1. These two appeals are preferred by the defendants and they arise out of two suits, each brought by the mortgagees on a bond of Rs. 2,000. One of these bonds was executed by Dwija Prasad Pandey, predecessor-in-interest of the defendants in Appeal No, 390, and the other by Brojo Kishore Pandey, predecessor-in-interest of the defendants in Appeal No. 393.
2. The defendants are admittedly governed by the Mitakshara School of Law, and it was urged on their behalf that the executant-) of the bonds could not bind the joint ancestral property. The learned Judge held that the bonds were executed to pay off the sums due to one Madan Mohan on earlier mortgagees by the same executants and that those sums were actually paid off and that these debts to Madan Mohan constituted antecedent debt to the extent of Rs. 1,750 in each case. And be accordingly decreed each suit for Rs. 1,750 with interest and dismissed each suit to the extent of Rs. 250. Incidentally he mentioned that the rate of interest payable to Madan Mohan was 10 1/2 per cent. while the plaintiffs lent at 7 1/2 per centum.
3. Both sides preferred appeals and the learned Judge dismissed all the appeals.
4. For the defendants the pleas are again taken that the debts due to Madan Mohan on the earlier bonds did not constitute antecedent debts and that necessity has not been proved.
5. There are many judgments as to the true meaning of the words 'antecedent debt' but it is not necessary now to allude-to decisions earlier than that of Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61, dated March 9th, 1917, the decision to which both the lower Courts refer. That was a decision by the Privy Council, and Lord Shaw, in delivering judgment, quoted a passage from the case of Nanomi Babuasin v. Modhun Mohan (1886) 13 Cal. 21, in which it was said that the decisions had established the principle' that the sons cannot set up their rights against their father's alienation for an antecedent debt, he then went on to say:
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 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 only to the case where the father's debts have been incurred irrespective of the credit obtainable from immovable assets which do not personally belong to him but are joint family property.
6. The view thus expressed seems in some quarters to have been regarded as upsetting accepted ideas, and our attention has been drawn in particular to a decision by a Full Bench of the Madras High Court, Arumugam Chetty v. Muthu Koundan (1919) 42 Mad. 711. We need not, however, discuss that case, for since then there has been another decision by the Privy Council. The case of Ram, Singh v. Chet Ram (1919) 41 All. 529 was decided by a Division Bench of the Allahabad Court shortly before the Madras case. The learned Judges quoted the passage that I have just quoted, and held that the obligation incurred by a father which would be binding upon his sons must have two attributes, namely, first, that it must have been incurred antecedently to the transaction in suit and, secondly, it must have been incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such a joint estate. Accordingly they held that a mortgage by the father in 1904 could not be regarded as an antecedent debt which would make a sale of the mortgaged property in 1907 binding on the sons. The mortgagee purchasers appealed to the Privy Council, and the decision delivered on April 10, 1922 is reported in Chet Ram v. Ram Singh A.I.R. 1922 P.C. 247. Lord Shaw again delivered the judgment and he repeated what he had said in Sahu Ram's case A.I.R. 1917 P.C. 61 and affirmed the view taken of the earlier decision by the Allahabad Judges. It is clear, therefore, that the plaintiffs cannot rely upon the previous mortgage to Madan Mohan as antecedent debt.
7. The position in the present case is that the learned Judge has followed the decision in Sahu Ram's case A.I.R. 1917 P.C. 61 correctly, so far as he has refused to treat the debts due to Madan Mohan on the prior mortgages as antecedent debts. He is correct, too, in thinking that the other ground, on which the mortgages could be supported as against the sons, is the ground of necessity, but when he deals with the question whether there was necessity I think he makes a mistake. He says that the plaintiffs cannot be asked to do more than prove the representations made to them on the strength of which they made the loans, and when they have proved that they were told of the mortgages to Madan Mohan, that their money was used in discharging the sums due to Madan Mohan and that they lent at a lower rate of interest than Madan Mohan, he holds that they are entitled to claim that necessity has been proved. It appears to me that such a line of reasoning reduces to nothing the principle enunciated by the Privy Council for it amounts practically to saying that although the prior mortgages are not 'antecedent debts' within the technical meaning of those words, they are by themselves almost complete evidence of the other independent ground on which the alienation can be supported.
8. In my opinion the ground of necessity requires proof from additional sources. The prior mortgages are evidence of indebtedness and to that extent of necessity, and the lower rate of interest is evidence of expediency but more is required, and, hard as it may seem, I think it was the duty of the plaintiffs to carry their case further back and prove that the original indebtedness sprang from necessity. It is conceded, however, that they have not tried to go beyond their own mortgages, except so far as vague statements are made about arrears of putni rent: consequently, I hold that they have failed to prove the alternative ground of necessity.
9. The result is that the appeals must be allowed and the suit dismissed.
10. With regard to costs, I think that the dates of the decisions which I have mentioned warrant us in showing some consideration to the plaintiffs, and that they should be directed to pay only half the defendants' costs in all Courts.
11. I agree.
12. [But see the observations in Brij Narayan's case A.I.R. 1924 P.C. 50, Ed.]