Pigot and Rampini, JJ.
1. This suit is brought on two mortgage-bonds executed in favour of plaintiff by Gobind Pershad, defendant No. 1, and Sukh Lal his brother, now deceased. The first dated 4th May 1881 is for Rs. 20,000, the second dated 3rd July 1882 for Rs. 5,000.
2. The mortgagors were members of a joint family, governed by the Mitak-shara law, and by the mortgage-bonds in suit the joint family property was mortgaged for the amount of the sums borrowed. Default having been made in payment of principal and interest, this suit was brought.
3. Before the institution of this suit Sukh Lal died.
4. The suit, as now framed, is brought against Gobind Pershad and his sons Dwarka Nath and Kedar Nath, against Ram Lakhan, son of Sukh Lal, and against Krishna Nanda Ram and Tilakdhari Singh. Budri Narain, a third son of Gobind Pershad, was originally made a defendant, but was struck out, on the allegation that he was adopted into another family. The two last defendants are a mortgagee and a lessee of some of the mortgaged properties, puisne Co the plaintiff's mortgage. They do not appear on the appeal.
5. It is not necessary to detail the history of the successive hearings of the suit. It is set out in the judgment of the lower Court. At the first hearing Gobind Pershad alone appeared, admitted the mortgages, and a decree was made against the defendants in 1885. Afterwards the defendants 2, 3, and 4 applied for, and were allowed by an order of this Court, a trial de novo and it is from the judgment and decree of the lower Court, at the trial so held, that the present appeal is brought.
6. At the time of the mortgages the defendants 2, 3, and 4 were minors. The defendants 2 and 3, who are joined in their written statement by defendant No. 4, denied the execution of the bonds in suit, set up that, if so, the debts were incurred for illegal and immoral purposes, and not for any necessities of the family, and further alleged that the moneys were raised for, and spent in, idle and speculative litigation. They denied the right of the mortgagors to mortgage the family property for the purposes for which the money was raised.
7. The Subordinate Judge found--that the bonds were duly executed and founded on consideration,' and that the defence of immoral or illegal purposes was not established. The first defences set up therefore wholly failed. It is upon the finding of the Subordinate Judge, with regard to the consideration which he finds was given for the mortgages, and the conclusion of law at which he arrived upon that finding, that the questions upon which this appeal depends, come before us.
8. It is certain that this family was a wealthy one; and it may be taken as clear that, over and above all ordinary requirements for suitable maintenance and expenses fit for their station, they had a surplus income of some thousands of rupees a year. It is difficult, and not necessary, to arrive at an exact amount, but it is clear that they were a prosperous family. Unfortunately, Gobind and Sukh Lal embarked in a litigation for the purpose of establishing the adoption by, or to, Radha Kishon, Gobind Pershad's step-brother, of Gobind's son before-mentioned, Budri Narain; and there can he no doubt that they spent very large sums in litigation about this alleged adoption, which was disputed both in and after August 1881, when a suit was filed to establish the validity of it, and in a multitude of proceedings before that date, connected with this controversy. There is little in the evidence that can be relied on as to the expenses incurred before the institution of the suit in August 1881, or how they were defrayed. Jugdip Sahai's evidence, which appears to us to be given fairly enough, seems to render it probable that, at the time of the mortgage three months before the adoption suit was instituted, expenses of so large an amount had been incurred, that the money raised at that time may have been wanted for debts then due. But there is nothing proved in the evidence to show that money raised in May 1881 on the mortgage was raised to pay debts then due : still less that it was applied to pay such debts, except as to the sum of Rs. 8,500, which was at the date of the mortgage due to the Bank of Bengal at Bankipore, and which, there can be no reasonable doubt, was paid out of the mortgage money, as the Subordinate Judge finds. It was, as appears from the evidence of Umbica Charan Ghose, paid on May 5th 1881, in discharge of the liability of Gobind and Sukh Lal remaining to the Bank on that day.
9. The Subordinate Judge finds that Rs. 8,500 of the mortgage money was borrowed and applied to pay off this debt, and we agree with him. He finds, that there is no proof that any other debt, prior to the mortgage of May 1881, is shown to have been paid off out of the money borrowed, or any legal necessity or charge on the family defrayed out of it. We agree with him. He finds or infers, that the residue of the money borrowed, was borrowed to defray the expenses of the coming litigation as to the adoption. It is a reasonable inference; we should hesitate before saying that he was not justified in drawing it; but we think the question immaterial in this case.
10. Upon the case as it stands, apart from this last finding, to which we must refer later on, it appears : First, that, so far as the sum of Rs. 8,500 is concerned, the mortgage of May 1881 was made to raise money to discharge a debt of Gobind and Sukh Lal existing at the date of the mortgage : Second, that, as to the residue of the money borrowed on that mortgage, it constituted a personal debt, due by Gobind and Sukh Lal, jointly and severally, in virtue of the loan then raised by them : Third, that the money raised under the bond of the 5th July 1882 was a personal debt of Gobind and Sukh Lal, as to the Rs. 3,755 in cash then received by them,--the residue being the amount of interest then due on the earlier bond.
11. The Subordinate Judge held that, on the facts found by him, the shares in the family property of defendants 2, 8, and 4 were bound to the extent of the Rs. 8,500, found to have been an existing debt at the time of the mortgage of May 1881 and discharged out of the mortgage moneys; that as to the residue of the moneys raised on that mortgage those shares were not liable; that as to the mortgage of July 1882 they were not liable at all, not for the Rs. 3,755 received in cash, as this was not raised to pay a then existing debt; not for the residue, as this was for interest due on the earlier mortgage, and a liability to pay interest on the part of that mortgage for which the shares were liable could be sufficiently discharged by giving a decree against them for that sum --Rs. 8,500, with interest on it so far as due under the terms of original mortgage. He dismissed the suit as to the residue of the claim as against defendants 2, 3, and 4.
12. Both parties appeal: the plaintiff against the dismissal of his suit against defendants 2, 3, and 4, as to the residue of plaintiff's claim other than the Rs. 8,500 with interest, and those defendants by cross-objection as to the Rs. 8,500, on the ground that the debts paid out of that sum were not such as their shares could be liable for; and as to the interest on the ground that the rate allowed is excessive.
13. Upon the question whether the shares in the ancestral property of defendants 2, 3, and 4 were liable, as being the shares of sons liable under the pious duty now enforced by law, a full argument was addressed to us, in part, upon the numerous cases decided in, and since, 1874, beginning with Girdharee Lall's case (14 B.L.R. 187; 22 W.R. 56; L.R.1 I.A. 321), and also upon the texts of the Mitakshara bearing on this question. So far as the decisions of the Privy Council and of this Court interpret and lay down the law under the Mitakshara, as applicable in the present case, we are of course bound to follow those decisions, without attempting any interpretation of our own. We think the main questions which have been raised before us are settled by authority which we are bound to follow.
14. But it will be convenient first to refer to the cross-objection of the defendants, as to the nature of the debt existing at the date of the mortgage for which their shares have been held liable. We intimated at the hearing that we did not see how the objection could be sustained. It is that the debt contracted for the highly needless and imprudent purpose of establishing Budri Narain's adoption was not one to which the pious duty could attach, under the Mitakshara. This argument, if it were to prevail, would bring under the exceptions in the Mitakshara money spent on useless and grossly imprudent objects, and would thus, no doubt, open a way of mitigating the effect of a course of decision, destructive to a great extent to the Mitakshara system; but that is a construction which we cannot adopt here. The exception has too long been limited to illegal and immoral purposes to justify us in introducing an extension of it, which would include transactions, the character of which was no more than 'imprudent,' or 'unconscientiously imprudent,' or 'unreasonable.' If it could be done in any case, it perhaps ought to be done in the present, in which a prosperous family has been ruined by litigation, in which the defendants 2, 3 and 4, members of it, had no possible interest. But we could not, in the absence of any authority, adopt such an interpretation of texts so long dealt with by the Courts. In this respect, as in the other parts of the case, the questions are, as we think, completely concluded by authority which we must follow.
15. To return to the main questions. In this case the mortgage-creditor sues--first, a mortgagor and his sons, and, second, the son of a deceased mortgagor; and seeks his remedy against the ancestral property of all members of a joint family. It is certain that he is entitled to a decree against the mortgagor in respect of his own share. It is also clear that the mortgage, so far as it was contracted to pay a debt not illegal or immoral, existing when the mortgage-debt was contracted, is good against the shares of the sons of each mortgagor. No authority need be cited for this. It is also now established that a decree for the personal debt of the father, not illegal or immoral, may be enforced by sale in execution in his life-time of the entire joint family estate--Meenakshi Naidu v. Immudi Kanaka Ramaya Kounden L.R. 16 I.A. 1 : I.L.R. 12 Mad. 142. This is one of the advances lately made on the older law, which made the son's shares liable in respect of the pious duty to pay the father's debts, after his natural or civil death.
16. It is clear, therefore, that in the present case the plaintiff, after satisfying his mortgage-decree against the father of defendants 2 and 3, could, although the father is still living, execute the remainder of the decree against their shares, on the footing of it being a decree for their father's personal debt. As to the fourth defendant, the son of Sukh Lal deceased, the share of the estate in his hands is liable 'for all debts of his father, which, though neither necessary nor beneficial to him, were free from any taint of immorality' [Mayne, Section 284 and cases cited*] His share is in his hands liable in respect of his father's personal debts.
17. The question is therefore narrowed to this, whether in a suit upon a mortgage by the father brought against the father and the sons, in which the sons, being parties, have the opportunity of at once raising the defence that the debts were illegal or immoral, the plaintiff may have, besides a decree on the mortgage so far as it is. binding, such a decree against the family property, as will give him the same remedy in respect of the personal debt of the father as he could have against it in execution of a decree against the father alone
18. Mr. Mayne, in Section 283, page 309, of the 4th edition (5th Ed., 325), says: 'But I imagine that no suit could be brought directly against sons, based solely on their liability to pay the debt of their father, until he was either actually or civilly dead, so that the estate had legally vested in the sons. '
19. Recent decisions in this Court are not quite in accordance with this opinion.
20. In Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8 Cal. 131 it was decided by Mitter and Maclean, J.I., that in a suit upon a mortgage by the father, brought against the father and the sons, the plaintiff' could have a decree for the sale of the mortgaged premises or any other joint ancestral property belonging to the defendants. This was decided on the authority of the Full Bench case of Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855.
21. It is argued before us, and seems to be the opinion of the Allahabad Court, that that decision is not clearly warranted by the case of Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855.
22. We must be wholly governed by the Full Bench decision, if it decides the question before us, and we think the case of Gunga Persad v. Ajudhia Pershad Singh I.L.R. 8 Cal. 131 did follow it,
23. In the Full Bench case the first question propounded by the referring Bench is as follows:
In the case of a Mitakshara family, consisting of a father and one minor son, where the father (being the manager) raises money by hypothecating certain ancestral family property by bonds, and it is not proved, on the one hand, that there was any legal necessity for his raising the money, nor, on the other, that the money was raised or expended for immoral or illegal purposes, or that the lender made any enquiry as to the purpose for which it was required, can the lender (the mortgagee) enforce by suit against the father and the son the payment of his money by sale of the property during the father's life-time?' The question therefore relates to : First, the case of a Mitakshara family, consisting of a father and minor son, as here : Second, the father hypothecating ancestral property, there being no proved necessity, but no proof, on the other hand, of immoral or illegal purposes; that is the case here: Third, there being no proof that the lender made any enquiry as to the purpose; that is the case here.
And the question is whether, under those circumstances, the lender (the mortgagee) could enforce by suit against father and son the payment of the money by sale of the property during the father's life-time?
The answer was: 'The mortgage itself upon which the money was raised could not be enforced, but the debt so contracted by the father, being itself an antecedent debt within the rulings of the Privy Council, and the son being a party to the suit, the mortgagee, notwithstanding the form of the proceedings, would be entitled to a decree, directing the debt to be raised out of the whole ancestral estate, inclusive of the mortgaged property,
24. The fifth question and the answer to it were as follows:
Question.---' Would it make any difference if the money were borrowed partly to pay an antecedent debt of the father, and partly for some other unexplained purpose?'
Answer.--'In the view which we take of the case, the whole of the money borrowed would be an antecedent debt.
25. The effect of the answer to the first of these questions was much discussed before us, and for the respondents it was contended that the words, 'being itself an antecedent debt within the rulings of the Privy Council' must mean 'if it be an antecedent,' and not--'inasmuch as it is an antecedent debt,' as contended by the appellant's pleaders.
26. The effect of' this first answer of the Full Bench has been referred to in four decided cases--one decided in Allahabad, one in Bombay, and two in this Court. The decisions in the last two cases were delivered by Judges who had themselves been members of the Full Bench.
27. In Jamna v. Nain Sukh I.L.R. 9 All. 493 Edge, C.J. at page 495 of the report said:
Then I come to the case of Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855. That is a most important case. It was on the authority of that case that the eminent Judge, Mr. Justice Mitter, decided as he did in the case of Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8 Cal. 131. Now as to the case of Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855 it is difficult to ascertain what the facts were, or what was the precise form of litigation. This alone is certain, that there were certain questions, which appear at page 857 of the report, which were reported to a Full Bench, The answers to these questions are found at page 363, and, taking the first question and answer as an example and as those relied upon by Pandit Ajudhia Nath here, it is to be observed that the Judges, in giving their answer, have assumed a most important fact, which is not suggested in the question. The same observation applies to others of the questions. They have assumed that the debt contracted by the father was an antecedent debt within the rulings of the Privy Council. It is unfortunate that the full facts of that case do not appear in the report. Now with regard to the case of Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8 Cal. 131 the judgment of Mr. Justice Mitter and Mr. Justice Maclean is based upon the Full Bench decision in Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855 above referred to. That fact, to my mind, naturally lessens the authority of that case, so far as it may apply to a case like the present.
28. The learned Chief Justice considers that the words under discussion do not pronounce a judgment upon the question, whether or not a debt contracted under the circumstances set out in the question is an antecedent debt, and decide that it is such a debt; but that it is assumed, in the answer, that, as a matter of fact, the debt in question was such a debt and his view, as we understand it, appears to be that the answer is given upon that assumption of fact.
29. This is the decision on which the Subordinate Judge has relied in deciding the suit. He has not referred to Chintamanrav Mehendale v. Kashinath I.L.R. 14 Bom. 320, in which Chief Justice Sargent points out that Bheknarain Singh v. Januk Singh I.L.R. 2 Cal. 438, on which the learned Chief Justice EDGE relied much in the Allahabad case, had been overruled in the Privy Council.
30. In Chintamanrav Mehendale v. Kashinath I.L.R. 14 Bom. 320, the case just mentioned, Sargent, C.J., refers to the answer of the Full Bench, and to the question referred which it answers, in the following terms:-' In Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855 the effects of the decisions in Kantoo Lall's case L.R. 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56 and Suraj Bunsi Koer v. Sheo Proshad L.R. 6 I.A. 88 : I.L.R. 5 Cal. 148 were considered by a Full Bench of the Calcutta High Court, and the Court held that the loan for which the bond was passed by the father, as stated by the reference, was an antecedent debt, within the contemplation of the propositions set out in Suraj Bunsi's case, and that (as shown by the first question referred), although 'on the one hand it was not proved that there was any necessity for raising the money, nor on the other hand that the money was raised or expended for immoral or illegal purposes,' the mortgagee was at any rate entitled to a decree, directing the debt to be raised out of the whole ancestral property, including the mortgaged property. This ruling was followed by Mitter and Maclean, JJ., in Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8 Cal. 131. Chief Justice Sargent, therefore, treats the answer of the Full Bench as deciding that the debt, as described in the first question referred, was an antecedent debt, within the contemplation of the propositions set out in Suraj Bunsi Koer v. Sheo Proshad L.R. 6 I.A. 88 : I.L.R. 5 Cal. 148, and that therefore the mortgagee was at any rate entitled to a decree, directing the debt to be raised out of the whole ancestral property.
31. We have looked at the records of the cases out of which the reference to the Fall Bench arose, and it may be useful to state how they were decided, after the decision of the Full Bench.
32. It is to be observed that the cases in which the questions referred to the Full Bench arose were all regular appeals, and as, under the rules of this Court, in references in the case of regular appeals the record of the case is not (as it is in references respecting second appeals) before the Court for the decision of the case itself, the answer of the Full Bench must be taken as made upon the questions referred, and not upon any supposed judgment upon the facts of each case. The actual decisions in the four cases to which we have referred are therefore used by us upon the question raised in Jamna v. Nain Sukh I.L.R. 9 All. 493 as to the scope of the Full Bench decision.
33. We now proceed to refer to those oases in detail.
34. The first of these cases was Regular Appeal 228 of 1878, In this case plaintiff sued on two bonds, one for Rs. 5,000, the other for Rs. 975, executed by Sridhur Chowdhry, defendant's father, in the defendant's life-time, by which the ancestral property of the joint Mitakshara family was mortgaged. The father was dead when the suit was instituted, and the whole property was in the possession of defendant, his heir, a minor. The amount claimed, which included interest, was Rs. 9,251-11-3. The lower Court held that it was not proved that Sridhur Chowdhry borrowed the money for a necessity valid under the Shastras, and for which he was competent to mortgage the whole family property, and dismissed the suit as against the son's share of the property, giving a decree against the father's share only. There was some evidence that part of the mortgage-debt was incurred to pay off personal debts of Sridhur previously existing; but there was no finding whether this was so or not, either by the original Court or by this Court. This Court on the 8th July 1880 held that as it had neither been alleged nor proved that the debts of Sridhur were contracted for illegal and immoral purposes, the plaintiff (according to the judgment of the Full Bench) was entitled to enforce the payment of the sum decreed, not against the mortgaged property by reason of the mortgage, but by the sale of the whole or such portion of the family property in the hands of the defendants as might be sufficient to satisfy the debt.
35. In 279 of 1878 the suit was brought against father and son on three bonds executed by the father, mortgaging the joint family property. The father let judgment go by default. The son, a minor, defended the suit, on the ground that his father had no power to charge the joint family properties with the debt. The lower Court held that legal necessity was not proved, and dismissed the suit as against the son's share, on the authority of Bheknarain Singh v. Januk Singh I.L.R. 2 Cal. 438, giving plaintiff a decree against the father's share only. There was evidence that there were, at the time the mortgage debts were contracted, debts due by the father under decrees. There was no proof that these debts wore for family purposes, and no proof that the loans were applied in satisfaction of the decrees. There was no finding as to whether or not the mortgage loans, or any part of them, were contracted to pay debts of the father incurred previous to the mortgages. The High Court on the 8th July 1880 said: 'Plaintiff is entitled not only to the decree which he has obtained, but to this further relief, viz., that if the sale of the share and interest of Mohan Chowdhry (the father) should not be sufficient to satisfy the debt, interest, and costs, the minor's share and interest in the ancestral property must also be sold, so far as may be necessary to satisfy the amount due.'
36. No. 289 of 1878 was a suit brought by the sons and wives of Modit Narain Singh and Mode Narain Singh, defendants 1 and 2, and the widow of Baboo Odit Narain Singh, to recover possession of a joint Hindu family property, on the ground that the defendant Kishen Dass Purohit, in execution of a decree against the defendants 1 and 2, having purchased it, took possession of it, although he was not entitled to the property under the purchase. The plaintiffs' case was that Mode Narain and Modit Narain borrowed from the principal defendant Rs. 4,000 on the mortgage of the property in suit, and they alleged that the mortgage was not binding on them, as the loan was not taken for the necessary purposes of the family. The First Court gave the plaintiffs a decree, holding that the defendant No. 3 as purchaser had only acquired at the auction sale the share and the interest of Mode and Modit, defendants 1 and 2. This Court on appeal, finding that the bond recited that Rs. 2,435 out of Rs. 4,000, the amount of the mortgage bond, was an antecedent debt, remanded the case to the lower Court for a finding whether in fact this was so, and on this issue the lower Court found that the Rs. 2,435 were advanced to satisfy an antecedent debt, the balance Rs. 1,565 being taken in cash by the mortgagors. Upon this finding after remand this Court on the 23rd May 1882 held that 'the mortgage was binding only to the extent of Rs. 2,435, and the balance of Rs. 1,565 was a personal debt of Mode Narain and Modit Narain.' Therefore the decree which was passed on the mortgage bond of the 12th August 1871 was a decree upon a transaction which was partly binding upon the plaintiff's and partly not. The plaintiffs were no parties to the suit in which that decree was obtained. Under these circumstances, it was said, 'we think that it would be in accordance with justice to allow the plaintiffs to redeem that part of the mortgage which is not found to be binding upon them, that is to say, to recover the property upon paying to the defendant-appellant that portion of the loan secured by the bond of the 12th of August 1871, which is now found to have been a valid charge upon the whole joint family property. To that extent therefore the decree of the lower Court will be varied.'
37. In 288 of 1878 the plaintiffs were the same, and the property in dispute was the same. In 1868 Mode Narain and Modit Narain executed a zuripeshgi of the property in favour of Akbar Hossein and Amir Hossein, receiving a loan of Rs. 10,000 from the lessees, who immediately afterwards gave them, their lessors, a sub-lease at a rent of Rs. 889, which rent, as this Court observed, represented the interest on the loan of Rs. 10,000 at a rate of little less than 9 per cent. Mode and Modit made default in payment of the reserved rent due from them, and Akbar Hossein and Syudunnissa, Amir's widow, obtained a decree against them for the amount due. In execution of that decree, the right, title, and interest of the judgment-debtors in the property in dispute were sold and purchased by the decree-holder, who took possession of the whole property. A suit was then brought to recover possession of it, on the allegation that, being joint property held under the Mitakshara law, the sale of the properties was null and void as against the plaintiffs. The lower Court gave the plaintiffs a decree in respect of their shares, and the defendants appealed. The case was remanded to the lower Court by an order similar to that made in 289. The lower Court found that, of the Rs. 10,000 advanced, Rs. 7,677-15-0 represented antecedent debts, and the balance Rs. 2,322-1-0 was received in cash. Upon this finding this Court on the 23rd May 1882 held that the zuripeshgi lease was binding upon the plaintiffs only to the extent of the antecedent debts, Rs. 7,677-15-0, which was held to be a valid charge upon the joint family property, and the decree of the lower Court was varied accordingly.
38. In the first two cases, therefore, without a finding upon the question whether the mortgage loan was for a debt antecedent to the mortgage, the Court held in a suit by a creditor, the son being a party, that the creditor was entitled, in respect of the debt of the father, to have his remedy against the estate after the father's share had been exhausted in payment of the mortgage debt, the mortgage security for which was good as against his share only.
39. In the other two cases, the remedy having been sought on the mortgage security alone, and the sale having been only had to enforce the rights under it, the Court held that the sale under the mortgage was good only so far as the mortgage itself was good against the son's interests, that is, to the extent of debts existing at the time of the mortgage.
40. In the case of Laljee Sahoy v. Fakeer Chand I.L.R. 6 Cal. 135 (138) Pontifex, J., one of the Judges who sat in the Full Bench, said, soon after that decision: 'it would seem, in consequence of the rulings of the Privy Council, we are bound to hold that the payment, even in the father's lifetime, of an antecedent debt due by him, is a pious duty on the part of the son; and its discharge is, therefore, such a necessary purpose, as to give validity to a sale or mortgage by the father as against his minor sons (but not against his adult sons), whether such antecedent debt does or does not come within the words: 'If a calamity affecting the whole family requires it, or the support of the family renders it necessary, or indispensable duties, such as the obsequies of a father or the like, make it unavoidable '; always provided that the antecedent debt is not incurred for immoral purposes. It was, however, the opinion of the Full Bench that the antecedent debt spoken of by the Privy Council means debt antecedent to the transaction, viz., the sale or mortgage purporting to deal with the property. But if the property is dealt with by a decree in a suit upon a mortgage by the father alone, to which the father and the sons are parties, it follows from the Privy Council decisions that, as against the sons, even though they may have been adult when the debt (assuming it was not for immoral purposes) was incurred, and notwithstanding verse 29, chapter I, Section i, and verse 10, chapter I, Section vi of the Mitakshara, the property would be bound, not indeed by virtue of the mortgage, but by virtue of the father's debt antecedent to the suit being enforceable against the joint ancestral estate, and therefore against the mortgaged property as part of it. Strictly speaking, perhaps, the suit should be in the form of a suit upon the mortgage as against the father, and upon the debt as an antecedent debt as against the interests of the sons in the joint ancestral estate. But this would, be merely matter of form, and the neglect to frame the suit accurately would probably, not prevent the Court making a decree which would give the sons an opportunity of redemption.' The result would perhaps seem to be that 'antecedent debt' in the meaning of the Full Bench, means with regard to a mortgage, 'debt antecedent to the transaction,' and, in the case of a proceeding by suit, 'debtantecedent to the institution of the suit' (if, indeed, having regard to the statement in Nanomi Babuasin v. Modun Mohun I.L.R. 13 Cal. 21 : L.R. 13 I.A. 1, at page 17 of the report, it be now necessary to have recourse to the canon in Suraj Bunsi's case), and this would seem to be the necessary result of the language of the first answer of the Full Bench I.L.R. 5 Cal. 855 at page 863 of the report. It is said that 'the mortgage itself could not be enforced,' and this could only be because the debt was not antecedent to that transaction. If it had been, the mortgage would certainly have been binding on the whole family property. The answer then goes on to say that 'the debt, being itself an antecedent debt, the mortgagee would be entitled, etc.' That, as we understand, must refer to the institution of the suit, the only other material event under consideration to which the debt was antecedent.
41. The case of Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8 Cal. 131 proceeds, we think, upon this view of the Full Bench decision; and indeed the decision in this case was precisely anticipated in the passage from the judgment of PONTIFEX, J., to which we have referred. Gunga Prosad v. Ajudhia Pershad Singh was a suit brought by a mortgagee against the mortgagor and his four sons amongst others : and the proposition material to our purpose is that stated at page 136: 'Assuming that the property in dispute is ancestral, and the mortgage executed by the father is not valid against the sons, the plaintiff is still entitled to recover the debt by the sale of the ancestral joint property of the father and the sons, because, supposing that the debt was contracted for the personal purposes of the father, still the ancestral property in the hands of the sons is liable for the debt, it being not proved to have been contracted for immoral purposes--Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855.' The order pronounced by the Court is at page 137 of the report: 'We, therefore, set aside the decree of the lower Court, and direct that the plaintiff shall recover the amount claimed, with interest upon the principal at the rate of 6 per cent. from the date of the suit to this date, and with further interest at the same rate upon the aggregate sum adjudged in favour of the plaintiff from this date to the date of payment by the sale of the mortgaged premises or any other joint ancestral property belonging to the defendant. The defendants other than Sheodyal Singh shall not be personally liable. The plaintiff' is entitled to recover costs incurred in both Courts from the defendants.'
42. Upon the whole, we think we are bound to follow that case, to hold that a decree, similar to the one made in it, must be made in the present appeal, and to decree the plaintiff's appeal. As to the defendant No. 4, the son of Sukh Lal deceased, it appears to us that the case of Gunga Prosad v. Ajudhia Pershad Singh is also an authority for passing a decree in this suit against his share, for in that case (as well as in the two cases Nos. 228 and 279 before referred to), in a suit on a mortgage which was held not to lie in respect of the hypothecation of the property mortgaged, a decree was made in respect of the personal debt of the father against the shares of the sons in the joint family property.
43. As to the rate of interest on the mortgage debt, we think the increased rate of interest does come under the provisions of Section 74 of the Contract' Act, inasmuch as the enhanced rate of interest is made to run in case of default from the date of the mortgage. See the Full Bench case of Kalachand Kyal v. Shib Chunder Roy I.L.R. 19 Cal. 392, decided on the 23rd March 1892. Holding this to be so, and having regard to the provision for compound interest, we think, following Dip Naram Rai v. Dipan Rai I.L.R. 8 All. 185, that both should not be allowed, but only the lower rate of 1 per cent. per mensem, with compound interest, or Re. 1-8-0 per mensem without compound interest, whichever is most favourable to the debtor.
44. We allow the appeal, and dismiss the cross-objection, except as regards the rate of interest, which objection we allow. This order carries costs in favour of appellant.
45. There will be a decree against the mortgaged properties for the amount of the mortgage-debt, Rs. 8,500, with interest at 1 per cent. per mensem with compound interest from date of mortgage down to suit; a decree against the defendants for the residue of the debt at 1 per cent. per mensem with compound interest from dates of mortgages respectively, leviable against all the family property in their hands, down to suit. In computing the sum due, the payments given credit for in the plaint to be taken into account.
46. Interest on each amount to run at the rate of 4 per cent. per annum from date of suit. Costs of suit to be added to the amount of the Rs. 8,500-- mortgage-debt.
* Muttayan Chetti v. Sangili I.L.R. 3 Mad. 370 : L.R. 9 I.A. 128; Girdharee hall v. KantooLall L.R. 1. I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56; Suraj Bunsi Koer v. Sheo Proshad L.R. 6 I.A. 88 : I.L.R. 5 Cal. 148; Pannappa v. Pappuvayyangar I.L.R. 4 Mad. 1.