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1911 DIGILAW 156 (ALL)

Bhagwati Prasad v. Ganga Prasad

1911-05-03

BANERJI, RICHARDS

body1911
JUDGMENT : BANERJI, J. 1. This appeal arises oat of a suit brought by the plaintiffs-respondents for sale upon a mortgage for Rs. 4,500, executed on the 5th of June, 1890, by one Bhawani Prasad, whose sons and grandsons are the defendants Nos. 1-5 and 16. The mortgage was in favour of Sham Lal, Misri Lal, and Desraj. Desraj mortgagee is one of the plaintiffs, arid the other plaintiffs are the representatives in interest of the other two mortgagees. The mortgage in question was made in order to pay off a mortgage of the 7th of June, 1888, upon which a sum of Rs. 1,972-11-6 was due; and also to pay off another mortgage for Rs. 2,000 executed in favour of one Khiali Ram, on the 8th of March, 1888. A small parf of the consideration was money taken in cash at the time of the execution of the mortgage bond. The defendants, who now represent the original mortgagor, Bhawani Prasad, contended that the debts in lieu of which the mortgage in question was executed, were not incurred for family necessities, and were also tainted with immorality, and that, therefore, the mortgage was not binding on them and their interests in the mortgaged property, which is ancestral property of them and Bhawani Prasad. 2. As we have said above, the major portion of the consideration for the mortgage consisted of antecedent debts, that is, debts which had been incurred by Bhawani Prasad long prior to the date of the mortgage in question. 3. It has been held by their Lordships of the Privy Council, and the rulings of this Court are also to the effect, that if a mortgage is executed by the father in lieu of an antecedent debt, it is binding on the sons if it is not tainted with immorality. As the debts due upon the mortgages of the 7th of June, 1888, and the 8th of March, 1889, were antecedent debts, so much of the consideration for the bond in question, as represents the amounts payable under those antecedent bonds, is binding on the defendants. Mr. Nihal Chand, on behalf of the appellants, contends that those debts would not be binding on the sons and grandsons of Bhawani Prasad, unless the plaintiffs could show that the antecedent debts were incurred for family necessity, and he further contends that those antecedent debts were tainted with immorality. 4. Mr. Nihal Chand, on behalf of the appellants, contends that those debts would not be binding on the sons and grandsons of Bhawani Prasad, unless the plaintiffs could show that the antecedent debts were incurred for family necessity, and he further contends that those antecedent debts were tainted with immorality. 4. We are unable to accept his first contention. It has not been held in any case that the antecedent debt must be one which was incurred for family necessity. The latest case on the point in this Court is that of Chandra Deo v. Mata Prasad, [1909] I.L.R., 31 All., 176. In that case the majority of the court held that if the debt in lieu of which, or for the payment of which, the mortgage was made, is a debt which is not for the first time incurred at the time of the mortgage but a debt which existed prior to and independently of such mortgage, and was a bona-fide debt, that is, was not a debt colourably incurred for the purpose of forming a basis for a subsequent mortgage, or sale, or other similar object, that would be an antecedent debt for which the mortgage made by the father would be binding on the sons and grandsons. The same view was taken in the Full Bench case of Badri Prasad v. Madan Lal, [1893] I.L.R., 15 All., 7. We have not been referred to any case in which it was held that the antecedent debt must have been a debt incurred for the necessities of the joint family. 5. As for the allegation of the defendants that the antecedent debts for the payment of which the mortgage in suit was executed, were incurred for immoral purposes, we are not satisfied that that is so. The evidence which the defendants have adduced, if true, does not show beyond this that Bhawani Prasad was a man of extravagant habits, who kept a prostitute. But it has been held that evidence of general immorality and extravagance is not sufficient to enable a son to escape his pious liability to pay his father's debt unless he could show that the debt was incurred for an immoral or impious purpose. The learned Subordinate Judge who had the advantage of seeing the witnesses and observing their demeanour, was not satisfied as to the credibility of the witnesses examined on behalf of the defendants. The learned Subordinate Judge who had the advantage of seeing the witnesses and observing their demeanour, was not satisfied as to the credibility of the witnesses examined on behalf of the defendants. We see no reason to come to a different conclusion. 6. If we allow for, as we must do, the antecedent debts, for the payment of which the mortgage in question was executed, there will be a small sum of about Rs. 300 and odd which the appellants contend was taken in cash at the time of the execution of the mortgage by Bhawani Prasad, and as to which there is no evidence, that this portion of the loan was taken for family necessity. We should be inclined to accept this contention and to deduct that sum and interest thereon from the amount of the claim; but in view of the fact that the learned advocate for the respondents has withdrawn his objections under Order 41, Rule 22 of the Code of Civil Procedure, in respect of compound interest, the learned Counsel for the appellants, wisely, as we think, does not press the appeal in regard to this small sum of Rs. 300 odd. 7. The result, therefore, is that the decree of the court below must be affirmed, and this appeal midst fail. We accordingly dismiss the appeal but extend the time for payment of the mortgage amount for a period of six months from this date. In other respects we affirm the decree of the suit court below. The respondents will have their costs of this evidence.