RAM SARUP Vs. BHARAT SINGH

JUDGEMENT

(1.) This appeal arises nut of a suit brought by the appellants to enforce a mortgage executed by one Lal Singh on the 17 of June, 1912. The amount secured by the mortgage was Rs. 5,000 and the property mortgaged consisted of shares in two villages, namely, Sarjupur and Ahmlapur. The first defendant is the son of Lal Singh, who is now dead. The other defendants are purchasers of the mortgaged property in execution of simple money decrees. The mortgage in question was executed for various sums of money, which, according to the recital in the mortgage-deed, consisted first of money due upon a prior mortgage of the 5 of February, 1912, for Rs, 1,000. There were six promissory notes commencing from the 17 of February, 1912, to the 13 of June, 1912, and the amounts of these promissory notes were included in the consideration for the mortgage in question. There was also a further sum of Rs. 210-8-0 alleged to be the amount of parole-debts duo by the mortgagor. Rs. 103 was stated to have been received in cash before the execution of the mortgage and Rs. 2,142 was paid at the time of registration. As to the first item of Rs. 1,000, which was secured by the mortgage of the 5 of February, 1912, the court below held that, in view of the ruling of their Lorddhips of the Privy Council in the case of Sahu Ram Chandra V/s. Bhup Singh (1917) I.L.R. 39 All. 437, the aforesaid mortgage could not be treated as an antecedent debt and therefore it was the duty of the plaintiff to prove that this mortgage was effected for family necessity. The aforesaid mortgage was executed in lieu of an amount of Rs. 500 due upon a promissory note, dated the 11 of January, 1912. This promissory note states that the money was borrowed for the payment of Government revenue and to meet other expenses. Evidence has been given to prove that Lal Singh was arrested by tahsil peons as he was in default in the payment of Government revenue, and that with the money borrowed he paid the amount of revenue due by him. As stated above the promissory note itself recites that Rs. 500 was borrowed not only for the payment of Government revenue but also for other expenses. No evidence has been given to prove how much money was required for payment of Government revenue and how much was needed for family expenses. There is also no evidence to prove that what was alleged to have been required for family expenses was in reality needed to meet the expenses of the family. Therefore, if we were to consider the item of Rs. 500 apart from the mortgage, and if we were to consider whether that amount was borrowed for family necessity, the evidence falls far short of proving the existence of such necessity. The promissory note for Rs. 500 itself recites that this money was taken in order that it might form part of the mortgage which was to be subsequently executed, i.e., for the mortgage of Rs. 1,000 executed on the 5 of February, 1912. So that this sum of Rs. 500 cannot by itself be deemed to be an antecedent debt. As for the balance of the sum secure 1 by the mortgage for Rs. 1,000, no evidence was given to prove that that amount was required for family purposes. It is, however, contended that there was a covenant for personal liability in the mortgage-deed of the 5 of February, 1912, and that in consequence of this personal covenant the debt must be deemed to be an antecedent debt. This contention is in our opinion contrary to the view of their Lordships of the Privy Council in the case to which we have already referred. In the judgment in that case their Lordships observe, at page 447, that an antecedent debt which would be binding on the members of a joint family or on the son of the mortgagor must be "an obligation not only antecedently incurred but incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate." Again, their Lordships held that a debt to be an antecedent debt must be one "where the father's debts have been incurred irrespective of the credit obtainable from immovable assets which do not personally belong to him but are joint family property." It is thus manifest that if the debt is incurred without the aid of family properly, it would be an antecedent debt; but if the debt is not wholly irrespective of the credit obtainable by reason of the ownership of family property or is not wholly apart from the ownership of that property, it would not be an antecedent debt. Their Lordships observed in their judgment that they felt it necessary to lay down the law on the subject in order to settle the conflicting rulings which existed on the point in this country. We are, therefore, bound to give effect to the ruling of their Lordships, although it may be that the question which their Lordships decided did not directly arise in the case before them. In this view we are unable to agree with the decision of the Judicial Commissioners of Lucknow in the case of Ramman Lal V/s. Ram Gopal (1918) 21 Oud. Cases 200, on which reliance was placed on behalf of the appellants. As the mortgage for Rs. 1,000 was not executed wholly apart from the security of family property and irrespective of the credit which the mortgagor obtained by reason of the ownership of joint family assets, it cannot be held that, because the document contained a personal covenant, the debt secured by it should be deemed to be an antecedent debt.

(2.) The lower court was therefore right in excluding from consideration the mortgage of the 5 of February, 1912, as forming part of the consideration for the mortgage now in dispute.

(3.) As to the amount of the six promissory notes which formed part of the consideration for the mortgage now sued upon, the last promissory note, namely, the one, dated the 13 of June, 1912, for Rs. 250 was executed with a view that this amount should form part of the amount of the mortgage of the 17 of June, 1912, that is, the mortgage now in suit. The amount of this sixth promissory note should therefore be eliminated from consideration for the purpose of determining whether the amounts of the promissory notes should be deemed to be antecedent debts. The six promissory notes have been fully proved to be genuine and it has also been proved that the amounts mentioned in them had been advanced to Lal Singh, the borrower. The court below assumes that these promissory notes were executed and the amounts of them borrowed with the ultimate object of including them in a mortgage which was then in contemplation. There is 110 evidence to justify this conclusion. It is true that in the promissory notes there was no provision for payment of interest, but as the terms were short it may be that the creditor did not insist upon interest being paid on some of the promissory notes. As stated above, there is no evidence that at the time that the money was advanced there was any intention to consolidate these debts into a mortgage to be executed subsequently. We are, therefore, unable to agree with the court below that the amounts of the first five promissory notes should not be deemed to be antecedent debts.