BHARMAPPA MURDEPPA SOPPIN Vs. HANMANTAPPA TIPPANNA BELLUDI

JUDGEMENT

(1.) THIS is a second appeal against a decision in first appeal of the Assistant Judge of Dharwar, and it raises a question on which there seems to be a difference of opinion between the Allahabad High Court and the Lahore High Court on one of the propositions laid down by the Privy Council in Brij Narain v. Mangla Prasad (1923) L.R. 51 I.A. 129 : S.C. 26 Bom. L.R. 500.

(2.) THE facts are that in 1922 defendant No.2, the father of the plaintiffs, mortgaged certain family property to defendant No.1, and on November 7, 1927, there was an award decree for the amount due under the mortgage. THE award decree is not a very artistic document. It finds the amount due, and holds that the defendant should pay the amount in seven instalments, and in default of payment of any instalment the plaintiff is to recover the amount of the instalment in default by getting a sufficient portion of the mortgaged property sold, and then it goes on : "In this way if the entire amount is not satisfied the plaintiff to recover from the defendant personally." So that, as I read it, the only personal decree against the mortgagor is for so much as may remain due after the sale of portions of the property to discharge the various instalments; and, as the decree has not been carried out according to its terms, the amount of that personal liability is at present unascertained. In 1934 an application was made to sell the mortgaged property in discharge of the mortgage debt, and the plaintiffs instituted this suit to restrain defendant No.1 from executing his decree against the share of the plaintiffs in the mortgaged property on the ground that the award decree was not binding on them, since the mortgage on which it was founded was not made for legal necessity. THE trial Court held that the plaintiffs were bound to pay the debt, whether incurred for necessity or not, under the pious obligation of a Hindu son to pay his father's debt not incurred for immoral purposes, but in appeal the learned Assistant Judge reversed that decree holding that the mortgage was not for necessity, and that plaintiff No.1 was entitled to a declaration that his share in the suit property was not affected by the mortgage decree and an injunction restraining the mortgagee from selling the plaintiff's interest in execution.

(3.) IN the present case the decree, as I have pointed out, is not in the form of an ordinary mortgage decree. It does not direct that on sale of the property the mortgagee is to be at liberty to apply for a personal decree for the balance not recovered. What it does say is that "if the entire amount is not satisfied, the plaintiff to recover from the defendant personally." That may create a personal liability against the father, but it is an unascertained liability incapable of enforcement against the interest of the son in the property. Until the mortgage decree is carried out, and it is ascertained what the balance is, it is impossible to say for what amount the son's interest in the property is liable.