SHEO PRASAD Vs. BALWANT SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage, dated the 9 of April 1918, executed by Balwant Singh, Defendant No. 1, in favour of the plaintiff Sheo Prasad and his father Tota Ram, since deceased. Among the defendants are the mortgagor's grandson Malhan Singh and a number of subsequent transferees. The mortgage-deed in question was executed for a sum of Rs. 7,000. The bulk of the consideration was set off against the amounts due on three previous mortgage-deeds, dated the 6 of February 1901, the 17 January 1906, and the 19 of November 1907, in favour of the plaintiff's family. Rs. 60 were taken for purchasing stamp paper and meeting the expenses of the execution and registration, and Rs. 125 were taken professedly for payment of Government revenue. The defendants denied the validity of this mortgage-deed. It is not now disputed that the property covered by this mortgage was joint ancestral property and that the mortgage debt cannot be enforced against the other members of the family and subsequent transferees unless the deed was executed in lieu of antecedent debts or was for legal necessity.

(2.) At the time when the learned Subordinate Judge delivered his judgment the interpretation put by this Court on the expression "incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate" occurring in the judgment of their Lordships of the Privy Council in Sahu Ram Chandra V/s. Bhup Singh [1917] 39 All. 437 I.C. 280 was that amounts borrowed under previous mortgages secured on joint family property could not amount to antecedent debts; vide Mangal Prasad V/s. Brij Narayan [1919] 41 All. 235. The learned Subordinate Judge accordingly brushed aside the question of antecedency of the debts and proceeded only to consider whether there was legal necessity to support the debt. He ought to have kept the question of the existence of the consideration of the previous mortgages quite separate and distinct from the question of their being for legal necessity. He examined every item with a view to ascertain whether legal necessity had or had not been established. But on the question whether consideration had in reality passed, he left many items unconsidered. His finding that legal necessity for some of those items has been proved cannot be seriously challenged in appeal. The position taken up by the learned advocate for the appellant is that the learned judge has wrongly called upon the plaintiff to establish legal necessity For These previous debts.

(3.) Had it not been for two recent decisions of a Bench of this Court, to be referred to presently, I would have had no hesitation in saying at once that the amounts actually due on the previous mortgages of 1901, 1906 and 1907 were good antecedent debts, in lieu of which the mortgage in suit could have been validly made. In the Full Bench case of Chandra Deo Singh V/s. Mata Prasad [1909] 31 All. 176, Stanley, C.J., remarked: Now by the expression "antecedent debt." I understand a debt which is not for the first time incurred at the time of a sale or mortgage that is presently incurred, but a debt which existed prior to and independently of such sale or mortgage. It must be a bona fide debt not colourably incurred for the purpose of forming a basis for a subsequent mortgage or sale or other similar object.