correct, inasmuch as the observance of the rule of the Mitakshara does afford some protection to the interests of sons. The greed which exists for the acquisition of landed property in this province is well known. Moneylenders are ever ready to advance money to thriftless or extravagant land-owners on the security of their landed property with a view to the ultimate acquisition of the property. Interest is allowed to accumulate until the mortgage-debt has reached such dimensions that it is unlikely that the owner can redeem. Then a suit for sale is instituted on foot of the security, the mortgagee gets leave to bid and buys and the family loses its ancestral property. Money-lenders are chary of making large advances to land-owners on personal security. Now if in negotiations for a loan on a mortgage, lenders are obliged to make enquiry and satisfy themselves that the loan is required to meet a legal necessity, this will afford some protection to the other members of the co-parcenary body. If a father in a joint Mitakshara family can borrow money on the security of the joint ancestral estate to satisfy any extravagant whim or fancy he may form, it is obvious that the rule of the Mitakshara is a dead letter and that the other members of the family are robbed of all protection.' Their Lordships, I cannot help thinking, were influenced by these forcible observations in laying down the principle in the way they did. It is, however, clear, I think, that Sir John Stanley did not intend to lay down that there was any necessity to show that the debt was nut only antecedent but also not incurred on the security of the family property, because he does not lay down any such restriction in formulating the rule, and because he refers with approval to the decision of the Full Court in Badri Prasad v. Madan Lal 15 A.P 75 : A.W.N. (1893) 52 : 7 Ind. Dec. (N.S.) 765 In that case the mortgage in question was executed in satisfaction of a prior mortgage debt incurred by the father to the same mortgagee. It was contended the alienation was bad because the mortgage was effected in discharge of the mortgagee's own prior debt and was, therefore, not an antecedent debt within the meaning of the rule. Sir John Edge, C.J., with whom the other Judges concurred, rejected this contention, and, after citing a Calcutta ruling that the purchase money itself which was the consideration for a conveyance could not be said to be an antecedent debt--the point now decided by their Lordships--added: I know of no other restriction of the term antecedent debt.' This statement is equally true of the other Courts and of the local profession and the public in India. The doctrine of the father's power of alienation for his own debt having been repeatedly enunciated for over sixty years, ever since its recognition by the Privy Council in Hunoomanpersaud Panday v. Musammat Bibooee Munraj 6 M.I.A 393 : 18 W.R. 81 Foot Note: Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147, without any such restriction having been suggested, it has been assumed not to exist. The only question was whether it was necessary that there should be any antecedent. debt at all, and numberless transactions have taken place on that footing which, as has been represented to us, it would involve great hardship to disturb. Observations in judgments mast be read with reference to the context and to the pre existing law, and the very recent decision in Nachiyappa Goundan v. Rangasami Goundan, as yet unreported, contains an express warning against deducing from particular expressions in their Lordships' judgments novel propositions unsupported either by principle or authority, and against construing decisions putting an end to a conflict of authority on a particular question as unsettling what till then had been treated as settled. However sound in principle, and however applicable to this Presidency with reference to the son's shares, if not to the father's, the suggested restriction might he if the matter were res integra, it would certainly be a novel proposition unsupported by any previous authority to lay down at the present time that an alienation for an antecedent debt not otherwise open to objection was invalid because the antecedent debt was incurred on the security of the joint family 'property. Having regard to their Lordships' express statement that the enunciation of the principle in these terms was intended as a guide to the decision of the controverted question before them, I do not think we should be warranted in extending its application to a case which was not before them and involves considerations which are not referred to in their judgment, especially when such an application of the principle would have the effect of disturbing what has long been regarded as settled law, and would give rise to great uncertainty as to existing titles.
37. I would answer the first question in the affirmative. It is unnecessary to answer the second question.
38. I entirely agree.
Sadasiva Aiyar, J.
39. In the reference to the Full Bench I said that their Lordships of the Privy Council in some passages of their judgment in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A.P 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M. L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 used language which, if widely interpreted, would make a mortgage debt which was genuinely antecedent to the alienation in suit not an antecedent debt capable of supporting such an alienation by the father as against the son's share. Having regard, however, (a) to the context, (b) to the particular question which their Lordships had and intended to decide and (c) the language used by them in several passages both before and after the widely worded passages, I was inclined to hold that their Lordships were considering even in these passages only the case where the so called antecedent debt was really and substantially the mortgage debt sued on. For instance, in the passage the exception * * * appears to their Lordships to apply only to the case where the father's debts have been incurred irrespective of the credit obtainable from immoveable assets which are joint family property', their Lordships were approving of the exception which allows a decree for sale to be passed in the suit brought for a mortgage-debt of the father if incurred for discharging the father's antecedent debts, and they disapproved its extension to a case where the mortgage-deed sued on was executed for a so-called antecedent personal debt which was really incurred on the 'credit obtainable' from the family lands and which antecedent debt was, therefore, at once or soon afterwards merged in the mortgage alienation sued upon. The question whether genuinely antecedent debts might be or might not be themselves mortgage debts and whether they ought to be only simple debts was not, in my opinion, decided or intended to be decided by their Lordships. I did not and do not think that their Lordships intended to adopt all the reasoning given in Chief Justice Sir John Stanley's judgment in Chandra Deo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A.P 176 : 6 A.L.J. 263. They, no doubt, fully approved of the dicta of the learned Chief Justice quoted at pages 446 and 449. Pages of 39 A.-Ed. but those dicta do not deal with the question whether a really antecedent mortgage debt was one which could support a later alienation against the sons.
40. Having heard full arguments again sitting in the Full Bench and having had the advantage of studying the judgment of my Lord the Chief Justice just now pronounced and concurred in by Oldfield, J., I must frankly admit that I have felt much diffidence as to the soundness of my view as to the real meaning of their Lordships' language in the disputed passages. While I had to respectfully differ in my referring order from the opinions of two learned Judges of this Court [Spencer and Krishnan, JJ., in Badagala Jogi Naidu v. Bendalam Papiah Naidu 48 Ind. Cas. 289 : 35 M.L.J. 382 as to the interpretation of those passages, I now find that my opinion is also opposed to the opinions of my Lord and Oldfield, J., besides the opinions of two learned Judges of the Allahabad High Court (Tudball and Rafique, JJ.) in Brij Narain Rai v. Mangla Prasad 50 Ind. Cas. 101 : 17 A.L.J. 249 : 1 U.P.L.R. (H.C.) 49 : 41 A.P 235. However, after the best consideration I have been able to give to the question, I shall adhere to the view I have already expressed. I have fortified my mind to arrive at this conclusion by the following further considerations: (a) The opinion of Sir John Edge, C.J. [who took part in the Privy Council decision in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A.P 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M. L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 as found in the judgment in Badri Prasad v. Madan Lal 15 A.p 75 : A.W.N. (1893) 52 : 7 Ind. Dec. (N.S.) 765 referred to in my Lord's judgment supports my view of the law: (6) since Hunoomanpersaud Panday v. Musammat Babooee Munraj 6 M.I.A 393 : 18 W.R. 81 Foot Note: Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147, the uniform course of decisions, so far as I know in all the High Courts, has been to treat a really antecedent mortgage debt on the same level with a really antecedent simple debt for the purpose of supporting a subsequent alienation against the son's share: (c) their Lord-ships have omitted in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 I.A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M. L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 to expressly refer to and overrule this settled law: (d) the unsettlement of numerous titles to large estates and the great uncertainty in the law which would result if we decide the question (1) referred to the Full Bench in the negative is also a matter for serious thought: (e) the old Hindu Law enacted (see Yagnavalkaya II 50 and Colebrook's Digest, Volume I, page 190, which quotes Katyayana's text) that it was the pious duty of the sons to pay their father's debt, (e-1) even with interest (but the interest amount should not exceed the principal amount), (e-2) even if it was barred by limitation according to modern Statutes (e 3) and even if no ancestral assets were inherited by the sons, provided the sons were capable of hearing the burden: [The obligation was restricted afterwards as regards (e 2) and (a 3) by statutory enactment and judicial decisions, but judicial decisions have explained and expanded the nature and legal results of the obligation as regards (cl) (1) by not restricting the amount of interest allowable to the creditor to the amount of the principal, (2) by making the future pious duty a present legal liability, and (3) by making a voluntary alienation by the father for such antecedent debt binding on the sons' shares under the Mitakshara Law, (under the older Hindu Law of Manu the sons had no interests or shares at all during their father's lifetime) and (4) by making involuntary alienations by Court sales in execution of a decree against the father alone to affect the sons' shares also]: and (f) in the old Hindu Law texts relating to the son's pious obligation which form the foundation on which the present law has been broadened from precedent to precedent, there is no distinction made between a mortgage debt and a personal debt of the father.
41. In the result I concur in answering the first question referred to this Full Bench in the affirmative.
Coutts Trotter, J.
42. I have had the advantage of perusing the opinion just pronounced by my Lord, and I entirely concur in it.
Seshagiri Aiyar, J.
43. My answer to the first question is in the affirmative. No cases have been quoted before us in which it has been directly held that a debt secured by a mortgage could not constitute an antecedent debt. Mr. Sitarama Rao naturally relied upon the observations of Lord Shaw at page 447 in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A.P 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 23 : 6 L.W. 213 : 44 I.A. 126 which is as follows: '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 or the security afforded or supposed to be available by such joint estate.' With reference to this sentence, it was contended that there was a distinct pronouncement that if a debt was advanced on the security of the property in the possession or control of the manager of a Hindu family, such a debt would have been incurred in breach of trust and that consequently it cannot constitute an antecedent debt. It was further argued that there was an essential difference between a simple loan and a loan charging the family property. The sentence in the judgment, 'under his management he can neither obtain money for his own purposes for it, nor can he obtain money for his own purposes upon it,' was relied on for this argument. I cannot say that these contentions age entirely unfounded.
44. Before dealing with these sentences, I think it expedient to consider the judgment as a whole. The case before the Board was one in which a suit was brought upon a mortgage document. This deed was not a renewal of an old document. The question for consideration before the Board was whether the loan advanced was contemporaneous with or was antecedent to the mortgage sued on. In considering this question their Lordships of the Judicial Committee had before them the rulings of the various High Courts in which they point out 'there was a conflict which occurs, not merely between the Courts of one district in India and another, but also between decisions pronounced in Calcutta itself, in Allahabad itself, and in Madras itself.' This conflict they wanted to put an end to. If we examine the cases which were cited before them as typical of the conflict, it would be seen that in not one of them was the question, whether a subsequent mortgage superseding an earlier mortgage could constitute an antecedent debt, ever raised or decided. The point at issue in them was whether there should not be a debt really antecedent to the one on which the suit was brought, or whether it was enough if a short time had elapsed between the execution of the document and the granting of the loan. Nor do I find any reference in the argument of the learned Counsel before the Judicial Committee to this point. Under these circumstances I do not think that the language relied on should be regarded as a considered pronouncement upon the matter we have to decide.
45. Further, if we analyse the judgment of Lord Shaw it is clear that the proposition contended for by the learned Vakil would be to some extent inconsistent with the general principles enunciated by the noble Lord. The judgment first traces the rights of interdiction of the subordinate members of a Hindu family to the well-known text of Mitakshara (Chapter I, Section 1, pl. 27). Then it proceeds to point out that the Mitakshara has enunciated a rule in favour of the managing co-parceners. The reason of the rule is stated to be that wherever there is a family necessity it is 'one binding upon the co parceners as a whole and that consequently the consent of all of them can be implied even though they may not be consulted individually.' The judgment then considers the exception to the general rule, which is stated to have '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.' Although in the previous sentence it was stated that 'the exception should be very carefully guarded and should not be extended,' it is clear that the aim of the exception, in the opinion of the Board, was to safeguard the rights of bona fide lenders, and not of the subordinate members of the Hindu family. Then we have a discussion as to how this exception should be worked. The observations of Lord Justice Knight Bruce in Hunoomanpersaud Panday v. Musammat Babooee Munraj 6 M.I.A 393 : 18 W.R. 81 Foot Note: Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 are quoted as showing that if 'the fact of the advance is proved, the presumption of law is prima facie to support the charge and the onus of disproving it rests on the heir.' Up to this point there is no discussion as to whether the debt should be a simple debt or a debt secured upon the charge on property. After this, the particular facts of the case are examined and the rules deduced by Sir James Colvile in Suraj Burnt Koer v. Sheo Persad Singh 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L.R. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 705 and Girdharee Lall v. Kantoo Lall 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56 : 3 Sar. P.C.J. 380 are stated. Then follows an approval of the comment by Sir John Stanley in Chandra Deo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A.p 176 : 6 A.L.J. 263 on the above two decisions. If we turn to the judgment of the learned Chief Justice of the Allahabad High Court which has secured the approval of the Judicial Committee, it would be clear that there was no intention in that case to differentiate between simple debts and mortgage debts. On the other hand the sentence at the bottom of page 207* is in favour of holding that a mortgage is as much within the competency of the manager as a simple debt. Then the judgment of the Judicial Committee proceeds to define what an antecedent debt is. It is in this part of the judgment that the observation relied on by Mr. Sitarama Rao occurs. But the quotation from Lord Hobhouse's judgment in Nanomi Babuasin v. Modhun Mohun 13 C. 21 : 13 I.A. 1 : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 632 : 6 Ind. Dec. (N.S.) 510 on which the rule is based, does not make any distinction between mortgage debts and money debts; and the final deduction of the Board does not warrant any each distinction being drawn between the two classes of debts. The sentences relied on, namely, 'In short, it may be said that the rule of this part of the Mitakshara Law is that the joint family estate is in this position: under his management he can neither obtain money for his own purposes for it nor can he obtain money for his own purposes upon it. To permit him to do so would enable him to sacrifice those rights which he was bound to conserve' should be read as referring' to the creation of the first obligation and not to the merger of the first debt in a subsequent mortgage debt. That was the only matter which was directly discussed, and this and the other observations must be taken to have been made with reference to the enforcibility of a debt which starts with a mortgage and is not subsequently absorbed in any other transaction of a similar or a different kind. The rule finally laid down, namely that there must be antecedency in time' and 'real dissociation in fact', would equally apply to a simple and to a mortgage debt. I have very closely read the judgment of the Board, and in my opinion the particular passage on which so much stress was laid should not be construed in the way in which the learned Vakil asked us to construe. In this connection I may. be permitted to draw attention to what Lord Haldane said in Cornelius v. Phillips ( 1918) A.C. 1991 : 87 L.J.K.B. 246: Dicta by Judges, however eminent, ought not to be cited as establishing authoritatively propositions of law unless these dicta really form integral parts of the train of reasoning directed to the real question decided. They may, if they occur merely at large, be valuable for edification, but they are not bidding.' Mr. Sitarama Rao contended that the Judicial Committee have' set to themselves the task of laying down the law and it is not open to us to minimise its effect by saying that the sentences relied on are mere obiter dicta. The answer is that their Lordships had not before them this aspect of the case at all. Ever since Hunoompersaud Panday v. Musammat Babooee Munraj 6 M.I.A. 393 : 18 W.R. 81 Foot Note: Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 in which the rule as to antecedent debt was outlined, numerous oases have been decided in this Presidency and elsewhere, where it was assumed as unquestionable that there is no distinction between a simple and a mortgage debt. It would unsettle vested rights and throw open the flood gates of litigation, if their Lordships are to be understood as laying down the law as contended for by the learned Vakil. There must be some semblance of discussion in the judgment appealed against, in the argument of Counsel or in the oases quoted at the Bar to warrant us in imputing such an unexpected departure from accepted notions on the subject to their Lordships. The Judicial Committee are in the habit of cautioning Courts in India to apply the old decisions to transactions founded on an exploded view of law and to suggesting that as and from a particular date the new pronouncement should be accepted as regulating similar transactions In Pattabirarmier's case and Thambuswami Pillai's case relating to the construction of mortgages by conditional sale, this hint war given. Again in dealing with rights of alienation which a co parcener has in respect of his own share, the Board, while saying that the Madras view was not right, refused to interfere with it on the principle of stare decisis. There is no indication of such an attitude in the present case. The truth is that their Lordships did not intend to overrule the principle which had gained uncontested currency all these years. I cannot, therefore, but regard the view taken in Brij Narain Rai v. Mangla Prasad 50 Ind. Cas. 101 : 17 A.L.J. 249 : 1 U.P.L.R. (H.C.) 49 : 41 A.p 235 and by Spencer and Krishnan, JJ., in this Court as attempts to be meticulously literal at the expense of the spirit of the pronouncement.
46. I may draw attention to the fact that the Judicial Committee have held in Girdharee Lall v. Kantoo Lall 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56 : 3 Sar. P.C.J. 380 that where family property has been sold away under a mortgage decree, the sons can recover it back only on showing that the debt was illegal or immoral. The same conclusion has been stated in cases where the property passed out of the family by sale under a money decree. No distinction is drawn regarding the rights of the sons in these two classes of cases. If it was breach of trust on the part of the manager to have mortgaged the property, why should the suing co-parcener show that there was immorality or illegality? If the property passed out of the family in violation of a trust, the son should, on pleading without more that the decree under which the sale was held was founded on a mortgage, be decreed possession of at least his share. There is a consideration which is specially applicable to Madras and which would also lead to the same result. In the judgment under consideration, the Board had to consider the rule of Mitakshara as administered in Allahabad. They had not before them the doctrine which has been uniformly accepted in this Presidency that for a debt of the father which is neither illegal nor immoral, his share in the family property would be liable. This view has obtained the sanction of the Judicial Committee on the principle of stare decisis. It would follow from this that if a father mortgages property for a debt which is not tainted with illegality or immorality, although not binding on the sons as not being for family benefit) or necessity, it would be enforcible against the sons on the doctrine of their pious obligation to discharge their father's debt. This would furnish an additional ground for holding that a mortgage debt, instead of being in a worse position than a simple debt, is in some respects in a more favourable position.
47. There is one observation in the judgment which I have so largely quoted from, which lends support to my view. Almost the last sentence in the judgment is: 'Wherever such antecedency is found to be unreal and is merely a cover for what is essentially a breach of trust, the Courts will not be slow to deny effect to a mortgage so brought into existence.' There is no qualification here that the illusory character would only affect a simple debt. What the Courts in India are asked to do is to find out whether the previous loan was real or illusory, and not whether it is a simple debt or a mortgage debt. For all these reasons I am of opinion that Badagala Jogi Naidu v. Bendalam Papidh Naidu 48 Ind. Cas. 289 : 35 M.L.J. 382 was wrongly decided. It is not necessary to express any opinion upon the second question referred to us.