JAGANNATH Vs. GAJADHAR

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 that 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. Chhedi Rai (1922) I.L.R. 44 All. 628, and certain older decisions of this Court, more particularly Dalip Singh V/s. Kundan Lal (1913) I.L.R. 35 All. 207. In this latter 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. Sarju Singh (1911) 8 A.L.J. 1099. I apprehend that the result of the decision which we are today pronouncing will be to overrule this case, as also Dalip Singh's case. I, 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 case (1922) I.L.R. 44 All. 628. 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, the 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 incurs 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 the Court had to decide in Indar Singh V/s. Sarju Singh (1911) 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's case 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 Chandradeo's case (1909) I.L.R. 31 All. 176 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 Chandradeo's ease. I have now has 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 Brij Narain V/s. Mongol Prasad (1923) I.L.R. 46 All. 95, 104, 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 that the principle of the antecedent debt can no longer be rightly interpreted as it was done by us in the case of Indar Singh V/s. Sarju Singh (1911) 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.