Misra, J.:— The question before the Full Bench is whether the word “debt” in the second proposition laid down by their Lordships of the Judicial Committee in Brij Narain v. Mangala Prasad refers only to a simple money debt or also a debt secured by a mortgage. The reference became necessary of a conflict of views on this point between the majority opinion to which, expression was given by Mukerji and Boys, JJ., in Jagdish Prasad v. Hoshyar Singh(2) and the decisions of the Avadh Chief Court represented by Nand Lal v. Umrai(3).

The suit which gives rise to the appeal was for a declaration that a simple mortgage deed of a house executed on 12th September, 1930, jointly by Khairati Lal, defendant no. 1, and his son Puran Chand, defendant no. 2, in favour of Puran Lal in lien of Rs. 2,000 and a decree for sale based thereon in favour of Puran Lal's successor Mst. Janki, defendant no. 3, are void. The house was purchased in 1907, by Khairati Lal's; father Kali Charan. On his death it devolved on Khairati and his son Puran Chand. The principal plaintiffs in the suit are the sons of Puran Chand. They joined with them Kali Charan's brother Hira Lal as plaintiff no. 1. The following pedigree will show the array of the parties:

The plaintiffs alleged that Kali Charan was a member of the joint family consisting of himself and his two brothers Hira Lal and Jawahir Lal, that Jawahir Lal separated long time ago, that thereafter Kali Charan and Hira Lal remained joint, that the house in suit was purchased from the funds of the joint family of Kali Charan and Hira Lal, that Puran Chand was a minor at the time of the execution of the deed and that the mortgage of 1930, was without legal necessity. They claimed, therefore, that the deed and the decree of Mst. Janki based thereon did not bind the plaintiffs.

The suit was dismissed by the trial court, and the decision was upheld by the learned Civil Judge, Malihabad in appeal. The findings reached by the courts below were as follows:—

(1) that the house belonged exclusively to Kali Charan,

(2) that on the death of Kali Charan, Khairati Lal inherited the house, and his sons and grandsons acquired interest in it by birth,

(3) that Hira Lal was joint with Kali Charan,

(4) that the plaintiffs failed to prove that Puran Chand was a minor at the time of the execution of the mortgage deed,

(5) that it was not proved that Puran Chand's sons were born after the execution of the deed in suit,

(6) that the loan was not shown to be for legal necessity, and

(7) that there was no proof that the debt was incurred for illegal or immoral purposes.

The plaintiffs came up to this Court. Their appeal was heard by Kidwai, J., and the only point urged before him on behalf of the appellants was that in the absence of proof by the creditor of legal necessity or the existence of an antecedent debt the plaintiffs' suit must succeed, because the law did not cast any obligation on them to establish affirmatively that the debt was tainted with immorality. Reference in this connection was made to the well-known five propositions in Brij Narain v. Mangala Prasad which we may reproduce here for the sake of convenience. They are:

(1) The managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity, but

(2) if he is the father and the other members are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.

(3) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate,

(4) Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached.

(5) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.

It was urged on behalf of the appellants that for enforcing a loan it was the duty of the creditors notwithstanding the pious obligation of the sons to pay their father's debts to prove the existence either of necessity or of antecedent debt and that the rule referred to in the second proposition is confined to simple debts of a father. The appellants maintained that it is only in the latter class of cases that a son has to establish that, the debt was tainted with illegality or immorality before he can escape liability in execution proceedings and that in all other cases the burden rests on the creditor to establish that the loan was justified by legal necessity or was for payment of antecedent debt. The argument, eventually boiled down to the contention that the word “debt” in the second of the five propositions was conceived of only as a personal obligation arising out of a simple money debt as opposed to a secured debt. This contention was repelled by Kidwai, J. on the strengthen of the decision in Nand Lal v. Umrai and the appeal was dismissed. The learned Judge, however, gave leave to the plaintiffs to take the case to a Division Bench of the Chief Court under section 12(2), Oudh Courts Act. On the case being laid before the Hon'ble the Chief-Justice and Chandiramani, J. the question stated above was referred to a Full Bench.

The exposition of law in Brij Narain's case is avowedly deduced from the earlier cases and the determination of the question referred to the Full Bench must therefore, depend upon a historical restrospect of the law. Considerable help is in this connection afforded by consideration of the original Hindu law doctrine of pious obligation of the sons to pay their father's debts for it is upon this doctrine that the rule rests.

The doctrine of pious obligation is embedded in the belief which is expressed by Brahaspati thus:

“He who, having received a sum lent or the like, does not pay it to the owner, will be born hereafter in his creditor's house, a slave, a servant, a woman or a quadruped.”

Brahaspati says further that:

“The father's debt on being proved must be paid by the sons as if it were their own.”

According to Narad:

“What is left (of the father's property) when the father's obligations have been discharged and when the father's debts have been paid shall be divided by the brothers in order that the father may not continue a debtor.”

And again:

“When a devotee or a man who maintained a sacrificial fire, dies without discharging his debt, the whole merit of his devotions, or of his perpetual: fire belongs to his creditors.”

He adverts to the matter again:

“A father must not pay the debt, of his son, but a son must pay the debt contracted by his father excepting those debts which have been contracted from love, anger, for spirituous liquor, games or bailments.”

There is the authority of Yajnavalkya for the proposition that:

“He, who has received the estate or the wife of the deceased, should be made to pay his debts or failing either, the son who has not received an inheritance. In the case of a sonless deceased those who take the heritage must be made to pay.”

Again he says:

“A debt evidenced by writing is binding only on three generations.”

A debt according to the Hindu lawyers thus is not conceived of merely as an obligation but as a sin which is visited on the debtor and follows him into the next world. It is plain that the liability to extricate the father from that sin by paying off his legitimate debts is the origin of the religious and moral obligation of the son. Two points are noticeable in this connection. The obligation was in the first place not dependent on the son's receiving any property from the father by inheritance or otherwise, and in the second there was no liability in cases where the nature of the debt was such that it was neither religious nor moral duty of the debtor to discharge it, in other words where the debts were illegal or immoral or were what were called “avyoharik debts.” From the fact that the obligation was not made to depend on any temporal benefits accruing to the sons from the father it would follow that the nature of the estate to which the debt attached was immaterial. The presence or the absence of a collateral security for the discharge of the debt would be equally immaterial, for a debt would be sinful whether or not it was realisable from some specific immovable property. A debt secured by a mortgage, it seems almost axiomatic, is as much a debt of the father as an unsecured debt and considered in the light of the spiritual need which the doctrine of pious obligation was designed to meet, there would, in principle, be scarcely any difference between the two transactions. The security would merely provide a means of recovery, and if the payment of a debt is obligatory on the debtor, and therefore on his sons, the payment of a mortgage debt is also morally and religiously obligatory.

It may also be observed that initially the liability was fastened on the son's not because they were co-parceners with their father or because they were his heirs. The justification for throwing on them the duty to pay was founded on two factors:

(1) that the sons being a part of their father, the duty of the father to repay the debt was equally the duty of the sons, and

(2) that it was incumbent on the sons to relieve the debtor from the sinful consequences of nonpayment.

The existence or non-existence of security it would seem is wholly foreign to this context.

Looked at from another view point the same result reached. It is well known that the sale of a joint family property by the father for the purpose of discharging his debt which was neither illegal nor immoral is binding on the sons. A mortgage to pay off an antecedent debt as well as a mortgage in lieu of a present advance must obviously stand for the purposes of the doctrine on the same footing as the sale and must be governed by the same principle inasmuch as both classes of transfers constitute alienations of the joint estate.

In modern times there has been considerable development in the doctrine of pious obligation. The liability of a son (which term includes a grandson and a great-grandson) to discharge the father's legitimate debts is now conditioned by his inheriting his father's assets (which may be either self-acquired or ancestral). In applying the rule, courts of law have made no distinction between, a debt which is secured and a debt which rests merely on a personal obligation of the father. In Hunooman Persad Pandey v. Mussummat Babooee Munraj Koonweree, Lord Justice Knight Bruce dealing with the case of encumbrance of an ancestral estate remarked:

“Though an estate be ancestral, it may be charged for some purposes against the heir, for the father's debt, by the father, as, indeed, the case above cited from the 6th Volume of the Decisions of the Sudder Dewany Adawlat; North-Western Provinces, incidental shows. Unless the debt was of such a nature that it was not the duty of the son to pay it, the discharge of it, even though it affected ancestral estate, would still be an act of pious duty in the son. By the Hindu Law the freedom of the son from the obligation to discharge the father's debt has respect to the nature of the debt, and not to the nature of the estate, whether ancestral or acquired by the creator of the debt.”

In Girdharee Lall and Runjeet Pandey v. Kantoo Lall Sir Barnes Peacock after quoting the above observation of Lord Justice Knight Bruce remarked:

“It would be a pious duty on the part of the son to pay his father's debts and it being the pious duty of the son to pay his father's debts, the ancestral property, in which the son as the son of his father acquires an interest by birth, is liable to the father's debts.” The rule is, as stated by Lord Justice Knight Bruce:—“The freedom of the son from the obligation to discharge the father's debt has respect to the nature of the debt and not to the nature of the estate, whether ancestral or acquired by the creator of the debt.”

The same view was expressed by Sir James Colvile in delivering the judgment of their Lordships' Board in Suraj Bansi Koer v. Sheo Proshad Singh. The following propositions were propounded in that case:

“1st—that where joint ancestral property has passed out of a joint family either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt or under a sale in execution of a decree for the lather's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted; and

2ndly that the purchasers at an execution sale, being strangers to the suit, if they have not notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings.”

The case related to a sale in respect of an ancestral debt and in formulating the rules which were of general application reference was necessarily made to that kind of debt.

The judgment of Lord Hobhouse in Mussammat Nanomi Babuain v. Modun Mohun, is in this connection of special significance. The law on the subject was there clarified thus:

“There is no question that considerable difficulty has been found in giving full effect to each of the two principles of the Mitakshara law, one being that a son takes a present vested interest jointly with his father in ancestral estate, and the other that he is legally bound to pay his father's debts, not incurred for immoral purposes, to the extent of the property taken by him through his father It is impossible to say that the decisions on this subject are on all points in harmony, either in India or here. But the discrepancies do not cover so wide a ground as was suggested during the argument in this case. It appears to their Lordships that sufficient care has not always been taken to distinguish between the question how far the entirety of the joint estate is liable to answer the father's debt, and the question how far the sons can be precluded by proceedings taken by or against the father alone from disputing that liability. Destructive as it may be of the principle of independent, co-parcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against his creditors' remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate their Lordships think that there is now no conflict of authority.”

It is not contended that the decision in Brij Narain v. Man gala Prasad's case overrules Mst. Nanomi Babuain's case. In the latter case by the phrase “the creditors remedies” Lord Hobhouse obviously meant the remedies by way of institution of a suit, of obtaining a decree in it and of selling the property in execution thereof. If the debt were not tainted, the son's challenge to the debt would obviously fail on the principle laid down by Lord Hobhouse whether it was secured by a mortgage or was a simple money transaction. That this is so is apparent from the following observation in the aforesaid judgment:

“The circumstances of the present case do not call for any inquiry as to the exact extent to which sons are precluded by a decree and execution proceedings against their father from calling into question the validity of the sale, on the ground that the debt which formed the foundation of it was incurred for immoral purposes, or was merely illusory and fictitious. Their Lordships do not think that the authority of Deendayal's case bound the court to hold that nothing but Girdhari's co-parcernary interest passed by the sale. If his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit, or the creditor might legally procure a sale of it by suit. All the sons can claim is that, not being parties to the sale or execution proceedings, they ought not to be barred from tying the fact or the nature of the debt in a suit of their own.”

The next important case to which reference may be made is Bhagbut Pershad v. Mussammat Girja Koer. There the defendants had failed to prove that the loan in respect of which the bonds were executed was required for family necessity. The plaintiffs had also failed to establish that it was applied to immoral purposes. On these findings Sir Barnes Peacock after referring to the decisions in Girdharee Lall v. Kantoo Lal and Suraj Bansi Koer v. Sheo Proshad Singh(4) observed:

“Now, although at the time of the sale notice was given on behalf of the children that the property was joint ancestral property, and that the fathers had no right to mortgage it, still the question arises whether, under the execution of the decree under which the property was ordered to be attached, it was for the purchaser to show that there was a necessity for the loan, or whether it was not necessary for those who claimed on behalf of the children to show that the debt was contracted for an immoral or illegal purpose. If it was necessary to show that the debt was so contracted the plaintiffs failed to, prove the fact, and that is so found by the High Court. It appears to their Lordships that according to the decision in the case of Suraj Bunsi Koer v. Sheo Prashad Singh, it was necessary for the plaintiffs to show that the debt was contracted for an illegal or immoral purpose”

In Sripati Singh v. Sir P.K Tagore which was a suit by the sons for avoiding the sale of the joint estate in execution of a decree against a Hindu father governed by the Mitakshara Law Lord Buckmaster explained the rule as follows:

“By that law a judgment against the father of the family cannot be executed against the whole of the joint family property, if the debt in respect of which the judgment has been obtained was a debt incurred for illegal or immoral purposes. In every other event it is open to the execution creditor to sell the whole of the estate in satisfaction of the judgment obtained against the father alone.”

In applying the rule of pious obligation thus the question as to whether the debt was a secured debt or an unsecured one was given no importance, and as stated above having regard to the foundation on which the doctrine developed there was no reasonable cause for so doing.

The five propositions adopted by Lord Dunedin in Brij Narain's case, are stated above, deductions from the earlier case law. They do not purport to prescribe new and arbitrary rules for future guidance at variance with and divorced from the Hindu law doctrine or from the rule as adopted in the earlier authoritative pronouncements of the Board, nor can they be taken to mark the commencement of a new chapter in Hindu Jurisprudence. The appellants' learned counsel proceeded on this feeling and I have no hesitation in saying that this method of approach is wholly indefensible. I would add that the propositions laid down in Brij Ndrain's case are not mutually exclusive, and I find it difficult to proceed upon the assumption that the third proposition excludes the second.

A person's liability for the debts incurred by the manager of a joint Hindu family may devolve on him in his capacity as a co-parcener or in his capacity as the son of his father. If he is only a co-parcener, his liability extends to the extent of the entire family estate, provided the indebtedness is supported on the ground of legal necessity. Where, however, he is a son, a grandson or a great-grandson of the borrower, his liability rests upon a different footing for there the law debars him from shirking responsibility if the property has been availed of by the creditor in consequence of a decree passed against the father except, as explained in the second proposition of Brij Narain's case, by proof that the debt was tainted by illegality or immorality. The third proposition of Lord Dunedin refers to the case where the mortgagee desires to enforce his mortgage by suit. It contemplates that the creditor must give proof either of necessity or of antecedent, debt. It, like the second proposition, forms an exception to the first proposition which sets out the principle rule and which prescribes the essential condition for the validity of an alienation or a mortgage of joint undivided estate by a managing member of the family by insisting that the transaction must be justified by legal necessity.

The interpretation placed by the Courts in India on Brij Narain's case is in consonance with the view which I have expressed above, but before I refer to the cases in this connection I would like to emphasise that in Armughan Chetty v. Muthu Koundan which was approved by their Lordships' Board in Brij Narain's case, Sadasiva Ayyar, J. clearly and prominently emphasised that the old Hindu law texts relating to-son's pious obligation which form the foundation on which the present law was broadened from precedent to precedent, there was no distinction made between a mortgage debt and a personal debt, of the father. This was also the view taken in Chidambara Mudaliar v. Koothaperumal and Chandradeo Singh v. Mata Prasad. Subsequent to Lord Dunedin's summarization of the law the trend of decisions in Avadh and in Allahabad has been the same: vide Gauri Shanker v. Jang Bahadur Singh(5), Nand Lal v. Umrai(6), Jahan Singh v. Hardat Singh(7), Gajadhar Pande v. Jadubir Pande(8) and Bharamappa Murdeppa Soppin v. Hanmantappa Tippanna Belludi(9).

It appears to me, however, that the recent decision of their Lordships' Board in Kesar v. Uttam Chand(10) almost concludes the matter. There the father in a Mitakshara joint family executed a surety bond securing some ancestral property for payment of debts due by third parties without making himself personally liable. In enforcing the bond the doctrine of pious obligation was invoked in order to make the debt binding on a portion of the ancestral estate which was not covered by the security bond. If the proposition advocated by the learned counsel for the plaintiffs-appellants were correct, the existence of security would have afforded a complete answer to the suit. Their Lordships, however, did not rest their decision on this ground. They refused to bind the property, because the bond made the debt realisable from the hypothecated property alone and created no personal obligation on the father. They observed that unless there was a debt due by the father for which the security bond was executed, the doctrine of pious obligation of sons to pay their father's debts could not be invoked.

The judgment of Mukerji and Boys, JJ. in Jagdish Prasad v. Hoshyar Singh, takes a contrary view and holds that the second proposition of Brij Narain's case did not cover the case of a mortgage debt. Mukerji, J.'s judgment represents a change from what he held in Gajadhar Pande's case. In making this departure the learned Judge employed, if I may say so with profound respect, a method of approach which was scarcely warranted, for the rules of interpretation which apply to statutes are obviously not the rules' that should be brought into service for considering the applicability or the scope of judgments of courts of law. The reasoning of Mukerji, J. is, I fear, of that type. He says:

“The fact that their Lordships, by using the expression ‘by incurring debt’ in proposition no. 2, were referring merely to a simple unsecured debt, will be clear from an examination of the language of proposition no. 5. Proposition no. 5 runs as follows: ‘There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.’ In this proposition no. 5 their Lordships used the expressions ‘contracted the debt’ and ‘burdens the estate.’ Evidently the contracting of a debt was not meant to imply the same thing as the burdening of the estate. By the word ‘who contracted the debt’ their Lordships meant ‘who incurred a debt without the security of the family property.’ By the expression, who burdens the estate their Lordships meant a father who created a mortgage over the estate, I am satisfied, therefore, that the proposition no. 2 applies to the case of an unsecured debt of the father and not to a secured debt.”

Boys, J. considered the matter as if the question before him could be resolved without reference to the origin of the rule of pious obligation and the earlier authoritative pronouncements of their Lordships' Board from 6 Moore's Indian Appeals downwards. He chose to consider only the decision in Sahu Ram Chandra's case and the language employed by Lord Dunedin in Brij Narain's case as if cases constituted all the law on the point. The dissentient opinion of Sulaiman, J. who presided over the Full Bench appears, if I may say so with respect, to be justified both on principle and authority. It may be added that in Jahan Singh v. Hardat Singh, Sulaiman, J. sitting with Rachpal Singh, J. who agreed with him, again laid down that the second proposition covered both secured and unsecured debts of the father.

It is hardly necessary to deal with the decision in Ganpati Pandurang Koshti v. Rameshwar, cited on appellants' behalf, for there the learned Judges held that the second proposition did not come into play because the decree passed against the father did not create a personal liability on him to satisfy the debt. They observed:

“Whether this is a case in which the defendants will be in a position to obtain a personal decree against the father and then reach the shares of the minor sons or not is not for us to decide at this stage as there are no pleadings on that point and that stage has not yet arrived.”

The above remark was made in view of the decision in Bharamappa Murdeppa Soppin v. Harmantappa Tippanna Belludi which held that before proposition no. 2 could be applied, it was essential that there must be a personal decree against the father. The question before this Full Bench is different, and it would, be hardly profitable to go into the correctness or otherwise of the Bombay case. On the authorities mentioned above and in the view which I take of the origin of the doctrine of pious obligation I am irresistibly led to the conclusion that the scope of the second proposition of Lord Dunedin is not limited to cases of simple money debt.

I would, therefore, answer the reference as follows:

“The word ‘debt’ in the second proposition laid down by their Lordships' Board in Brij Narain's case covers both simple debts and mortagae debts.”

Kaul, J.:— I have had the advantage of seeing the opinion of my learned brother Misra, J. and agree with the answer proposed by him. The reasons given by Sulajman, A.C.J, for the interpretation put by him on the word “debt” in the second proposition laid down by their Lordships of the Privy Council in Brij Narain's case in Jagdish Prasad v. Hoshyar Singh appear to me to be more convincing than those given by Mukerji and Boys, JJ. This interpretation of the word “debt” is further strengthened by the previous case law as examined by Misra, J. in his opinion.

Chandiramani, J.:— I have had the advantage of seeing the opinions of my learned brothers Misra, J. and Kaul, J. I fully agree with the view expressed by Misra, J. and would answer the reference in the manner proposed by him.

By the Court:— Our answer to the question referred to us is as follows:

“The word ‘debt’ in the second proposition laid down by their Lordships' Board in Brij Narain's case covers both simple debts and mortgage debts.”

Question answered.