Pandurang Narayan Samant v. Bhagwandas Atmaramshet

Shah, J.:— This appeal arises out of a suit filed by the sons of the original mortgagee against the sons of the original mortgagor to enforce the mortgage executed on the 1st of June 1891 by the defendants' father Narayan in favour of the plaintiffs' father. Both the lower Courts have allowed the plaintiffs' claim.

In the appeal before us it has been argued that the mortgage was null and void as it was executed by Narayan not for an antecedent debt but for a debt incurred at the time of the mortgage. The mortgage bond contains the following recital: “After taking accounts of the past dealings by me with you, I find myself indebted to you for a sum of Rs. 700, and to-day I have taken Rs. 799 to pay off the debts due to others, so in all I have to pay you Rs. 1,499.” The property mortgaged was the ancestral property of Narayan. The lower appellate Court has found, and it is not disputed before us, that the recital as to the consideration in the deed is true. Thus as regards Rs. 700 the debt was clearly antecedent. It is, however, contended that the sum of Rs. 799 borrowed at the time of the mortgage to pay the debts due to others cannot be treated as an antecedent debt in view of the decision in Sahu Ram Chandra v.Bhup Singh.It seems to me, however, that having regard to the observations cited with approval by their Lordships at page 136 of the report it is clear that the object of this alienation by way of mortgage was to pay off the antecedent debts incurred by the father prior to the mortgage. These debts were partly due to the mortgagee himself and partly to others.

There is nothing in the judgment of Sahu Ramchandra v. Bhup Singh which supports the contention urged before us that the antecedent debts must be due to the mortgagee himself, and that the object of the alienation must be to satisfy the antecedent debts due to the alienee. If, as is the case here, the money is borrowed on the security of a mortgage to pay off the antecedent debts, it would be an alienation in respect of antecedent debts according to the decision which has been relied upon on behalf of the appellants. I see, therefore, no force in the contention that the mortgage cannot be enforced against the sons as it is not shown to be for an antecedent debt.

It is further argued in support of the appeal that Narayan, who was then joint with his brother Damodar, had no power whatever to mortgage the joint property. In this Presidency, however, the rule is well established that a co-parcener can alienate his share in the joint family property for consideration. (See Vasudev Bhat v. Venkatesh Sanbhav and Fakirapa v. Chanappa.) It is urged that this cannot be treated as a good rule in view of the decision in Sahu Ram Chandra v. Bhup Singh. That was, however, a case which went up to the Privy Council from the High Court at Allahabad, and no doubt with reference to that case the proposition as stated at page 130 of the report that “under the law of Mitakshara the joint family property owned, as stated by all the members of the family as co-parceners, cannot be the subject of a gift, sale, or mortgage by one co-parcener except with the consent, express or implied, of all the other co-parceners” was perfectly applicable. But there was no question in that case as to the correctness of the rule recognized in this Presidency that a co-parcener can alienate his undivided share in the family property for consideration. The general proposition which has been relied on on behalf of the appellants must be taken to have been stated with reference to the particular case and cannot be treated as overruling the current of decisions of this Court on that point. We-must, therefore, give effect to the rule as recognized in this Presidency and must hold that the mortgage was valid so far as it related to Narayan's share in the property mortgaged.

Lastly, it is urged that the suit is barred under Article 120 of the Indian Limitation Act. It is clear, however, that that Article cannot apply to a suit based on a mortgage. The point was urged on the footing that the mortgage was void. But the point as to the validity of the mortgage having failed, this point also must fail.

The result is that the decree of the lower appellate Court must be confirmed and the appeal must be dismissed with costs.

Hayward, J.:— I concur with the conclusions and reasons of my learned brother.

Decree confirmed.

R.R