JUDGMENT
1. This is a Letters Patent appeal against the decision of Grille, J. in S.A No. 565 of 1938. The plaintiffs, who are the appellants, formed a joint Hindu family with their father defendant 3, and uncles (defendants 4 and 5). The family owns the suit houses as ancestral property. Defendants 3 and 4 mortgaged the property on 7-11-1921 with defendants 1 and 2 for Rs. 900. Defendants 1 and 2 sued defendants 3, 4 and 5, and obtained a decree for sale of the mortgaged property against defendants 3 and 4. It was held in that case that the mortgage debt was not binding on defendant 5, a brother of defendants' 3 and 4, inasmuch as it was not incurred for legal necessity but was incurred for a new business which was started by defendants 3 and 4. The decree was subsequently made final.
2. The plaintiffs, who are the sons of defendant 3, instituted the present suit for a declaration that their interest in this house property is not affected by the mortgage in favour of defendants 1 and 2 on the basis of which they obtained a mortgage decree in civil suit No. 50 of 1983, and that defendants 1 and 2 are not entitled to sell their interest in the mortgaged property in execution of the said decree. Defendants 1 and 2, who are the mortgagees, resisted the suit. They urged that the property was self-acquired property and not ancestral property. They further urged that even if it be found that the property was ancestral, plaintiffs 1 and 2, who lived with their father (defendant 3), were duly represented in the previous suit by their father and were bound by the decree passed against their father, particularly because the plaintiffs did not challenge the debt as illegal or immoral. The plaintiffs, however, contended that the debt was not incurred for legal necessity or for the benefit of the plaintiffs and that therefore the mortgage was not binding on them, and, consequently, the decree that was obtained on the basis of that mortgage was also not binding on them and their shares of the property could not be sold in execution of that decree. Regarding the plea of pious obligation it was stated that contention was open only in cases of simple debts and not in cases of mortgage debts. A further plea was raised on behalf of the defendants, viz., that the suit was not bona fide on behalf of the minors; it is the former defendants (against whom the decree was passed) who have got the present suit instituted by the plaintiffs for their own benefit, and the suit being collusive should be dismissed.
3. The trial Court held following I.L.R (1938) Nag. 136: that inasmuch as the plaintiffs had not raised the plea that the debt incurred was for illegal or immoral purposes the fact that it was not for legal necessity or for the benefit of the minors was immaterial, and in view of the fact that the decree was passed against the father who represented the family the plaintiffs were not entitled to challenge the decree and the impending sale of their interest in the property. It held that the debt was binding on the plaintiffs, not because it was for legal necessity or for the benefit of the family but because they being sons were under a pious obligation to pay all the debts of the father.
4. In appeal the lower appellate Court pointed out that the decision in I.L.R (1938) Nag. 1361 was misunderstood by the trial Court. It agreed with the trial Court in holding that the mortgage debt was not incurred for any legal necessity or for benefit of the plaintiffs, who were then minors. The doctrine of pious obligation whereby sons are bound to pay the debts of the father applied, it was stated, to simple debts, and not to alienations of the property by mortgage by the father. It relied on 46 ALL. 952 and stated that I.L.R (1938) Nag. 1361 which is equivalent to A.I.R 1938 Nag. 24, only laid down that the portion of the mortgage debt remaining unsatisfied after the sale of the mortgaged property and for which a personal decree was passed was binding on the sons under their pious obligation doctrine. The lower appellate Court further pointed out that the ruling, though it referred to a mortgage debt, did not apply to mortgaged property. According to the lower appellate Court what was laid down by the ruling was that only such portion of the mortgage debt which remained unsatisfied after the sale of the mortgaged property became a simple debt for all purposes and therefore the doctrine of pious obligation came in. The lower appellate Court, however, dismissed the plaintiffs' suit on the ground that the suit was a collusive one and not bona fide.
5. In second appeal Grille J., took the view that the case was on all fours with 47 ALL. 1223 which was quoted with approval in A.I.R 1938 Nag. 24 and it was held that in such a suit the plaintiffs are not entitled to urge that the mortgage was not binding on them for want of legal necessity when they did not allege and prove that the debt was incurred for illegal or immoral purposes. In this view of the case, he dismissed the suit. He did not decide the point on the basis of which the lower appellate Court had dismissed the suit, viz., that the suit was collusive and mala fide. He, however, granted leave to file an appeal under the Letters Patent.
6. It was argued before us that this is a suit in which the property has not passed out of the family. Soon after the passing of the final decree for sale of the property the plaintiffs have come to Court and have claimed that the mortgage on the basis of which the decree was obtained is not binding on them and their interest in the family property inasmuch as the mortgage debt was not incurred for legal necessity. The plaintiffs argued that they were entitled to raise this question at that stage and prevent sale of their interest in the property on the basis of the mortgage which had resulted in a decree. In respect of 47 ALL. 122, which was relied on by Grille, J. it was urged that was overruled by 51 ALL. 136.4
7. The leading case, which is referred to in almost all the judgments, is 46 ALL. 95 where their Lordships of the Privy Council upon a construction of the authorities laid down the following propositions: (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 his 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 proceedings upon a decree for payment for that debt. (3) If he purports to burden the estate with a mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind more than his own interest. (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.
8. This decision of their Lordships of the Privy Council was interpreted in 47 ALL. 122 where the father of a joint Hindu family executed a mortgage of some of the joint ancestral property; the mortgage was not to pay off any antecedent debt nor for purposes of immorality. In due course the mortgagee sued on his mortgage and obtained a decree and brought the mortgaged property to sale. In that suit the sons were not impleaded. The sons brought a suit for a declaration that the mortgage and the auction sale were not binding on them as the mortgage had not been executed for legal necessity. It was held that the plaintiffs could not succeed without showing that the debt of the father was one tainted with immorality, and that there was no distinction in such cases between a debt secured by a mortgage and an unsecured debt. The word ‘debt’ as used in pro-position No. 2 laid down by their Lordships of the Privy Council in 46 ALL. 95 was interpreted to include a mortgage debt. It is, however, significant to note that both the Judges who decided the case against the plaintiffs in 47 ALL. 122 specifically pointed out that the plaintiffs in that case were not entitled to have the sale set aside inasmuch as the property had passed out of the family and rights of third parties had come in and inasmuch as the sons could succeed in setting aside the decree and the auction sale only if they could successfully prove that the debt was incurred for an immoral or illegal purpose.
9. 51 ALL. 136 further interpreted the rule laid down in 46 ALL. 95, and it was laid down that if the sons instituted a suit against the mortgagee after the decree but before the sale, challenging the validity of the mortgage, and if in that suit the sons failed to establish that the debt was tainted with immorality and the mortgagee failed to establish legal necessity, and if there was no question of antecedent debt, the sons must succeed although they had failed to prove that the debt was of an immoral character. In such cases, it was stated that the suit was governed by lie third and not the second proposition laid down by their Lordships of the Privy Council in 46 ALL. 95. There was a difference of opinion, however, as regards the meaning to be attached to the word ‘debt’: Mukerji and Boys, JJ. were of the opinion that the word ‘debt’ mentioned in the second proposition did not contemplate a mortgage debt, while Sulaiman, A.C.J, was of the opinion that ‘debt’ in the second proposition included also a mortgage debt. He, however, held that the second proposition as laid down did not apply to the facts of that case as no auction sale had taken place and the property had not passed out of the family.
10. The same High Court has further considered these propositions in 57 ALL. 3575 where a Divisional Bench has stated that the second proposition of law formulated by the Privy Council in 46 ALL. 95 is not confined to the case of a simple money debt but applies equally to a mortgage debt. It has reiterated that it is only in cases where the joint family property has passed out of the family by virtue of the sale and its confirmation, that the son is bound to prove that the debt was tainted with illegality or immorality.
11. The entire case law was no doubt reviewed in I.L.R (1938) Nag. 136 but the point for decision there was whether in execution of a personal decree passed against the father, the debt being neither illegal nor immoral, the sons' shares could be sold; and it was pointed out that they could be sold though the original decree twas one on the basis of a mortgage and was a mortgage decree. It was very clearly laid down that the word ‘debt’ in proposition 2 enunciated by their Lordships of the Privy Council in 46 ALL. 95 did include a mortgage debt, but it was further stated that if for recovery of such a debt a personal decree is obtained against the father alone it may be enforced by attachment and sale of the property including the sons' shares as was laid down in 12 Lah. 495.6 It was further pointed out that the mere fact that the sons' shares were declared not bound by the mortgage did not make any difference whatsoever inasmuch as the sons' shares were sought to be sold not because there was a mortgage against the shares but because there was a personal decree against the father for payment of the debt and in execution of that decree the sons' shares should be sold under the doctrine of pious obligation.
12. In stating the facts of the case Stone, C.J at the very beginning of the judgment made it quite clear that was a case which was concerned with the execution of a personal decree passed in a mortgage suit brought against certain fathers and their song. The mortgage suit was dismissed against the sons and decreed against the fathers only. Liberty for applying for a personal decree for the balance of the amount due on the basis of the decree if the sale proceeds were insufficient was reserved. Paragraph 2 of the judgment very clearly points out that a personal decree was passed in that case on 6th July 1929. It will thus be seen that I.L.R (1998) Nag. 136 very clearly lays down that so long as there is no personal decree against the father for a debt, whether it is a mortgage debt or an unsecured debt, the sons are entitled to challenge the mortgage executed by the father of the ground of want of legal necessity; but if a personal decree is passed against the father, and in execution of that decree the sons' shares are sought to be attached and sold the sons cannot resist the sale except on the ground that the debt was incurred for illegal or immoral purposes.
13. With due respect, we are of the opinion that the second appellate Court was not justified in applying the law laid down in I.L.R (1938) Nag. 136 to the facts of the present case. In fact the second appellate Court relies on 47 ALL. 122, which is quoted with approval in I.L.R 1938 Nag. 136. 47 ALL. 122, as we have shown, was a case in which the property had passed out of the family and both the Judges who decided that case have made a distinction between the case where the property is still with the family and the case where it has passed out of the family. In the present case, it is clear from the plaint and pleadings that the suit was instituted soon after the final decree in the mortgage suit and before the property was sold in auction. This is thus a case in which the property had not passed out of the family. In this view of the case also the principles laid down in 47 ALL. 122 cannot be applied to the facts of the present case.
14. 46 ALL. 95, on which all other cases rely, distinctly laid down in the first proposition that the managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity. If no legal necessity is established regarding a mortgage executed by a managing member of a joint undivided estate the mortgage must be held not binding on the other coparceners of the family, who are not parties to the mortgage. What their Lordships of the Privy Council laid down in proposition 2 is that if the managing member be the father and the other members are his sons he may by incurring a debt so long as it is not for an immoral purpose lay the estate open to be taken in execution proceedings upon a decree for payment for that debt. This means that a creditor is entitled to by his bands upon joint family estate in execution proceedings and the only plea open to the other members who are sons of the father is that the debt was incurred for an illegal or immoral purpose; and if this is not proved the estate is liable I.L.R (1938) Nag. 136 agreeing with the view taken by Sulaiman, J. in 47 ALL. 122 and 57 ALL. 357 lays down that the word ‘debt’ mentioned in proposition 2 includes a mortgage debt. But the Allahabad cases as well as the Nagpur case insist upon there being a personal decree for payment of that debt, and it is only in case of execution of such a personal decree against the father that the estate including the shares of the sons are laid open. In the absence of a personal decree against the father the sons' interests cannot be touched.
15. This was made clear in a recent Bombay case, I.L.R (1943) Bom. 5687 where Sir John Beaumont, C.J and Weston, J. after referring to Allahabad cases and the Privy Council case came to the conclusion that if there be a debt due from the father not incurred for immoral purposes the sons are liable, but that the debt cannot be enforced against the sons or against any property of the sons except in execution of a decree for payment of the debt. The creditor has to get a decree for payment either against the father or against the father and sons or against the sons alone, and having obtained that decree he cars enforce it against the sons' interest in the family property, but a decree merely for sale of the property mortgaged by the father, which mortgage does not bind the sons, does not enable the sons' property to be sold.
16. The cases to the contrary are 21 Lah. 968 and 1 Luck. 360.9 We agree with the observations of the Chief Justice of the Bombay High Court that there is some attraction for accepting the view taken in these cases. But we are not prepared to accept the view taken in these cases when that is not the view of their Lordships of the Privy Council and is not the proper view under Hindu law. It may be an equitable view, and it may save the creditor some trouble in having to ask for sale a second time, but so long as he is enforcing his mortgage, which is not valid against the sons for want of legal necessity, he cannot claim to make the sons' interest liable for it.
17. This Bombay view has been accepted in a recent Divisional Bench case of this High Court, F.A No. 126 of 1940.* We are, therefore, of, the opinion that the sons who were not parties to the mortgage and who were not joined as parties to the suit are not precluded from challenging the mortgage on the ground of the want of legal necessity, particularly in a case where the property has not yet gone out of the family and is still not sold. We derive some authority for these principles in 16 N.L.R 6410 where a Divisional Bench of the Judicial Commissioner's Court laid down that in a suit brought against the father in his representative capacity the father represents the entire joint family and the sons cannot reopen the decree against him except on grounds personal to themselves, for example, that the debt for which the mortgage was given was not binding on them under the Hindu law. A perusal of the case shows that the question of legal necessity was allowed to be gone into and considered and decided, That was held to be a question open to the sons to be raised under Hindu law challenging the alienation.
18. In the present case the admitted facts are these. The sons, who are the plaintiffs, were not joined as parties to the mortgage suit. A decree was obtained against the father, and it may be assumed that it was obtained against the father as representing the sons. No copy of the decree has been placed on record, but we presume from the facts as stated in the pleadings that the decree was in the ordinary form for sale of the mortgaged property reserving the liberty to apply for a personal decree if on sale it was found that there was still a balance due. The present suit was instituted soon after the passing of the final decree in the mortgage suit and be-fore the property was sold. The plaintiffs in this suit are challenging the mortgage on the basis of which the decree was obtained by defendants 1 and 2 against the plaintiffs' father. Under Hindu law as interpreted in 46 ALL. 95 an alienation of this type by a managing member, if not justified by legal necessity, is not binding on the sons; and the plaintiffs are therefore entitled to claim that the mortgage is not binding on their interest in the property inasmuch as legal necessity is not proved in this case. This is not a mortgage for satisfaction of an antecedent debt, and therefore the third proposition laid down in 46 ALL. 95 does not come into play. Regarding the second proposition in 46 ALL. 95 we are of the opinion that also does not come into play inasmuch as no personal decree has yet been obtained against the father for satisfaction of the debt. The decree is for enforcement of the mortgage and that can be enforced only as against the father's share inasmuch as it is proved in this case that there was no legal necessity for alienating the shares of the other coparceners. 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.
19. Differing from the second appellate Court, with due respect, we hold that the plaintiffs were entitled to sue for a declaration that the mortgage was not binding on them, and consequently their shares could not be sold in execution of that decree so long as it was only a mortgage decree. In second appeal the appellants challenged the decision of the first appellate Court, which held that the suit of the plaintiffs was not bona fide but was collusive and instituted by the plaintiffs for and on behalf of the original defendants to the mortgage suit. The second, appellate Court has not given any decision on this point and this was not therefore argued be, fore us in appeal under the Letters Patent. As we have differed from the second appellate Court on the point decided by it and as we cannot decide the point which has not been decided by it and which is not the subject-matter of the Letters Patent before us we have no alternative but to state our opinion on the point which was raised before us and send back the case to second appellate Court for farther decision regarding the other point that was raised but not yet decided. The appeal is allowed with costs.
20. Appeal allowed.