GAJADHAR PANDE Vs. JADUBIR PANDE

JUDGEMENT

(1.) The facts of the case are that a portion of plot No. 44 belonged to a joint Hindu family consisting of Salik Pande and his sons Bam Jag and Gajadhar. The father was the manager and Gajadhar was a minor. On the 2nd of July, 1890, the father and his son Ram Jag made a simple mortgage of the property in favour of Jagannath. Subsequently on the 31 of January, 1900, the father and some other co-sharers mortgaged the entire plot with possession to one Mangru. In 1903 Jagannath filed a suit for sale on the basis of his mortgage-deed, and obtained a decree for sale against the mortgagors alone. To that suit Gajadhar was not made a party. The property was sold in execution of the decree and was purchased by the decree-holder himself. The decree-holder subsequently sold the share purchased by him to Jadubir Pande, who got mutation of names effected in his favour.

(2.) It is however a fact that inasmuch as the plot in question was in the possession of the subsequent mortgagee, Jadubir Pande could not have obtained actual and effective possession over the property. Gajadhar and other minor members of his family brought this suit for a declaration that the execution sale, the auction-purchase and the transfer to Jadubir were not binding on them inasmuch as the mortgage of 1890 had been executed without any legal necessity. There was no allegation that the debt had been tainted wibh any illegality or immorality. The Court below decreed the claim. On appeal a learned Judge of this Court has dismissed the suit. He came to the conclusion that when the property had been sold in auction in execution of a decree against the father, then it was not open to his sons and grandsons to have the sale set aside on the mere ground that the debt on the basis of which the decree had been obtained had been without any legal necessity or not in lieu of any antecedent debt. It was further necessary for the plaintiffs to establish that that debt had been tainted with illegality or immorality. This was the view expressed by one of us in the case of Ram Chandar V/s. Haji Md. Nur A.I.R. 1923 All. 591, and is quite in conformity with the latest pronouncement of their Lordships of the Privy Council in the case of Brij Narain V/s. Mangla Prasad A.I.R. 1924 P.C. 50. In that case their Lordships entirely agreed with the view of the learned Chief Justice in the Full Bonch Madras case of Arumugham Chetty V/s. Muthu Koundan (1919) 42 Mad. 711 where it had bean held by him that an independent debt, neither immoral nor illegal, contracted by a father on the security of the joint family estate, antecedent to a mortgage sued on, could be treated as an antecedent debt so as to support a charge on the sons shares also to the extent of the sums secured on the prior mortgage. That finding drew no distinction between a secured debt and a simple money debt. On the other hand that was a case expressly of a mortgage-debt. Their Lordships of the Privy Council at page 139 in 51 Indian Appeals laid down certain propositions as the result of the authorities referred to by them. The second proposition stands as follows: If he is the father and the other members are the sons, he may by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree in payment of that debt.

(3.) "It is obvious that if the word "debt" in this proposition includes both a mortgage debt and a simple money debt, the appellants contention cannot prevail, because the father, having incurred the mortgage-debt in question which was not for an immoral purpose, did lay the estate open to be taken in execution of the mortgage decree passed for the payment of that debt. The learned Vakil for the appellants, however, contends before us that the word debt there only means a simple money debt and not a mortgage-debt, and relies on the wording of the proposition No. 5 where it is stated that there is no rule that the result is affected by the question whether the father, who contracted the debt or burdens the estate is alive or dead. In our opinion this argument cannot be accepted. Their Lordships in the proposition No. 5 were clearly referring to all the previous contingencies and had therefore to use both the expressions.