ARUMUGHAM CHETTY Vs. MUTHU KOUNDAN

JUDGEMENT

(1.) This reference raises the question whether the rule as to the validity of a father s alienation for an antecedent debt is inapplicable where the antecedent debt itself has been contracted on the security of the family property, as held in Badagala Jogi Naidu v. Bendalam. Papiah Naidu on the authority of certain observations of the Privy Council in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437 : 33 M.L.J. 14 : 44 I.A. 126. The question is of great importance owing to the far reaching consequences of our decision, and has received our anxious consideration.

(2.) The Appeal to the Privy Council was filed to challenge the decision of the majority of the Allahabad High Court in Chandradeo Singh v. Mata Prasad (1909) I.L.R. 31 All. 176 dissenting from the view taken in Khalil-ul-Rahman v. Govind Pershad (1892) I.L.R. 20 Cal. 328 and in Chidam-bara Mudaliar v. Koothaperumal (1903) I.L.R. 27 Mad. 326 and agreeing with the later Madras decision in Venataramanaya Pantulu v. Venataramana Doss Pantulu (1805) I.L.R 29 Mad. 200 that there must be an antecedent debt to support the father s alienation. In their judgment disposing of this most controverted question their Lordships frequently referred with approval to the exhaustive judgment of Sir John Stanley, C.J., in the case first mentioned, and, even as will be shown, adopted his enunciation of the true rule as to antecedency in terms which, it is to be noted, do not contain the further restriction now contended for.

(3.) We have next to consider the observations relied in the judgment and the context in which they occur. Their Lordships in the course of their judgment had pointed out that the rule validating an alienation by the father for an antecedent debt of his own which was neither illegal nor immoral was an exception to the general rule of the Mitakshara which should not be extended, and, after referring to their earlier decisions and setting out the well-known passage in Mussamut Nanomi Babuasin v. Modun Mohun (1885) L.R. 13 I.A. 1 in which it is laid down that the sons cannot set up their rights against the father s alienation for an antecedent debt, they proceeded to observe : " In their Lordships opinion these expressions, which have been the subject of much difference of legal opinion, do not give any countenance to. the idea that the joint family estate can be effectively sold or charged in such a manner as to bind the issue of the father, except where the sale or charge has been made in order to discharge an obligation not only antecedently incurred, but incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate. The exception being allowed, as in the state of the authorities it must be, it appears to their Lordships to apply, and to apply only, to the case where the father s debts have been incurred irrespective of the credit obtainable from immoveable assets which do not personally belong to him but are joint family property. In their view of the rights of a father and his creditors, if the principle were extended further, then the exception would be made so wide as in effect to extinguish the sound and wholesome principle itself, namely, that no manager, guardian, or trustee can be entitled for his own purposes to dispose of the estate which is under his charge. In short, it may be said that the rule of this part of the Mitakshara Law is that the joint family estate is in this position: under his management he can neither obtain money for his own purposes for it nor can he obtain money for his own purposes upon it. To permit him to do so would enable him to sacrifice those rights which he was bound to conserve. This would be equivalent to sanctioning a plain and, it might be, deliberate breach of trust. The Mitakshara Law does not warrant or legalise any such transaction." The limits of the principle of the exception have been thus set forth because in their Lordships opinion they form a guide to the settlement of the conflict of authority in India on the subject of antecedent debt.