ALI AHMAD Vs. SOHAN LAL

JUDGEMENT

(1.) THE appellant in this case is the decree-holder in a suit on a mortgage THE mortgage was executed in 1893 by one Parsadi Lal, who was at the time the head and manager of a Hindu joint family consisting of himself and his sons and he thereby hypothecated a portion of the joint ancestral family property. THE suit on the mortgage was brought many years later and a preliminary decree was obtained on the 1st of March 1910, which was followed by a final decree for sale, dated the 10th of December 1910. In the month of February 1912 Parsadi Lal died. On the 7th of March 1912 the decree-holder applied for execution of the decree absolute for sale. Parsadi Lai s sons then came into Court claiming that the property sought to be sold, being joint ancestral family property, was not liable for sale in execution of the decree against Parsadi Lai. THEy laid their case before the Court originally in the form of a separate suit for a declaration : but the matter has been dealt with as an objection in execution under the provisions of Section 47 of the Code of Civil Procedure. THE parties were at issue in the Courts below on various questions of fact. 1 must now take it as established that the property mortgaged in 1893 was joint family property, that it is not proved that the money advanced to Parsadi Lal on this contract of- mortgage was required either to pay an antecedent debt or to meet any family necessity. On the other hand it is, not proved that the loan was tainted with -immorality. After the first Court had accepted the objection of the judgment-debtors sons of Parsadi Lai, the decree- holder, took the matter before the Court of the District Judge in first appeal. His memorandum of appeal contains certain general pleadings to the effect, that the decision of the first Court was contrary to law and the merits of the case : but it is clear that the only question of law actually argued was that the burden of proving that the money advanced on the mortgage of 1893 was not borrowed for legal necessity should have been laid on the judgment-debtors. THE lower Appellate Court overruled this plea and affirmed the order of the first Court, refusing to sell the property in question. Coming to this Court in second appeal the decree-holder urges two pleas : firstly, that the sons of Parsadi Lai, by reason of their pious duty as Hindu sons to discharge their father s debts not tainted with immorality, arc liable for the money due to the appellant under his decree and cannot contest the decree-holder s right to bring the property to sale. 1. secondly, it is pleaded that in any case the share of the father alone, or what would have been the share of the father alone, or what would have been the share of the father on a partition between himself and his sons is liable under the decree and should have been ordered to be sold. It will be seen that the pleadings in this Court involve a considerable amplification of the case set up before the lower Appellate Court : but I have allowed the case to be fully argued on the pleadings as stated. With regard to the first plea, the appellant relies in the main on certain older decisions of this Court, the substance of which is in effect summed up in the Full Bench case of Pem Singh v. Partab Singh 11 A. 179 : A.W.N (1892) 49. THEre are propositions of law laid down in this ruling, and in two older cases of this Court therein referred to, which do, on the face of them, support the appellant s case. I should be prepared, if necessary, to go into the facts of this case and of the cases therein referred to, to show that they are distinguishable from those of the case now before me : but the real question is whether all the propositions of law laid down in this case can now be accepted as authority in this Court, in view of the trend of recent decisions, and more particularly of that of the majority of the Full Bench in Chandra Deo Singh v. Mata Prasad 1 Ind. Cas. 479 : 31 A. 176 : 6 A.L.S. 263. THEre are two principles of Hindu Law involved, and it was pointed out as long ago as the case of Nanomi Babuasin v. Modhun Mohun 13 C. 21 : 13 I.A. 1 that it is not easy to lay down the precise limits of their respective operation. THE pious duty of Hindu sons to pay their father s debts not tainted with immorality seems to be invoked in some cases in a manner destructive of the entire principle of the joint ownership of father and sons in respect of the whole family property. It seems of little practical use to lay down that a Hindu father cannot alienate even his own undivided share [Vide Kali Shanker v. Nawab Singh 3 Ind. Cas. 909 : 31 A. 507 : 6 A.L.J. 762.] in the joint ancestral family property, if he can at any moment sell or mortgage the whole of this property for cash down, and the sons can only get rid of the alienation, assuming the money not to have been used for immoral purposes, by re-paying the entire consideration to the vendee or mortgagee. It must be remembered that there can be no logical distinction between alienations by way of sale and alienations by way of mortgage, so far as the application of this principle goes. This is strikingly illustrated by the decision of the Calcutta High Court in Koer Hasmat Rai v. Sundar Das 11 C. 396. where a sale of joint ancestral family property for cash down was only set aside at the instance of the vendor s sons, conditionally on the re-payment of the consideration. I conceive that a practical check of no small value is imposed on the dealings of a Hindu father with the joint family property in his hands by the principle laid down by this Court in Chandradeo Singh s case 1 Ind. Cas. 479 : 31 A. 176 : 6 A.L.S. 263, simply because money lenders will not advance large sums without security. If the decision in Chandra Deo Singh s case 1 Ind. Cas. 479 : 31 A. 176 : 6 A.L.S. 263. is sound, it must logically rest on the principle that when a money lender offers cash consideration to the father of a joint Hindu family in return for an alienation by way of sale or mortgage of joint ancestral family property in his hands, he is asking the father to do something which the latter has no right to do, except for family necessity. THE principle involved in Chandra Deo Singh s case 1 Ind. Cas. 479 : 31 A. 176 : 6 A.L.S. 263. has been applied in various subsequent rulings of this Court. I am content to refer to the cases of Bhagwati Prasad, v. Ganga Prasad 11 Ind. Cas. 930 : 8 A.L.J. 649,and Gaya Prasad Umer v. Raghunath Rai 12 Ind. Cas. 178 : 8 A.L.J. 1022. On the principles involved in these rulings 1 am satisfied that the appellant cannot successfully contest the decisions of the Courts below, in . so far as they have refused to direct the sale of the whole of the property involved in the decree obtained against Parsadi Lal alone. 3. I now pass on to the other point taken on behalf of the appellant. This is based on a principle totally distinct from that of the pious duty of the sons to discharge their father s debts. THE principle involved is that which has been spoken of by their Lordships of the Privy Council as the "seizable character of an undivided share in the joint property." It is obviously necessary, in order to avoid confusion of thought, to keep this principle wholly separate from the other principle regarding the liability of the sons in respect of their pious duty on which the first part of the appellant s case is based. For instance, if the proceedings in the present case had continued in the life-time of Parsadi Lal and had ended in an auction -.sale of the mortgaged property, no objection in the meantime being taken by the sons in execution, that sale would, on the findings of fact recorded in this case, have been so far binding on the sons that they could not have set it aside without paying the entire mortgage-debt. This, however, would be by reason of the operation of the former of the two principles already discussed. THE : alienation sought to be set aside in this hypothetical case would no longer be Parsadi Lai s mortgage in the year 1893, but an alienation by way of sale in satisfaction of the decree passed on the said mortgage, and the mortgage, with this subsequent decree thereon, would have become an antecedent debt in .respect of the alienation by way of sale. In the present case Parsadi Lal died after the final decree for sale had been passed, but before any steps by way of execution of the said decree had been taken. Now in the Privy Council case which I quoted just now, namely, that of Suraj Bansi Koer v. Sheo Prasad Singh 5 C. 148 : 4 C.L.R. 226 : 6 I.A. 88. there had been an attachment of the joint family property in the life-time of a Hindu father in execution of a decree upon a mortgage executed by him. THE proceedings in that case were prior to the Transfer of the Property Act (IV of 1882) and apparently the property could not be sold without previous attachment. THEir Lordships held that by reason of this attachment, a charge had been created on the property so attached to the extent of the Hindu father s undivided share and interest in it, and this charge could not be defeated by his death before the actual sale. This ruling was applied and followed by this Court in Bakhtawar Singh v. Brij Mohan Lal 3 A.L.J. 127 : A.W.N. (1906) 10. THE point in both these cases seems to me to turn on the fact that there had been an attachment. It has been contended with ingenuity on behalf of the appellant that, inasmuch as an attachment is not required before a property is brought to sale under a mortgage decree, the effect, either of the preliminary decree for sale or, of the final decree passed against Parsadi Lal in his life-time, must be held to be analogous to that of an attachment. THEre is one obvious distinction to be drawn from the fact that a decree in itself is notice to no one except to the parties concerned, whereas an attachment is a notice to the actual owners of the property attached, whoever they may be, if not to the whole world. If there had been in the present case some proceedings in execution, as for instance, a sale, proclamation in the life-time of Parsadi Lai, there might perhaps be ground for applying the principle laid down in Suraj Bansi s case 5 C. 148 : 4 C.L.R. 226 : 6 I.A. 88. To accept the appellant s contention, on the facts of this case as they stand, would be equivalent to holding that a decree in a suit to which Parsadi Lai s sons were not parties would have an effect on their interests in the property made the subject-matter of the decree. This seems to me in itself an unsound principle and I can find no authority for extending the principle laid down in Suraj Bansi s case 5 C. 148 : 4 C.L.R. 226 : 6 I.A. 88. so as to cover the facts of the case now , before me. If the sons had been impleaded as parties to the suit brought by the present appellant on his mortgage, they could have set up in defence to such a suit the very pleas which they are now urging against the proposed order for sale : and on the principle governing the decision in. Gaya Prasad v. Raghunath Mai 12 Ind. Cas. 178 : 8 A.L.J. 1022, they could have successfully maintained these objections upon the facts found in the present case. I do not think that they should be in a worse position merely because they were not impleaded at all in the mortgage suit. For these reasons I am of opinion that this appeal cannot be sustained. It is accordingly dismissed with costs including fees on the higher scale.