RAM REKHA SINGH Vs. GANGA PRASAD MUKARADDHWAJ

JUDGEMENT

(1.) In view of a difference of opinion as disclosed by certain unreported cases, this appeal has been referred to a Full Bench. The facts are as follows: The great- grandfather and the grandfathers of the plaintiffs executed a mortgage deed of joint family property in 1889 in favour of the ancestor of the contesting defendants. The present plaintiffs were not then born but the fathers of the plaintiffs were alive and did not join in the deed. Between 1889 and 1910 three of the plaintiffs were born and by birth acquired an interest in the family property. Before the period allowed by Section 31 of the Limitation Act of 1908 expired, the fathers of the plaintiffs acting for themselves and as guardians of their minor sons, jointly with the uncle and the grandfather of the Plaintiff No. 3, executed a fresh mortgage-deed of the same property in favour of the same mortgagee and in lieu of the bulk of the amount due on the previous document, the remaining portion being remitted. In 1920 the mortgagees sued on the last-mentioned mortgage, impleading the present plaintiffs under the guardianship of their respective fathers. The other adult members of the family were also impleaded. No one contested the suit and an ex-parte decree for sale was passed, which was subsequently made absolute. The plaintiffs now sue for a declaration that the decree of 1920 is not binding on them as they were not properly represented. They allege that the mortgage debt was without any legal necessity and therefore not enforceable against the family property. Both the Courts below have dismissed the suit.

(2.) Assuming that there have been such irregularities in the appointment of the guardian ad litem in the previous suit as to entitle the plaintiff's to re-open the question, they cannot by merely showing irregularities succeed unless they can satisfy the Court that they have been prejudiced and have been deprived of some good defence which was open to them. The respondents position is that the mortgage of 1910 being in lieu of the amount due on the previous mortgage of 1889 was in lieu of an antecedent debt of the fathers and grandfathers of the plaintiffs and is binding on them, even though no legal necessity for the advance of 1889 be shown. In the alternative they maintain that the debt of 1889 was in itself good and binding on the family.

(3.) The main point which arises for the consideration of the Full Bench is whether where a previous mortgage deed is renewed in favour of the same mortgagee and the consideration for the subsequent deed is the amount due on the earlier one, the alienation can be deemed to be in lieu of an antecedent debt so as to be binding on the sons unless they can establish immorality or illegality. The answer to the question depends on the interpretation of the authoritative pronouncement of their Lordships of the Privy Council in the case of Brij Narain V/s. Mangal Prasad AIR 1924 PC 50. Before discussing this case it seems desirable to point out what was understood by the expression antecedent debt in a few previous leading cases.