IMANI SATYANARAYANA Vs. DEVARAKONDA SATYANARAYANAMURTHI

JUDGEMENT

(1.) This is an appeal against a decree on a mortgage executed by the 1st defendant, father of defendants 2 to 5. The mortgage was executed in order to discharge a prior mortgage deed executed by the 1 defendant in 1906, Ex. B, the suit mortgage being (Ex. A), dated 10 October, 1915. The Subordinate Judge has given a decree holding that the mortgage, having been executed to discharge an antecedent debt of the father, is binding upon the sons shares, and he relies on the Full Bench decision of this Court in Arumugam Chatty V/s. Muthu Goundan (1919) I.L.R. 42M. 711 : 37 M.L.J. 166 (F.B.).

(2.) For the appellants it is contended that the decision is not applicable, because in the present case a portion of the previous debt could only be enforced as a mortgage debt and not as a personal debt of the father. This question has not been considered in the Lower Court and it is not at all clear whether the personal liability is barred or not in respect of the first three instalments. Whether it is barred or not, however, the case can be disposed of on another ground. It has definitely been held in Gauri Skankar Singh V/s. Sheonandan Misra (1924) I.L.R. 46 All 384 that a mortgage debt, whether the personal liability is barred or not, is an antecedent debt binding on the sons shares. This same principle has been adopted in Arumugam Chetty V/s. Muthu Goundan (1919) I.L.R. 42M. 166 : 37 M.L.J. 166 (F B), and although it may be said that in that case the personal liability had not been barred and that therefore the decision is not strictly in point, yet in view of the form of the questions propounded by the Referring Bench it is clear from the judgment that the first of the questions was dealt with as a general question, and in effect the decision of the Full Bench is that any prior mortgage debt due by the father is valid as an antecedent debt, and this "decision is not qualified by an expression of opinion that the mortgage debt must also be enforceable as a personal liability.

(3.) We therefore follow these two cases and dismiss the appeal with costs.