JUDGMENT Tudball and Muhammad Rafiq, JJ.
1. This appeal, which is by the defendant, arises out of a suit brought by the two minor plaintiffs, seeking to have set aside an ex parte decree obtained by the defendant on the 27th of November, 1912, in a suit brought against them and their father on the basis of a mortgage deed, dated the 4th of March, 1908, which their father had executed in lieu of Rs. 11,000, and in which he had mortgaged the joint ancestral property. The father Sita Ram Rai was also made a defendant to the suit. The plaintiffs in this case pleaded that they had not been duly represented by a properly appointed guardian in the previous litigation; that they had, therefore, been prejudiced and that the decree should be set aside as null and void. The defendant appellant, who is the appellant now before us, pleaded that the minors had been properly represented in the previous litigation; further, that the bond of the 4th of March, 1908, was a genuine deed for consideration and was executed to pay off antecedent debts; that the mortgage was therefore binding on the plaintiffs, and they had no right to impeach it as the sons of their father. There was a further plea that the property was not ancestral property, but the self-acquired property of the father, The court below held that the property in question was the ancestral property of the family; that the minors had not been properly represented in the previous litigation. Further, that out of the consideration of Rs. 11,000, Rs. 735 were not for antecedent debt or family necessity, and, this being so, the whole mortgage was not binding upon the plaintiffs in any way. It, therefore, decreed the unit and set aside the previous decree as null and void as against these plaintiffs. In the memorandum of appeal filed in this Court the first ground of appeal was that it had not been established that the property in suit was the ancestral property of the plaintiffs and that therefore they were not in a position to question the mortgage. In regard to this, it is admitted before us that with the exception of one small portion of oral evidence, there is no evidence on the record to support the plea. Furthermore, the judgment of the court below shows that this plea was not pressed in that court. We, therefore, must hold on this point against the appellant, and for the purpose of this appeal the property must be deemed to be ancestral property.
2. The next point pleaded is that the plaintiffs respondents were duly represented according to law in the course of the former litigation. On this point we find it impossible in any way to differ from the decision arrived at in the court below. In the former litigation the present appellant who was then the plaintiff, asked the court to appoint the father, the guardian of the minors, It is obvious in a litigation of this description that the father's interests and the son's interests are not one. Moreover, in the present instance the father was not appointed guardian. The minors had a mother alive and they were under her custody, No notice whatsoever was issued to her. Notice was issued to the minors themselves. In the end the central nazir was appointed by the court as guardian ad litem of the minors, but no notice of his proposed appointment was issued either to the minors or their mother. No funds were supplied to the nazir by the plaintiffs to enable him to take steps to protect the minors' interests. No defence was put in on behalf of the minors, and the suit was decreed ex parte against them. It is quite clear that the provisions of Order XXXII, Rules 3 and 4, were not complied with and the minors had no opportunity of putting forward a defence. On this point we agree with the court below. The next plea taken is that, the plaintiffs' father having been the manager and the head of the family, and the money having been borrowed by him in lieu of antecedent debts, the mortgage was binding upon the sons, except perhaps for the small sum of Rs. 735, which was but a small proportion of the total debt of Rs. 11,000 incurred by the father. It is urged that the mortgage having been made in lieu of antecedent debts due from the father, the sons were bound by the mortgage and therefore they had not been at all prejudiced and the decree should not be set aside except in respect of the small sum mentioned above. The mortgage-deed in suit, executed on the 4th of March, 1908 (page 20A), was executed by the father and a loan of Rs. 11,000 was taken to pay off the debts due under two mortgage deeds, one of the 12th of December, 1905, in favour of Sheikh Abdur Rahim, and Haji Abdur Rahman, and the other of the 19th of June, 1907, in favour of Hafiz Wali-ullah and Sheikh Akbar Ali. The whole sum of Rs. 11,000 was paid in cash to the mortgagor Sita Ram Rai, and the evidence shows that the money was actually utilized in paying off these prior mortgages. In view of the law laid down by their Lordships of the Privy Council in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R., 39 All., 437, prima facie the mortgage which is now in dispute was not executed for the payment of antecedent debts. In their judgment their Lordships remarked as follows:
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 father's debts have been incurred irrespective of the credit obtainable from immovable assets which do not personally belong to him, but are joint family property.
3. In the present case the present mortgage was created in order to pay off two prior mortgages, that is, debts which had been incurred prima facie on the security of the joint family property. If the facts remain at this and go no further, we shall be constrained to hold, in view of the decision of their Lordships mentioned above, that the present mortgage was not created to pay off antecedent debts and we shall have to dismiss this appeal without any further consideration. It is urged, however, that the two prior mortgages may well have been mortgages which wore binding upon the estate in that they had been created for antecedent debts within the definition thereof given by their Lordships and quoted above. It is urged that if these mortgages were good mortgages binding upon the estate, then the present mortgage will also be equally good as it merely replaces those two. In other words, that the present mortgagee would be entitled to take his stand upon the mortgages of 1905 and 1907 and to recover whatever was legally due from the estate. It is further pointed out that under the law as it was understood previous to the decision in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R., 39 All., 437, the present mortgage would be held to be a good one and binding upon the estate; that the present mortgagee was a person who had no connection in any way with the former mortgages; that he advanced his money in good faith after due inquiry as to the existence of the prior debts and taking the law as it was understood previously, he was justified in advancing his money on the security of the property. We think that there is considerable force in this argument and that in view of the fact that the present case was decided by the court below some two years or so prior to the decision in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R., 39 All., 437, we ought to allow the defendant an opportunity of establishing the fact that the two prior mortgages of 1905 and 1907 were binding upon the estate in that they were executed for antecedent debts of the father. It must be clearly understood that the words "antecedent debts" must be read within the clear meaning of the ruling in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R., 39 All., 437. It would be for the present appellant to show and prove that the debts incurred under those mortgages were incurred to discharge not only obligations antecedently incurred, but incurred wholly irrespective of the ownership of the joint family property, in other words, that they were personal debts incurred by the father for his own purpose and apart from the security of the joint family property. It will be open to the plaintiffs in the present case to establish the fact that these antecedent debts were incurred for immoral purposes or for purposes which would make them not binding upon them. For this purpose we, therefore, remand the case to the court below to take any further evidence adduced by the parties on this point. The additional evidence recorded by the court below together with its opinion thereon will be submitted to this Court.