1. This case gives rise to a question of some difficulty, which appears to be an open question so far as this Court is concerned, at any rate in recent years since the comparatively modern decisions of the Privy Council. The suit is brought by a minor to set aside a mortgage decree. Defendant 1 obtained a decree for sale on a mortgage executed by Bhagwant Singh and Imrat Singh, who are assumed for the purpose of this decision to have been, or to have represented, the two branches of a joint Hindu family. It is assumed that they were brothers, and that one of them was the karta. Imrat Singh died before the decree and his two sons became parties as his sons. Bhagwant Singh, being still alive, was also a party, but the minor son of Bhagwant Singh, namely Jagraj Singh, the present plaintiff, was not a party. There is no evidence that the mortgagee even knew of his existence. So far as I can understand the matter it is immaterial which of the two brothers was the karta at the time of the mortgage, or which defendant was acting as the karta at the time of the decree. When the karta, together with the other members of the joint family is sued, it must be taken that he enjoys the dual capacity which he enjoys in the family, that is to say, he is sued both as the karta representing the family and managing the family, and as a member of it, having an undivided interest,

2. The present plaintiff, who, as I have pointed out, was no party to the suit, has brought this suit for a declaration that the mortgaged property is not liable to be sold in execution of the decree on the ground that it was ancestral property of the family to which he belonged, and that there was no legal necessity for the loan for which the mortgage was given. The Subordinate Judge dismissed the suit on the ground that it did not lie in the absence of an allegation that the mortgage was made for a debt tainted with immorality. The District Judge overruled this decision and remanded the case as having been wrongly disposed of upon a preliminary point. The difference between the two learned Judges, which has been argued before us, centers round the following controversy: It is admitted that a mortgagee, in order to substantiate a suit upon his mortgage, has to prove that the debt was incurred for legal necessity. It is admitted, on the other hand, that if a decree has been obtained upon a mortgage by the mortgagee, or upon a simple money debt by a creditor, and as the result of either of these decrees the ancestral property has, by sale passed into the hands of a third party, the absent son or a minor son, who was not represented, cannot recover the property in the hands of a third person without alleging that the debt for which it was incurred was tainted with immorality or, in other words, without showing that the pious obligation of a Hindu son to discharge his father's debts does not apply to this transaction, because there is no pious obligation to pay debts tainted with immorality. But there is a stage midway between these two contingencies, what may be described as a tritium quid: what is the legal position of a son who was no party to the suit where the debt or legal obligation has passed into a decree but no execution proceedings have taken place upon the decree, and no part of the ancestral property has passed into the hands of a third person? A subsidiary branch of the same question arises very frequently in these Provinces where the mortgagee himself purchases at the sale, because in one sense the mortgagee adds the capacity of purchaser to that of decree-holder, although he is in fact the same individual.

3. The view of the Subordinate Judge is based upon two dicta of the Privy Council. It must be said, by the way, that these dicta are, if the expression may be used not precisely on the level of what is ordinarily intended to understood by the expression obiter dicta, but are expressions of opinion by the highest tribunal made with the intention and desire of providing guidance to the Courts in India. They must therefore be accepted as authorities binding upon the Courts in India for all practical purposes with the same force as a statute. The only question is whether they are properly understood, and to what circumstances they are intended to be applied. In the case of Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61, Lord Shaw, who delivered the judgment of their Lordships, said as follows:

A perusal of the numerous authorities will show that where a joint family property has been sold out and out, or where a decree in execution of the mortgage has been obtained against the property, and rights have thus sprung up with regard to the joint family estate these rights are not to be defeated by the members by the joint family simply questioning the transaction entered into by its head.

4. The argument, which we are asked to accept on behalf of the respondent in support of the District Judge's decision, which is under appeal, is that there is a slight verbal variation from what their Lordships intended to convey, and that the expression "a decree in execution of the mortgage has been obtained" should be read as though the words were "a decree enforcing the mortgage has been executed by sale." It is true to say that the illustration immediately following the passage just quoted certainly deals with the more limited meaning of the passage suggested to us in arguments as the right interpretation. It is equally true to say that, where a decree remains unexecuted and merely places in the hand of the creditor a higher right in which his original right has been merged, with an immediate possibility of obtaining execution, certainly no right of any third person has sprung up against the estate.

5. The next pronouncement of the Privy Council, which arises for interpretation in its bearing upon this controversy, is the opinion of their Lordships delivered by Lord Dunedin in the more recent case of Brij Narain v. Mangal Prasad A.I.R. 1924 P.C. 50, and particularly the five propositions, laid down expressly by their Lordship for the guidance of the Courts in India, in the closing passages of Lord Dunedin's opinion. The second proposition is the relevant one. It runs as follows:

If the managing coparcener is the father and the reversioners are the sons, he may, by incurring debts, 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.

6. The first observation upon that passage is that precisely the same criticism may be made upon it as upon the passage cited from Lord Shaw's opinion, namely, that it does not contemplate a right of a third party which has sprung into existence. In that respect it is consistent. The creditor's claim rests still "upon the hypothesis stated "in a mere decree. There is no third person. Nonetheless a son absent from the suit cannot challenge the decree without alleging, as the Subordinate Judge held in this case that he ought to allege, the existence of some immorality tainting the debt. It is further to be observed, and this certainly strikes me as an important observation, that whereas their Lordships, in the opinion delivered by Lord Dunedin in Brij Narain's case A.I.R. 1924 P.C. 50, were careful to review and to correct a solemn and important dictum contained in Lord Shaw's judgment in the case of Sahu Ram Chandra A.I.R. 1917 P.C. 61, with which they did not agree; they never referred to, and therefore did not attempt to review or correct, the important passage also contained in the opinion which I cited above. It may certainly be said that under the circumstances it would not be a violent presumption to suppose that, having studied it and reconsidered it, they saw no reason to dissent from it.

7. The real objection made in argument by the experienced advocate, who has argued this case on behalf of the respondent, to our applying the second proposition from Lord Dunedin's opinion to this case, is that the second proposition in terms deals only with a simple money debt and a simple money decree, and in this relation, above all, there is a fundamental difference between the considerations applicable to a simple money decree and to a mortgage decree, because a mortgage decree, being no more than the enforcement of the original contract, and being necessarily and fundamentally concerned with the original alienation of the joint estate, it is therefore that one ought to guard oneself with particular care against extending the second proposition to a wider area than that to which it was applied. I recognize the difficulty. Unaided, I recognize, that I might experience considerable difficulty in making up my mind on which side of this dividing line the true intention and interpretation intended to be conveyed by the Privy Council really lies, but I am not altogether unaided. It happens that there are two cases by single Judges cited in argument before us, both by learned and experienced Judges, on this point. Mr. Justice Piggott, for whose judgment I have the most profound respect, in the case of Ali Ahmad v. Sohan Lal [1914] 12 A.L.J. 613, gave elaborate reasons for holding the view which I think is consistent with the view of the District Judge in this case. But that was in 1914 before the more recent pronouncements of the Privy Council had been made. Since then Mr. Justice Daniels in the case of Gauri Shanker v. Jang Bahadur Singh A.I.R. 1924 Ouah. 394 sitting in Oudh, and it is true, following previous decisions in Oudh, but obviously, basing himself more upon the recent decision of the Privy Council in Brij Narain's case A.I.R. 1924 P.C. 50, came to a conclusion, in accordance with that of the Subordinate Judge in this case. If he had not touched the difficulty raised by Mr. Panna Lal, on behalf of the respondent, that the second proposition in the case of Brij Narain A.I.R. 1924 P.C. 50 is in express terms confined to a simple money debt, I think I might have yielded to the doubt which that argument raised in my mind. But the final passage of Mr. Justice Daniels' judgment gives reasons, based upon a Madras High Court decision, which has been impliedly approved by the Privy Council, for holding that there is no real distinction between the two cases of a simple money decree and a decree for a debt secured by a mortgage in relation to this troublesome controversy. I, therefore, prefer the view of the Subordinate Judge. I think the weight of authority is in favour of it. I agree with his view with some hesitation. The question must often arise in the near future, and I can quite understand that, if another two-Judge Bench, in a case of higher pecuniary value than this case, has reason to think that this decision requires further consideration, it may well be thought a topic worth the decision by a fuller Bench than two Judges; but for the purpose of today I am satisfied that we ought to allow this appeal and restore the decree of the first Court.

Iqbal Ahmad, J.

8. I agree in the order proposed, but I prefer to base my decision on grounds other than these assigned by my learned brother.

9. In my judgment, the answer to the question whether a Hindu son is entitled to challenge a decree obtained against his father for sale of the joint family property without asserting and proving that the debt secured by the mortgage was incurred for illegal or immoral purposes must depend upon the question whether or not the father was sued as karta and manager of the joint family. If he was, the answer must be in the negative. If he was not, the answer must be in the affirmative.

10. It is well settled that a Hindu son is under a pious obligation to discharge his father's debts that are not tainted with immorality, and it is equally well settled that once the joint ancestral property has passed out of joint family in execution of a decree for the father's debt, his sons, by reason of their obligation to pay their father's debts, cannot recover that property unless they show that the debt, in respect of which the decree was obtained, was a debt incurred for illegal or immoral purposes: vide Suraj Bansi Koer v. Sheo Pershad Singh [1880] 5 Cal 148. But it appears to me that these propositions of law have reference only to simple money debts which the father is under a personal obligation to pay and simple money decrees obtained against the father for recovery of such debts, and that a distinction must be drawn between a simple money debt and a decree for such debt on the one hand and a debt secured by a mortgage of the family property and a decree for sale of such property on the other. So far as simple money debt or a decree for such debt against the father is concerned, the father is under a personal obligation to discharge that debt or that decree, and the sons labour under a pious obligation to discharge the liability of their father. But in the case of a debt incurred on the security of the family property by the father, when the mortgagee has not sued for recovery of the debt within six years of the date of accrual of the cause of action, and has thus allowed his right to a simple money decree against the father to become time barred, the personal obligation of the father disappears, and the mortgagee is then only entitled to recover the debt by sale of the mortgaged property, and in such case the sons labour under no pious obligation to discharge that debt for the simple reason that the debt is not due from their father.

11. If I am right in the distinction that I have drawn between a simple money debt and a decree for such debt and a mortgage debt and a decree for sale, then, in my judgment, the principle underlying the decision in Suraj Bansi's case [1880] 5 Cal 148 cannot be applied to the case of a decree for sale on the basis of a mortgage of the family property. In the case of a suit brought by a creditor against the father for recovery of simple money debt, all that he has to prove, in order to entitle him to a decree, is that he advanced the debt, and it is not necessary for him to prove the purpose for which the debt was incurred. On the other hand, in a suit for sale of the family property the mere fact that the mortgagee advanced the debt does not entitle him to a decree, unless and until he succeeds in further proving that the debt was advanced for family necessity. Because of their pious obligation to discharge their father's debts the sons cannot impugn the validity of a simple money decree to which they were no party, on the ground of the absence of legal necessity for incurring the debt. But in the case of a decree for sale, when the personal remedy against the father has become time barred, the sons are under no such obligation and, therefore, if the mortgagee has obtained a decree for sale of the joint family property without impleading the sons or without suing the father in his representative capacity, the sons are entitled to challenge the validity of that decree on the ground that they being no parties to that decree arc not bound by the same, and in such a suit, unless the mortgagee succeeds in proving that the debt secured by the mortgage was for legal necessity, the sons will be entitled to avoid the decree.

12. If the father in a suit for sale is sued as manager of the family, i.e., in his representative capacity, then, no doubt, the decree will bind all the members of the family and the omission of the father to put the mortgagee to proof of legal necessity will disentitle the other members of the family from challenging the validity of the decree on any ground whatsoever, for the simple reason that in the eye of the law, all the members will be deemed to have been represented by the father in the suit. But if the father has not been sued in his representative capacity, I see no ground for holding why the sons, who were not impleaded as parties to the suit, should not have the right to call upon the mortgagee decree-holder to prove the existence of legal necessity for incurring the debt 'secured' by the mortgage before he can enforce that decree by sale of the family property. To hold that the decree obtained by a mortgagee for sale of the family property against the father alone, when the father was not sued as manager of the family, is binding on the sons and the sons can only avoid that decree by proving that the mortgage debt was contracted for immoral purposes, would be in effect to hold that the mortgagee, simply by his omission to implead the sons and to sue the father in his representative capacity, can absolve himself of the burden of proving legal necessity as a condition precedent to a decree for sale of the family property, and can shift the burden of proof from his shoulders on to these of the sons, and I can discover no justification for such a proposition of law. The view that I take is the view that was taken in the case reported as Ali Ahmad v. Sohan Lal [1914] 12 A.L.J. 613, and if the view taken by Mr. Justice Daniels in the case of Gauri Skanker v. Jang Bahadur Singh A.I.R. 1924 Ouah. 394 is at variance with the view that I have taken, I respectfully dissent from that decision. In the last-mentioned case the learned Judge supported the conclusion arrived at by him by reference, amongst others, to the case of Armugham Chetty v. Muthu Koundan [1919] 42 Mad. 711, and to a passage to be found in the judgment of their Lordships of the Judicial Committee in the case of Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61. I am unable to discover anything in the Madras case that lends countenance to the view that a Hindu son is debarred from calling into question the validity of a decree for sale of the joint ancestral property to which he was not a party, and which was not obtained against the father as manager of the family, on the ground that the debt secured was not incurred for legal necessity. The passage quoted from the judgment in Sahu Ram Chandra's case A.I.R. 1917 P.C. 61 at first sight appears to support the conclusion arrived at by the learned Judge, but in view of the decision of their Lordships in the case of Brij Narain v. Mangal Pershad A.I.R. 1924 P.C. 50, I am unable to hold that their Lordships ever intended to lay down the proposition of law enunciated in Gauri Shanker's case A.I.R. 1924 Ouah. 394

13. The passage referred to by the learned Judge is as follows:

A perusal of the numerous authorities will show that where a joint family property has been sold out and out, or where a decree in execution of the mortgage has been obtained against the property, and rights have thus sprung up with regard to the family estate, these rights are not to be defeated by the members of the joint family simply questioning the transaction entered into by its head.

14. After making these observations their Lordships refer to the case of Suraj Bansi Koer v. Sheo Pershad Singh [1880] 5 Cal 148, and to the case of Chandradeo Singh v. Mata Prasad [1909] 31 All. 176. In connexion with the observations referred to above, it is worthy of note that in neither of these two cases it was held that when a decree for sale of the family property is obtained by the mortgagee against the father alone, who was not sued as manager of the family, the sons cannot assail the decree by alleging that mortgage debt was not for family necessity. It is further clear that the question which I have now to decide was not the question that formed the subject-matter of decision in the case of Sahu Ram Chandra's case A.I.R. 1917 P.C. 61, and I am therefore forced to the conclusion that the observations of their Lordships with respect to the binding nature of the mortgage-decree were obiter dicta. However, these dicta of their Lordships are entitled to the greatest respect, and were it not for certain observations to be found in Brij Narain's case A.I.R. 1924 P.C. 50, I would have been prepared to hold that their Lordships took the view that was taken by Mr. Justice Daniels in the case referred to above. But in the view of the observations of their Lordships in Brij Narain's case A.I.R. 1924 P.C. 50, I have no hesitation in holding that their Lordships never intended to decide, or to lay down as a general proposition of universal application, that after the passing of a decree for sale the members of the joint family who were no parties to the suit for sale of the family property cannot challenge that decree without proving that the debt secured by the mortgage was contracted for immoral purposes. In Brij Narain's case A.I.R. 1924 P.C. 50 their Lordships are reported, to have observed-vide Brij Narain v. Mangal Prasad A.I.R. 1924 P.C. 50:

There are, however, some observations in Sahu Ram Chandra's case A.I.R. 1917 P.C. 61, which are not necessary for the judgment, but which their Lordships are bound to say that they do not think can be supported.

15. Having regard to these observations of their Lordships I am not prepared to hold that their Lordships ever intended to lay down that the mere fact of a decree for sale having been passed precludes a Hindu son, who was not a party to the decree, from challenging that decree except on the ground that the mortgage debt was for illegal or immoral purposes. The second proposition of law laid down at p. 104, in Brij Narain's case A.I.R. 1924 P.C. 50, appears to be restricted to the case of a simple money debt incurred by, and a simple money decree obtained against, the father and has no reference to a decree for sale, and that proposition is based upon the obligation of Hindu sons to pay debts due from their father.

16. But, notwithstanding all that I have said, it appears to me that this appeal must succeed. The mortgage was executed by two persons named Bhagwant Singh and Imrat Singh. Imrat Singh died before the mortgage was put into suit, and his two sons were made parties to the decree. Bhagwant Singh, the father of the present respondent, was admittedly one of the defendants to the suit. If Bhagwant Singh and Imrat Singh were separate, and if Bhagwant Singh and the plaintiff-respondent were the only members of the joint family constituted by them, the presumption must be that Bhagwant Singh was the manager and karta of the family. If he was the manager of the family, it must be presumed, unless the contrary is shown, that he was sued in his representative capacity, and the decree obtained against him must bind his son, the plaintiff-respondent. On the other hand, if Imrat Singh was also a member of the joint family with Bhagwant Singh, the presumption must be the other way. When the manager of a joint Hindu family is impleaded as a defendant to the suit, the presumption is that he is sued in that capacity. But if, along with the manager, certain other members of the family are joined as defendants to the suit, the presumption must be the other way, because, if the manager was being sued as representing the family, there could be absolutely no reason for joining some other members of the family as defendants in the suit. In the present case, if the plaintiff-respondent wanted to rely on the fact that Bhagwant Singh was not sued as manager of the family, it was up to him to state the facts clearly, and to prove that some persons, other than Bhagwant Singh and the plaintiff-respondent, were members of the joint family in question and were arrayed as defendants in the suit in which the decree was passed. This was not done in either of the Courts below, and therefore, the ordinary presumption, that the father represents the family, must hold the field. In this view of the case the decision of the Subordinate Judge was correct and ought to be restored.