FAQIR CHAND v. HARNAM KAUR

FAQIR CHAND _v._ HARNAM KAUR & ANR. _August_ 5, 1966 (K. N. WANCHCO, J. C. SHAH AND R. S. BACHAWAT, JJ.j _Hindu_ _Law-Debts-Joint_ _family_ _of_ _father and son-Mortgage_ _by_ _**father as**_ _**manager-Right of**_ _**son to**_ _**inipeach-Mortgage**_ _**decr.'!e**_ _**agcdnst the**_ _**father-Execution-When**_ _**could**_ _**be**_ _**stayed by son.**_ The appellant and his father con1tituted 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 antccedelll 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 bis father and the mortgagee (first respondent), claiming a declaration that the antecedent 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 bis plaint claiming a further declaration that the preliminary decree wao not binding on him. The object of the appellant's suit _was_ to prevent the sale of the mortgaged property in execution of the mortgage decree. At the trial, the appellant conceded that the mortgage was not for illegal **or** **immoral purposes and that** **it** **was supported** **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** suyed 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 soru 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** p~ perty but the sale bas not yet taken place, the sons have no right to **restra!n the execution** **of** **the decree or the sale** **of** **the propeny** **in** **execu-** **tion 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 DJ **The** **second proposition** **in** _**Brij Narain**_ **v.** _**Mang/a Prasad,**_ **( 1923) L.R.** 51 I.A. 129-namely, that if the manager of a joint family is the father **und** **the other members arc 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 neces· sity or for payment of antecedent debt the creditor can in execution of a rnortpge decree for realisation of a debt which the father ls penonally **H** ## • # • A **B** #### c **D** E F G ' I A B ### c D E F _G_ H FAQIR CHAND _v._ HARNAM KAUR _(Bachawat,_ J.) 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, HJ The son had no right to obtain either an interim or final order foc 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 smt before the decree for salo was passed in the mortgage suit [74 C-DJ Observations _contra_ in _Jagdish Prasad_ V; _Hoshyar Singh,_ (1929) J.L.R. _SI_ All 136, _Bharrnappa Murdeppa_ v. _Hanurnantappa Tippanna,_ I.L.R. [1943] Born. 568, _Ganpatl_ v. _Rameshwar,_ J.L.R. [1946) Nag. 741 and _Abdul_ _Hameed Salt_ v. _Provident lnvestmtnt Co. Ltd.,_ J.L.R. [1954] Mad. 930, disapproved. **Reading the** **first** **and** **the** **third** **proposition in** _**Brij Narain's**_ **case** **toge-** ther, 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 ante<>edent 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 nor 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 CJ 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. I. The Judgment of the Court was delivered by Bachawat, J. . M urari 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 mortgaged property belongs to the joint family. By a covenant in the mortgag: deed, Murali Lal bound himself to repay the loan. Part of the loan was borrowed by M urari 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 prqperty. On March 13, 1953, Faqir Chand instituted the present suit against Harnam Kaur and also Mur11.ri Lal claiming a declaration that the mortgage deed was for immoral and illegal purposes and without legal necessity and was not 70 SUPREMB COURT REPORTS (1967] I S.C.R. binding on him and for cons~quential reliefs. On April 20, 1953. A Harnam Kaur obtained a preliminary decree for sale in Suit No. 212of1952. 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:- B "(2) Whether the mortgage in dispute is for consideration and legal necessi•y, 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. 1 had notice of the same?" At the trial, councel for Faqir Chand conceded that the mort· gages 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 de~ree 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 illegal or immoral purpose and as he could not challenge the mort· gage, 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 que9tion of law: "Whether when a mortgage has been created on joint family property by a father who constitutes a joint Hindu fan1ily along with a son or sons, and a decree has been obtained by the mortgagee 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 \'1hether he 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 j9int 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 #### c D E F G II A FAQIR CHAND _v._ HARNAM KAUR _(Bachawat,_ J.) 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." B 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. Accor dingly, 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 m.ortgages a 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 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. _Mang/a Prasad(•),_ thejPrivy Council laid down five propositions, of which the following three are material for the decision of this appeal: "(!) The managing member of a joinliiundivided 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(') received the approval of this Court in _Lu/tar_ _Amritlal Nagji_ v. _Doshi Jayantilal Jethala/(2)._ The second proposition laid down in _Brij Narain's_ case(!) is founded upon the pious obligation of a Hindu son limited to his (1) (1923) L.R. 51 I.A. 129, 139. (2) [196J] 3 S.C.R. 840, 852-853. I ##### c D E F G H 72 SUPRBMB COURT REPORTS [1967) I S.C.R. 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. Ry incurring the debt, the father enables th~ 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 th" father, whether secured or unsecured. We think that the second proposition app\ies 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.CJ. in _Jagdish_ _Prasad_ v. _Hosliyar_ _Singh(')_ and the opinions expressed in _Bharamappa_ Murd~ppa v. _Hanmantappa_ _Tippanna(_ _[2]_ _),_ _Hira_ _Lal_ v. _Pura11_ _Chand(') Abdul Hamced_ _Sail_ v. _Proi•ident_ _Investment_ _Co._ /.td.( [4] ). 111 _Hira_ _La/'s_ case('), Misra, J. observed : "A debt secured by a mortgage, it seems almost axiomatic, is as much a debt of the fa•her as ~n unsecured debt and considered iri the light of the S;'iritu~l ne~d 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 o:i the debtor, and therefore on his sons, the payment of a mortgage debt is also morally and religiously obligatory." A B #### c D In _Jagdisli_ _Prasad's_ case(•). Mukerji and Boys, JJ. took the view that the second propositi011 did not apply to a mortgage debt, but E we are unable to agree with this opinion. In _Bharamappa_ _Murdeppa_ v. _Hanmantappa_ _Tippanna('),_ Beaumont, C.J. said that the second proposition in _Brij Narain's_ case(') 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 e~forced. by sale .of the son's interest in it, F hut if a personal decree 1s obtamed agamst 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 G 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~~ ) 1.L.R. SI All. 136, 138-14J. (3) A.LR. !949 All. 68S (F.B.), 687. (~) L.R. 51 I.A. 129. (2) l.L.R. 11943! Born. S68, S72. (4) 1.1..R. 11954] Mad. 939, 9S4. (6) l.L.R. 11946! Nag. 741, 749. H A B #### c D E F G B FAQIR CHAND _v._ HARNAM .KAUR _(Bachawat,_ _J.)_ 7 3 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 mortg,;ge decree also the property is sold for payment of the father's debt. T!ic 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 o'oluntarily. The theory is that as the father may, in order to pay a just debt, legally sell the whole estate wilhout suit; so his creditor may bring about such a sale by the interventi.on of a suit. See _Rama-_ _samayya11_ v. _Virasami Ayyar(')._ 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 decree against him. After the sale has taken place, the son is bour:d by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illegality; see _Bhagbut f-ershad_ v. _Mussumat Gilja_ _Koer(2)._ In the earlier case of _Sura}_ _Bu11si_ _Koer_ v. _Shea Prashad Singh(')_ 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 thatthey were so contracted." In _Jagdish Prasad's_ case('), Sulaiman, A.C.J. took the view that the second proposition in _Brij Narain's_ case(') did not apply where the sale had not taken place and the property had not yet passed out of the family. In _Abdul Hameed Sail'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 (I) ~~(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. (I) ~~(1898)~~ ~~I.L.R..~~ ~~21~~ ~~Mad.~~ ~~222~~, 224. (2) L.R. 15 I.A. 99. (3) (1878-9) L.R. 6 I.A. 88, 106. (4) I.L.R. _51_ All. 136. (5) L.R. 51 I.A. 129. (6) I.LR. (1954] Mad. 939. Ml4Sup. CI/66-6 74 SUPRBMI! COURT REPORTS (1967] I S.C.R. 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 pay###### ment 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 wa~ 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 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_ ease(t) were generally applicable to the managing members of joint families, the second proposition was self-contained and was intended to Jay down an exception in the case of joint families consisting of father and 'ons only. The view taken was that the third pro position 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 (t) L.R. _SI_ I.A. 129. A B ##### c D E F G H A B #### c D E F G H FAQIR CHAND v. HARNAM KAUR _(Bachaw.at,_ J.) 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 mortgagt;e 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 prol"P.rty, and the son will be entitled to ask for a declaration that his imerest 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 Mmari 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 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 Sukhbashi 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 unable 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 _sarafby_ occupation. Counsel for the appellant submitted that there is a material discrepancy between the oral evidence and the recitals 76 SUPREME COURT REPORTS [1967) 1 S.C.R. 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 i.ndicate 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 Murali Lal was carrying on a business, it is not disputed that the business was a joir.t 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 cost<. _V.P.S._ _Appeal dismissed._ / A B #### c