1. This is an appeal arising suit of a suit brought by the two sons and the wife of Lala Jyoti Prokash Nandi against Madhusudan Das Mohunt, a creditor of the Lala, and the Lala himself, who is impleaded as the defendant No, 2. We have already had occasion to deal with a similar suit brought by the same plaintiff against the Lala's younger brothers from whom he had also borrowed money (See R. Appeal No. 229 of 1918 decided on the 30th April 1920). Mukti Prokash Nanda v Iswari Debi 57 Ind. Cas. 858 : 24 C.W.N. 938, The present appeal covers much the same ground and I need not repeat what I said in my previous judgment with regard to the family to which Jyoti Prokash belongs the mode in which he took his share in his father's estate and the vicious and extravagant course of conduct which he pursued. It is stated in the present case that be incurred debts to various creditors to the total amount of three case of rupees. We are now concerned with a gum of Rs. 5,030 lent to him by the defendant No. 1 on the 1st October 1914 on a note of hand which he executed and by which he agreed to pay interest on the loan at the rate of 12 per cent. per annum. The defendant No. 1 subsequent sued on the debt and obtained a decree against Jyoti Prokash personally, dated 17th August 1916, for the money due to him. In execution, he attached the properties which are now in dispute. Claims to these properties filed by the plaintiffs in the execution department were summarily dismissed. They then instituted the present suit on the 6th June 1917, pending the trial of which the execution proceedings under the decree were stayed by injunction. The attachment however, was not withdrawn.
2. Jyoti Prokash and his family are governed by the law of the Mitakshara. The principal question which arises is, whether the defendant No. 1 is entitled to levy execution on the entirety of the properties attached. The learned Subordinate Judge on the issue framed by him has held, firstly, that the property which came to Jyoti Proksnh from his father was not self-acquired property; secondly, that while there was no necessity sufficient to justify the loan, nevertheless it could not be said that the money was borrow-ed for illegal or immoral purposes; thirdly, that the decree for maintenance obtained by the wife of Jyoti Prokash was not vitiated by fraud or collusion; and, fourthly, that certain annuities called 'Tankhas' which were among the properties attached were not saleable or transferable properties. The Subordinate Judge concluded that the debt due to the defendant No. 1 was not binding on the sons, and that the family estate was charged with the allowance for maintenance decree in favour of the wife. His decree, therefore, was in favour of the plaintiffs and the appeal before us is preferred by the defendant No. 1.
3. Dr. Mitter appearing for the latter stated that, while he did not abandon the plea that the property which name to Jyoti Prokash from his father was self aequired property, he would refrain from arguing the point in view of our decision in the appeal to which I have referred.
4. On the issue whether the loan in question was taken for legitimate family purposes, Dr. Mitter contended that the evidence was in his favour. Having heard what both sides had to say on the subject, my conclusion is that the defendant No. 1 has not established that the purposes for which the money was borrowed fell within the category of justifiable purposes. The defendant No. 1 is himself a resident of Burdwan and he was no doubt acquainted with Jyoti Prokash's extravagance. The loan was negotiated through a trader named Indra Narain Debey. According to the defendant No. 1, when Jyoti Prokash first asked him for a loan, he refused. Then Jyoti Prokash wrote a letter to Indra Narain dated 27th September 1915 which is Exhibit A on the record. The letter, so far as it is relevant, rune. My dear Indra Narain, what have you done about vat? I have been waiting, depending upon you; first have told you every, thing. Brother, I shall have to file the appeal in the High Court within a few days, otherwise the time will expire; and the servants have not been paid their salaries which have to be paid, My hands are quite empty; I have not been able to purchase clotting for children on the occasion of the puja. Brother, exert yourself a little and arrange for at least Rs. 5,000 in any way you can by explaining matters to Maharaisji and should you fail, the appeal would not be filed for want of money for court-fees, Please telegraph ma at Calcutta after arranging everything by explaining matters to Miharajji for I go there this day by 1-30 o' clock mail.' This latter was shown to the defendant No. 1 and on the strength of it he changed his mind and agreed to lend Rs. 5,003. Accordingly, Indra Narain telegraphed to Jyoti Prokash on the 30th September and, on the following day, the latter met the defendant No. 1 and the money was handed over. The appeal mentioned was filed, but it appears to have bean an idle appeal and it seems to ma that neither this appeal nor the payment of wages to a host of servants nor the purchase of clothing to be distributed as presents on the occasion of the Puja can be described as necessary family purposes. On this issue, therefore, I agree with the Subordinate Judge that the loan is not supported by legal necessity.
5. The further finding of the Subordinate Judge that the money was not borrowed for illegal or immoral purposes has not been challenged before us and must also be accepted.
6. As to the partition-decree obtained by the sons and the decree for maintenance obtained by the wife, the partition suit was instituted on the 18th August and the wife's suit on the 10th November 1915. The preliminary decree in the partition suit was made on the 2nd October and the final decree on the 23rd November 1915. The decree for maintenance was made on the 10th December 1915. Jyoti Prokash did not appear in either suit and in both suits the deareas were ex parts. It the contention that these decrees were not collusive was not abandoned, the question was not again discussed at the Bar and the evidence addusad on the subject in the present case was not referred to. I see no reason to change the view which I expressed in my previous judgment and hold that these decrees do not affect the rights of the defendant No. 1.
7. Similarly, as to the 'Tankhis,' I held in my previous judgment that they are saleable in execution and the question has not been re argued in the present case.
8. The controversy between the parties again turns principal by upon the decision of the Privy Council in Sahu Ram Chandra's case 39 Ind. Cas. 280 : 39 A. 437 : 44 I.A. 126 : 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.J. 22 : 6 L.W. 213 (P.C.). In the judgment to which I have so often referred, I stated that, in my opinion, that decision of the Privy Council has not overruled the long line of cases according to which a creditor who has obtained a personal decree for money against a Mistakshara father is entitled to levy execution against; the entirety of the joint family property. I am still of the same opinion. Mr. Dwarka Nath Chuokerbatty has taken us through the cases again. He has referred to Ratitco Lall's case 1 I.A. 321 : 14 B.L.R. 187 (P.C.) : 22 W.R. 56 : 3 Sar. P.C.J. 380 and Suraj Bunsi Koer's Case 6 I.A. 88 at PP 107, 108 : 5 C. 148 (P.C.) : 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 . He has suggested, on the strength of certain observations made in those cases, that an antecedent debt' means a debt incurred by the father before the birth of a son. However attractive that view may at first sight appear to be, it is not supported by authority and, so far as I am awarr, it has never before been advanced. As the Madras High Court point out, the notion of the antecedent debt finds its origin, not in Kantoo Lall's case 1 I.A. 321 : 14 B.L.R. 187 (P.C.) : 22 W.R. 56 : 3 Sar. P.C.J. 380 or in Suraj Bunsi Koer's case 6 M.I.A. 393 : 18 W.R. 81N : Sevestre 253n : 2 Suth P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147, but in the earlier case of Hanoomanpersaud pandey v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 where the term used is old precedent debt ' and a distinction is drawn between a charge created to secure such a debt and a charge created to secure a new debt Hanoomanpersaud Pandey v. Musammat Bahooee Munraj Roonweree 6 M.I.A. 393 : 18 W.R. 81N : Sevestre 253n : 2 Suth P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147, see Atumugham Chetty v. Muthu Koundan 52 Ind. Cas. 525 : 42 711 AT p. 734 : 9 l.w. 565 : (1919) M.W.N. 409 : 37 M.L.J. 166 : 26 M.L.T. 96.
9. Apart from this novel suggestion, the learned Vakil's main contention, based on Sahu Ram Chandra's case 39 Ind. Cas. 280 : 39 A. 437 : 44 I.A. 126 : 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.J. 22 : 6 L.W. 213 (P.C.), is that before a sale in execution has actually occurred, the sons are entitled to raise the question whether the father's debt was concurred for legitimate purpose, and if that question the answered in the negative to obtain a declaration that the debt is not binding on them. In Suraj Bunsi Koer's case 6 I.A. 88 at PP 107, 108 : 5 C. 148 (P.C.) : 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, as I read it, the auction purchaser was effected with notice that the money borrowed had been spent in immoral purposes Suraj Bunsi Koer v. Sheo f'ersad Singh 6 I.A. 88 at PP 107, 108 : 5 C. 148 (P.C.) : 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. Dr. Mitter has drawn our attention to four reported cafes in which notice was given by the eon before the sale of the property and in which, nevertheless, the sale of the son's interest was upheld, namely, Bhagbut pershad Singh v. Girja Koer 15 C.717 (P.C.) : 15 I.A. 99 : 12 Ind. Jur. 289 : 5 Sar. P.C.J. 186 : 7 Ind. Dec. (N.S.) 1062, Minahshi Nayudu v. Immudi Konak Ramaya Chundan 16 I.A. 1 : 12 M. 142 : 5 Sar. P.C.J. 271 : 13 Ind. JUR. 9 : 4 Ind. Dec. (N.S.) 448, Mdalir Ttrthad v. Mehtiuar Both Sahai 17 I.A. 1 : 17 C. 584 : (P.C.) 5 Sar. P.C.J. 489 : 8 Ind. Dec. (N.S.) 929 and the Full Bench case of Karon Singh v. Bhup Singh 27 Ind. Cas. 16 (F.B.) : 1 A.L.J. 310 : A.W.N. (1904) 151. In the cases of Minahshi Nayudu v. Immudi Kanaka Ramaya Goundan 16 I.A. 1 : 12 M. 142 : 5 Sar. P.C.J. 271 : 13 Ind. JUR. 9 : 4 Ind. Dec. (N.S.) 448 and haran Singh v. Bhup Singh 27 Ind. Cas. 16 (F.B.) : 1 A.L.J. 310 : A.W.N. (1904) 151 the sales were held under deciess for money against the father personally.
10 Mr. Dwarkanath Chuckirbutty further argued that, on general principles, a creditor of the father in execution of a decree against him was not in a position to sell the son's property or the son's shares in the family property, even if the money was borrowed for necessary purposes. In support of that proposition, he referred to the cases on Indur Chunder Singh v. Badha Kuhore Ghose 19 I.A. 90 : 19 C. 507 : 6 Sar. P.C.J. 185 : 9 Ind. Dec. (N.S.) 782 and Bkawal Sahu v. Baij Nath tettab Narain Singh 35 C. 320 : 12 C.W.N. 265 : 3 M.L.T. 956. But each decisions do not affect the right which a creditor of a Miiakshara father may have in certain circumstances to obtain satisfaction of his debt out of the ancestral properly of the debt or and his family. See Hitendra Singh v. Rameshwar Singh Bahadur 22 Ind. Cas. 873 : 18 C.W.N. 4.
11. As it appears to me, the language of their Lordships in Sahu Ram Chandra's case 39 Ind. Cas. 280 : 39 A. 437 : 44 I.A. 126 : 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.J. 22 : 6 L.W. 213 (P.C.) shows that they did not intend to alter the law applicable to such a case as the present. Their Lordships' purpose was to dissipate the uncertainties which had gathered round the term ' antecedent debt ' in connection with voluntary alienations by the father of immoveable family property. The case before their Lordships was that of a mortgage. Their Lordships state page 135 page of 44 I. A.-Ed. that the question arose clear of all complications, and go on to say that 'the importance of the case being free from all complications is the, that except under the mortgage all other remedies have long ago disappeared.' Their Lordships held that as an alienation of immoveable property for a debt which was not an antecedent debt in the true sense of the term the mortgage was invalid. In the present cafe the debt was incurred, in their Lordships' words, ' wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate.' In such a case it is permissible to turn to the passage which their Lordships cite from the judgment in Nanomi Babuasin v. Modhun Mohun 13 I.A. 1 : 13 C. 21 (P.C.) : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 682 : 6 Ind. Dec. (N.S.) 510 and to observe that the creditor here is seeking a personal remedy for a debt not tainted by immorality.
12. It may be, as Dr. Mitter argued, that at the date of the decree obtained by the defendant No. 1 this debt would have been sufficient as an antecedent debt to support an alienation of immoveable family property by the father. But that question does not arise, The defendant No. 1 took no steps to obtain security for his debt. He adopted the alternative course of fining the father before his claim was burred by limitation and obtained a decree against him personally. In the view I take, the creditor has the right to proceed in execution against the ancestral property of the family.
13. The Madras and Bombay High Courts have taken a similar view of the effect of the decision in Sahu Ram Chandra's case 39 Ind. Cas. 280 : 39 A. 437 : 44 I.A. 126 : 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.J. 22 : 6 L.W. 213 (P.C.) Vinjanarnpati Peda Venkama v. Vadlamannati Srtenivasi Veekshatulu 43 Ind. Cas. 225 : 12 C.W.N. 256 : 3 M.L.T. 334 : 33 M.L.J. 519 : 6 L.W. 649 : (1918) M.W.N. 55, Hunmant Kashi Nath Joshi v. Ganesh Annaji pujari 51 Ind. Cas. 612 : 43 B. 612 : 21 Bom. L.R. 435
14. In my opinion the appeal ought to succeed. The judgment and decree of the Court below are accordingly set aside and the suit is dismissed with costs throughout.
Shamsul Hudda, J.
15. In dealing with R. Appeal No. 229 of 1918, Mukti Prokush Nande v. Iswar Dei Debi 57 Ind. Cas. 858 : 24 C.W.N. 938, I had fait considerable doubt whether a son's obligation to pay a debt incurred by his father when, on the one hand, it was not shown that the debt was for a family necessity and, on the other, it was not shown that the debt was for an illegal or immoral purpose could be enforced during the father's lifetime. In that case, upon my finding: on another point, it was not necessary to express a define opinion on this question. My doubt arose upon the decision of their Lordships of the Judicial Committee in the case of Sahu Ram Ghindra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 44 I.A. 126 : 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.J. 22 : 6 L.W. 213 (P.C.). After hearing the arguments in this case, and having regard to the decisions in Vinjanimpati Tola Venkanna v. Vadlamannati Sreenivasa Deekuhatulu 43 Ind. Cas. 225 : 12 C.W.N. 256 : 3 M.L.T. 334 : 33 M.L.J. 519 : 6 L.W. 649 : (1918) M.W.N. 55 and Ilanmant Kashinath Joshi v. Ganesh Annan Puiari 51 Ind. Cas. 612 : 43 B. 612 : 21 Bom. L.R. 435, that doubt has now been removed and I agree with my learned brother in the decision pronounced by him in this appeal.