That they cannot resist the enforcement of a mortgage made by their father alone to secure money borrowed at the time and not proved to have been borrowed to meet a family necessity or to satisfy an antecedent debt I deny.
[Case Brief] Chandradeo Singh And Ors. vs Mata Prasad And Ors.
Case Name: Chandradeo Singh And Ors. vs Mata Prasad And Ors.
Court: Allahbad High Court
Bench: J Stanley, Knox, Banerji, Aikman, Richards
Decided on: 05/03/1909
BRIEF FACTS AND PROCEDURAL HISTORY:
1. The suit is one to enforce payment of a mortgage by sale of the mortgaged property. The mortgage was executed by the late Ram Narain Singh, who was the head of the defendant's family, on the 4th of September 1883, to secure a principal sum of Rs. 400, in favour of Ram Narain Kalwar, the father of the plaintiff-respondent Sheo Balak Singh and grandfather of the appellant Chanderdeo Singh.
2. It was found by the Court of first instance that the mortgage was not executed for the purpose of satisfying any antecedent debt and there was no evidence that the consideration was required for the legal necessities of the family, or that the lender made any enquiry as to the purposes for which the money was borrowed. On the other hand, it was not proved, or even alleged, that the debt was tainted with immorality
3. Upon appeal this decision was upheld by the learned Officiating District Judge. He held that the money advanced to the mortgagor could not be said to have been applied to the discharge of any antecedent debt, but at the same time that the debt was not tainted with immorality and consequently the appeal was without any force.
4. A second appeal was preferred, the first ground of appeal being that the mortgage not being one for the payment of an antecedent debt, nor for family necessity, was not binding on the appellants. There is a second ground of appeal, namely that the claim of the plaintiffs, so far as it is based on the pious duty of sons to pay their father's debt, is barred by time.
ISSUE BEFORE THE COURT:
1. Whether a father of a Hindu family governed by the Mitakshara law, can execute a mortgage which will be binding upon his sons where the loan is not obtained for family necessity or to meet an antecedent debt.
RATIO OF THE COURT:
The counsel for appellant contended that the mortgage of the 4th of September 1883, not having been made to satisfy an antecedent debt, or for family necessities, was not binding upon the appellants.
The expression antecedent debt refers a debt which is not for the first time incurred at the time of a sale or mortgage, that is presently incurred, but a debt which existed prior to and independently of such sale or mortgage. It must be a bona fide debt not colourably incurred for the purpose of forming a basis for a subsequent mortgage or sale or other similar object.
The court considered it to be beyond question that the expression 'antecedent debt' means what it expresses, namely a debt incurred prior to and independent of the sale or mortgage sought to be enforced.
The court observed that a son admittedly may be successfully sued for the debt of his father on the basis of his pious obligation to discharge his father's debts, provided that the suit be not barred by limitation, and a decree passed in such a suit may be enforced in execution by sale of the ancestral property of the family.
According to the Mitakshara rule it is a settled point that property in ancestral estate is by birth, and that the father is subject to the control of his sons in regard to that estate, it being ordained that a gift or sale of such should not be made without the concurrence of all the sons, this being the only exception that "a single individual may conclude a donation, mortgage or sale of immoveable property during a season of distress, for the sake of the family, and specially for pious purposes.”
The court admitted that the sons cannot set up their rights against their father's alienations for an antecedent debt but denied the fact that they cannot resist the enforcement of a mortgage made by their father alone to secure money borrowed at the time and not proved to have been borrowed to meet a family necessity or to satisfy an antecedent debt.
The court observed that if the mortgage in suit is not binding in toto, it is not binding as to the mortgagor's share in the mortgaged property.
The clear and explicit rule of the Mitakshara, which precludes the alienability of immoveable property by a co-parcener without the consent of his co-parceners, had been repealed or might be treated as a dead letter.
HELD BY COURT:
1. The Court allowed the appeal as regards the first plea.