- (1.) Murari 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 mortgage deed, Murari Lal bound himself to repay the loan. Part of the loan was borrowed by Murari 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 property. On March 13, 1953, Faqir Chand instituted the present suit against Harnam Kaur and also Murari Lal claiming a declaration that the mortgage deed was for immoral and illegal purposes and without legal necessity and was not binding on him and for consequential reliefs. On April 20, 1953, Harnam Kaur obtained a preliminary decree for sale in Suit No. 212 of 1952. 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: "(2) Whether the, mortgage in dispute is for consideration and loyal necessity 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, counsel for Faqir Chand conceded that the mortgages 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 decree 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 mortgage 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 question of law: "Whether when a mortgage has been created on joint family property by a father who constitutes a joint Hindu family along with a son or sons, and a decree has been obtained by the mortgagee on the basis of the mortgage it its open to a son to challenge the mortgage and the decree merely on the ground that the debt was incurred without legal necessity or whether 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 joint 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 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 on not." 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.
(2.) The object of the suit and this appeal is to prevent the sale of the mortgaged property in execution of the mortgage decree. Accordingly 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 mortgages 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.
(3.) In Brij Narain v. Mangla Prasad 51 Ind App 129 at p. 139 (AIR 1924 PC 50 at p. 56) the Privy Council laid down five propositions, of which the following there are material for the decision of this appeal: "(1) The managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but (2) if he is the lather 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, 51 Ind App 129: (AIR 1924 PC 50) received the approval of this Court in Luhar Amritlal Nagji v. Doshi Jayantilal Jethalal, 1960-3 SCR 842 at pp. 852, 853: (AIR 1960 SC 964 at pp. 969-970).;