PUTTAPPA KARIYAPPA HUCHAPPA BIJJUR Vs. BANAPPA FAKIRAPPA SHIGGAUV

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in a suit for a declaration that certain transactions consisting of three mortgages made by his father in respect of which an award decree had been obtained between him and his creditor and two sale-deeds of other properties were not binding on the plaintiff as they were without legal necessity as well as for immoral and illegal consideration.

(2.) THE plaintiff was born in 1918. Some time before that, his father, who is defendant No.4 in this case, had separated from his uncle and had got lands yielding about Rs. 1,800 per year. He had no business except cultivation of those lands. Very soon after the partition defendant No.4 began to purchase properties out of the income of his lands and for that purpose he incurred several mortgage debts. THE first debt was incurred in June, 1926, by mortgaging two of the lands, for Rs. 5,000 to defendant No.1's father. About three months later he passed a second mortgage to the same person of other lands for Rs. 2,000, and in May, 1927, he passed a third mortgage of all the remaining lands in his possession to the same person, for Rs. 10,000. In the next year on July 7, 1928, he passed a sale-deed of two of his lands to defendant No.1's father for Rs. 8,000, and about ten years later in 1938 he passed a sale-deed of one land to defendant No.1 for Rs. 700. In respect of the three mortgage deeds defendant No.1's father brought a suit against the plaintiff's father alone, the matter was referred to arbitration and an award decree was passed on December 20, 1928, under which Rs. 19,906 were to be paid to the plaintiff for the mortgage debt and Rs. 2,568 were to be paid for certain money debts. THE amount was to be paid by several instalments, and in default of payment of two instalments, the whole amount was to be recovered by sale of the mortgaged property. THE said property was also kept as a charge for the money debt. It was further provided that if there was any deficit after the sale, it was to be recovered personally from defendant No.4.

(3.) THE plaintiff has now come in appeal to this Court against the decree dismissing the suit. THE finding of the lower Court that none of the debts or sale-deeds is vitiated by illegality or immorality has not been challenged by Mr. Jahagirdar who appeared for the plaintiff-appellant. THE findings with regard to the first and the third mortgages were in his favour, and he attacked the finding about the second mortgage that it was for legal necessity. He further contended that the three mortgages being without legal necessity, the son's interest would not be bound by the auction sale in execution of the award decree, even though it was not proved that the debts were illegal or immoral. On that point of law Mr. Jahagirdar has addressed an elaborate argument before us and his contention in substance is that the present case is covered by the decision of the Privy Council in Brij Narain v. Mangla Prasad (1923) L.R. 51 I.A. 129 : s.c. 26 Bom. L.R. 500. THE learned Judge below has held that that decision does not govern the facts of this case because in that case their Lordships were concerned with the binding nature of the mortgage on the son while here the question is whether he is bound by a sale which has already taken place in execution of the; mortgage decree. He has therefore held that the five propositions laid down in Brij Narain's case do not cover the case of setting aside an execution sale which is governed by certain previous decisions of their Lordships under which a son cannot challenge the transaction when the rights of an auction-purchaser had come into existence in execution of the decree. On that basis the learned Judge has distinguished the decisions in Jagdisk Prasad v. Hoshyar Singh (1928) I.L.R. 51 All. 136, F.B. and Aswan v. Ganpat : Gampat v. Asman (1938) 40 Bora. L.R. 946 and has held that the present case is governed by the decisions in Gajadhar Pande v. Jadubir Pande (1924) I.L.R. 47 All. 122 and Jahan Singh v. Hardat Singh (1934) I.L.R. 57 All. 357 which were both cases where the mortgage decree had already been executed and the property passed into the hands of the auction-purchaser against whom the son cannot succeed even though the debts were not for legal necessity. Against this reasoning, the main contention of Mr. Jahagirdar before us has been that the five propositions in Brij Ndrain's case were meant to apply not only to mortgage debts and mortgage decrees but also to cases where a sale had taken place in execution of mortgage decrees. He further contends that proposition No. 2 applies only to the case of an unsecured debt and does not apply to the case of a mortgage which is governed by proposition No.3. THE second proposition is that if the managing member is the father and the other members; are the sons, the father may by incurring debt so long as it is not for an immoral purpose lay the estate open to be taken in execution proceedings upon a decree for payment of that debt; and the third proposition is that if he purports to burden the estate by a mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate. It is urged that the word " debt" in proposition No.2 must be construed as meaning an unsecured debt only because the case of a secured debt was expressly provided for in the next proposition. That being so, the estate is bound to be taken in execution proceedings only where it is sold in payment of an unsecured debt, but where there is a mortgage unless it was to discharge an antecedent debt, it would not bind the estate. In other words, the pious obligation of the son to discharge the father's debt cannot arise in the case of a mortgage debt unless it was to discharge an antecedent debt. For that argument Mr. Jahagirdar has placed reliance upon certain observations in the full bench case of Jagdish Prasad v. Hoshyar Singh (supra). In that case Mr. Justice Sulaiman, Acting Chief Justice, was of the opinion that the word " debt" in the second proposition meant all kinds of debts, while the two other Judges, Mukerji and Boys JJ. took the view that it meant a money debt only. In a very recent decision of our High Court, Bharmappa Murdeppa v. Hanamantappa Tippanna (1943) 45 Bom. L.R. 821 (since reported), an opinion is expressed by the learned Chief Justice, agreeing with Sulaiman Ag. C.J., that the word "debt" in the second proposition covers all forms of debts including secured debts. We think, however, it is not necessary on the facts of the present case to decide this point, because in our opinion neither of these two propositions apply to cases where execution sales had already taken place. Even though Mukerji J. took the view in jagdish Prasad's case (supra) that the "debt" meant a money debt only in the second proposition, he expressly states in his judgment that (p. 146): their Lordships did not say anything about the rights of an auction purchaser at a Court sale and his right will have to be found from earlier decisions, unless we have some guide in the five propositions applicable to the particular case that may arise for decision.