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Judgment
The question for determination in this case is - Is a sale or a mortgage by a father of joint family property binding upon a son''s share if there is
no antecedent debt due by the father, i.e., no debt prior to the mortgage or sale.
In Sami Ayyangar v. Ponnammal ILR Mad. 28, it was held that in order to justify a sale or a mortgage by a father so as to bind his son''s share
of the property, there must be in fact an antecedent debt. In the judgment in that case it was pointed out that, as regards the liability of the son''s
share for the debt of the father as a mere money claim, there could be no question in a case where the mortgage was for consideration and was not
illegal or immoral; but it was held, following the rule which had been previously acted upon by this Court, that the son''s share was not bound by
the sale or mortgage unless there was an antecedent debt.
In Chidambara Mudaliar v. Koothaperumal ILR Mad. 326, it was held that as regards the effect on the son''s share there was no distinction in
principle between a mortgage given for an antecedent debt and a mortgage given for a debt then incurred. That case was a case of mortgage and
not of sale, but the language of the judgment indicates that the Court was of opinion that in the case of sales and mortgages alike the same principle
was applicable.
The question for us really is - Was the case Sami Ayyangar v. Ponnamal ILR Mad. 28 rightly decided? We are of opinion that it was. The
question appears to us to be governed by authorities which are binding upon this Court. In Suraj Bunsi Koer v. Sheo Persad Singh and Ors. ILR
Calc. 148, the Privy Council in discussing Muddun Thakoor v. Kantoo Lall L.R. IndAp 333, observe that that case was an authority for the
proposition that ""where joint ancestral property has passed out of ""joint family, either under a conveyance executed by a father in"" consideration of
an antecedent debt, or in order to raise money ""to pay off an antecedent debt, or under a sale in execution of a"" decree for the father''s debt, his
sons, by reason of their duty to ""pay their father''s debts, cannot recover that property, unless"" they show that the debts were contracted for
immoral purposes, ""and that the purchasers had notice that they were so contracted."" In a later Privy Council case we find the phrase antecedent
debt adopted by Lord Hobhouse. In delivering the judgment of the Privy Council in Nanomi Babuasin v. Modhun Mohun ILR Cal. 21, Lord
Hobhouse observes"" destructive as it may be of the principle of ""independent coparcenary rights in the sons, the decisions have, for ""some time,
established the principle that the sons cannot set up ""their rights against their father''s alienation for an antecedent ""debt, or against his creditor''s
remedies for their debts if not tainted with immorality"" in Bhagbut Pershad Singh v. Girja Koer and Ors. ILR Calc. 717 the debt was in fact
antecedent in the sense that it existed prior to the sale. Sir Barnes Peacock in delivering the judgment of the Privy Council cites the passage in the
judgment delivered by Lord Hobhouse referred to above. In the Privy Council case of Mahabir Pershad v. Moheswar Nath Shahai ILR Calc. 584
the debt was, in fact, antecedent to the sale. It seems to us that it is impossible to adopt that view taken in Chidambara Mudaliar v. Koothaperumal
ILR Mad. 326 although, on principle, we might be disposed to do so, without ignoring, or placing a forced and unnatural meaning on the word
antecedent"" as used in the judgments of the Privy Council in the cases referred to, and we do not think we are warranted in so doing.
So far as the decisions of the other High Courts in this country are concerned, there are, no doubt, decisions to the effect that a mortgage may
be binding on the son''s share even when the debt is the debt created by the mortgage transaction itself. These decisions proceed upon the ground
that in such a case the debt is an antecedent debt within the meaning of the Privy Council rulings. This was the ground of the decision in Khalilul
Rahman v. Gobind Pershad ILR Calc. 328 in which the Calcutta High Court followed a Full Bench decision of that Court see Luchman Dass v.
Giridhur Chowdhry ILR Calc. 855. In the Bombay case Chintaman Rav v. Kashinath ILR Bom. 320, the judgment proceeded upon the same
ground, In the Allahabad case Debi Dat v. Jadu Rai ILR All. 459, the Allahabad High Court held, without discussing the rulings of the Privy
Council, that the sons could only dispute the validity of a mortgage by the father (and by ''validity'' the learned Judges meant the binding effect as
regards the sons'' shares) either on the ground that the debt was never incurred, or was no longer in existence, or that it was tainted with
immorality.
As regards this High Court, the view taken in the oases of Chinnayya v. Perumal ILR 13 Mad. 51 and of Sami Ayyangar v. Ponnamal ILR 21
Mad. 28 and in Srinivasa Ayyangar v. Ponnammal L.P.A. No. 12 of 1893 (unreported) was that when the debt was incurred at the time of the
sale or mortgage it was not an antecedent debt within the meaning of those words as used in the judgment of the Privy Council in Suraj Bunsi Koer
v. Sheo Persad Singh ILR 5 Calc. 148. As regards the question of sale there does not appear to be any decision either of the Privy Council or of
the Courts of this country that a sale is binding on the son''s share when the debt was not antecedent in the sense that it existed prior to, and
independently of, the sale.
JUDGMENT
It is now urged that the District Judge has not clearly and distinctly held that the debt was not contracted for the marriage expenses of the sister
of the defendants Nos. 1, 2 and 3. There cannot, in our opinion, be any doubt as to the meaning of the District Judge''s judgment as to this. He
finds that the debt is said to have been contracted for marriage expenses, but that there is, as a matter of fact, no evidence as to whether the money
was spent on a marriage or when that marriage took place. The District Judge might in fact have gone further and stated that there is no evidence
on the record that there ever was any marriage. The decision of the Full Bench, on a reference in this second appeal passed on the 6th December
1905, removes all doubt as to whether the decision in Sami Ayyangar v. Ponnammal ILR No. 12 of 1893 or that to be found in Chidambara
Mudaliar v. Koothaperumal ILR Mad. 326 should be followed by this Court in deciding this second appeal and lays down clearly that in order to
justify a sale or mortgage of joint family property by a father so as to bind the son''s share there must be an antecedent debt, i.e., a debt prior to
the mortgage or sale. The vakil for the plaintiffs (appellants) now that the above-mentioned points have been decided against him, tries to raise
certain further questions as to the liability of defendants Nos. 6 and 7. It is perfectly clear that these questions were not raised or argued before the
District Judge in the lower Appellate Court, and such being the case we are decidedly of opinion that we should not allow them to be raised now
for the first time in second appeal. This second appeal is dismissed. The plaintiffs (appellants) will pay their own costs and those of the tenth
defendant. There will be no order as to the costs of the other parties.