SUBBARAYULU CHETTIAR Vs. RATNAM AYYAR

JUDGEMENT

(1.) This appeal is against the decision of the lower appellate Court in a suit by three minor sons in a Hindu joint family to set aside a sale of joint family property by their father and to recover the property. The original Court dismissed the suit holding that the sale was binding on the plaintiffs. The lower appellate Court held that it was not binding on the plaintiffs share, and decreed them possession under certain conditions. Defendant 1, the alienee, appeals and the plaintiffs have put in a memorandum of objections.

(2.) The sale deed is Ex. 1 dated 11 May 1922 and is for Rs. 2,500. It was executed by the father and two adult brothers of the plaintiffs, all the members of the family who were then majors, for themselves and on behalf of their minor brothers, the plaintiffs. The main consideration recited in it is a mortgage debt evidenced by Ex. 3, executed on 2 July, 1920 by the above members of the joint family in favour of their maternal uncles for a principal sum of Rs. 1,800 with interest payable monthly at nine annas per Rs. 100 per mensem. The period for Redemption was fixed as 1 July 1924. The amount due on Ex. 3 on the date of Ex. 1 was Rs. 2,038-5-9. It is admitted that this mortgage debt has not yet been paid off. In view chiefly of the fact that the mortgage had not be come payable on the date of Ex. 1 and that it was at a very low rate of interest which he finds to be less than the income of the lands sold to discharge it, the Subordinate Judge held that the sale was not a prudent and justifiable act and therefore did not bind the minor plaintiffs.

(3.) This finding is attacked by the appellant as involving fundamental errors of law on two main grounds: first, that apart from the question of justification, the mortgage was an "antecedent debt" by the plaintiffs father and manager, which the plaintiffs are bound to discharge, and secondly, that if justification is necessary, there is sufficient justification. I have so far heard argument on the first point, a point which the lower appellate Court has omitted to consider although it was raised in the first Court. It is now settled law that when the father of a joint family has alienated joint family property for an antecedent debt, that is, a debt dissociated in time and fact from the sale itself, and the property has passed to the alienees, the joint family cannot recover except upon proof that the debt was. for immoral or illegal purposes. The plaintiffs insist that it is essential for the application of this doctrine that the debt should have become payable and have been paid by the alienee, that is, that the alienee cannot succeed unless he has paid the full consideration and discharged the antecedent debt. The plaintiffs contend that the above proposition of law has been reached by the Courts in an endeavour to do justice to a bona fide alienee for value who has parted with his cash and has perhaps for a long time enjoyed the property, on the consideration that he should not be incontinently turned out because certain minor members of the family who have presumably received and benefited by the value received choose to attack the transaction. They therefore argue that this legal principle cannot apply to a case where the so-called antecedent debt had not even become payable and the alienee has not parted with cash, and urge that unless such an interpretation is given to the principle, the father could sell the joint family properties for merely nominal debts, receiving no consideration at all from the alienee and leaving the joint family as before still under liability to the creditors for the debts. The family, they urge, must have had its quid proque and must have been in fact relieved of its debt. That seems not an unreasonable proposition, but as the proposition of law which I am considering is deduced from the Mitakshara law, which is not always such as to commend itself to one's reason, I have rather to consider whether the respondents contentions find any support in the law as expounded by the Courts.