Raghunath Singh and Another vs Modnarayan Singh and Others

Das, J.—(His Lordship, after stating facts as above, proceeded.) But then arises an interesting question. Mr. Hasan Imam contends that he is entitled to a decree as against the defendants on the theory of antecedent debt. It is pointed out that on the transaction of the 16th January 1911, Modnarayan was indebted to Basudeo and Sukhdeo for Rs. 5,500, and that Basudeo and Sukhdeo were in a position to enforce their claim as against Modnarayan personally; and it is contended that Modnarayan was entitled on the 21st January 1911 to borrow Rs. 5,500 from the plaintiffs to discharge his antecedent debt. This point was argued before the learned Subordinate Judge; but he rejected the contention on two grounds; first on the ground that

it has been held by the Privy Council, in Sahu Ram Chandra v. Bhup Singh AIR 1917 P.C., that the debt in other to be the antecedent debt must be not only antecedently incurred but incurred wholly a part from ownership of the joint estate or the security afforded or supposed to be available by the joint estate;

and, secondly on the ground that the learned Subordinate Judge did not believe that Modnarayan did not contemplate the loan from the plaintiffs at the time when the sale deed in his favour was executed. So far as the first ground put forward by the learned Subordinate Judge is concerned, it is obviously unsustainable. In this case the debt to discharge which the mortgage bond in suit was executed was in fact incurred

apart from the ownership of the joint estate or the security afforded or supposed to be available by the joint estate.

The debt was a personal debt due by Modnarayan to Basudeo and Sukhdeo; and in my opinion the decision of the Judicial Committee in Sahu Ram Chandra''s case AIR 1917 P.C. has no application to this case. I may point out that the view expressed by Lord Shaw on this point in Sahu Ram Chandra''s case AIR 1917 P.C., was dissented from by the later decision of the Judicial Committee in Brij Narain Rai v. Mangla Prasad Rai AIR 1924 P.C. 50. But still the important question remains whether the conveyance of the 16th January 1911 and the mortgage of the 21st January 1911 were really part of the same transaction. In dealing with a question of this nature Lord Shaw said as follows:

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;

and with respect to this passage the Judicial Committee in the later case to which I have already referred, said as follows:

They think that the case of Sahu Ram Chandra AIR 1917 P.C. must not be taken to decide more than what was necessary for the judgment, namely, that the incurring of the debt was there the creation of the mortgage itself and that there was no antecedency either in time or in fact.

The question which I have to consider is whether in this case there is a real dissociation in fact between the transaction of the 16th January 1911 and that of the 21st January 1911.

Sir Sultan Ahmad appearing on behalf of the defendants meets the argument of Mr. Hasan Imam in two ways. He contends in the first place that Modnarayan did not incur a personal debt for Rs. 5,600 to Basudeo and Sukhdeo on the transaction of the 16th January 1911; and in the next place he contends that there is really no dissociation in fact between the two transactions since Modnarayan had no money to pay the creditors of Basudeo and Sukhdeo and relied upon his being able to raise money on the security of the joint family properties to discharge his obligation under the transaction of the 16th January 1911.

Now so far as the first point taken by Sir Sultan Ahmad is concerned, he relies upon the provision of Section 55(4)(b), Transfer of Property Act (Section 55 (4)(b) quoted). He contends that the primary obligation was upon the property purchased by Modnarayan and not upon him personally; but the answer to the argument is that though the seller is entitled to a charge upon the property, he is not prevented by statutory provision from suing the purchaser personally for the unpaid money. It was open to Basudeo and Sukhdeo to waive the charge and to bring a suit personally against Modnarayan. In my opinion there was a present obligation on the part of Modnarayan to pay the sum of Rs. 5,500 to Basudeo and Sukhdeo or to their creditors; and that being so, there was a debt due by him on the 16th January 1911.

But so far as the second point is concerned, I have not been able to satisfy myself that there was a real dissociation in fact between the two transactions. Referring again to the decision of Lord Shaw in Sahu Ram Chandra''s case (1) the following passage may be usefully referred:

The argument in support of the validity of the mortgage also took this shape. It was said: ''What difference would it make if the father had contracted the debt an hour, a day, a year before granting the mortgage? Then de facto it would be an antecedent debt, and the creditor would have a mortgage good upon that ground. Their Lordships cannot assent to any such proposition that a mortgage on the family estate would follow the loan. The case as put might instantly raise the presumption that what occurred was substantially this: that the father contracted the debt knowing that he was at the end of his personal resources and that the creditor advanced the money relying upon an understanding or agreement, express or implied given to the father.

Now in this case Modnarayan had obviously no money to discharge the obligation under the transaction of the 16th January 1911 and in my opinion it is impossible to say that at the date when he entered into the transaction of the 16th January 1911, he did not know that he could only discharge his obligation by borrowing money on the security of the joint family properties. Evidence was adduced on behalf of the plaintiffs to the effect that Modnarayan relied upon selling some grains belonging to him in order to enable him to discharge his obligation to Basudeo and Sukhdeo; but this evidence has been disbelieved by the learned Subordinate Judge and I can see no ground whatever for differing from the learned Subordinate Judge on this point. I hold that there was no real dissociation in fact between the two transactions and that the plaintiffs cannot rely upon the doctrine of antecedent debt in this case.

The result is that the decree passed by the learned Subordinate Judge must be affirmed and this appeal must be dismissed with costs.

James, J.

I agree.