Judgement Appeal (No. 62 of 1921) from a judgment and decree of the High Court (March 11, 1919) varying a decree of the Subordinate Judge of Meerut (March 31, 1916). The suit was brought in 1915 by the respondents to recover possession of certain immovable property. The property in suit had been ancestral property of a Hindu (Mitakshara) joint family, consisting of Amar Singh (till his death in 1909), his two sons (who were made formal defendants), and his grandsons the respondents. In 1904 Amar Singh executed a usufructuary mortgage for ten years over part of the property in favour of the principal defendants to secure an advance of Rs.8000 then made to Amar Singh. In 1907 Amar Singh sold to the mortgagees the equity of redemption for Rs.l3,500, of which Rs.8000 was applied to discharge the mortgage debt, and Rs.5500 was paid to Amar Singh. The facts more fully appear from the judgment. The Subordinate Judge found that there was no legal necessity for incurring the mortgage, or for selling the equity. He, however, took the view that under the Mitakshara law the debt was an " antecedent debt " for which Amar Singh was competent to alienate the joint property. As regards the Rs.5500 received upon the sale, the learned judge held that the plaintiffs had failed to prove that it was applied to immoral purposes, and that consequently by Hindu law they were under a pious duty to pay that sum to the defendants. He made a decree dismissing the claim as to a 16/27 share of the property; as to the remaining 11/27 the decree set aside the sale and provided that the plaintiffs should have possession if within three months they paid Rs.5500 to the vendees, but that otherwise their claim to that share should also be dismissed. Upon appeal to the High Court the decree was varied. The learned judges (Rafique and Lindsay JJ.), dealing first with the question of antecedent debt, referred to the judgment of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh (L. R. 44 1. A. 126.) and said " In the present case the sum of Rs.8000 was borrowed by Amar Singh on the security of the joint estate. The learned judges (Rafique and Lindsay JJ.), dealing first with the question of antecedent debt, referred to the judgment of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh (L. R. 44 1. A. 126.) and said " In the present case the sum of Rs.8000 was borrowed by Amar Singh on the security of the joint estate. There is nothing to show that the money was advanced on his personal credit; on the contrary, the mortgage was a usufructuary mortgage under which Amar Singh was under no personal liability. Applying therefore the test laid down in the case mentioned we find that the mortgage of 1904 cannot be considered to be an antecedent debt." Dealing with the question of pious obligation, they held that there was in Hindu law no obligation upon grandsons to pay the debts of their grandfather while their own fathers were living. In support of that view they referred to Vijnaneswaras commentary on Yajnavalkya II., 50. It being conceded however that Rs.1000 had been applied to discharge a personal debt of Amar Singh to a bank at Meerut, it was held that the plaintiffs were bound to pay that amount as a condition to recovering the property. The appeal to the High Court is reported at I. L. R. 41 A. 529. The defendants (vendees) appealed to the Privy Council; there was no appeal by the plaintiffs as to the Rs. 1000. 1922. Feb. 17; March 10, 13. De Gruyther K.C. and S. Hyam for the appellant. Even if as the result of the decision of the Board in Sahu Ram Chandra v. Bhup Singh (L. R. 44 I.A. 135.) there was no antecedent debt and consequently the sale cannot be set aside, yet the plaintiffs were not entitled to recover the property without repayment. The above decision did not affect the principle that the creditor could bring ancestral estate to sale in execution, and bind the shares both of sons and grandson. The above decision did not affect the principle that the creditor could bring ancestral estate to sale in execution, and bind the shares both of sons and grandson. That principle is well established Muddun Takoor v. Kantoo Lal (( 1874) L. R. 1 I. A. 321, 331.); Bhaghat Per shad v. Girja Koer (( 1888) L. R. 15 I. A. 99.) ; Suraj Bunsi Koer v. Sheo Prashad Singh (( 1879) L. R. 6 I. A. 88.) ; Nanomi v. Modan Mohun (( 1885) L. R. 13 I. A. 1.) ; Badri Prasad v. Madan Lal (( 1893) I. L. R. 15 A. 75(F. B.).) ; Ramasami Nadan v. Ulaganatha Gowndan ([ 1898] I. L. R. 22 M. 49.) ; Govind v. Sakharam ([ 1904] I. L. R. 28 B. 383.) ; Maynes Hindu Law, paras. 301, 312, 321. The principle rests upon the pious obligation of sons and grandsons to discharge their fathers and grandfathers debts out of the assets. The texts set out in Sarhars Vivashtha Chandrika, vol. i., pp. 238 to 240, show that grandsons are bound as well as sons, and although their fathers are living. That the obligation extends to grandsons is specifically stated in the passage from the judgment of Westropp C.J. approved by the Board in Suraj Bunsi Koer v. Sheo Prosad Singh. (L. R. 6 I. A. 88, 104.) This question was not touched by the above cited decision of the Board in 1917 nor by Narain Prasad v. Surnam Singh ([ 1917] L. R, 44 I. A. 163.) nor Jogi Ram v. Ganga Ram (( 1917)21 Cal. W.N. 957 (P. C).) which followed it. The debt not being shown to have been incurred for immoral purposes it must be assumed that the grandsons got the benefit, and they cannot in equity set aside the sale without refunding the money Muddun Gopal v. Ram Buksh Pandey. (( 1866) 6 Sutt. W. R. 71.) But it is further submitted that the mortgage constituted an antecedent debt which supports the sale. It was not intended in Sahu Ram Chandra v. Bhup Singh (L. R. 44 I. A. 126.) to exclude every debt secured by a mortgage on the joint estate from being such an antecedent debt as would validate a sale. W. R. 71.) But it is further submitted that the mortgage constituted an antecedent debt which supports the sale. It was not intended in Sahu Ram Chandra v. Bhup Singh (L. R. 44 I. A. 126.) to exclude every debt secured by a mortgage on the joint estate from being such an antecedent debt as would validate a sale. What was there decided was merely that a debt which was part of the same transaction as the impeached alienation was not " antecedent" to it. The High Court at Madras has held that the effect of the decision was thus limited Peda Venkanna v. Sreenivasa Deekshatulu ([ 1917] I. L. R. 41 M. 136.); Armugham Chetty v. Muthu Koundan ([ 1919] I. L.R. 42M.711(F.B.).); Randasami Goundan v. Kuppu Mooppan. ([ 1919] I. L. R. 45 M. 421.) In Badri Prasad v. Madan Lal (I. L. R. 15 A. 75.), and other cases, the antecedent debt was one secured on the joint estate. In the present case, although the mortgage was usufructuary, the property could not be recovered without payment; there was therefore a debt. Dunne K.C. and Dube for the respondents. The judgment of the Board in Sahu Ram Chandra v. Bhup Singh (2) is conclusive of this case, since there was here no debt con tracted independently of the security of the joint property. Further, there was really no debt, since the mortgage was usufructuary and there was no power to sue for ten years. The argument as to pious obligation was advanced in the above case, and failed. Here it could not arise, because there was no pious obligation on the grandsons to pay during their fathers lives. [They were stopped.] April 10. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a decree, dated March 11, 1919, of the High Court of Judicature at Allahabad, which varied a decree dated March 31, 1916. The suit was brough on July 24, 1915, in the Court of the Subordinate Judge of Meerut. The plaintiffs were minors and sued through their guardian, Ram Singh. No pedigree need be given. It is sufficient to bear in mind that Amar Singh succeeded on the death of his father, Nawal Singh, to a half of Nawals property. The suit was brough on July 24, 1915, in the Court of the Subordinate Judge of Meerut. The plaintiffs were minors and sued through their guardian, Ram Singh. No pedigree need be given. It is sufficient to bear in mind that Amar Singh succeeded on the death of his father, Nawal Singh, to a half of Nawals property. This half, thus ancestral family property, was, at the date of the mortgage and sale after mentioned, the joint family property of Amar, of his two sons, Bharat and Kehar, and of Ram, son of Bharat, and Mahabir and Gajraj, the two sons of Kehar. This ancestral joint undivided estate was thus owned by two sons and three grandsons. The two sons as well as the three grandsons, the plaintiffs, were all alive at the date of the mortgage and sale after mentioned, and they are still alive. Amar, the grandfather, died in 1909. On March 23, 1904, Amar executed a mortgage over this family property for Rs.8000. It is a fact beyond dispute that Amar, whom the Subordinate Judge finds to have been a man of extravagant habits, not leading a moral life and addicted to drink, incurred this debt for his own personal purposes. It was, with the doubtful exception of Rs.1000 to be presently referred to, neither incurred nor used for family purposes or necessity, nor was it an antecedent debt. It was scheduled upon the mortgage as " Received in cash at the village before registration, Rs.1000. Cash at the time of registration, Rs.7000." As to the Rs.1000, the High Court has allowed it with certain interest as a good charge, and the respondents do not present any cross-appeal. The item may accordingly be dismissed from further consideration. In short, Amar treated the property as his own and violated the well-known rule of the Mitakshara, under which, as clearly laid down in Sahu Ram Chandra v. Bhup Singh (L. R. 44 I. A. 126.), joint family property " cannot be the subject of a gift, sale or mortgage by one coparcener except with the consent, express or implied, of all the other coparceners. Any deed of gift, sale or mortgage granted by one coparcener on his own account of or over the joint family property is invalid; the estate is wholly unaffected by it, and it stands entirely free of it." This law has been, in substance, repeated again and again. It is in entire accord with the ancient texts. It was accepted law long prior to the case above mentioned (L. R. 44 I. A. 126.)— a convenient instance being Lord Watsons judgment in Mahdo Par shad v. Mehrban Singh (( 1890) L. R. 17 I. A. 194.) ; and it has been followed by the cases after referred to. The exception to this rule is where the consideration for the transaction is an antecedent debt of the vendor or mortgagor. And the judgment of Sir John Stanley on this part of the law in Chandradeo Singh v. Mata Prasad (( 1890) I. L. R. 31 A. 176, 196.), and expressly affirmed by this Board in Sahu Ram Chandras Case (L. R. 44 I. A. 126, 133.), appears to this Board exactly to cover the present case. Before passing from the mortgage, however, their Lordships desire to note that it was, by its terms, a usufructuary mortgage, and was for the period of ten years running from its date—that is, from 1907- 1917. It is stipulated that, possession and occupation being given to the mortgagee, " The profits of the mortgaged land will be equal to the interest of the amount of mortgage until redemption of the mortgage.....Whenever, after the expiry of ten years, I, the executant, shall have paid the entire amount of mortgage in a lump sum to the mortgagee, I shall get the property mortgaged by me redeemed. I shall not have power to the redemption of the mortgage before the expiry of ten years." Apparently, however, the profuse scale of the fathers personal expenditure continued, and he was again willing to put, or attempt to put, in jeopardy the joint family property. Notwithstanding the ten years provision of the usufructuary mortgage, he (Amar Singh) within three years from its date—namely, on July 16, 1907—sold his equity of redemption in the property to the mortgagees for Rs. 13,500. Notwithstanding the ten years provision of the usufructuary mortgage, he (Amar Singh) within three years from its date—namely, on July 16, 1907—sold his equity of redemption in the property to the mortgagees for Rs. 13,500. In the specification of the consideration he " allowed credit" to the vendees for the Rs.8000 obtained from the mortgage, and the balance was put down " Received in cash at the time of the registration." Beyond all question with regard to this latter sum, here was a sale in flat defiance of the law. For what is not pretended to be any family purpose or necessity, he had improperly and illegally sold the family property; and such a sale cannot stand. This case is singularly clear, because it is not affected by other considerations such as the property having been publicly sold there are no rights of execution creditors or auction purchasers to be considered. But an argument was submitted, supported by the judgment of the Subordinate Judge, to the effect that although by the rules of the Mitakshara law a mortgage is at its date an invalid deed in so far as purporting to encumber the joint family property, yet when it purports to become the consideration for a sale it then becomes a just and a legal consideration on the principle of " antecedent debt.” The family property could not be affected by such an invalid mortgage, but it could be sold next year or next day to the mortgagee for an " antecedent" debt—namely, the mortgage debt itself! Thus by turning the " antecedent debt " simply into a debt” "antecedent" to the sale, the whole doctrine of antecedent debt is reduced ad absurdum, the principle of the Mitakshara law is circumvented, and the rights of the junior members of a Hindu family are no longer protected, but can be easily destroyed. Their Lordships cannot hold that this is in accordance with law. The views of the Board have been expressed quite recently in Sahu Ram Chandras Case (L. R. 44 I. A. 126.) and in Jogi Das v. Ganga Ram (21 Cal. W. N. (P. C.) 957.) about to be referred to. As to the matter of the antecedency of debts, it is clear beyond question that the antecedency is antecedency to the mortgage itself. W. N. (P. C.) 957.) about to be referred to. As to the matter of the antecedency of debts, it is clear beyond question that the antecedency is antecedency to the mortgage itself. And it is more than that—it is disconnection with the mortgage in fact as well as in time. In no other way can the law of Indian joint family property protect itself against being undermined. These sentences from Sahu Ram Chandras Case (L. R. 44 I. A. 126, 134.) may be quoted as particularly applicable to the circumstances of this appeal. " In their Lordships opinion these expressions, which have been the subject of so much difference of legal opinion, do not give any countenance to the idea that the joint family estate can be effectively sold or charged in such a manner as to bind the issue of the father, except where the sale or charge has been made in order to discharge an obligation not only antecedently incurred, but incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate. The exception being allowed, as in the state of the authorities it must be, it appears to their Lordships to apply, and to apply only, to the case where the fathers debts have been incurred irrespective of the credit obtainable from immovable assets which do not personally belong to him, but are joint family property. In their view of the rights of a father and his creditors, if the principle were extended further, then the exception would be made so wide as in effect to extinguish the sound and wholesome principle itself, namely, that no manager, guardian or trustee can be entitled for his own purposes to dispose of the estate which is under his charge." The law thus laid down was followed in Narain Prasad v. Surnam Singh. (L. R. 44 I. A. 163.) Further, to employ the resume made by the learned judges of the High Court " The point was again considered by their Lordships of the Privy Council in the case of Jogi Das v. Ganga Ram (21 Cal. (L. R. 44 I. A. 163.) Further, to employ the resume made by the learned judges of the High Court " The point was again considered by their Lordships of the Privy Council in the case of Jogi Das v. Ganga Ram (21 Cal. W. N. (P. C.) 957 .), where Lord Haldane interpreted the judgment in the case of Sahu Ram Chandra v. Bhup Singh (L. R. 44 I. A. 126,131.), as follows In that case it was laid down in effect that joint property could not be alienated as against co-sharers by way of mortgage or otherwise, except for necessity, or for payment of an actual antecedent debt, quite distinct from the debt incurred in the mortgage itself, and that in consequence the transaction in that case could not stand, and it was added that the mere circumstance of a pious obligation does not validate the mortgage.’" This body of law is rightly followed and applied by the High Court, and their Lordships fully approve of the judgment delivered. A separate and protracted argument was laid before the Board to the effect that the respondents, the grandsons of Amar Singh, are not entitled without payment to have their property against his invalid proceedings by reason of " pious obligation." It is sufficient to say that no such doctrine can be invoked in the circumstances of the present case. In Sahu Ram Chandras Case a similar appeal to the “pious obligation” doctrine was made during the fathers lifetime, and the point was thus dealt with " While the father, however, remains in life, the attempt to affect the sons and grandsons shares in the property in respect merely of their pious obligation to pay off their fathers debts, and not in respect of the debt having been truly incurred for the interest of the estate itself, which they with their father jointly own, must fail; and the simplest of all reasons may be assigned for this—namely, that before the fathers death he may pay off the debt, or after his death there may be ample personal estate belonging to the father himself out of which the debt may be discharged. In short, responsibility to meet the fathers debts is one thing, and the validity of a mortgage over the joint estate is quite another thing." (L. R. 44 1. In short, responsibility to meet the fathers debts is one thing, and the validity of a mortgage over the joint estate is quite another thing." (L. R. 44 1. A. 126, 131.) In the present case the doctrine is invoked against grandsons and in the lifetime of sons. Nothing more need be said. The invocation of the doctrine entirely fails. Their Lordships will humbly advise His Majesty that the appeal should be refused with costs.