Judgement Appeal (No. 57 of 1943) from a decree of the High Court (May 16, 1941) which affirmed a decree of the Subordinate Judge, First Class, Montgomery (May 20, 1939). The following facts are taken from the judgment of the Judicial Committee—The appeal arose out of a suit instituted by the plaintiffs—appellants before the Board—for setting aside the sale, and for possession, of the properties mentioned in the plaint which were sold by court in execution of a decree, by reason of a surety bond executed by their father, Uttam Chand, in the circumstances mentioned below. The properties in dispute were ancestral. The main question arising for decision in this appeal was whether the above-mentioned surety bond created or gave rise to a personal liability on Uttam Chand. Uttam Chand and Dogar Chand, shown in the pedigree given below, were two separated Hindu brothers. Kesar Chand and Ram Lai—appellants Nos. 1 and 2—were the sons of Uttam Chand; Chand Kishan—appellant No. 3—was the son of Kesar Chand and grandson of Uttam Chand. Uttam Chand and the three appellants constituted a joint Hindu family. Dogar Chand died leaving a widow, and three minor sons, Hans Rai, Sohan Lal, and Des Rai. Machhi Ram | | | Uttam Chand Dogar Chand (Def No.1)endant | Respondent No.1 | | | | | | | | Kesar Chand Ram Lal Hans Raj Sohan Lal Des Raj (Plaintiff No.1) (Plaintiff No. 2) Appellant No.1 Appellant No. 2 | | Chand Kishan (Plaintiff No. 3) Appellant No. 3 On July 1, 1927, respondent No.2, Nand Lal, obtained a preliminary mortgage decree against the minor sons of Dogar Chand, represented by their guardian Uttam Chand, on the basis of a mortgage executed by their mother, for Rs. 7,743, with interest and costs. That decree was made final on January 21, 1928. Hans Raj and his brothers, through their guardian, appealed to the High Court against the decree, and prayed for a stay of the execution of the proceedings which had been taken by the decree-holder. The stay asked for was granted by Coldstream J., who passed the following order on May 11, 1928— "Mr. Anant Ram [counsel for Nand Lai] asks that his clients may in any case be secured by a charge upon immovable property against loss if the sale is stayed. The stay asked for was granted by Coldstream J., who passed the following order on May 11, 1928— "Mr. Anant Ram [counsel for Nand Lai] asks that his clients may in any case be secured by a charge upon immovable property against loss if the sale is stayed. I think this is a reasonable argument and, having in view all the circumstances, I order that the property be not sold if the petitioners can furnish security in the form of a charge upon immovable property to the satisfaction of the executing court for paying to the decree-holder in the event of the failure of their appeal, the amount by which the price fetched by the mortgaged property when sold under the decree falls short of the amount then found due to the decree-holder under the provisions of the final decree....." Thereupon, Uttam Chand executed a security bond on July 31, 1928, in the following form, after stating that the High Court had called on him to file a security bond to the effect that if the decree money and costs, etc., were not recovered in full from the land he would be liable to make good the deficiency "Hence I hereby stand as surety for Hans Raj and others, minors, judgment-debtors, and agree that in the event of the appellate courts decision being against the judgment-debtors, my movable and immovable properties, detailed hereinafter, shall be liable for making good the deficiency, if the sale-proceeds of the hypothecated property are not sufficient to meet the demand, i.e., the amount which may then be found due from the judgment-debtors according to the decision." The above statement was followed by a list of some items of movable property, though their security was not called for, and three items of immovable property. The appeal before the High Court was compromised, and the court passed a mortgage decree in terms of the compromise, providing that the property should remain under attachment and that "the security furnished by the surety shall also stand.” As the mortgage debt was not paid in time, the decree-holder took out execution and had the mortgaged property sold. The appeal before the High Court was compromised, and the court passed a mortgage decree in terms of the compromise, providing that the property should remain under attachment and that "the security furnished by the surety shall also stand.” As the mortgage debt was not paid in time, the decree-holder took out execution and had the mortgaged property sold. As the decree debt was not realized in full by the sale, the four items of property involvd in the suit, which included only one item of secured property, were sold in execution, as before his liability had occurred Uttam Chand had transferred almost all the properties included in the security bond. As stated by the Subordinate Judge "it is common ground between the parties that the whole of the property in dispute is outside the scope of the security bond executed by Uttam Chand excepting the house which was purchased by Gehla Ram, defendant No.3.” Barring that house, the other properties were purchased by Nand Lal, the decree-holder, and respondents 4 to 9 had purchased different plots of land from him after the execution sale had been confirmed in his favour by the executing court. It was admitted that Nand Lal had paid Rs. 646-5-0 in discharge of two mortgages on the land purchased by him in the course of the execution. On June 11, 1938, the appellants filed the present suit claiming as against the respondents a declaration that the proceedings relating to the security and auction sale of the property were null and void, and ineffectual against them, and for a decree for possession of the property. The Subordinate Judge dismissed the suit. On appeal the High Court (Beckett and Tek Chand JJ.) held that on the true construction of the security bond Uttam Chand had undertaken a personal liability, and that it was not possible at that stage to reopen the execution proceedings by holding that no such liability could be enforced, and the appeal Was dismissed. 1945. Feb. 7 Subba Row for the appellants. The appeal raises the question of the liability of the sons in a joint Hindu family on a surety bond executed by their father. While the matter has been considered in India, there is no decision of the Board on the question. 1945. Feb. 7 Subba Row for the appellants. The appeal raises the question of the liability of the sons in a joint Hindu family on a surety bond executed by their father. While the matter has been considered in India, there is no decision of the Board on the question. Even if it is held that the sons are liable, there appears to be a difference in the case of a grandson, and again, there is no Privy Council authority on the point. The first question is whether, on construction, the security bond imposes any personal liability. The document in this case is more or less in the same terms as that in Raghubar Singh v. Jai Indra Bahadur Singh (( 1919) L. R. 46 I. A. 228, 235.). Here there is nothing on which it can be said that the surety has made himself personally liable; only the property hypothecated is made liable. There are no words in the document which either expressly or impliedly impose any personal liability. Further, the document must be construed in the light of the order of the court directing security to be given "in the form of a charge " Raghunandan v. Kirtyanand (( 1932) A. I. R. (P. C.) 131); Mahendranath Banerji v. Sateeshchandra Chaudhuri (( 1934) I. L. R. & C. 890.), and Seth Dawood Haji v. Ramprasad (( 1938) A. L R. (Nag.) 75.). The order of the High Court only required immovable property to be given as security, and did not require any personal undertaking to pay. The security bond created liability in respect of the property thereby secured, and the sale of the other property of the joint family not included in the bond is invalid. Next, with regard to the liability of the sons under Hindu law, a Hindu father is not competent to charge or alienate joint family property for a purpose which is neither beneficial to the family nor necessary Brij Narain v. Mangla Prasad (( 1923) L. R. 51 I. A. 129,139). Here there was no antecedent debt of the father and the charge was for a purpose unconnected with the family, and was not for a purpose of necessity or beneficial to the family. Here there was no antecedent debt of the father and the charge was for a purpose unconnected with the family, and was not for a purpose of necessity or beneficial to the family. There is some difference of opinion in India whether the rules laid down in Brij Narain v. Mangla Prasad (( 1923) L. R. 51 I. A. 129, 139) are applicable to a surety debt Bharatpur State v. Sri Kishan Das (( 1935) I.L.R. 58 A. 804) and Ganga Saran v. Ganeshi Lal (( 1939) A. I. R. (All.) 225.); the latter is something like the present case, and carries the appellants the whole way. The grandson alse, is under no obligation whatsoever to discharge his grandfathers obligation for which there was no consideration. Cases dealing with grandsons are Narayan v. Venkatacharya (( 1904) I. L. R. 28 B 408.), Dwarka Das v. Kishan Das (( 1933) I.L.R. 55 A. 675, 681.), Tulshi Prasad v. Dip Prakash (( 1931) I. L. R. 53 A. 695.) and Lyallpur Bank, Ld. v. Mehr Chand (( 1934) A. I. R. (Pesh.) 132.). If the bond did not involve any personal liability it was only a charge, and would offend against the rules laid down by the Board in Brij Narains, case (( 1923) L. R. 51 I. A. 129.); it would be invalid as an alienation of family property, and the question of distinguishing the sons and the grandson does not arise because there is no debt of the father which his sons are under a pious obligation to discharge. Also, there was no consideration for the security bond, which is not binding on the sons. The appellants are entitled to a declaration that the sales of their family properties are not binding on them, and to recover possession of them. Sir Thomas Strangman K.C. and J. M. Parikh for Nand Lal, respondent No.2. If there was no personal liability incurred by the father it is conceded that the sales which took place would not be binding on the family. It has to be established, therefore, that there was a debt of the father. It is submitted, first, that the fact that he brought in movable property, which was not specified, is an indication that he intended to make all his property liable—i.e., he was to be personally liable. It has to be established, therefore, that there was a debt of the father. It is submitted, first, that the fact that he brought in movable property, which was not specified, is an indication that he intended to make all his property liable—i.e., he was to be personally liable. So, and accepting that the order of the court directing security must be taken into consideration, the position still is that in this case there is personal liability. In Raghubar Singh v. Jai Indra Bahabur Singh (I R. 46 I. A. 228.) the terms of the bond were very different from those in this case. There was no suggestion of personal liability such as there is here. Secondly, and assuming the above view be wrong, a personal liability still arose by reason of all the facts of this case, and the transferring by the father of most of the properties covered by the bond s. 68, sub-s.1 (c), of the Transfer of Property Act. Supposing that there is a personal liability, it would follow that the sons and, it is contended, the grandson also, would be liable on the debt unless it was one which came within the exception under the Hindu law that sons are not bound to pay an illegal or immoral debt. Unless the debt fell within the exception the sons are under a pious, which is equivalent to a legal, obligation to pay. Here it cannot be said that the debt incurred by the father in connexion with the charged property gave rise to any illegal or immoral debt. It gave rise to a debt, and there is no doubt that the sons and grandson are liable for the payment of that debt to the extent of the ancestral property. If the property has been sold, then it rests on those who seek to set aside the sale to show that the debt was of an immoral character; that is the ordinary law applicable to all debts. [Counsel and parties were directed to withdraw, and on their recall Lord Goddard said Their Lordships are not prepared to hold that the bond, taken in conjunction with the order of the High Court, does establish a personal liability.] Sir Thomas Strangman K.C. In that case I cannot carry the case any further, because I cannot establish any debt. Apr. 30. Apr. 30. The judgment of their Lordships was delivered by SIR MADHAVAN NAIR, who stated the facts set out above and continued Their Lordships will now proceed to consider whether the sale of the properties in dispute found to be ancestral, in enforcement of the security bond executed by Uttam Chand, is valid in law and binding on the appellants, his sons and grandson. The liability of the appellants is sought to be based on the pious obligation imposed on a Hindu son to pay his fathers debts. In this connexion it may be stated that the appellants did not allege that the debt said to have been incurred by Uttam Chand for which the properties have been sold is an immoral one, nor did the respondents allege that it was raised for the benefit of the family. The Subordinate Judge held that the security bond was an instrument of charge only, and did not create any personal liability; that Uttam Chand had laid himself open to personal liability by reason of his having admittedly transferred a major portion of the properties included in the bond; that the sale of properties not covered by the security bond was justified by the principle expressed in s. 68, sub-s. 1 (c), of the Transfer of Property Act, which says that "the mortgagee has a right to" sue for the mortgage-money....where the mortgagee is "deprived” the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor "; and that he was competent to charge family property by the execution of the security bond as the rule of Hindu law forbidding alienations of family property or the creation of charges thereon except for family necessity or for an antecedent debt of the father did not apply to charges created by the father as surety. In the result, he dismissed the appellants suit. In the result, he dismissed the appellants suit. The learned judges of the High Court, disagreeing with the Subordinate Judge, held chat "on a true construction of the security bond, Uttam Chand had undertaken personal liability, and that it is not possible at this stage to reopen the execution proceedings by holding that no such liability could be enforced.” The latter ground appears to be based on the reasoning stated at the close of the immediately preceding paragraph of the judgment that "the executing court acted on " the assumption that Uttam Chand had undertaken a personal " liability and this assumption does not appear to have been " challenged at any stage of the proceedings,” but it must be noticed that the sons and grandson of Uttam Chand have a valid right of challenging that assumption by instituting a suit if they can make out a proper case. In the view which the learned judges took, which they thought was " sufficient to " conclude the case,” the question of pious obligation did not seem to them to arise for decision; at any rate, they did not consider it, but nothing turns on that now. In passing, it may be mentioned that the learned judges were not prepared to accept the view of the trial court that the executing court would in any case have been entitled to act as it did by virtue of the provisions of s. 68 of the Transfer of Property Act. Mr. Subba Row, the learned counsel for the appellants, contended before the Board that Uttam Chand was not personally liable under the terms of the security bond, and that in reality there was no debt due by him outstanding in consequence of which family property, either secured or unsecured, could be sold. The main question for their Lordships to consider is whether the security bond imposes any personal liability on Uttam Chand, for unless this is established first, properties other than those covered by the security bond can in no event be validly sold. It was argued by Sir Thomas Strangman that the expression " I hereby stand as surety for Hans Raj and others " appearing at the commencement of the operative portion of the deed, to which their Lordships have already called attention, means I promise to pay, and imports personal liability. It was argued by Sir Thomas Strangman that the expression " I hereby stand as surety for Hans Raj and others " appearing at the commencement of the operative portion of the deed, to which their Lordships have already called attention, means I promise to pay, and imports personal liability. The argument is not without some force, but their Lordships have, after careful consideration, come to the conclusion that the statement which immediately follows the expression referred to, namely, " and agree that....my movable and " immovable properties, detailed hereunder, shall be liable " qualifies it, and limits the scope of the liability to proceedings against the properties specified only, thus creating a charge on them excluding all personal liability. That this is the proper construction that should be put on the document appears to be clear from the order passed by Coldstream J. when he stayed the execution of the decree. That order states clearly that the property should not be sold if the petitioners can furnish surety " in the form of a charge upon immovable property,” and it was complied with by Uttam Chand by executing the bond in question. Their Lordships pointed out in Raja Raghunandan Prasad Singh and Another v. Raja Kirtyanand Singh Bahadur (( 1932) A. I. R. (P. C.) 131, 32.), where the construction of a security bond executed in pursuance of an order passed by the court arose for decision, that it " must be considered in the light of the Order " directing the security to be given." Read in the light of Coldstream J.s order, there can be no doubt that the obligation undertaken by Uttam Chand was merely confined to the extent of the properties charged by him for the satisfaction of the amount. Another argument urged by the learned counsel in support of his contention, namely, that the appropriate form of the bond in a case of this kind, as may be seen from appendix G of the Code of Civil Procedure, would clearly provide for a personal liability, and that the order for furnishing security must therefore be construed as having been made with reference to such a form, overlooks the fact that the order of the court is perfectly clear, and what their Lordships are called on to do is to construe a specific document with reference to its specific terms, and, if need be, in the light of the courts order which, as they have already stated, is not open to any doubt. The next argument, that the inclusion of the movable properties in the deed would suggest that Uttam Chand had thereby undertaken personal liability, cannot be accepted, as the terms of the document do not impose any such liability and nothing is known as to why those items were included in the deed. The last argument advanced in this connexion, that even if there is no personal liability originally incurred by Uttam Chand, under the stipulations of the security bond, he became personally liable as he had transferred a major portion of the property included by him in the security bond, should also be disallowed, as it was not made clear to their Lordships how in the present case the privilege conferred by s. 68 of the Transfer of Property Act on a mortgagee to sue for money can be taken advantage of by a charge holder, in proceedings in execution of a decree, without resorting to a suit, assuming that the security has been impaired by the conduct of Uttam Chand, which itself is open to some doubt. For these reasons their Lordships hold that as it is not shown that Uttam Chand has made himself personally liable for the amount that remained due to the decree-holder there was no debt due from him, and it follows therefore, that the unsecured property in question cannot be validly sold in enforcement of the security bond. The same is the position with regard to the secured property also. To make the ancestral property liable, there must in reality be a debt due by the father. The same is the position with regard to the secured property also. To make the ancestral property liable, there must in reality be a debt due by the father. In the present case, the security bond was executed not for the payment of any debt due by Uttam Chand, but for payment of a debt which was due from third parties. Unless there was a debt due by the father for which the security bond was executed, the doctrine of pious obligation of the sons to pay their fathers debt cannot make the transaction binding on the ancestral property. For the foregoing reasons their Lordships are of opinion that this appeal should be allowed and that the decrees of the courts in India should be set aside, and that it should be declared that the security bond, dated July 31, 1928, executed by Uttam Chand in Nand Lal v. Hans Raj and Others is not binding on the appellants or on the properties comprised therein; that the sale proceedings in execution of the decree of defendant No. 2 in Nand Lal v. Hans Raj and Others relating to the joint family properties of the appellants and defendant No. 1 (described in paragraph 4 and list A of the plaint) are null and void, and (a) the purchasers at the auction sales, namely, Nand Lal and Gehla Ram (defendant No. 3), and (b) the alienees of Nand Lal, namely, defendants Nos. 4 to 9, acquired no title to the said properties; that each of the defendants Nos. 2 to 9 do put the appellants and defendant No. 1 in possession of such of the properties described in paragraph 4 and list A of the plaint as he may be possessed of; so far as defendant No. 2 is concerned, on being paid Rs. 646-5-0; and that the defendants Nos. 2 to 9 should pay the appellants the costs of this appeal and their costs incurred in the High Court and the Court of the Subordinate Judge, First Class, Mont- gomery. It is said that defendants Nos. 2 to 9 have been in possession of the properties and have deprived the appellants family of possession and enjoyment of the same, and that it is just and right that they should account for the profits received, or which might have been received, by them. It is said that defendants Nos. 2 to 9 have been in possession of the properties and have deprived the appellants family of possession and enjoyment of the same, and that it is just and right that they should account for the profits received, or which might have been received, by them. Their Lordships think that whatever rights the appellants may have in this respect should be claimed by them in a separate suit, which will not be barred by these proceedings. Their Lordships will humbly advise His Majesty accordingly. PRACTICE NOTE. Appeal to Privy Council—Constitutional questions between Federal and Provincial Governments—Costs. Where the judgment of the Board dismissing an appeal by the Governor-General in Council from a decree of the Federal Court of India and upholding the validity of sales tax legislation passed by the legislature of the respondent, the Province of Madras, was silent as to costs, their Lordships, on an application by the respondent for the costs of the appeal, directed that the judgment would stand as delivered. During the course of the argument on the application Lord Russell of Killowen drew attention to the usual practice of making no order as to costs in appeals from Canada involving constitutional questions between the Dominion and a Province, and referred to Attorney-General for Manitoba v. Attorney-General for Canada [ 1925] A. C, at 569, where it was said " In accordance with the usual practice there will be no costs." The position in India was not strictly the same as in Canada, said his Lordship, but was very analogous; it was between Government in the Province and Government in the centre, and he thought that the same practice would probably prevail, and it would be followed in the present case [Governor-General in Council v. Province of Madras (ante, p. 91)).