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PETITIONER: FAQIR CHAND

       Vs.

RESPONDENT: HARNAM KAUR & ANR.

DATE OF JUDGMENT: 05/08/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. SHAH, J.C.

CITATION:  1967 AIR  727            1967 SCR  (1)  68

ACT: Hindu  Law-Debts-Joint family of father and son-Mortgage  by father  as manager-Right of son to  impeach-Mortgage  decree against the father-Execution-When could be stayed by son.

HEADNOTE: The  appellant and his father constituted a joint family  of which  the father was the manager.  He borrowed  money  from the  first respondent and mortgaged in her favour  immovable property  belonging to the joint family. less than half  the money  borrowed  was for repaying antecedent  debts.   By  a covenant  in the deed he bound himself personally  to  repay the  loan.  The first respondent instituted a mortgage  suit against the father praying for a preliminary decree for  the sale of the mortgaged property. While that suit was  pending the  appellant  filed  a suit against his  father   and  the mortgagee (first respondent),claiming a declaration that the anticedent  debts  were  for  immoral  purposes,  that   the mortgage  was without  legal necessity and that it  was  not binding  on  him.  After a preliminary decree for  sale  was passed  in  the mortgage suit, the  appellant  amended   his plaint  claiming a further declaration that the  preliminary decree   was  not  binding  on  him.   The  object  of   the appellant’s  suit was to prevent the sale of  the  mortgaged property  in  execution  of the mortagage  decree.   At  the trial,  the appellant conceded that the mortagage   was  not for  illegal or immoral purposes and that it was support  by consideration.   The trial court dismissed the suit  without deciding  the  question of legal necessity.   The  appellant appealed  to the High Court and pending the appeal  a  final decree  for  sale was passed in the mortgage suit,  but  its execution was stayed by the High Court.  Eventually the High Court also dismissed the appeal without giving a finding  on the question of legal necessity. HELD:  Where a father mortgages property of a  joint  family consisting of himself and his sons for payment of his  debt, but the mortgage is neither for legal necessity nor  payment of  his  antecedent debt and the mortgagee  has  obtained  a decree  against the father for sale of the property but  the sale  has  not yet taken place, the sons have  no  right  to restrain  the  execution of the decree or the  sale  of  the

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property  in  execution proceedings without  showing  either that there is no debt which the father is personally  liable to pay or that the debt has been incurred for an illegal  or immoral purpose. [71 D] The  second  proposition in Brij  Narain v.  Mangla  Prasad, 0(1923)  L.R. 51 I.A. 129-namely, that if the manager  of  a joint  family  is the father and the other members  are  the sons, the father may ’be incurring a debt, so long as it  is not for an immoral purpose, lay the joint family estate open to  be  taken  in execution proceedings upon  a  decree  for payment  of the debt-applies not only to an  unsecured  debt and  a  simple  money  decree for the debt  but  also  to  a mortgage  debt which the father is personally liable to  pay and to a decree for the recovery of the mortgage debt by the sale  of the property.  Even where the mortgage is  not  for legal  necessity  or  for payment  of  antecedent  debt  the creditor  can  in  execution  of  a  mortgage.  decree   for realisation of a debt which the father is personally 69 liable to repay sell the estate without obtaining a personal decree against him.  The second proposition applies not only after but also before a sale has taken place. [72 B; 73 B-C, H] The  son had no right to obtain either an interim  or  final order  for stay of the sale having regard to the  fact  that admittedly  the  debt was owing by the father  and  was  not incurred  for  immoral  or illegal  purposes.   Nor  did  he acquire  such a right because he instituted his suit  before the decree for sale was passed in the mortgage suit [74 C-D] Observations  contra  in Jagdish, Prasad v.  Hoshyar  Singh, (1929) I.L.R. 51 All 136, Bharmappa Murdeppa v. Hanumantappa Tippanna,  I.L.R.  [1943] Bom. 568,  Ganpati  v.  Rameshwar, I.L.R.  [1946] Nag. 741 and Abdul Hameed Sait  v.  Provident Investment Co. bid., I. L.R. [1954] Mad. 930, disapproved. Reading the first and the third proposition in Brij Narain’s case together, it will appear that a father, who is also the manager  of the family, has no power to mortgage the  estate except  for  legal necessity or for  payment  of  antecedent debt.   In spite of the passing of the preliminary or  final decree  for  sale  against the father in  the  suit  on  the mortgage the son will be entitled to impeach the mortgage if it  was  made  neither for  legal  necessity  necessity  for payment of an antecedent debt. [74 D-E, G-H] Since  the loan was taken partly for payment  of  antecedent debts  and partly for purposes of family business and  other legal  necessities, the mortgage in its entirety  bound  the property  including the interest of the  appellant  therein. [76 C]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 572 of 1963. Appeal from the judgment and decree dated January 3, 1961  , of  the Punjab High Court (Circuit Bench) at Delhi in  Civil Regular First Appeal No. 63-D/1957. S. T. Desai and B. P. Maheshwari, for the appellant. K. L. Gosain, Kartar Singh Chawla and Harbans Singh, for respondent No. 1. The Judgment of the Court was delivered by Bachawat,  J.  Murari Lal is the manager of a  joint  family consisting of himself and his son, Faqir Chand.  On June  7, 1949, he borrowed Rs. 75,000 from Sardarni Harnam Kaur,  and by  a  registered  deed of the same date,  he  mortgaged  an immovable property for securing repayment of the loan.   The

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mortgaged  property  belongs  to the  joint  family.   By  a covenant  in the mortgage deed, Murari Lal bound himself  to repay the loan.  Part of the loan was borrowed by Murari Lal for  discharging  an antecedent mortgage debt.  On  July  4, 1952,  Harnam Kaur instituted Suit No. 219 of  1952  against Murari Lal claiming the usual preliminary decree for sale of the property.  On March 13, 1953, Faqir Chand instituted the present  suit  against  Harnam  Kaur  and  also  Murari  Lal claiming  a  declaration  that the  mortgage  deed  was  for immoral and illegal purposes and without legal necessity and was not 70 binding  on  him and for consequential  reliefs.   On  April 20,1953, Harnam Kaur obtained a preliminary decree for  sale in  Suit No. 212 of 1952.  Thereafter, Faqir Chand  obtained an order for amendment of the plaint in his suit and by  the amended  plaint  he claimed a declaration  that  the  decree passed  in  the mortgage suit was not binding on  him.   The trial  Court raised several issues, of which issues  Nos.  2 and 3 only are material.  They are as follows:-               "(2)  Whether the mortgage in dispute  is  for               consideration  and legal necessity, if not  to               what effect?               (3)   Whether the previous mortgages were  for               illegal  and  immoral purposes,  and  purposes               repugnant to good morals and whether defendant               No. I had notice of the same?" At  the  trial, councel for Faqir Chand  conceded  that  the mortgages were not for illegal or immoral purposes and  gave up  issue  No. 3. With regard to issue No.  2,  his  counsel conceded that there was consideration for the mortgage.  The trial Court did not decide the question whether the mortgage was  made for legal necessity.  It held that as Harnam  Kaur had  obtained  a decree in the mortgage  suit,  Faqir  Chand could  not  challenge  the mortgage and the  decree  in  the absence of proof that the mortgage was created for an  ille- gal  or  immoral purpose and as he could not  challenge  the mortgage, he could not claim any other consequential relief. The  trial  ,Court accordingly dismissed  the  suit.   Faqir Chand  filed  an appeal to the Punjab High  Court.   We  are informed by counsel that during the pendency of the appeal a final  decree  for  sale was passed in  the  mortgage  suit. Harnam Kaur took steps for the execution of the decree.   By an order of the High Court, the execution of the decree  was stayed  pending the disposal of the appeal.  At the  hearing of  the appeal, a Division Bench of the High Court  referred to a larger Bench the following question of law:               "Whether  when a mortgage has been created  on               joint   family  property  by  a   father   who               constitutes a joint Hindu family along with  a               son or sons, and a decree has been obtained by               the mortgage on the basis of the mortgage,  it               is open to a son to challenge the mortgage and               the decree merely on the ground that the  debt               was  incurred  without  legal  necessity,   or               whether  be  must  prove  that  the  debt  was               incurred for illegal or immoral purposes."               A  Full  Bench  of the  High  Court  gave  the               following answer:               "In   the  case  of  a  Hindu   joint   family               consisting  of  a  father  and  sons  when   a               mortgage  has  been created by the  father  of               joint property, and a decree has been obtained               on the basis of the mortgage, the only  ground               on which the

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             71               sons can challenge the mortgage and the decree               is  that the debt was incurred for illegal  or               immoral purposes and that for this purpose  it               is  immaterial whether the mortgaged  property               has actually been brought to sale in execution               of the decree or not." The  appeal was thereafter heard by another Division  Bench, and  in  the light of the decision of the  Full  Bench,  the Division Bench dismissed the appeal. Faqir Chand now appeals to this Court under a certificate granted by the High Court. The  object  of the suit and this appeal is to  prevent  the sale of’ the mortgaged property in execution of the mortgage decree.   Accordingly, the appellant obtained an  order  for stay  of sale of the property.  In view of the  stay  order, the sale of the property has not yet taken place.  The first and  the  main  question  arising  in  this  appeal  may  be formulated  thus; in a case where a father mortgages a  pro- perty  of a joint family consisting of himself and his  sons for  payment  of his debt, but the mortgage is  neither  for legal. necessity nor for payment of his antecedent debt  and the  mortgagee has obtained a decree against the father  for sale  of the property but the sale has not yet taken  place, have  the  sons any right to restrain the execution  of  the decree or the sale of the property in execution  proceedings without  showing  either  that there is no  debt  which  the father  is personally liable to repay or that the  debt  has been  incurred for an illegal or immoral purpose?  We  think that this question should be answered in the negative. In  Brij Narain v. Mangla Prasad(l), the Privy Council  laid down  five  propositions, of which the following  three  are material for the decision of this appeal:               "(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." Brij  Narain’s case(1) received the approval of  this  Court ill Luhar Amritlal Nagji v. Doshi Jayantilal Jethalal(2). The second proposition laid down in Brij Narain’s case(1) is founded upon the pious obligation of a Hindu son limited  to his (1) (1923) L.R. 51 I.A. 129,  139. (2) [1960] 3 S.C.R. 849, 852-853. 72 interest  in  the  joint family property  to  pay  the  debt contracted by the father for his own benefit and not for any immoral  or  illegal purpose.  By incurring  the  debt,  the father  enables  the  creditor  to  sell  the  property   in execution  of a decree against him for payment of the  debt. The son is under a pious obligation to pay all debts of  the father,  whether  secured or unsecured.  We think  that  the second proposition applies not only to an unsecured debt but also  to  a  mortgage debt which the  father  is  personally liable to pay.  This conclusion is supported by the  opinion of  Sulaiman, A.C.J. in Jagdish Prasad v.  Hoshyar  Singh(1)

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and  the  opinions  expressed  in  Bharamappa  Murdeppa   v. Hanmantappa  Tippanna(2), Hira Lal v. Puran  Chand(3)  Abdul Hameed  Sait  v. Provident Investment Co. Ltd.(4).  In  Hira Lal’s case(3), Misra, J. observed :               "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." in Jagdish Prasad’s case(4), Mukerji and Boys, JJ. took  the view that the second proposition did not apply to a mortgage debt, but we are unable to agree with this opinion. In Bharamappa Murdeppa v. Hanmantappa Tippanna(2), Beaumont, C.J.  said  that  the second proposition  in  Brij  Narain’s case(5)  did  not  apply to the recovery of a  debt  in  its character  as a mortgage debt, and a decree for  payment  of the  debt by sale of the property could not be  enforced  by sale  of the son’s interest in it, but if a personal  decree is obtained against the father then that decree might be  so enforced.   He, however, pointed out this view would  compel the  creditor to recover the debt in two stages.  A  similar -)pinion  was expressed in Ganpati v. Rameshwar(6).  We  are not  inclined to confine the second proposition within  such narrow limits. It is the existence of the father’s debt that enables the creditor to sell the property in execution of  a money  decree against the father.  Likewise, if  a  mortgage decree  against the father directs the sale of the  property for  the  payment  of his debt, the creditor  may  sell  the property  in execution of the decree.  It is true  that  the procedure  for the execution of a money decree is  different from that for the enforcement of a mortgage decree.  A (1)  (1929) I.L.R. 51 All. 136, 138-140. (3)  A.I.R. 1949 All. 685 (F.B.), 687. (5)  L.R. 51 I.A. 129. (2)  I.L.R. [1943] Bom. 568, 572. (4)  I.L.R. [1954] Mad. 939, 954. (6)  I.L.R. [1946] Nag. 741, 749. 73 money  decree  is  executed by attachment and  sale  of  the debtor’s  property.   For  the  execution  of  the  mortgage decree,  an attachment of the property is not necessary  and the  property  is  sold by force of the  decree.   But  this distinction   in  procedure  does  not  affect   the   pious obligation  of a Hindu son to pay his father’s debt.  As  in the case of a money decree, under a mortgage decree also the property  is  sold for payment of the  father’s  debt.   The father  could voluntarily sell the property for  payment  of his debt.  If there is no voluntary sale by the father,  the creditor  can  ask  the Court to do  compulsorily  what  the father  could have done voluntarily.  The theory is that  as the  father may, in order to pay a just debt,  legally  sell the  whole  estate without suit; so his creditor  may  bring about such a sale by the intervention of a suit.  See  Rama- samayyan  v. Virasami Ayyar(l).  Even where the mortgage  is not  for legal necessity or for payment of antecedent  debt, the creditor can, in execution of a mortgage decree for  the realisation of a debt which the father is personally  liable to  repay,  sell  the estate without  obtaining  a  personal

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decree against him.  After the sale has taken place, the son is bound by the sale, unless he shows that the debt was non- existent  or was tainted with immorality or illegality;  see Bhagbut  Pershad v. Mussumat Girja Koer(2). In  the  earlier case of Suraj Bunsi Koer v. Sheo Proshad Singh(3) also,  the Judicial Committee had clearly laid down:               "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 father’s debt, his sons, by reason  of               their duty to pay their father’s debts, cannot               recover  that property, unless they shew  that               the   debts   were  contracted   for   immoral               purposes,  and that the purchasers had  notice               that they were so contracted." In Jagdish Prasad’s case(4.), Sulaiman, A.C.J. took the view that the second proposition in Brij Narain’s case(5) did not apply  where the sale had not taken place and  the  property had  not  yet  passed out of the family.   In  Abdul  Hameed Sait’s  case(6), Subba Rao, J. (as he then was), said at  p. 955:               "I would, therefore, confine the operation  of               the  second proposition only to a  case  where               joint family property is sold in execution  of               a decree, whether it is a mortgage decree or a               simple decree." We  are unable to accept this view.  The second  proposition applies  not  only after but also before the sale  is  held. It is well settled (1)  (1898) I.L.R. 21 Mad. 222, 224. (3)  (1878-9) L.R. 6 I.A. 88, 106. (5)   L.R. 51 I.A. 129. (2)  L.R. 15 I.A. 99. (4)  I.L.R. 51 All. 136. (6)  I.L.R. [1954] Mad. 939. 4Sup.CI/66-6 74 that  the second proposition applies in the case of a  money decree for payment of the debt before the sale is held,  and we see no reason why it should not so apply in the case of a mortgage  decree for payment of the debt by the sale of  the property.   If there is a just debt owing by the father,  it is  open to the creditor to realise the debt by the sale  of the  property in execution of the mortgage decree.  The  son has  no right to interfere with the execution of the  decree or  with the sale of the property in execution  proceedings, unless  he can show that the debt for which the property  is sold is either non-existent or is tainted with immorality or illegality.   It follows that the appellant is not  entitled to  restrain  the sale of his interest in  the  property  in execution of the mortgage decree for sale. In  this case, the appellant obtained an interim  order  for stay of sale of the property.  We think that the High  Court improperly passed this order.  The appellant had no right to obtain either an interim or final order for stay of the sale having regard to the fact that admittedly the debt was owing by  the father and was not incurred for immoral  or  illegal purposes.   Nor  did  he acquire such  a  right  because  he instituted  this suit before the decree for sale was  passed in the mortgage suit. The next question is whether the son is entitled to  impeach the  mortgage  of a joint family property made  neither  for

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legal  necessity nor for payment of an antecedent debt,  and if  so,  whether the remedy is available to  him  after  the mortgagee  has obtained a decree against the father  on  the mortgage.  We think that the answer to this question  should be in the affirmative. In  the present case, the Full Bench of the High Court  took the view that while the first and third propositions in Brij Narain’s ,case(1) were generally applicable to the  managing members of joint families, the second proposition was  self- contained  and was intended to lay down an exception in  the case  of joint families consisting of father and sons  only. The view taken was that the third proposition did not  apply where the joint family consists of father and sons.  We  are unable to agree with this view.  The first proposition  sets out  the  general rule regarding the power of  the  managing member  of a joint family to alienate or burden the  estate. The second and third propositions lay down the special rules applicable when the managing member is the father, and deals specially with his power to mortgage the estate for  payment of  his  antecedent  debt.   Reading  the  first  and  third propositions  together, it will appear that a father who  is also the manager of the family has no power to mortgage  the estate  except  for  legal necessity or for  payment  of  an antecedent debt. Counsel for the appellant stated that under the law by which the  appellant  is governed, a mortgage of  a  joint  family property (1) L.R. 51 I.A. 129. 75 not  being  one  for legal necessity or for  payment  of  an antecedent  debt  will  not bind the property  only  to  the extent of the son’s interest therein.  Before the  mortgagee obtained  the  decree  on the mortgage,  the  appellant  was therefore entitled to a declaration that such a mortgage did not  bind  his interest in the property.   Is  the  position altered  by the passing of the decree?  We think  not.   The decree against the father does not of its own force create a mortgage binding on the son’s interest.  The security of the creditor  is not enlarged by the passing of the decree.   In spite of the passing of the preliminary or final decree  for sale  against the father, the mortgage will not, as  before, bind the son’s interest in the property, and the son will be entitled to ask for a declaration that his interest has  not been alienated either by the mortgage or by the decree. It follows that in the absence of a finding on the  question of  legal  necessity,  this  appeal  cannot  be   completely disposed of.  The Courts below have not recorded any finding on this issue.  Normally, we would have remanded the  matter to  the  High  Court  for  a  finding  on  the  point.   But considering that the litigation is now pending for the  last 14  years and the sale of the property has  been  improperly stayed  for a long time, we have thought it fit  to  examine for ourselves the evidence on the record with regard to this issue.   Murari  Lal  took a loan of Rs.  75,000/  from  the mortgagee.   Out of this sum, Rs. 31,000/ was  borrowed  for discharging  antecedent debts.  It is not disputed that  the mortgage  to the extent it secures repayment of Rs.  31,000/ binds the appellant’s interest in the property.  Rs.  3,000/ was  paid  to  Murari Lal for meeting the  stamp  and  other expenses  in connection with the mortgage.  The balance  sum of  Rs. 41,000/ was paid to him by cheque.  In the  mortgage deed, Murari Lal stated that he would spend this sum of  Rs. 41,000 in his business for the maintenance of the family and for  the  education  of  the  appellant.   Counsel  for  the appellant  submitted  that Murari Lal did not carry  on  any

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business  and the mortgagee’s case that the loan  was  taken partly for purposes of business should not be accepted.  The testimony  of Baburam, Manohar and Sukhpashi Lal shows  that Murari Lal was carrying on business in silver and gold lace. Murari Lal denied that he ever carried on business after his father’s  death  which took place in 1906.   The  appellant, Sitaram,  Ram  Sarup and Prabhu Dayal support him.   We  are enable  to  accept  the testimony of Murari  Lal  and  other witnesses  that  Murari Lal did not carry  on  any  business since  1906.  The deed of partition between Murari  Lal  and Ram  Sarup dated December 14, 1939 recited that  Murari  Lal was  by occupation a sarafa and rentier.  The mortgage  deed dated June 7, 1949 stated that the occupation of Murari  Lal was  silver and gold business.  The endorsement of the  Sub- Registrar on this deed described him as saraf by occupation. Counsel for the appellant submitted that there is a material discrepancy between the oral evidence and the recitals 76 in  the mortgage deed.  The oral evidence shows that  Murari Lal was carrying on business in gold and silver lace whereas the mortgage deed shows that he was carrying on business  in gold  and silver.  We think that the description of  ’saraf’ or  gold and silver business in the mortgage deed  was  used loosely  to indicate business in silver and gold  lace.   If Murari Lal was, in fact, carrying on a business in gold  and silver, it was not necessary for the plaintiff to set up the case  that he was carrying on a business in silver and  gold lace.   If Murari Lal was carrying on a business, it is  not disputed that the business was a joint family business.  The loan  of Rs. 75,000 was thus taken by Murari Lal partly  for payment  of antecedent debts and partly for purposes of  his family  business and other legal necessities.  The  mortgage in its entirety bound the property including the interest of the appellant therein. In the result, the appeal is dismissed with costs.      V.P.S.                      Appeal dismissed 77