GUNDI LAL Vs. BASDEO

JUDGEMENT

(1.) This is one of those cases in which a mortgage by Hindu father has been challenged by his sons. One of the items in the mortgage is a previous mortgage on the same security, and the lower Courts following the ruling of their Lordships of the Privy Council in Sahu Ram Chandra V/s. Bhup Singh AIR 1917 PC 61 have held that prior mortgage is not an antecedent debt, and is not binding on the estate. In appeal we have been asked to hold that the judgment on which the lower Courts relied has been overruled by their Lordships in the case of Brij Narain Rai V/s. Mangla Prasad Rai AIR 1924 PC 60. It has also been brought to our notice that two Judges of this Court in Gouri Shankar Singh V/s. Sheo Nandan Misra AIR 1924 All 543 have apparently come to the conclusion that every prior mortgage must be treated as an antecedent debt. On page 372 the following passage appears: Returning to the question of antecedent debt it seems to us plain from this recent decision of their Lordships that the definition of antecedent debt which was given in Sahu Ram Chandra's case AIR 1917 PC 61 has been materially altered. As we read this latest pronouncement of the Full Board of the Judicial Committee we understand antecedent debt to mean merely a debt which is antecedent in fact as well as in time that is to say a debt truly independent of and not part of the transaction impeached.... It cannot therefore be doubted that the debt which was raised by the mortgage of 1904 must now under this recent ruling be treated as an antecedent debt

(2.) It appears from the judgment that this was not the main question which the Court set out to decide; and if it is to be taken as a general finding that all previous mortgages must be held to be antecedent debts, we are not prepared to agree with that decision. The judgment of their Lordships of the Privy Council is a final pronouncement in which every word must receive its full value. Their Lordships set out to make certain rules for general guidance which had become necessary owing to difficulties arising from two conflicting principles of Hindu Law, namely the restriction laid upon the manager of a Hindu family from binding the estate without compelling cause and the duty of Hindu sons to pay their father's debts. Their Lordships point out that "the term antecedent debt represents a more or less desperate attempt to reconcile the conflicting principles." They go on to say: It seems to have been felt that if the debt for which a mortgage was given was in any proper sense antecedent then it so to speak escaped the direct infringement of the principle that the father manager could not burden the estate except for necessity:

(3.) In view of this they restrict the case of Sahu Ram Chandra V/s. Bhup Singh AIR 1917 PC 61 by, saying that. it must not be taken to decide more than what was necessary for the judgment namely that the incurring of the debt was there the creation of the mortgage itself and that there was no antecedency either in time or in fact