Indulal Girdharlal and Others vs Girdharlal Liladhar and Others

Chhatpar, J.—This is a second appeal arising out of a suit filed by the present applts. for a declaration that the mtge. decree obtained by the resps. 2(1) to (4.) against resp. 1 was not binding upon their shares in the joint family property & for consequential relief by way of injunction. The applts. are the minor sons of resp. 1 who had created a mtge. on the admitted Joint family property belonging to himself & his minor sons in favour of Vania Dipchand Kunverji the father of resps. 2 (1) to (4) by a deed dated 20-4-1942 to secure a loan of 2500/-. The resps. 2(1) to (4) filed a suit against resp. 1 alone & obtained a preliminary mtge. decree on 20-10-1947. Thereafter the usual final decree for sale was passed against resp. 1 but the property has not yet been sold as in the meantime the present applts. filed the suit against their father & resps. 2 (1) to (4) for declaration & injunction that the mtge. decree was not binding on them & that their interest in the property could not be sold. The pltfs. in para 2 of the plaint alleged clearly that there was no legal necessity for their father to mtge. the property. They further alleged that if the mtge. was created it ''was not of a nature'' which would bind. their interest. They amplify this plea by stating that the father was indulging in gold & silver speculations & if the mtge. was created in respect of these speculative debts it would not be binding upon them as the debts were for illegal purposes. A translation of para 2 of the plaint is given below as the decision in the case rests a good deal upon the pleadings in the case:

Deft. 1 had no legal necessity to mtge. the minor-pltfs'' interest in the Immovable property & if the mtge. has been created it was not legally binding on the minor-pltfs. But minors'' father was carrying on speculation-business which was not of the minor''s family. If mtge. debt pertained to such speculation-business of bullion, the said debt cannot be said to have been incurred in the interest of the minors & for meeting with the necessities of the family. For these reasons this debt cannot be binding on the minors'' undivided interest. Besides this debt being illegal & ''avyavharic'', it cannot be binding on the interest of the minors in the ancestral property & the minors are not legally responsible for such debts. For these reasons, the deed mortgaging the ancestral Immovable property executed by deft. 1 cannot be binding. So also according to Hindu Law the minors cannot be legally bound for such debts or mtges.

To this plea the defts in para 3 of their written statement stated that the mtge. was created for business & for the necessity of the family & therefore it was binding upon the pltfs. Translation of para 3 is given below:

The decree sought to be executed against deft. 1 is on the strength of mtgee. in possession & is legally binding on the pltfs. The deft. 1 who is the father, is the manager & the head of the family & is the lawful guardian of the minors. The deft. 1 has executed a mtge. bond on Vaishakh Shud 5 of Samvat 1998 corresponding to 20-4-1942 for Rs. 2800/- for transaction made for the necessity of the family & for his business. This decree has been legally obtained in a suit on. this mtge. deed which the deft. 1 who is the father, the manager & the head of the family has executed. This decree is therefore a bar of ''res judicata'' & estoppel to the present suit." The following is the translation of the Issues framed:

Does the cause of action accrue to the pltfs.?

Is the Ct.-fee paid insufficient?

Whether this suit can lie without setting aside decree against deft. 1 in civil suit No. 2/2003 & cancelling the mtge. deed in execution?

Are the pltfs. entitled to raise an objection or dispute against the decree passed against deft. 1 on mtge. deed in civil suit No. 2 of 2003?

If they are entitled to raise such an objection is it proved that the nature of the debt is such as is alleged by the pltf & hence not binding on their interest.

What is the legal effect on the interests of the pltfs. by the suit transaction entered into by deft. 1 who Is father manager & the lawful guardian of the minors?

Is the deft, entited to claim special costs?

Is the suit debt binding on the pltfs? If so to what extent?

What order should be passed in the suit?

In the suit neither party led any evidence except that one witness was examined on behalf of the pltfs. The trial Judge dismissed the suit of the pltfs. against which decision the pltfs. filed an appeal in the Ct. of the Dist. J., Halar, who dismissed the appeal. Against his decision the pltfs. have come in second appeal.

Now the law on me subject of liability of sons for the debts created by a father has been laid down from time to time by various rulings & the case of ''Brij Narain v. Mangla Prasad'' AIR 1924 P C 50 has summarised such principles in the following terms:

The managing co-parcener of a joint undivided estate cannot alienate or burden the estate ''qua'' manager except for purposes of necessity; but

If he is the father & the reversioners 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.

If he purports to burden the estate by mtge, then unless that mtge. is to discharge an antecedent debt it would not bind more than his own interest.

Antecedent debt means antecedent in fact as well as in time; that is to say, that the debt must be truly independent & not part of the transaction impeached.

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.

The father of a joint family may sell or mtge. the joint family property including the sons'' interest therein to discharge a debt contracted either (a) for family necessity or (b) for his own personal benefit for payment of an antecedent debt not incurred for illegal or immoral purposes. In the case of a mtge. of the joint family property by the father the creditor may obtain a mtge. decree against the lather alone. The sons may bring a suit against the mtgee. for a declaration that they are not bound by the decree & for an injunction restraining the mtgee. from selling the entire property. In such a suit by the sons the burden of proof that the debt was either for family necessity or for a antecedent debt would lie on the alienee. If it is proved that the mtge. debt was for necessity of the family no further question arises & alienation would be binding upon the sons. When the mtge. was not for family necessity it is for the alienee to prove that it was created to pay an antecedent debt or that after due enquiries he in good faith believed that it existed. The burden is then shifted upon the sons to prove that the debt was contracted by the father for an illegal or immoral purpose & that the alienee had notice that the debt was so contracted. (See Mulla''s Hindu Law 10th Edn., Article 295 at p. 371 & ''Chandra Deo v. Mata Prasad'' 31 All 176.

In the present case the defts. have adduced absolutely no evidence to show that either the mtge. debt was for legal necessity or for payment of an antecedent debt. Neither is there any proof that the debt was for illegal or immoral purposes. In such circumstances the burden of proof becomes a matter of great importance. As stated above it was the duty of the alienees to establish that the mtge was created for payment of an antecedent debt or that the mtge. debt was for family necessity & it was only thereafter that the sons would be called to establish the immoral or illegal nature of the debt to escape liability so far as their interest in the joint family property was concerned. In the present case no evidence has been adduced on behalf of the alienee to establish either that the mtge. was for family necessity or that it was for payment of an antecedent debt. The learned Dist. J. in his judgment has observed:

Nowhere in the plaint is there an averment that the mtge. was not made by resp. 1 for payment of his antecedent debts. The only allegation made in the plaint for obtaining the declaration that the mtge. decree against resp. 1 was not binding on them was that the debts for payment of which the mtge. was made were immoral & illegal in character.

This is not correct approach to the question as it was not for the pltfs. to allege that the mtge was not for payment of the antecedent debts of resp. 1 but it was for resps. 2(1) to (4) mtgees. to allege & prove this fact. It was only when they had established this fact that the question of the nature of the debt could be agitated by the pltfs. The learned Dist. J. further says:

As there was no allegation in the plaint that the mtge. was not made for payment of antecedent debts of resp. 1 there was no assertion in the written statement of resps. 2 to 5 that the mtge. was made for payment of antecedent debts of resp. 1 not tainted with immorality.

When the pltfs. had generally denied the mtge. debt & its binding character, it was certainly necessary for the deft, mtgees. to set up either a case of necessity or an antecedent debt. They had in fact alleged that the debt was created for necessity but gave absolutely no proof in support of this plea, while they never raised the plea of antecedent debt at all. After considering this aspect of the case the learned Dist. J. seems to have concentrated on issue 4 & says:

The first part lays the burden on the applts. to prove that they have the right to have it declared that the mtge. decree obtained against resp. 1 was not binding on them. The second part of the issue also lays the burden of proof on the applts. The second part of the issue is as follows:

If the pltfs. have the right to raise objections against the mtge. decree obtained against resp. 1 do they prove that the debt in respect of which the decree was obtained was of the nature urged by them & do they further prove that that debt was not binding on their interest in the property. Issue 5 no doubt raises the question as to what extent the mtge. transaction in dispute affects the interest of the pltfs. in the suit property.

But it is clear that no specific issue was raised as regards antecedent character or otherwise of the debts for payment of which the mtge. was made by resp. 1.

If no specific issue was raised as regards the antecedent character of the debt the decision ought to go against the mtgees. because the burden of proof initially lay upon them. By no stretch of imagination could it be construed that the pltfs. expressly or impliedly admitted that the mtge. debt was created for payment of an antecedent debt & all that they had to prove was that the debt was not binding because of its illegal or immoral character. The issues framed in the case are not happily worded but there is no doubt that the general issue 7 whether the suit debt is binding on the pltf. & if so to what extent when read'' with para. 2 of the plaint would show that the pltfs. had disputed the binding nature of the mtge. debt in its totality. The question of burden of proof is to be determined in accordance with law on the subject & not on the manner in which issues are framed.

I am therefore of the opinion that there being no proof that the mtge. debt was either for family interest or for payment of an antecedent debt, the debt would not be binding on the sons so far as their interest in the co-parcenary property is concerned but since the debt is not proved by the sons to be tainted with illegality or immorality it is their pious obligation to discharge the debt ''qua'' a simple debt. The net result would be as indicated by the Bombay case of Bharmappa Murdeppa Soppin Vs. Hanmantappa Tippanna Belludi, where it was held:

Where a mtge. is created not for necessity, or for payment of an antecedent debt, it binds only the father''s interest in the property, & it is only that interest which can be sold under a mtge. decree. But if the debt is not for immoral purposes, the sons are liable & if a personal decree is obtained against the father, then that decree can be enforced by sale of the sons'' interest in the property. There must however be a personal decree against the father for payment of the debt, & not merely a decree for payment of the debt by sale of the mortgaged property.

This ruling proceeds on the interpretation of ''Brij Narain''s case AIR (11) 1924 PC 50 of the P.C. quoted above. There was a difference of opinion between the Lahore H.C. & the Allahabad H.C. whether the word ''debt'' referred in the second proposition laid down in ''Brij Narain''s case'' AIR 1924 PC 50 referred to a simple debt or included a secured debt. The F.B. ruling of ''Jagdish Prasad v. Hoshyar Singh'' AIR (15) 1928 All 596 held that the debt did not include a secured debt. Shri Shah Sulaiman who formed one of the members of the Bench in that case differed from this view held by the other two Judges. The Lahore H.C. in the case of ''Jogindar Singh v. Punjab & Sind Bank Ltd., Amritsar'' AIR 1939 Lah 585 was of the view that the debt included a secured debt & that it was open to the mtgee in a decree for sale of mortgaged property to have the entire family property sold including the sons'' interests unless it was proved that the debt was created for illegal or immoral purposes. The subsequent P. B. ruling of the Allahabad H.C. in the case of Hira Lal and Others Vs. Puran Chand and Others, have dissented from the view held by the majority of Judges in the earlier P.B. case of ''Jagdish Prasad v. Hoshyar Singh AIR 1938 All 596 of the same Ct. & have accepted the interpretation given by Sir Shah Sulaiman. In referring to the ''Bombay case'' reported in Bharmappa Murdeppa Soppin Vs. Hanmantappa Tippanna Belludi, which stated that it was essential that there must be a personal decree against the father in order to make available the shares of the sons in execution proceeding the later F.B. ruling of the Allahabad H.C. stated:

The question before this F.B. is different, & it would be hardly profitable to go into the correctness or otherwise of the Bombay case. On the authorities mentioned above & in the view which I take of the origin of the doctrine of pious obligations I am irresistibly led to the conclusion that the scope of the second proposition of Lord Dunedin is not limited to cases of simple money debt.

The Bombay case has not laid down that the ''debt'' referred to in the second proposition of "Brij harain Rai''s case" AIR 1924 PC 50 means a simple money debt only. On the contrary the learned Judge seems to hold that the word covers all forms of debt including secured debts. This is clear from reference to the following passage in the judgment:

I entertain no doubt that Sir Shah Sulaiman was right in thinking that the word ''debt'' in the second proposition covers all forms of debt, including secured debts. But it is obvious that the second proposition is dealing with recovery of a debt, not in its character as a mtge. debt, but as a debt for which a decree has been obtained & the decree is being executed. Where a mtge. is created, not for necessity, or for payment of an antecedent debt, it binds only the father''s interest in the property, & it is only that interest which can be sold under a mtge. decree. But if the debt is not for immoral purposes the sons are liable & if a personal decree is obtained against the father, then that decree can be enforced by sale of the sons'' interest in the property. There must, however, in my opinion, be a personal decree against the father for payment of the debt, & not merely a decree for payment of the debt by sale of the mortgagees property.

Thus there is no real difference between the latest view held by the Allahabad H.C. & the Bombay H.C. The question really hinges upon the method of recovery & the stage at which the sons'' interest in the mortgaged property would become available for the satisfaction of a mtge. debt not tainted with illegality & immorality. There is no doubt that the recovery would have to be made in two distinct stages. Since the father had no right to mtge. his son''s interest, there being no case of necessity or of an antecedent debt, the mtge-decree for sale of the property would embrace only the interest of the father. After the decree of sate has been executed, if there is any deficiency & if the mtgees. succeed in getting a personal decree under Order 34 Rule 6, C.P.C. it would then be open to them to attach & sell in execution of such personal decree against the father the interest of the sons. Since the sons have failed to prove that the debt was for any illegal or immoral purpose, they would be bound to satisfy the debt as a pious obligation. This realisation of the debt in two stages indicated by the Bombay ruling cannot be avoided & seems to be the logical consequence of the proposition that a father has no right to mtge. his sons'' interest in the joint family property except for family necessity or payment of an antecedent debt not tainted by illegality or immorality.

Proceeding on these principles of law the applt. will be entitled to succeed in getting a declaration & injunction to the effect that the mtge. decree for sale as such could only operate so far as the interest of the resp. 1 in the property is concerned & that what would be sold in execution of the mtge. decree for sale would be only such interest. If & when the mtgees. resps. 2(1) to (4) succeed in obtaining a personal decree in case of deficiency against resp. 1 they would be entitled to attach & sell in execution the sons'' interest to the same property, as the sons have failed to prove the illegal or immoral nature of the debt & they would be bound to discharge the debt by reason of their pious obligation.

I accordingly reverse the decree of the two Cts. & grant the declaration & injunction as stated above. In view of the peculiar circumstances of the case I order that the parties will bear their own costs throughout.