LexFAQIR CHAND versus HARNAM KAUR & ANR.
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FAQIR CHAND v. HARNAM KAUR & ANR. August 5, 1966 (K. N. WANCHCO, J. C. SHAH AND R. S. BACHAWAT, JJ.j Hindu Law-Debts-Joint family of father and son-Mortgage by father as manager-Right of son to inipeach-Mortgage decr.'!e agcdnst the father-Execution-When could be stayed by son. The appellant and his father con1tituted a joint family of which the father was the manager. He borrowed money from the first respondent and mortgaged in her favour immovable property belonging to the joint family. Less than half the money borrowed was for repaying antccedelll debts. By a covenant in the deed he bound himself personally to repay the loan. The first respondent instituted a mortgage suit against the father praying for a preliminary decree for the sale of the mortgaged property. While that suit was pending the appellant filed a suit against bis father and the mortgagee (first respondent), claiming a declaration that the ante- cedent debts were for immoral purposes, that the mortgage was without legal necessity and that it was not binding on him. After a preliminary decree for sale was passed in the mortgage suit, the appellant amended bis plaint claiming a further declaration that the preliminary decree wao not binding on him. The object of the appellant's suit was to prevent the sale of the mortgaged property in execution of the mortgage decree. At the trial, the appellant conceded that the mortgage was not for illegal or immoral purposes and that it was supported by consideration. The trial court dismissed the suit without deciding the question of legal necessity. The appellant appealed to the High Court and pending the appeal a final decree for sale was passed in the mortgage suit, but its execution was suyed by the High Court. Eventually the High Court also dismissed the appeal without giving a finding on the question of legal necessity. HELD : Where a father mortgages property of a joint family consisting of himself and his soru for payment of his debt, but the mortgage is neither for legal necessity nor payment of his antecedent debt and the mortgagee has obtained a decree against the father for sale of the p~ perty but the sale bas not yet taken place, the sons have no right to restra!n the execution of the decree or the sale of the propeny in execu- tion proceedings without showing either that there is no debt which the father is personally liable to pay or that the debt has been incurred for an illegal or .immoral purpose. [71 DJ The second proposition in Brij Narain v. Mang/a Prasad, ( 1923) L.R. 51 I.A. 129-namely, that if the manager of a joint family is the father und the other members arc the sons, the father may be incurring a debt, so long as it is not for an immoral purpose, lay the joint family estate open to be taken in execution proceedings upon a decree for payment of the debt-applies not only to an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property. Even where the mortgage is not for legal neces· sity or for payment of antecedent debt the creditor can in execution of a rnortpge decree for realisation of a debt which the father ls penonally A B ' I c D E F G H • • A B c D E F G H FAQIR CHAND v. HARNAM KAUR (Bachawat, J.) 69 liable to repay sell the estate without obtaining a personal decree against him. The. second proposition applies not only after but also before a sale has taken. place. [72 B; 73 B-'C, HJ The son had no right to obtain either an interim or final order foc stay of the sale having regard to the fact that admittedly the debt was owing by the father and was not incurred for immoral or illegal purposes. Nor did he .acquire such a right because he instituted his smt before the decree for salo was passed in the mortgage suit [74 C-DJ Observations contra in Jagdish Prasad V; Hoshyar Singh, (1929) J.L.R. SI All 136, Bharrnappa Murdeppa v. Hanurnantappa Tippanna, I.L.R. [1943] Born. 568, Ganpatl v. Rameshwar, J.L.R. [1946) Nag. 741 and Abdul Hameed Salt v. Provident lnvestmtnt Co. Ltd., J.L.R. [1954] Mad. 930, disapproved. Reading the first and the third proposition in Brij Narain's case toge- ther, it will appear that a father, who is also the manager of the family, has no power to mortgage the estate except for legal necessity or for payment of ante<
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