Alfred Henry Lionel Leach. C.J.
1. The suit which has given rise to this reference was instituted in the Court of the Subordinate Judge of Rajahmundry by the Imperial Bank of India, the 1st respondent. The bank sued to enforce specific performance of an agreement entered into by the 2nd and 3rd respondents with the bank to secure repayment of moneys advanced to them. The 2nd respondent is the father of the 3rd respondent. They and the appellants, who are the minor sons of the 3rd respondent, constitute an undivided family. In 1923 the 2nd and 3rd respondents started a business, and for this purpose opened an account with the bank. On the 14th August, 1923, in pursuance of an arrangement with the bank, which was willing to finance them, they executed a document in the following terms:
In consideration of the Imperial Bank of India advancing us sums of money from time to time we hereby undertake not to alienate or in any way transfer or mortgage any of our immovable property as per schedule attached and which at present is not mortgaged to any one.
We hereby agree when called upon to do so to execute legal mortgage of these properties, with or without possession or conveyance to the said bank as the bank may require, so long as we are indebted to the bank.
This agreement to be in force till cancelled by us by a registered letter.
2. From time to time the bank lent money to the 2nd and 3rd respondents without calling upon them to execute any mortgage in its favour. By 1931 the 2nd and 3rd respondents had become heavily indebted to the bank and in that year the bank obtained two decrees against them in respect of advances. The first decree was for a total sum of Rs. 25,482-11-0, made up of Rs. 5,070-1-0, due on a promissory note dated 19th December, 1930, and Rs. 20,412-10-0 due on three hundies dated respectively, the 30th March, 1930, the 5th November, 1930 and the 29th November, 1930. The second decree was for Rs. 5,099-3-0, due on a hundi dated 30th October, 1930. In December, 1930, the bank demanded that the 2nd and 3rd respondents should execute a mortgage to secure their indebtedness, but this demand was not complied with, and on the 5th April, 1932, the bank sued for specific performance of the agreement which I have just quoted. The suit was decreed and the sons of the 3rd respondent were held to be liable to the extent of their interests in the family properties. They have appealed, and contend that there can be no decree for specific performance so far as they are concerned, because the mortgage which the Court ordered to be executed was not in law a mortgage for an antecedent debt As this question is of importance and as the decision in Rajayya v. Satyanarayanamurthi (1934) M.W.N. 812 would appear to be in conflict with certain decisions of the Privy Council the following question has been referred to us:
Whether money advanced to the father, in a joint Hindu family in pursuance of an agreement to create a mortgage as when required by the lender will constitute an antecedent debt, so as to make the mortgage (when it comes to be executed) binding even on the shares of the sons of the borrower.
3. In delivering the judgment of the Privy Council in Sahu Ram Chandra v. Bhup Singh (1917) 33 M.L.J. 14 : L.R. 44 IndAp 126 : I.L.R. 39 All. 437 (P.C.) Lord Shaw said that the issue of the father could only be bound 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 the joint estate. The judgment concluded with the following statement:
In truth in order to validate such a transaction of mortgage there must, to give true effect to the doctrine of antecedency in time, be also real dissociation in fact. The Courts in India, wherever such antecedency is found to be unreal and is merely a cover for what is essentially a breach of trust, will not be slow to deny effect to a mortgage so brought into existence.
4. This judgment was considered by a Full Bench of five Judges of this Court in Arumugham Chetty v. Muthu Koundan (1918) 37 M.L.J. 166 : I.L.R. Mad. 711 (F.B.) and there Wallis, C.J., expressed the opinion that their Lordships only meant,
that if the so-called antecedent debt was incurred 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 immovable assets, such a debt is not an antecedent debt and therefore the mortgage which is executed for such a so-called antecedent debt will not affect the sons' shares.
5. Viewing the decision of the Privy Council in this light the Court held that if a Hindu father borrows money on the security of the family estate and later gives another mortgage the first debt constitutes an antecedent debt, notwithstanding that it was secured on the family estate. In Brij Narain v. Mangla Prasad the Judicial Committee expressed their entire agreement with the views of Wallis, C.J., in Arumugham Chetty v. Muthu Koundan (1918) 37 M.L.J. 166 : I.L.R. Mad. 711 (F.B.) and in order to prevent misconception in future on this and connected questions stated the following propositions of law:
1. The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but
2. If he is the father and the reversionaries are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.
3. If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.
4. Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached
5. There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.
6. The fourth proposition would appear to be an embodiment of the concluding portion of Lord Shaw's judgment, where he expressed the opinion that the transaction must be one which cannot be regarded as a cloak for a breach of trust. If the debt and the mortgage are not part of the same transaction, but are independent of one another the mortgage will be binding on the issue of the mortgagor.
7. In Rajayya v. Satyanarayanamurthi (1934) M.W.N. 812 Krishnan Pandalai, J., sitting with Curgenven, J., observed that if a man advanced a loan to a father in a joint Hindu family and agreed with him to take a mortgage for the loan and subsequently in pursuance of that agreement does take the mortgage, the mortgage cannot be said to be for a debt antecedent to the original loan. This statement of the law is very wide and may give rise to misconception. The mortgage may be independent of the debt despite the fact that the agreement between the parties contemplated the furnishing of security, if called for. If the money is lent on the express condition that a mortgage will be executed later and a mortgage follows, the debt cannot be said to be independent of the mortgage, but if the arrangement is merely that the debtor shall give security, if and when required, the position is very different. It may never be required and probably will not be called for, if the creditor remains satisfied with the debtor's personal liability. If it is required because the creditor at a later date has his suspicions of the debtor's stability or for some other reason it cannot be said that the advancing of the money and the subsequent mortgage are part and parcel of the same transaction.
8. Now, what is the position in the present case? The bank did advance moneys to the 2nd and 3rd respondents and continued to lend moneys entirely without any security. For several years the bank was satisfied with the undertaking given by the 2nd and 3rd respondents not to alienate their properties. It is true that the 2nd and 3rd respondents had undertaken to provide security 'when called upon to do so, but this does not alter the fact that moneys were advanced without security. When security was called for there was a debt really in existence. In our opinion it cannot be said that there was here a breach of trust on the part of the 2nd and 3rd respondents or that the bank was a party to a colourable transaction. In other words it cannot be said that the debt was any part of the mortgage or, to use the words of Lord Dunedin in Brij Narain v. Mangla Prasad 'Part of the transaction impeached.' In this country an agreement to mortgage creates no charge, and this is of importance in this connection.
9. For the reasons stated we would answer the reference in this sense. If the agreement is merely to execute a mortgage, if and when called upon, and the money is lent on this understanding the fact that subsequently a mortgage is called for and executed will not make the debt and the mortgage part of the same transaction within the meaning of Arumugham Chetty v. Muthu Koundan (1918) 37 M.L.J. 166 : I.L.R. Mad. 711 (F.B.), but the debt will constitute an antecedent debt within the meaning of Hindu Law. The agreement must be a genuine agreement and not a device for evading the law.
Madhavan Nair, J.
10. I agree.
11. I agree. There is a real distinction between cases in which the lender and the borrower contemplate the giving of security only as a future possibility and cases in which from the outset the parties contemplate only a mortgage loan. In the former case, the lender is prepared to start with only the personal liability of the borrower and conceivably may never call for the execution of a mortgage at all. Security is, in such cases, ordinarily called for only when in course of time it is found that the borrower has not been repaying his dues with the promptness with which he was expected to repay or is getting into financial difficulties. When, for such reasons, the creditor calls for the execution of a mortgage, there will be in existence an indebtedness which has for some time been outstanding merely on the personal liability of the borrower. This debt can at that very moment be recovered from the whole of the joint family property of the debtor - including the shares of his sons - and it is to avert proceedings to that end that the debtor will be called upon to give a security. It does not seem reasonable in such a case to speak of the 'antecedency' of the debt as illusory; nor can it be said that there was no 'bona fide debt' or that it was colourably incurred for the purpose of forming a basis ' for the mortgage (per Stanley, C. J., in Chandradeo Singh v. Mata Prasad I.L.R.(1909) All. 176 (F.B.)).
12. If, as observed by Lord Shaw in Sahu Ram Chandra v. Bhup Singh (1917) 33 M.L.J. 14 : L.R. 44 IndAp 126 : 1917 I.L.R. 39 All. 437 (P.C.) a further condition should be insisted on, before binding the son's share by the father's mortgage, namely, that at the time of advancing money the lender should not have had in view the ' credit obtainable from immovable assets belonging to the joint family', the position might be different; but this condition can no longer be insisted op, in view of the Full Bench decision in Arumugham Chetty v. Muthu Goundan (1918) 37 M.L.J. 166 : I.L.R. Mad. 711 (F.B.) and of the decision of the Judicial Committee in Brij Narain v. Mangla Prasad . It is true that in Brij Narain v. Mangla Prasad their Lordships speak (in proposition No. 4) of the debt being not part of the transaction impeached'; the transaction referred to in this passage is the mortgage itself. The proposition has evidently been so worded with a view to give effect to the observations of Lord Shaw at the end of the judgment in Sahu Ram Chandra v. Bhup Singh (1917) 33 M.L.J. 14 : L.R. 44 IndAp 126 : I.L.R. 39 All. 437 (P.C.) when referring to a father 'at the end of his personal resources ', his Lordship instanced the case of a money-lender advancing money to him ' relying upon an understanding express or implied ' to give security.
13. Apart from attempts to evade the law, it may, even in cases where only a mortgage loan was contemplated, happen that there is some interval of time - long or short - between the advance of the money and the execution of the mortgage bond, for example, because the requisite stamp papers are not immediately available or details as to survey numbers, etc., relating to the property to be mortgaged have to be obtained or one of the persons who has to join in executing the mortgage is not available or the mortgagee is able to find only a portion of the money required and the execution]of the document is postponed till he is able to find the balance. In these cases, it may well be said that notwithstanding the interval, the loan and the mortgage are part of one and the same transaction. Rajayya v. SatyanarayanamurthI (1934) M.W.N. 812 will, on its facts, be found to fall in this group; because in that case, the original arrangement itself was for a mortgage loan of Rs. 5,000 but the lender was able to find only Rs. 3,000 immediately. The execution of the mortgage-deed was postponed pending the advance of the balance of Rs. 2,000 and in the meanwhile the first advance of Rs. 3,000 was acknowledged by the execution of a promissory note.
14. This appeal coming on for final hearing after the expression of the opinion of the Full Bench, the Court delivered the following
15. The question of the binding character of the mortgage has been decided by the Full Bench against the appellants. No other question arises for decision in the appeal which is accordingly dismissed with costs of the first respondent. The appellants will pay to the Government the court-fee payable on the Memorandum of Appeal.