BADAGALA JOGI NAIDU Vs. BENDALAM PAPIAH NAIDU

JUDGEMENT

(1.) We must accept the learned District Judge s findings of fact (1) that Exhibits B and C are genuine, (2) that family necessity has not been proved for the debts secured by Exhibit A apart from the fact that there was a prior debt due to the plaintiff secured by the previous instruments (Exhibits B and C) executed by the 1st defendant and 3rd defendant and their fathers which mortgaged the family property.

(2.) On the question of law, which is whether a prior mortgage over joint family property created by a father can be treated as an antecedent debt for the purpose of binding his sons interest in co-parcenary property in a subsequent mortgage between the same parties, I think we are bound to give the fullest effect to the words of Lord Shaw in Sahu Earn Chandra v. Bhup Singh (1917) 33 M.L.J. 14 If the arguments advanced before their Lordships are read with what preceded and followed this expression of the Judicial Committee s opinion, there cannot be any doubt as to what was meant by the words " 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."

(3.) If the law were different from what it is here pronounced to be, it would be open to a father to create a mortgage over the joint estate of himself and his sons one day and the next day to execute a second mortgage over the same property citing the first mortgage as an antecedent debt to make the transaction binding on the sons interest. The effect would be to give the sanction of law to the very evil which the Privy Council seek to avoid when they speak of undue and improper extension of this exception in respect of antecedent debts to the manager s power of mortgage.