Faqir Chand v. Harnam Kaur & Anr.
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 mort
gag: deed, Murali Lal bound himself to repay the loan. Part
of the loan was borrowed by M urari Lal for discharging an ante
cedent mortgage debt. On July 4, 1952; Harnam Kaur instituted
Suit No. 219 of 1952 against Murari Lal claiming the usual preli
minary 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 amend-
ment 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 consider-
ation 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 ille
gal 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 exe
cution 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 mort
gage, 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
II
I
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 pro
perty. 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 pro
perty of a joint family consisting of himself and his sons for pay
ment 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 per
sonally 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.
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 pay
ment 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 obliga
tory o:i the debtor, and therefore on his sons, the payment
of a mortgage debt is also morally and religiously obliga
tory."
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('), Beau
mont, 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 mort
gage 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.
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 attach
ment 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'olun
tarily. 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 pur
chasers 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.
(2) L.R. 15 I.A. 99.
(4) I.L.R. 51 All. 136.
(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 incurr
ed 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 nece
ssity 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 ans
wer 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 intend
ed 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 pro
position sets out the general rule regarding the power of the manag
ing 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. pay
ment 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.
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 inte
rest 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 mort
gage 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. Nor
mally, 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 pro
perty. 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 educa
tion 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 Sukh
bashi 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 Decem
ber 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 mort
gage 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.
/