The mortgage not being one for the payment
of an antecedent debt, nor for family necessity, was not binding on the
appellants. There is a claim of the plaintiffs, so far as it is based on the
pious duty of sons to pay their father's debt, is barred by time. The pious
obligation of Hindu sons in a Mitakshara family to pay their father's debts,
whether a father of a Hindu family governed by the Mitakshara law can execute a
mortgage which will be binding upon his sons where the loan is not obtained for
family necessity or to meet an antecedent debt. The debt was
tainted with immorality.
An alienation of joint family property
made by the father of a joint Mitahshara family cannot be impeached by his
sons, if such alienation has been made in lieu of an antecedent debt or for the
payment of the father's debt, unless the son can prove that the debt was
incurred for an immoral purpose, the reason for the rule being that it is the
pious duty of the son to pay his father's debt not tainted with immorality. The
word 'alienation' embraces both sale and mortgage.
The defendants was who denied the mortgage
and urged that even if it was made by their ancestor it was not for a family
necessity and was not binding on them and their interests in the mortgaged
property. The mortgage being not one for payment of an antecedent
debt no for family necessity was no binding on the appellants," and the
claim based on the pious duty of sons to pay their father's debt was barred by
time."
The rule of the Mitakshara is Section
1 “it is a settled point that property in the paternal or ancestral
estate is by birth, although the father have independent power in the disposal
of effects other than immoveable, for indispensable acts of duty and for
purposes prescribed by texts of law, as gifts through affection, support of the
family, relief from distress, and so forth: but he is subject to the control of
his sons and the rest, in regard to the immoveable estate, whether acquired by
himself or inherited from his father, or other predecessor; since it is
ordained, 'though immoveable or bipeds have been acquired by a man himself, a
gift or sale of them should not be made without convening all the sons. They,
who are born, and they who are yet unbegotten, and they who are still in the
womb, require the means of support, no gift or sale should, therefore, be made.”
And the exception is this rule in Clause
28 "Even a single individual may conclude a donation, mortgage or sale, of
immoveable property, during a season of distress, for the sake of the family,
and especially for pious purposes". A donation, mortgage or sale cannot be
made except for the purposes or one of them. A Hindu father in a family
was governed by the Mitakshara to dispose of the joint property of the family.
He can dispose of it during a season of distress for the sake of the family or
for pious purposes.
The Court held that the mortgage was not
executed for the purpose of satisfying any antecedent debt and there was no
evidence that the consideration was required for the legal necessities of the
family, or that the lender made any enquiry as to the purposes for which the
money was borrowed. The appeal was dismissed.