GAJADHAR Vs. JAGANNATH

JUDGEMENT

(1.) The question referred to this Full Bench having been amended during the argument is as follows: "whether a time-barred debt can constitute a valid antecedent debt as consideration for a sale-deed given by a father of a joint Hindu family alienating joint ancestral family property?"

(2.) I entertain no doubt that the question ought to be answered in the affirmative and I do not propose to add to the reasons given by my brothers. Piggott, J.

(3.) This question has been referred to a Full Bench by reason of a conflict in authority, understood to exist between the decision in Ram Kishan Rai V/s. Cheddi Rai 68 Ind. Cas. 235 : 20 A.L.J. 577 : 44 A. 628 : (1922) A.I.R. (A) 402 and certain older decisons of this Court, more particularly Dahp Singh V/s. Kundan Lal 18 Ind. Cas. 776 : 11 A.L.J. 244 : 35 A. 207. In this later case the learned Judges quoted with approval, and purported to follow an older decision of a Bench of this Court of which I was myself a member in the case of Indar Singh V/s. Suraj Singh 11 Ind. Cas. 737 : 8 A.L.J. 1099, I apprehend that the result of the decision which we are to-day pronouncing will be to overrule this case, as also Dalif Singh's case. 1, therefore, feel it incumbent upon me to say a few words in explanation of my own position; otherwise I should have been content to leave this question to be decided on the authority of the Hindu Judges who are members of this Bench. As a matter of fact I should unhesitatingly have concurred with the learned Judges who decided Ram Kishan Rai's 68 Ind. Cas. 235 : 20 A.L.J. 577 : 44 A. 628 : (1922) A.I.R. (A) 402 case. Under Section 25 of the Indian Contract Act a Hindu father like any other person, can enter into a valid contract by promising to pay a debt formerly incurred by himself, that payment of which can no longer be enforced by reason of the law governing the limitation of suits, if a Hindu father enters into a contract of this nature he in cures a legal liability personal to himself from the date of this new contract. The liability does not, as it seems to me, differ in principle from that which the father incurred when he contracted the debt originally. The sons, therefore, can be made liable in a suit upon a promissory note or simple bond executed by their father the consideration for which was a previous debt which was statute-barred when the said bond or promissory note was executed. It does not seem to me, however, that this principle of law suffices to determine the question which this Court had to decide in Inder Singh V/s. Sarju Singh 11 Ind. Cas. 737 : 8 A.L.J. 1099. Suppose a Hindu father, instead of giving a simple money bond in satisfaction of the statute-barred debt, enters into a contract of mortgage which involves an alienation of joint ancestral property belonging to himself and his sons. The real meaning of the decision in Indar Singh V/s. Sarju Singh 11 Ind. Cas. 737 : 8 A.L.J. 1099 is that in the opinion of the learned Judges who decided that case, the antecedent debt of his own in satisfaction of which a Hindu father may make an alienation of joint ancestral family property which his sons cannot question except on the plea that such debt was contracted for immoral purposes must be an antecedent liability which is still enforceable against the father on the date on which the alienation of joint family property is effected. We were really applying the principle laid down by the majority of the Full Bench of this Court in Chandra Deo's case and subsequently affirmed by their Lordships of the Privy Council, subject to this that we interpreted the words "antecedent debt" in that case as equivalent to "a subsisting liability, previously incurred." On the date on which the Hindu father, in the case which we are supposing, executed the contract of mortgage, he was under no liability enforceable against him by law; he created a liability enforceable against himself when he signed the contract of mortgage. That liability we treated as being on the same footing as the liability which the father might incur by raising a loan on the security of joint family property under the very contract of mortgage which he was signing. We held, in effect, that a liability against the father which only came into existence when he signed the contract of mortgage could not be treated as an antecedent liability validating an alienation of joint family property on the principle laid down in Chandra Deo's case. I have now had an opportunity of considering the entire question in the light of the arguments which have been addressed to us and of the opinions expressed by the senior Hindu Judge who is a member of this Bench, Undoubtedly the pious duty of Hindu sons to discharge their father's debts, not tainted with immorality, cannot be affected by the usual statute of limitation, in the case of Raja Bahadur Raja Brij Narain Rai V/s. Mangai Prasad Rai 77 Ind. Cas. 689 : 46 A. 96 at p. 104 : 21 A.L.J. 984 : 46 M.L.J. 23 : 5 P.L.T. 1 : 28 C.W.N. 253 : (1924) M.W.N. 68 : 19 L.W. 72 : 2 P.L.R. 41 : 10 O. & A.L.R. 82 : 33 M.L.T. 457 : 26 Bom L.R. 500 : 11 O.L.J. 107 (P.C.) their Lordships of the Privy Council have summed up the law on this question of alienations of co-parcenary property by the manager of a joint undivided estate. They have expressly laid it down that if such manager is the father, he 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, it seems to me to follow that if the father, instead of waiting for a decree to be passed and the estate to be taken in execution himself sells a portion of that estate in order to satisfy a previous debt of his own not incurred for immoral purposes, the sons by reason of their pious duty can no more challenge a voluntary alienation of this sort than they could have done an auction sale in execution of a simple money decree, in this view of the case it seems to me the principle of the antecedent debt can no longer be rightly interpreted as it was done by us in the case reported in Indar Singh V/s. Suraj Singh 11 Ind. Cas. 737 : 8 A.L.J. 1099 as if the expression were equivalent to an existing liability antecedently incurred. Stress must be laid on the fact that the debt was one incurred by the father prior to and altogether independently of, the alienation of the Joint family estate by which he proposes to satisfy it. i concur, therefore, in the answer proposed to the question before us for decision. Kanhaiya Lal, J.