S.S. Dhavan, J. - (1.) THIS is a Plaintiff's appeal against the concurrent decisions of the courts below dismissing his suit for the recovery of Rs. 1815 on the basis of a simple mortgage. The suit was dismissed by both the courts on the ground that the debt was not incurred for legal necessity. After hearing Learned Counsel for the parties I think that the suit should have been decreed.
(2.) IT is common ground between the parties that the money was borrowed for the purpose of converting the kucha residential house of the Defendant into a pucca building. Both the courts have held that a debt incurred for meeting the expenses for converting a kucha house into pucca is not for legal necessity. They applied the law governing the alienations of a Hindu widow and held that the necessity for justifying an alienation of property by the father must be of a type entailing a certain degree of pressure on the estate which the law will recognise as serious and sufficient. They took the view that there was no urgent necessity for making the house pucca because the defendants' needs would have been satisfied by repairing it. I am satisfied that the courts below have misunderstood and misapplied the law governing the obligations of the sons to pay the debts of their father. The law is summarised by D.F. Mulla in his principles of Hindu Law as follows: Sons, grand sons, and great grand sons are liable to pay the debts of their ancestor if they have not been incurred for an immoral and unlawful purpose. Their liability, however, is confined to their interest in the coparcenary property; it is not a personal liability so that a creditor of the ancestor cannot proceed against the person or against the separate property of the sons, grand -sons or great grand -sons." -Principles of Hindu Law, 12th Edition, P. 471.
(3.) IN the case of a debt incurred by the father and secured by a mortgage the law is stated by Mulla as follows: If the mortgage is neither for legal necessity nor for an antecedent debt the mortgage as such is not operative on the sons interest, but the sons are nevertheless, under a pious obligation to pay the mortgage debt qua debt. In such a case if a decree is passed against the father on the mortgage for the sale of the whole of the mortgage property, and the property is sold in execution of the mortgage decree, the sons, though not parties to the mortgage suit, are bound by the sale, unless 'they can show that there was no debt owing by the father or that the debt in respect of which the mortgage was executed was incurred by the father to the knowledge of the lender for an immoral or illegal purpose and that the purchaser not being the decree holder had notice that the debt was so incurred. Ibid page 449.;