James Quain Pigot and Robert Fulton Rampini, JJ.

1. This suit is brought on two mortgage-bonds executed infavour of plaintiff by Gobind Pershad, defendant No. 1, and Sukh Lal hisbrother, now deceased. The first dated 4th May 1881 is for Rs. 20,000, thesecond dated 3rd July 1882 for Rs. 5,000.

2. The mortgagors were members of a joint family, governedby the Mitak-shara law, and by the mortgage-bonds in suit the joint familyproperty was mortgaged for the amount of the sums borrowed. Default having beenmade in payment of principal and interest, this suit was brought.

3. Before the institution of this suit Sukh Lal died.

4. The suit, as now framed, is brought against GobindPershad and his sons Dwarka Nath and Kedar Nath, against Ram Lakhan, son ofSukh Lal, and against Krishna Nanda Ram and Tilakdhari Singh. Budri Narain, athird son of Gobind Pershad, was originally made a defendant, but was struckout, on the allegation that he was adopted into another family. The two lastdefendants are a mortgagee and a lessee of some of the mortgaged properties,puisne Co the plaintiffs mortgage. They do not appear on the appeal.

5. It is not necessary to detail the history of thesuccessive hearings of the suit. It is set out in the judgment of the lowerCourt. At the first hearing Gobind Pershad alone appeared, admitted themortgages, and a decree was made against the defendants in 1885. Afterwards thedefendants 2, 3, and 4 applied for, and were allowed by an order of this Court,a trial de novo and it is from the judgment and decree of the lower Court, atthe trial so held, that the present appeal is brought.

6. At the time of the mortgages the defendants 2, 3, and 4were minors. The defendants 2 and 3, who are joined in their written statementby defendant No. 4, denied the execution of the bonds in suit, set up that, ifso, the debts were incurred for illegal and immoral purposes, and not for anynecessities of the family, and further alleged that the moneys were raised for,and spent in, idle and speculative litigation. They denied the right of themortgagors to mortgage the family property for the purposes for which the moneywas raised.

7. The Subordinate Judge found--that the bonds were dulyexecuted and founded on consideration," and that the defence of immoral orillegal purposes was not established. The first defences set up thereforewholly failed. It is upon the finding of the Subordinate Judge, with regard tothe consideration which he finds was given for the mortgages, and theconclusion of law at which he arrived upon that finding, that the questionsupon which this appeal depends, come before us.

8. It is certain that this family was a wealthy one; and itmay be taken as clear that, over and above all ordinary requirements forsuitable maintenance and expenses fit for their station, they had a surplusincome of some thousands of rupees a year. It is difficult, and not necessary,to arrive at an exact amount, but it is clear that they were a prosperousfamily. Unfortunately, Gobind and Sukh Lal embarked in a litigation for the purposeof establishing the adoption by, or to, Radha Kishon, Gobind Pershadsstep-brother, of Gobinds son before-mentioned, Budri Narain; and there can heno doubt that they spent very large sums in litigation about this allegedadoption, which was disputed both in and after August 1881, when a suit wasfiled to establish the validity of it, and in a multitude of proceedings beforethat date, connected with this controversy. There is little in the evidencethat can be relied on as to the expenses incurred before the institution of thesuit in August 1881, or how they were defrayed. Jugdip Sahais evidence, whichappears to us to be given fairly enough, seems to render it probable that, atthe time of the mortgage three months before the adoption suit was instituted,expenses of so large an amount had been incurred, that the money raised at thattime may have been wanted for debts then due. But there is nothing proved inthe evidence to show that money raised in May 1881 on the mortgage was raisedto pay debts then due : still less that it was applied to pay such debts,except as to the sum of Rs. 8,500, which was at the date of the mortgage due tothe Bank of Bengal at Bankipore, and which, there can be no reasonable doubt,was paid out of the mortgage money, as the Subordinate Judge finds. It was, asappears from the evidence of Umbica Charan Ghose, paid on May 5th 1881, indischarge of the liability of Gobind and Sukh Lal remaining to the Bank on thatday.

9. The Subordinate Judge finds that Rs. 8,500 of themortgage money was borrowed and applied to pay off this debt, and we agree withhim. He finds, that there is no proof that any other debt, prior to themortgage of May 1881, is shown to have been paid off out of the money borrowed,or any legal necessity or charge on the family defrayed out of it. We agreewith him. He finds or infers, that the residue of the money borrowed, wasborrowed to defray the expenses of the coming litigation as to the adoption. Itis a reasonable inference; we should hesitate before saying that he was notjustified in drawing it; but we think the question immaterial in this case.

10. Upon the case as it stands, apart from this lastfinding, to which we must refer later on, it appears : First, that, so far asthe sum of Rs. 8,500 is concerned, the mortgage of May 1881 was made to raisemoney to discharge a debt of Gobind and Sukh Lal existing at the date of themortgage : Second, that, as to the residue of the money borrowed on thatmortgage, it constituted a personal debt, due by Gobind and Sukh Lal, jointlyand severally, in virtue of the loan then raised by them : Third, that themoney raised under the bond of the 5th July 1882 was a personal debt of Gobindand Sukh Lal, as to the Rs. 3,755 in cash then received by them,--the residuebeing the amount of interest then due on the earlier bond.

11. The Subordinate Judge held that, on the facts found byhim, the shares in the family property of defendants 2, 8, and 4 were bound tothe extent of the Rs. 8,500, found to have been an existing debt at the time ofthe mortgage of May 1881 and discharged out of the mortgage moneys; that as tothe residue of the moneys raised on that mortgage those shares were not liable;that as to the mortgage of July 1882 they were not liable at all, not for theRs. 3,755 received in cash, as this was not raised to pay a then existing debt;not for the residue, as this was for interest due on the earlier mortgage, anda liability to pay interest on the part of that mortgage for which the shareswere liable could be sufficiently discharged by giving a decree against themfor that sum --Rs. 8,500, with interest on it so far as due under the terms oforiginal mortgage. He dismissed the suit as to the residue of the claim asagainst defendants 2, 3, and 4.

12. Both parties appeal: the plaintiff against the dismissalof his suit against defendants 2, 3, and 4, as to the residue of plaintiffsclaim other than the Rs. 8,500 with interest, and those defendants bycross-objection as to the Rs. 8,500, on the ground that the debts paid out ofthat sum were not such as their shares could be liable for; and as to theinterest on the ground that the rate allowed is excessive.

13. Upon the question whether the shares in the ancestralproperty of defendants 2, 3, and 4 were liable, as being the shares of sonsliable under the pious duty now enforced by law, a full argument was addressedto us, in part, upon the numerous cases decided in, and since, 1874, beginningwith Girdharee Lalls case 14 B.L.R. 187; 22 W.R. 56; I.L.R.1 IndAp 321, andalso upon the texts of the Mitakshara bearing on this question. So far as thedecisions of the Privy Council and of this Court interpret and lay down the lawunder the Mitakshara, as applicable in the present case, we are of course boundto follow those decisions, without attempting any interpretation of our own. Wethink the main questions which have been raised before us are settled by authoritywhich we are bound to follow.

14. But it will be convenient first to refer to thecross-objection of the defendants, as to the nature of the debt existing at thedate of the mortgage for which their shares have been held liable. We intimatedat the hearing that we did not see how the objection could be sustained. It isthat the debt contracted for the highly needless and imprudent purpose ofestablishing Budri Narains adoption was not one to which the pious duty couldattach, under the Mitakshara. This argument, if it were to prevail, would bringunder the exceptions in the Mitakshara money spent on useless and grosslyimprudent objects, and would thus, no doubt, open a way of mitigating theeffect of a course of decision, destructive to a great extent to the Mitaksharasystem; but that is a construction which we cannot adopt here. The exceptionhas too long been limited to illegal and immoral purposes to justify us inintroducing an extension of it, which would include transactions, the characterof which was no more than "imprudent," or "unconscientiouslyimprudent," or "unreasonable." If it could be done in any case,it perhaps ought to be done in the present, in which a prosperous family hasbeen ruined by litigation, in which the defendants 2, 3 and 4, members of it,had no possible interest. But we could not, in the absence of any authority,adopt such an interpretation of texts so long dealt with by the Courts. In thisrespect, as in the other parts of the case, the questions are, as we think,completely concluded by authority which we must follow.

15. To return to the main questions. In this case themortgage-creditor sues--first, a mortgagor and his sons, and, second, the sonof a deceased mortgagor; and seeks his remedy against the ancestral property ofall members of a joint family. It is certain that he is entitled to a decreeagainst the mortgagor in respect of his own share. It is also clear that themortgage, so far as it was contracted to pay a debt not illegal or immoral,existing when the mortgage-debt was contracted, is good against the shares ofthe sons of each mortgagor. No authority need be cited for this. It is also nowestablished that a decree for the personal debt of the father, not illegal orimmoral, may be enforced by sale in execution in his life-time of the entirejoint family estate--Meenakshi Naidu v. Immudi Kanaka Ramaya Kounden I.L.R. 16IndAp 1 : I.L.R. 12 Mad. 142. This is one of the advances lately made on theolder law, which made the sons shares liable in respect of the pious duty topay the fathers debts, after his natural or civil death.

16. It is clear, therefore, that in the present case theplaintiff, after satisfying his mortgage-decree against the father ofdefendants 2 and 3, could, although the father is still living, execute theremainder of the decree against their shares, on the footing of it being adecree for their fathers personal debt. As to the fourth defendant, the son ofSukh Lal deceased, the share of the estate in his hands is liable "for alldebts of his father, which, though neither necessary nor beneficial to him,were free from any taint of immorality" [Mayne, Section 284 and casescited*] His share is in his hands liable in respect of his fathers personaldebts.

17. The question is therefore narrowed to this, whether in asuit upon a mortgage by the father brought against the father and the sons, inwhich the sons, being parties, have the opportunity of at once raising thedefence that the debts were illegal or immoral, the plaintiff may have, besidesa decree on the mortgage so far as it is. binding, such a decree against thefamily property, as will give him the same remedy in respect of the personaldebt of the father as he could have against it in execution of a decree againstthe father alone

18. Mr. Mayne, in Section 283, page 309, of the 4th edition(5th Ed., 325), says: "But I imagine that no suit could be broughtdirectly against sons, based solely on their liability to pay the debt of theirfather, until he was either actually or civilly dead, so that the estate hadlegally vested in the sons. "

19. Recent decisions in this Court are not quite inaccordance with this opinion.

20. In Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8 Cal.131 it was decided by Mitter and Maclean, J.I., that in a suit upon a mortgageby the father, brought against the father and the sons, the plaintiff couldhave a decree for the sale of the mortgaged premises or any other jointancestral property belonging to the defendants. This was decided on the authorityof the Full Bench case of Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855.

21. It is argued before us, and seems to be the opinion ofthe Allahabad Court, that that decision is not clearly warranted by the case ofLuchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855.

22. We must be wholly governed by the Full Bench decision,if it decides the question before us, and we think the case of Gunga Persad v.Ajudhia Pershad Singh I.L.R. 8 Cal. 131 did follow it,

23. In the Full Bench case the first question propounded bythe referring Bench is as follows:

In the case of a Mitakshara family, consisting of a fatherand one minor son, where the father (being the manager) raises money byhypothecating certain ancestral family property by bonds, and it is not proved,on the one hand, that there was any legal necessity for his raising the money,nor, on the other, that the money was raised or expended for immoral or illegalpurposes, or that the lender made any enquiry as to the purpose for which itwas required, can the lender (the mortgagee) enforce by suit against the fatherand the son the payment of his money by sale of the property during thefathers life-time" The question therefore relates to : First, the caseof a Mitakshara family, consisting of a father and minor son, as here : Second,the father hypothecating ancestral property, there being no proved necessity,but no proof, on the other hand, of immoral or illegal purposes; that is thecase here: Third, there being no proof that the lender made any enquiry as tothe purpose; that is the case here.

And the question is whether, under those circumstances, thelender (the mortgagee) could enforce by suit against father and son the paymentof the money by sale of the property during the fathers life-time

The answer was: "The mortgage itself upon which themoney was raised could not be enforced, but the debt so contracted by thefather, being itself an antecedent debt within the rulings of the PrivyCouncil, and the son being a party to the suit, the mortgagee, notwithstandingthe form of the proceedings, would be entitled to a decree, directing the debtto be raised out of the whole ancestral estate, inclusive of the mortgagedproperty,

24. The fifth question and the answer to it were as follows:

Question.---" Would it make any difference if the moneywere borrowed partly to pay an antecedent debt of the father, and partly forsome other unexplained purpose"

Answer.--"In the view which we take of the case, thewhole of the money borrowed would be an antecedent debt.

25. The effect of the answer to the first of these questionswas much discussed before us, and for the respondents it was contended that thewords, "being itself an antecedent debt within the rulings of the PrivyCouncil" must mean "if it be an antecedent," andnot--"inasmuch as it is an antecedent debt," as contended by theappellants pleaders.

26. The effect of this first answer of the Full Bench hasbeen referred to in four decided cases--one decided in Allahabad, one inBombay, and two in this Court. The decisions in the last two cases weredelivered by Judges who had themselves been members of the Full Bench.

27. In Jamna v. Nain Sukh I.L.R. 9 All. 493 Edge, C.J. atpage 495 of the report said:

Then I come to the case of Luchmun Dass v. Giridhur ChowdhryI.L.R. 5 Cal. 855. That is a most important case. It was on the authority ofthat case that the eminent Judge, Mr. Justice Mitter, decided as he did in thecase of Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8 Cal. 131. Now as to thecase of Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855 it is difficult toascertain what the facts were, or what was the precise form of litigation. Thisalone is certain, that there were certain questions, which appear at page 857of the report, which were reported to a Full Bench, The answers to thesequestions are found at page 363, and, taking the first question and answer asan example and as those relied upon by Pandit Ajudhia Nath here, it is to beobserved that the Judges, in giving their answer, have assumed a most importantfact, which is not suggested in the question. The same observation applies toothers of the questions. They have assumed that the debt contracted by thefather was an antecedent debt within the rulings of the Privy Council. It isunfortunate that the full facts of that case do not appear in the report. Nowwith regard to the case of Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8 Cal.131 the judgment of Mr. Justice Mitter and Mr. Justice Maclean is based uponthe Full Bench decision in Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855above referred to. That fact, to my mind, naturally lessens the authority ofthat case, so far as it may apply to a case like the present.

28. The learned Chief Justice considers that the words underdiscussion do not pronounce a judgment upon the question, whether or not a debtcontracted under the circumstances set out in the question is an antecedentdebt, and decide that it is such a debt; but that it is assumed, in the answer,that, as a matter of fact, the debt in question was such a debt and his view,as we understand it, appears to be that the answer is given upon thatassumption of fact.

29. This is the decision on which the Subordinate Judge hasrelied in deciding the suit. He has not referred to Chintamanrav Mehendale v.Kashinath I.L.R. 14 Bom. 320, in which Chief Justice Sargent points out thatBheknarain Singh v. Januk Singh I.L.R. 2 Cal. 438 [LQ/CalHC/1965/272] , on which the learned ChiefJustice EDGE relied much in the Allahabad case, had been overruled in the PrivyCouncil.

30. In Chintamanrav Mehendale v. Kashinath I.L.R. 14 Bom.320, the case just mentioned, Sargent, C.J., refers to the answer of the FullBench, and to the question referred which it answers, in the followingterms:-" In Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855 theeffects of the decisions in Kantoo Lalls case I.L.R. 1 IndAp 321 : 14 B.L.R.187 : 22 W.R. 56 and Suraj Bunsi Koer v. Sheo Proshad I.L.R. 6 IndAp 88 :I.L.R. 5 Cal. 148 [LQ/PC/1879/2] were considered by a Full Bench of the Calcutta High Court,and the Court held that the loan for which the bond was passed by the father,as stated by the reference, was an antecedent debt, within the contemplation ofthe propositions set out in Suraj Bunsis case, and that (as shown by the firstquestion referred), although on the one hand it was not proved that there wasany necessity for raising the money, nor on the other hand that the money wasraised or expended for immoral or illegal purposes, the mortgagee was at anyrate entitled to a decree, directing the debt to be raised out of the wholeancestral property, including the mortgaged property. This ruling was followedby Mitter and Maclean, JJ., in Gunga Prosad v. Ajudhia Pershad Singh I.L.R. 8Cal. 131. Chief Justice Sargent, therefore, treats the answer of the Full Benchas deciding that the debt, as described in the first question referred, was anantecedent debt, within the contemplation of the propositions set out in SurajBunsi Koer v. Sheo Proshad I.L.R. 6 IndAp 88 : I.L.R. 5 Cal. 148 [LQ/PC/1879/2] , and thattherefore the mortgagee was at any rate entitled to a decree, directing thedebt to be raised out of the whole ancestral property.

31. We have looked at the records of the cases out of whichthe reference to the Fall Bench arose, and it may be useful to state how theywere decided, after the decision of the Full Bench.

32. It is to be observed that the cases in which thequestions referred to the Full Bench arose were all regular appeals, and as,under the rules of this Court, in references in the case of regular appeals therecord of the case is not (as it is in references respecting second appeals)before the Court for the decision of the case itself, the answer of the FullBench must be taken as made upon the questions referred, and not upon anysupposed judgment upon the facts of each case. The actual decisions in the fourcases to which we have referred are therefore used by us upon the questionraised in Jamna v. Nain Sukh I.L.R. 9 All. 493 as to the scope of the FullBench decision.

33. We now proceed to refer to those oases in detail.

34. The first of these cases was Regular Appeal 228 of 1878,In this case plaintiff sued on two bonds, one for Rs. 5,000, the other for Rs.975, executed by Sridhur Chowdhry, defendants father, in the defendantslife-time, by which the ancestral property of the joint Mitakshara family wasmortgaged. The father was dead when the suit was instituted, and the wholeproperty was in the possession of defendant, his heir, a minor. The amountclaimed, which included interest, was Rs. 9,251-11-3. The lower Court held thatit was not proved that Sridhur Chowdhry borrowed the money for a necessityvalid under the Shastras, and for which he was competent to mortgage the wholefamily property, and dismissed the suit as against the sons share of theproperty, giving a decree against the fathers share only. There was someevidence that part of the mortgage-debt was incurred to pay off personal debtsof Sridhur previously existing; but there was no finding whether this was so ornot, either by the original Court or by this Court. This Court on the 8th July1880 held that as it had neither been alleged nor proved that the debts ofSridhur were contracted for illegal and immoral purposes, the plaintiff (accordingto the judgment of the Full Bench) was entitled to enforce the payment of thesum decreed, not against the mortgaged property by reason of the mortgage, butby the sale of the whole or such portion of the family property in the hands ofthe defendants as might be sufficient to satisfy the debt.

35. In 279 of 1878 the suit was brought against father andson on three bonds executed by the father, mortgaging the joint familyproperty. The father let judgment go by default. The son, a minor, defended thesuit, on the ground that his father had no power to charge the joint familyproperties with the debt. The lower Court held that legal necessity was notproved, and dismissed the suit as against the sons share, on the authority ofBheknarain Singh v. Januk Singh I.L.R. 2 Cal. 438 [LQ/CalHC/1965/272] , giving plaintiff a decreeagainst the fathers share only. There was evidence that there were, at thetime the mortgage debts were contracted, debts due by the father under decrees.There was no proof that these debts wore for family purposes, and no proof thatthe loans were applied in satisfaction of the decrees. There was no finding asto whether or not the mortgage loans, or any part of them, were contracted topay debts of the father incurred previous to the mortgages. The High Court onthe 8th July 1880 said: "Plaintiff is entitled not only to the decreewhich he has obtained, but to this further relief, viz., that if the sale ofthe share and interest of Mohan Chowdhry (the father) should not be sufficientto satisfy the debt, interest, and costs, the minors share and interest in theancestral property must also be sold, so far as may be necessary to satisfy theamount due."

36. No. 289 of 1878 was a suit brought by the sons and wivesof Modit Narain Singh and Mode Narain Singh, defendants 1 and 2, and the widowof Baboo Odit Narain Singh, to recover possession of a joint Hindu familyproperty, on the ground that the defendant Kishen Dass Purohit, in execution ofa decree against the defendants 1 and 2, having purchased it, took possessionof it, although he was not entitled to the property under the purchase. Theplaintiffs case was that Mode Narain and Modit Narain borrowed from theprincipal defendant Rs. 4,000 on the mortgage of the property in suit, and theyalleged that the mortgage was not binding on them, as the loan was not takenfor the necessary purposes of the family. The First Court gave the plaintiffs adecree, holding that the defendant No. 3 as purchaser had only acquired at theauction sale the share and the interest of Mode and Modit, defendants 1 and 2.This Court on appeal, finding that the bond recited that Rs. 2,435 out of Rs.4,000, the amount of the mortgage bond, was an antecedent debt, remanded thecase to the lower Court for a finding whether in fact this was so, and on thisissue the lower Court found that the Rs. 2,435 were advanced to satisfy anantecedent debt, the balance Rs. 1,565 being taken in cash by the mortgagors.Upon this finding after remand this Court on the 23rd May 1882 held that "themortgage was binding only to the extent of Rs. 2,435, and the balance of Rs.1,565 was a personal debt of Mode Narain and Modit Narain." Therefore thedecree which was passed on the mortgage bond of the 12th August 1871 was adecree upon a transaction which was partly binding upon the plaintiffs andpartly not. The plaintiffs were no parties to the suit in which that decree wasobtained. Under these circumstances, it was said, "we think that it wouldbe in accordance with justice to allow the plaintiffs to redeem that part ofthe mortgage which is not found to be binding upon them, that is to say, torecover the property upon paying to the defendant-appellant that portion of theloan secured by the bond of the 12th of August 1871, which is now found to havebeen a valid charge upon the whole joint family property. To that extenttherefore the decree of the lower Court will be varied."

37. In 288 of 1878 the plaintiffs were the same, and theproperty in dispute was the same. In 1868 Mode Narain and Modit Narain executeda zuripeshgi of the property in favour of Akbar Hossein and Amir Hossein,receiving a loan of Rs. 10,000 from the lessees, who immediately afterwardsgave them, their lessors, a sub-lease at a rent of Rs. 889, which rent, as thisCourt observed, represented the interest on the loan of Rs. 10,000 at a rate oflittle less than 9 per cent. Mode and Modit made default in payment of thereserved rent due from them, and Akbar Hossein and Syudunnissa, Amirs widow,obtained a decree against them for the amount due. In execution of that decree,the right, title, and interest of the judgment-debtors in the property indispute were sold and purchased by the decree-holder, who took possession ofthe whole property. A suit was then brought to recover possession of it, on theallegation that, being joint property held under the Mitakshara law, the saleof the properties was null and void as against the plaintiffs. The lower Courtgave the plaintiffs a decree in respect of their shares, and the defendants appealed.The case was remanded to the lower Court by an order similar to that made in289. The lower Court found that, of the Rs. 10,000 advanced, Rs. 7,677-15-0represented antecedent debts, and the balance Rs. 2,322-1-0 was received incash. Upon this finding this Court on the 23rd May 1882 held that thezuripeshgi lease was binding upon the plaintiffs only to the extent of theantecedent debts, Rs. 7,677-15-0, which was held to be a valid charge upon thejoint family property, and the decree of the lower Court was variedaccordingly.

38. In the first two cases, therefore, without a findingupon the question whether the mortgage loan was for a debt antecedent to themortgage, the Court held in a suit by a creditor, the son being a party, thatthe creditor was entitled, in respect of the debt of the father, to have hisremedy against the estate after the fathers share had been exhausted inpayment of the mortgage debt, the mortgage security for which was good asagainst his share only.

39. In the other two cases, the remedy having been sought onthe mortgage security alone, and the sale having been only had to enforce therights under it, the Court held that the sale under the mortgage was good onlyso far as the mortgage itself was good against the sons interests, that is, tothe extent of debts existing at the time of the mortgage.

40. In the case of Laljee Sahoy v. Fakeer Chand I.L.R. 6Cal. 135 Pontifex, J., one of the Judges who sat in the Full Bench, said, soonafter that decision: "it would seem, in consequence of the rulings of thePrivy Council, we are bound to hold that the payment, even in the fatherslifetime, of an antecedent debt due by him, is a pious duty on the part of theson; and its discharge is, therefore, such a necessary purpose, as to givevalidity to a sale or mortgage by the father as against his minor sons (but notagainst his adult sons), whether such antecedent debt does or does not comewithin the words: If a calamity affecting the whole family requires it, or thesupport of the family renders it necessary, or indispensable duties, such asthe obsequies of a father or the like, make it unavoidable ; always providedthat the antecedent debt is not incurred for immoral purposes. It was, however,the opinion of the Full Bench that the antecedent debt spoken of by the PrivyCouncil means debt antecedent to the transaction, viz., the sale or mortgagepurporting to deal with the property. But if the property is dealt with by adecree in a suit upon a mortgage by the father alone, to which the father andthe sons are parties, it follows from the Privy Council decisions that, asagainst the sons, even though they may have been adult when the debt (assumingit was not for immoral purposes) was incurred, and notwithstanding verse 29, chapterI, Section i, and verse 10, chapter I, Section vi of the Mitakshara, theproperty would be bound, not indeed by virtue of the mortgage, but by virtue ofthe fathers debt antecedent to the suit being enforceable against the jointancestral estate, and therefore against the mortgaged property as part of it.Strictly speaking, perhaps, the suit should be in the form of a suit upon themortgage as against the father, and upon the debt as an antecedent debt asagainst the interests of the sons in the joint ancestral estate. But thiswould, be merely matter of form, and the neglect to frame the suit accuratelywould probably, not prevent the Court making a decree which would give the sonsan opportunity of redemption." The result would perhaps seem to be that"antecedent debt" in the meaning of the Full Bench, means with regardto a mortgage, "debt antecedent to the transaction," and, in the caseof a proceeding by suit, "debt antecedent to the institution of thesuit" (if, indeed, having regard to the statement in Nanomi Babuasin v.Modun Mohun I.L.R. 13 Cal. 21 : I.L.R. 13 IndAp 1, of the report, it be nownecessary to have recourse to the canon in Suraj Bunsis case), and this wouldseem to be the necessary result of the language of the first answer of the FullBench I.L.R. 5 Cal. 855 of the report. It is said that "the mortgageitself could not be enforced," and this could only be because the debt wasnot antecedent to that transaction. If it had been, the mortgage wouldcertainly have been binding on the whole family property. The answer then goeson to say that "the debt, being itself an antecedent debt, the mortgageewould be entitled, etc." That, as we understand, must refer to theinstitution of the suit, the only other material event under consideration towhich the debt was antecedent.

41. The case of Gunga Prosad v. Ajudhia Pershad Singh I.L.R.8 Cal. 131 proceeds, we think, upon this view of the Full Bench decision; andindeed the decision in this case was precisely anticipated in the passage fromthe judgment of PONTIFEX, J., to which we have referred. Gunga Prosad v.Ajudhia Pershad Singh was a suit brought by a mortgagee against the mortgagorand his four sons amongst others : and the proposition material to our purposeis that stated at page 136: "Assuming that the property in dispute isancestral, and the mortgage executed by the father is not valid against thesons, the plaintiff is still entitled to recover the debt by the sale of theancestral joint property of the father and the sons, because, supposing thatthe debt was contracted for the personal purposes of the father, still theancestral property in the hands of the sons is liable for the debt, it beingnot proved to have been contracted for immoral purposes--Luchmun Dass v.Giridhur Chowdhry I.L.R. 5 Cal. 855." The order pronounced by the Court isat page 137 of the report: "We, therefore, set aside the decree of thelower Court, and direct that the plaintiff shall recover the amount claimed,with interest upon the principal at the rate of 6 per cent from the date of thesuit to this date, and with further interest at the same rate upon theaggregate sum adjudged in favour of the plaintiff from this date to the date ofpayment by the sale of the mortgaged premises or any other joint ancestralproperty belonging to the defendant. The defendants other than Sheodyal Singhshall not be personally liable. The plaintiff is entitled to recover costsincurred in both Courts from the defendants."

42. Upon the whole, we think we are bound to follow thatcase, to hold that a decree, similar to the one made in it, must be made in thepresent appeal, and to decree the plaintiffs appeal. As to the defendant No.4, the son of Sukh Lal deceased, it appears to us that the case of Gunga Prosadv. Ajudhia Pershad Singh is also an authority for passing a decree in this suitagainst his share, for in that case (as well as in the two cases Nos. 228 and279 before referred to), in a suit on a mortgage which was held not to lie inrespect of the hypothecation of the property mortgaged, a decree was made inrespect of the personal debt of the father against the shares of the sons inthe joint family property.

43. As to the rate of interest on the mortgage debt, wethink the increased rate of interest does come under the provisions of Section74 of the Contract Act, inasmuch as the enhanced rate of interest is made torun in case of default from the date of the mortgage. See the Full Bench caseof Kalachand Kyal v. Shib Chunder Roy I.L.R. 19 Cal. 392 [LQ/CalHC/1892/16] , decided on the 23rdMarch 1892. Holding this to be so, and having regard to the provision forcompound interest, we think, following Dip Naram Rai v. Dipan Rai I.L.R. 8 All.185, that both should not be allowed, but only the lower rate of 1 per cent permensem, with compound interest, or Re. 1-8-0 per mensem without compoundinterest, whichever is most favourable to the debtor.

44. We allow the appeal, and dismiss the cross-objection,except as regards the rate of interest, which objection we allow. This ordercarries costs in favour of appellant.

45. There will be a decree against the mortgaged propertiesfor the amount of the mortgage-debt, Rs. 8,500, with interest at 1 per cent permensem with compound interest from date of mortgage down to suit; a decreeagainst the defendants for the residue of the debt at 1 per cent per mensemwith compound interest from dates of mortgages respectively, leviable againstall the family property in their hands, down to suit. In computing the sum due,the payments given credit for in the plaint to be taken into account.

46. Interest on each amount to run at the rate of 4 per centper annum from date of suit. Costs of suit to be added to the amount of the Rs.8,500-- mortgage-debt.

* Muttayan Chetti v. Sangili I.L.R. 3 Mad.370 : I.L.R. 9IndAp 128; Girdharee hall v. KantooLall I.L.R. 1. IndAp 321 : 14 B.L.R. 187 :22 W.R. 56; Suraj Bunsi Koer v. Sheo Proshad I.L.R. 6 IndAp 88 : I.L.R. 5 Cal.148; Pannappa v. Pappuvayyangar I.L.R. 4 Mad. 1.

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Khalilul Rahman vs.Gobind Pershad and Ors. (13.07.1892 -CALHC)