JUDGMENT
1. 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.
2. In Sami Ayyangar v. Ponnammal (1897) I.L.R. 21 M. 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.
3. In Chidambara Mudaliar v. Koothaperumal (1908) I.L.R. 27 M. 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. Ponnammal (1897) I.L.R. 21 M. 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. (1879) I.L.R. 5 C. 148, the Privy Council in discussing Muddun Thakoor v. Kantoo Lall (1876) I.L.R. 1 A. 333, observed that that case was an authority for the proposition that “where joint ancestral property has passed out of the 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. Modun Mohun (1885) I.L.R. 13 C. 21 Lord Hobhouse observes: “Destructive as it may be of the principle of independent co-parcenary 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 Sing v. Girja Koer (1888) I.L.R. 15 C. 717., and others, 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 Sahai (1889) I.L.R. 17 C. 584 the debt was, in fact, antecedent to the sale. It seems to us that it is impossible to adopt the view taken in Chidambara Mudaliar v. Koothaperumal (1903) I.L.R. 27 M. 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.
4. 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. The 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 (1895) I.L.R. 23 C. 328, in which the Calcutta High Court followed a Full Bench decision of that Court (see Luchman Doss v. Giridhur Chowdhry (1880) I.L.R. 5 C. 855). In the Bombay case, Chintaman Rao v. Kashinath (1889) I.L.R. 14 B. 320, the judgment proceeded upon the same ground. In the Allahabad case, Debi Dat v. Jadu Rai (1902) I.L.R. 24 A. 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.
5. As regards this High Court the view taken in the cases of Ghinnayya v. Perumal (1889) I.L.R. 13 M. 51 and of Sami Ayyangar v. Ponnammal (1897) I.L.R. 21 M. 28 and in an unreported decision of Muthusami Aiyar and Best, JJ. L.P.A. No. 12 of 1893 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 Pershad (1897) I.L.R. 5 C. 148. As regards the question of sale there does not appear to be any decision either of the Privy Councilor of the Courts of this country that a sale is binding on the son’s shares when the debt was not antecedent in the sense that it existed prior to, and independently of, the sale.
6. We are of opinion that the answer to the question referred to us must be in the affirmative.
