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CHANAKYA NATIONAL LAW UNIVERSITY
Family law - II
Faculty of Family Law Dr. Shaiwal Satyarthi
MADHUKAR ANANDROLL NO 7472ndyear, 4TH SEMESTER
The present project of family law on the ANTECEDENT DEBT had been able to get its final shape with the support and help of people from various quarters. My sincere thanks go to all those persons who gave their precious time to me. Without the inputs from them the study could not have come to its present state. I am proud to acknowledge gratitude to my friends who facilitated my meetings with scholars whom they knew.
With immense pleasure, I express my deepest sense of gratitude to Faculty of Family law, Dr. Shaiwal Satyarthi at Chanakya National Law University for helping me in preparing my project. I am also thankful to the whole Chanakya National Law University family that provided me all the material I required for the project. Not to forget thanking to my parents without the co-operation of which completion of this project would not had been possible.
I have made every effort to acknowledge credits, but I apologies in advance for any omission that may have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to complete the project.
Aims and Objectives:The aim of the project is to present a detailed study of Antecedent Debt through the books, suggestions and different writings and articles. Scope and Limitations:Though this is an immense project and pages can be written over the topic but because of certain restrictions and limitations I was not able to deal with the topic in great detail. Sources of Data:The following secondary sources of data have been used in the project-1. Articles1. Books1. WebsitesMethod of Writing:The method of writing followed in the course of this research paper is primarily analytical.Mode of Citation:The researcher has followed a uniform mode of citation throughout the course of this research paper.
TABLE OF CONTENTS1. INTRODUCTION...052. HISTORICAL BACKGROUND AND DOCTRINE OF PIOUS OBLIGATION 073. ANTECEDENT DEBT.10 WHAT DOES & DOES NOT QUALIFY AS ANTECEDENT DEBT FATHER RIGHT TO ALIENATE COPARCENARY PROPERTY A NATURE OF FATHER POWER TO ALIENATE FOR ANTECEDENT DEBT WHO CAN ALIENATE FOR ANCESTORS ANTECEDENT DEBT4. HINDU SUCCESSION (AMENDMENT ACT) 2005 The Kerala Joint Hindu Family System (Abolition) Act, 19755. CASES..196. CONCLUSION....247. BIBLIOGRAPHY..25
INTRODUCTIONHUF or Hindu Undivided Family is defined under the Hindu Law as a family that consists of all persons lineally descended from a common ancestor, including wives and unmarried daughters or widowed relatives. The head of the family, Karta is generally the father of the family who has the right to do all the things for the family and takes all the decisions on the behalf of the family. Coparceners are the male adults in the family who has the right to demand the share of the property of family if he/she wants to part away with the family with his/her share. Members are the family members who dont have right to demand the share of the property.Hindu Law lays emphasis on payment of ones debt. It is the duty of every person to pay his debts. If a person dies without paying, he is then considered to have committed positive sin and has to face consequences after life and during his next birth. In the undivided ancestral property, Karta, the father might have incurred legitimate debts in developing the existing ancestral property or acquiring new properties; he might have incurred expenses in marrying his daughter; in case of drought, he might have borrowed any sum to run the joint family. As his legitimate legal heir(s), it is the duty of the son(s) to discharge the debt burden of his/their father. When there are sons, they share the debt burden. If the father borrows money on the security of the family estate and later gives another mortgage the first debt constitutes an Antecedent Debt, notwithstanding that it was secured on the family estate. Then it binds the whole property including the interest of the sons.Antecedent literally means prior in point of time, but the word Antecedent debt as used in Hindu law implies two things:- Antecedent in time Antecedent in fact in natureThat is to say the debt must be truly independent of and no part of transaction impeached.Lord Dunedin define antecedent debt as antecedent in fact as well as in time that is no part of the transaction impeached.The two conditions are necessary:- The debt must be prior in time, and The debt must be prior in factThe antecedent debt to pay off in which an alienation of joint property is made must be antecedent in fact as well as in time, i.e the debt must be truly independent and not part of transaction impeached[footnoteRef:2]. [2: Dev Kishan vs. Ram Kishan AIR 2002 Raj 370]
HISTORICAL BACKGROUND and doctrine of pious obligation
There are several schools of Hindu Law, such as the Mitakshara, the Dayabhaga, the Marumakkattayam, the Aliyasanthana etc. Broadly, Mitakshara and Dayabhaga systems of laws are very common[footnoteRef:3]. Family ties are given more importance than marital ties. The arrangement provides a kind of social security in a familial atmosphere. The Dhayabhaga System is in West Bengal and eastern seven states. Rest of the country is governed mainly by Mitakshara law. [3: Hindu Joint Family, http://en.wikipedia.org/wiki/Hindu_joint_family>, [Researched on may 14, 20114]]
The Dayabhaga Law relating to debts is simpler than the Mitakshara Law of debts. Under the former there is no special liability of the sons and grandsons, as in the latter. In the Dayabhaga Law each member takes a defined share in the property which is not case in Mitakshara Law.The significance of Antecedent debt lies in fact that the father of Hindu joint family Has been given the right to sell or mortgage the joint hindu family property including the sons interest therein to discharge antecedent debt, i.e a debt which has been contracted prior to such sale or alienation, both in point of fact as well as time. Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out of his ancestral property even if he had not been benefited by the debts, provided the debts are not avyavaharika. The sons get exonerated from their obligation to discharge the debt of their father from the family assets only if the debt was one tainted with immorality or illegality.In Hindu law there are two mutually destructive principles, one the principle of independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their father's debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts. According to the Hindu law givers his pious duty to pay off the ancestors' debts and to relieve him of the death torments consequent on non-payment was irrespective of their inheriting any property, but the courts rejected this liability arising irrespective of inheriting any property and gave to this religious duty a legal character.The Apex Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal[footnoteRef:4], enunciated the principles thus: "the sons who challenge the alienations made by the father have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so tainted." [4: 1960 AIR 964]
Avyavaharik Debts:-In this section we will look as to what is meant by Avyavaharik debts. Colebrooke defined it as a liability incurred for a cause repugnant to good morals. If it is unrighteous or wholly improper they cannot be called vyavaharika or legal debts. It may be that the debts incurred by the father for defending himself against criminal action against others or defending himself in an action brought by others are legal in several circumstances. If a debt was incurred to defend the rights of the family and to safeguard its interests, it is certainly legal in nature. If a debt is not tainted with illegality at its inception it may be binding on the son. The son may not be able to claim immunity from the debts in such cases. But, where the father's conduct which prompted the incurring of the debt, is utterly repugnant to good morals or is grossly unjust or flagrantly dishonest, then certainly the son can claim immunity from its liability. The learned author Mulla of Hindu Law (at pp, 350 and 351 in l3th edition) places any debt which is avyavaharika which is rendered by Colebrooke as equivalent to a debt for a cause "repugnant to good morals'' in the list of Avyavaharika debts. It is further stated that the fundamental rule is that the sons are not liable for the debtsincurred by father which are Avyavaharika. Colebrooke translates it as "debts for a cause repugnant to good morals." Aparaka explains it as not righteous or proper.In a decision of a Full Bench in Bombay High Court it was held that Avyavaharika debt means illegal, dishonest or immoral one. It is not essential for the son to prove criminal liability of the father in order to claim exemption. So, where a person in possession of property, to which he is not entitled, disposes of that property and deprives the rightful owner of that property, his conduct is dishonest and the son is not liable for the debts arising out of such conduct Lord Dunedin of the Privy Council defined the antecedent debts as antecedent in fact as well as in time i.e. not a part of transaction impeached. Thus two condition are necessary:1. The debts must be prior in time2. The debts must be prior in fact.Immoral debts are those which are taken in furtherance of an immoral purpose such as for prostitution or for keeping of concubine. Thus the expenses of the marriage of concubine's granddaughter or to bribe to hindu women so that she may take one of his son in adoption or purpose of gambling will be for illegal purpose .the debts resulting from the highly tortuous act which at their inception are tainted with an evil purpose are avyavaharika. Father's power of alienation for antecedent debts.The father himself can alienate the joint family property property for the discharge of his personal debt and son can challenge it only if the debts are tainted. This means that the father can do it indirectly also. The pious obligation of the son to pay off the father debt exits whether the father is alive or dead. It is open to father during his life time , to convey joint family property including the interest of the son to pay off antecedent debts not incurred for family necessity or benefit provided the debts are not tainted with immorality. The father can not do so after filing of the suit for partition.The obligation on son to pay off their father's personal debts is religious obligation and if they want to wriggle out of it? they can do so only if the debts are tainted the son also have to show that creditor had the notice or knowledge that the debts was tainted. The Apex Court inLuhar Marit Lal Nagji v. Doshi Jayantilal Jethalal[footnoteRef:5],enunciated the principles thus : "the sons who challenge the alienations made by the father have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so tainted." [5: 1960 AIR 964]
Antecedent DebtIn Hindu Law, the expression antecedent debt is defined as antecedent in-fact as well as in-time, i.e., not a part of the transaction impeached. Thus, two conditions are necessary[footnoteRef:6]. [6: Dr. Paras Diwan, Modern Hindu Law (Codified & Uncodified), Allahabad Law Agency, 20th Edition, 2009, p. 337]
The debt must be prior in-time, and The debt must be prior in-fact.
The first condition means in point of time the debt must precede the alienation, both should not have been made simultaneously. Thus if debt is taken, say on 1.1.72 and properties are alienated on 1.6.72, the debt is prior in time.The second condition means that the debt and alienation should be two independent and separate transactions. If debt and alienation are part of the same transaction even though one (debt) takes place first in point of time and the second (alienation) later on, the debt will not be antecedent. What is required is that the debt must stand independently of the alienation and must be prior to it.The Supreme Court observed: The debt must be truly independent and not part of mortgage which is impeached. The prior debt must be independent of the debt for which the mortgage is created and the two transactions must be dissociated in fact so that they cannot be regarded as part of the same transactions.In Faquir Chand v. Harnam Kaur[footnoteRef:7], the Supreme Court observed: If there is a just debt owing to the father, it is open to the creditor to realize the debt by the sale of the property in execution of the mortgage decree. The son has no right to interfere with the execution of the decree or with the sale of the property in execution proceedings, unless he can show that the debt for which the property is sold is either non-existent or is tainted with immorality and illegality. [7: AIR 1967 SC 724]
In Pathak Haygriv Vishwanath v. Pathak Thakoral Manilal[footnoteRef:8], the Gujarat High Court said that if father sells properties to discharge a mortgage debt which is not avyvaharika, though not justified or legal necessity or benefit, the son can get the sale set aside provided he meets the liabilities arising there under. In other words, the son should pay the debt. [8: AIR 1967 Guj 192]
In Devabhaktuni Kesavanarayana v. Challa Lakshmavadhani[footnoteRef:9], the Andhra Pradesh High Court rightly took the view that mortgage debt is not an antecedent debt. Thus, attempts to circumvent the doctrine of antecedency are made. It is pointed out that there is no textual authority for the antecedency rule. There cannot be any, as the doctrine is a creature of judiciary. It is submitted that if we abolish the doctrine, the result will be that the father can alienate the joint family property for legal necessity as well as for his personal debt. The result of Supreme Courts decision in Amrit Lal v. Jayantilal[footnoteRef:10], may lead to the destruction of avyavaharika nature of the debt and abolition of antecedency rule will mean the Mitakshara father will acquire all the powers of the Dayabhaga father. [9: AIR 1984 AP 85] [10: AIR 1960 SC 964]
What does or does not Qualify as Antecedent Debt:- If a debt is incurred at the time of sale or mortgage, then it is not an antecedent debt. Such a debt must exist prior to and independently of such a sale or mortgage. In other words, the previous debt must not be a part of the subsequent transactions. The two debts must be in reality independent, separate and distinct.Example: A, the father of a joint Hindu family borrows Rs. 2000 from X for his own use. He, thereafter, executes a mortgage of the joint Hindu family property to X in order to secure the debt. That the father used the money borrowed for immoral purposed is not proved. The mortgage binds the fathers interest as well as his sons interest. The debt here is antecedent of the mortgage in fact as well as in time. It may be a simple debt or a mortgage debt. It may be an ascertained or unascertained sum. This was approved in the full bench decision in Lingayya v. Punnaya[footnoteRef:11], but later the Privy Council decision in Panchaiti v. Surajpa[footnoteRef:12], appears to insist on a restricted meaning being given to the expression. [11: 1944) 2 MLJ 395] [12: ILR (1942) 2 M 502]
An antecedent debt must be a bonafide debt, not colourably incurred for the purpose of forming a basis for the subsequent mortgage or sale in question. A debt payable, though not demandable, at the time of the alienation questioned, may be a valid antecedent debt to support the alienation. There must be a debt before the question of the validity of an alienation for its discharge as an antecedent debt can arise[footnoteRef:13]. [13: N.R. Raghavachariar, Hindu Law Principles and Precedents, Golden Jubilee Publication, 8th Edition, 1987, p. 278.]
A debt due under an earlier mortgage bond which contained no personal covenant or contained a personal covenant which had become time-barred qualified for an antecedent debt. If a time-barred debt exists and the debtor is willing to pay it by alienation of the family property, then alienation, if otherwise valid, can bind his sons and grandsons as if the debt is a live one and is sought to be recovered by the creditor by the attachment and sale of the family estate. An obligation undertaken by the father as usufructuary mortgagee to pay off an amount due to an earlier simple mortgagee falls within the meaning of antecedent debt in respect of a subsequent alienation by the father to discharge the obligation. Even a renewal of a mortgage debt makes the original debt an antecedent one in respect of the new mortgage. In some cases, a view is pronounced that even if the father has mortgaged the joint family properties and the mortgage is not justified for legal necessity or benefit, the sons are nevertheless bound to pay the debt under the doctrine of Pious Obligation.The arguments runs: for a simple debt the creditor can obtain a decree against the father and then proceed to execute the decree against the joint family property, but it is anomalous that for a secured debt (mortgage debt is a secured debt) he cannot do so. The Madras High Court tried to circumvent the antecedent rule by saying that where the Court sells by auction the joint family property to enforce the mortgage debt, the debt (i.e., the mortgage) is prior to auction sale and is therefore antecedent[footnoteRef:14]. [14: Dr. Paras Diwan, op.cit., p.337.]
If a father agrees at the time he borrows that he will execute a mortgage in favour of the creditor if and when called upon, a subsequent mortgage executed by the father to secure his debt is one for an antecedent debt and is binding as such on the sons[footnoteRef:15]. [15: N.R. Raghavachariar, op. cit., p. 279.]
Money is lent to the father on the express condition that a mortgage will be executed later, and a mortgage accordingly follows, the debt cannot be said to be independent of the mortgage and hence is not an antecedent debt so as to make the mortgage binding on the shares of the sons. A mere contingent liability, as for instance a liability to pay rent which may fall due in future in respect of a lease, will not support an alienation by way of security before the liability becomes operative, because in such a case the antecedency of a debt to the alienation in question cannot be postulated.
Fathers Right to Alienate Coparcenary Property Nature of:-As expressed in Girdhari Lal v. Kantoo Lals[footnoteRef:16] case for payment of his personal debts, the father can alienate the whole of the coparcenary property, but the debts must be antecedent and not contracted for immoral or illegal purpose. Such alienation bind the sons whether they consent or not, or whether the father is or is not the manager of the joint family or whether the joint family is or is not composed of persons other than the father and sons. This right of a father is additional to his ordinary right as a manager to charge or alienate the property in case of legal necessity. The question of legal necessity therefore is not to be considered here. [16: (1875) 1 I.A. 321]
A father can charge or alienate the property for discharging his antecedent debt. This is his privilege. But a manager of the family who is not the father has no such right. An uncle professing to act on behalf of a family cannot have such a right unless he proves that the transactions entered into by the father or grandfather of the Plaintiff were not for legal necessity. This position has been clearly summarised in Brij Narain v. Mangal Prasad[footnoteRef:17] case under the following propositions: [17: AIR 1924 PC 50]
1) The managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for the purpose of necessity.2) If he is the father and the members are the sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceedings upon a decree for payment of the debt.3) If the purports to burden the estate my mortgage then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.4) Antecedent debt means antecedent in fact as well as in time, i.e., the debt must be truly independent of, and no part of the transaction impeached.5) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdened the estate, is alive or dead.
Fathers Power of Alienation for Antecedent Debt:-The Dharmashastra imposed the liability to pay fathers untainted debts on the sons only after the death of the father, but by judicial valour this has been extended, and sons are not liable to pay fathers debts during fathers life time .The doctrine has been further extended by laying down that the father himself can alienate the joint family property for the discharge of his personal debt and sons can challenge only if the debt is tainted. This means what the father cannot do directly, he can do indirectly. He cannot alienate joint family property for obtaining money for his personal use, but he can (like any person) take a personal debt and, failing to pay it, alienate the joint family property (which no other person can). Such alienation will be binding on the sons.In the words of Natesan J: The pious obligation of the son to pay the debts of his father exists whether the father is alive or dead. It is open to the father during his life time, to convey joint family property including the interest of sons, to pay off antecedent debt, not incurred for family necessity or benefit, provided the debt is not tainted with immorality.In Prasad v. Govindaswami[footnoteRef:18], the Supreme Court affirming the view that the father may alienate the joint family property to pay off his antecedent untainted debts said that he must act prudently and if consideration is inadequate, the sale will not be valid. This is a welcome development of law. The father cannot do so after a suit of partition is filed. Moreover, such alienation will be hit by Section 52 (Doctrine of lis pendence) of the Transaction of Property Act. [18: 1982 SCCI]
Who can Alienate for Ancestors Antecedent Debts:-A direct offshoot of the Pious Obligation doctrine is the power of the father in a Hindu Joint Family to alienate joint family property including his sons interests to discharge his antecedent debt incurred for a purpose neither illegal nor immoral. This right is a special privilege conferred on him. The privilege extends to alienating even the whole of the joint family property for payment of an antecedent debt. It is a privilege of only the father, grandfather, or great-grandfather of the son, grandson, and great-grandson. No other person has any such privilege. There is however another condition to be satisfied before the son could be held liable, namely, that the father acted like a prudent man and did not sacrifice the property for an inadequate consideration. To exercise this right or not is in the fathers discretion. It is not open to the court to exercise the right on his behalf. Nor can he be compelled to exercise the right. This power of the father is in addition to the powers of a non-father manager to sell joint family property.The power is one which inheres only in the father and an alienation made by an uncle of his nephews share or by a brother of his brothers share, for discharging an ancestors debt is not binding upon the share of the nephew or the brother. But an alienation by a father for discharging the prior debt of a grandfather or a great-grandfather would be binding on the sons, as such debt, being binding upon the father by virtue of pious obligation, can be considered to be the antecedent debt of the father himself for purpose of binding the sons interest by his alienation for his discharge. So also where an alienation is made by the manager of a joint family consisting of the alienor and his brothers or nephews, for the purpose of discharging the debt of a common deceased ancestor [For instance, the father in the case of brothers and grandfather in the case uncle and nephews] which would be binding on them on the ground of their pious obligation, the alienation should be upheld as one made for the benefit or necessity of the family by the family manager. But an alienation by a grandfather of the grandsons interest for the debt of their father would not be binding upon grandsons, though if the alienation is by their father if would be binding upon them.
Hindu succession (amendment) act, 2005As has been stated earlier, the doctrine of pious obligation of the son to pay the personal debt of father under the Mitakshara law has been abolished by section 6 of hindu succession act, 1956 as substituted by the Hindu succession (Amendment) Act, 2005. Sub Section (4) now run as underAfter the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt.Provided that in case of any debt contracted before commencement of the Hindu Succession (Amendment) nothing contained in this sub-section shall affect:-a) The right of any creditor to proceed against the son, grandson or great grandson as the case may be, orb) Any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to same extent as it would have been enforceable as if the Hindu succession (Amendment) Act 2005 had not been enacted.To conclude, the doctrine of pious obligation has no place in Mitakshara Law after the commencement of Hindu Succession (Amendment), 2005, but the doctrine of pious obligation is applicable for the contracted personal debts of father taken by him before the commencement of the amending act.The Kerala Joint Hindu Family System (Abolition) Act, 1975:Joint family System among Hindus of Kerala was abolished with effect from December 1, 1976 by Act 30 of 1976. Thereafter birth in family does not give rise to rights in property.All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act came into force would be deemed to hold it as tenants-in-common as if a partition has taken place of such property.Rule of pious obligation of Hindu son abrogated. After the commencement of this Act, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt (including antecedent debts) due from his father, grandfather or great grandfather of any alienation of property in respect of or in satisfaction of any such debt. However in the case of any debt contracted before the commencement of this Act, nothing stated above will affect.
CASEsA. Manibhai v. Hemraj 1990 SCC (3) 68Court: The Supreme Court of IndiaPetitioner: ManibahiRespondent: HemrajBench: Honble Justice Kasliwal N.M.Date: 21st March 1990
FACTS:-Beni Ram, who received some agricultural lands and a house in the partition of his ancestral properties, and his minor sons Hemraj and Ramdass and Maroti (Respondent) mortgaged their properties for a sum of Rs.5,500 by executing a conditional sale deed on 22nd April, 1948 in favour of Narayan Dass. But by a reconveyance deed dated 11th February, 1953 they got their properties reconveyed in their favour by Narayan Dass. On the same day, i.e., 11th February, 1953 they sold some agricultural land and the house for Rs.5,500 to Manibhai, (Appellant) who was brother of Narayan Dass. Subsequently Manibhai sold the house to Waman Rao and others. The remaining land was sold by them on the same date to Vithal and his brother.Beni Rams sons and wife (Plaintiffs) filed a suit against Manibhai (Defendant No. 1), Vithal and his brother (Defendant No. 2 and 3), Waman Rao and others (Defendant No. 4 to 8) and Beni Ram (Defendant No. 9) for a decree of possession of the agricultural lands and house which came in their share as members of the Joint Hindu Family contending that alienation made by Beni Ram was not binding on them because it was neither for any legal necessity nor for the benefit of the minors or their Estate, but was for satisfying the personal needs of Beni Ram who had the vices of drinking and gambling and was spending everything he used to earn in his business of grain.The Trial Court dismissed the suit by holding that (i) Beni Ram was not indulging in any vices, (ii) the alienation made by Beni Ram was for the satisfaction of the antecedent debt due on mortgage; and (iii) Beni Ram was a broker who needed cash capital for his business and (iv) the plaintiffs and Beni Ram were stopped from challenging the title of Waman Rao and others, since Waman Rao and others (Defendant No. 4 to 8) had spent Rs.25,000 on the reconstruction of the house purchased from Manibhai within the knowledge of plaintiffs and without their objection.Plaintiffs preferred an appeal before the High Court contending that the sale deed of the same day were nothing but a device and were really a part of one and the same transaction.Allowing the appeal, the High Court reversed the judgment of the Trial Court and had passed a decree for possession of the suit properties in favour of the plaintiffs by holding (i) that the transactions dated 22nd April, 1948 as well as all other transactions of 11th February, 1953 were part of the same transaction; (ii) that since transaction dated 22nd April, 1948 was invalid because it was not supported by any legal necessity, then the subsequent transactions of sale and reconveyance of 11th February, 1953 were also invalid.The defendants preferred an appeal before the Supreme Court by special leave.Judgment:Allowing the appeal in part, the Supreme Court held that:The approach of the High Court in considering transaction dated 22nd April, 1948 as well as all the other transactions of 11th February, 1953 being part of the same transaction, is not correct. The conditional sale deed dated 22nd April, 1948 was not void even if the amount was taken by Beni Ram for his personal benefit of starting a new business of grain. It was an independent transaction both in fact as well as in time to the subsequent transactions of 11th February, 1953. The transaction of reconveyance deed dated 11th February, 1953 was for the benefit of not only Beni Ram but for the entire family including the plaintiffs. There was no consideration for this reconveyance of the property except the transaction of sale made in favour of Manibhai on 11th February, 1953. This sale deed was perfectly valid and was made in order to pay the antecedent debt.So far as the house property is concerned, the Trial Court's finding that defendants Nos. 4 to 8 had spent Rs.25,000 on the reconstruction of the house within the knowledge and without the objection of the plaintiffs were estopped from challenging the title of those defendants had not been set aside by the High Court. This finding of the High Court has to be upheld.So far as the transactions of sale of the remaining property in favour of Vithal and his brother are concerned, the finding of the High Court has to be upheld.Accordingly the Judgment and decree passed by the High Court is set aside to the extent of granting a decree for possession of the house property and agricultural land sold in favour of Manibhai on 11th February, 1953, and the suit with regard to these properties is dismissed. The rest of the Judgment and decree of the High Court in respect of agricultural land which were alienated in favour of Vithal and his brother is maintained and the suit of the plaintiffs for possession with regard to these properties stands decreed.
B. Dev Kishan and Ors. LRs. of Kishan ... v. Ram Kishan and Ors. RLW 2003 (2) Raj 1250Court: The High Court of RajasthanPlaintiff(s): Ram Kishan and Ors.Defendant(s): Dev Kishan and Ors. LRs. of Kishan5Bench: Honble Justice S.K. GargDate: 9th May, 2002FACTS:The plaintiffs Ram Kishan and Kailash filed a suit against the appellant-defendant No.1, Kishan Lal and his LRs and also against the defendants No. 2 to 5 with the prayer that the sale deed is void and that the plaintiffs and defendants No.2 to 5 were members of joint Hindu Family, but the defendant No.2 Madanlal, who was Karta of the family, was under the influence of the appellant-defendant No.1.The case of the plaintiffs was that the defendant No.2 under the influence of appellant-defendant No. 1 first mortgaged the properties in favour of the appellant defendant No.1 for a consideration of Rs. 500/- and the same properties were further mortgaged by the defendant No.2 in favour of the appellant-defendant No. 1 on 19.5.1964 for a consideration of Rs. 900/-. Since the sale deed dated 12.5.1967 was got executed by the appellant defendant No. 1 through defendant No. 2 in his favour after making influence over defendant No. 2, therefore, it should be declared null and void against the interest of the plaintiffs and defendants No.2 to 5 and similarly, the rent deed by which the plaintiffs and defendants No.2 to 5 were termed as tenants of appellant defendant No.1 be also declared as null and void on grounds that there was no legal necessity for mortgaging as well as for selling the properties in favour of the appellant-defendant No. 1 and if, at the most, properties were sold for the illegal and immoral purposes, for that the plaintiffs were not bound.The appellant-defendant No.1 alleged that the defendant No.2, Karta of the family took loan from him for the legal necessity of the family and that loan should be termed as antecedent debt and for that, the plaintiffs and defendants No.2 to 5 were bound to pay. It was stated that the purpose was for marrying defendant No.2s daughter Vimla and later on for marrying second daughter Pushpa.The learned Munsiff, Bikaner through his judgment and decree stated that the suit of the plaintiffs against the appellant-defendant No.1 in respect of two houses mentioned in the plaint and rent deed to be null and void against the plaintiffs and defendants No.2 to 5. The loan taken by the defendant No.2 from the appellant defendant No.1 cannot be termed as loan for payment of antecedent debt as the loan was taken by the defendant No.2 for the purposes of marrying his minor daughters, which was wrong under the Child Marriage Restraint Act, 1929. It was also stated that it is difficult to believe that the properties worth Rs. 7000-8000/- would be mortgaged or sold for a consideration of Rs. 400-500/-on the pretext of marrying minor daughters.Aggrieved from the said judgment and decree the appellant-defendant No.1 preferred an appeal before a Civil Judge and it was dismissed upheld the judgment by the learned Munsiff. Aggrieved from the said judgment and decree passed by the learned Civil Judge, a second appeal has been filed by the appellant-defendant No.1 Judgment:The High Court held that the argument is not tenable. In this respect, the decision of the Hon'ble Supreme Court in Faqir Chand v. Sardarni Harnam Kaur, AIR 1967 SC 727, may be referred to where it was held that mortgage of Joint family property by father as manager for discharging his debt not for legal necessity or for payment of antecedent debt, his son is entitled to impeach mortgage even after mortgagee has obtained preliminary or final decree against his father or mortgage meaning thereby since in this case, both courts have come to the conclusion that the transactions were not for legal necessity and not for payment of antecedent debt, therefore, present plaintiffs are entitled to challenge the sale deed.Accordingly, the second appeal filed by the appellant defendant No.1 is dismissed, after confirming the judgment and decree passed by the learned Civil Judge. No order as to costs.
CONCLUSIONThe Hindu Undivided Family system is a unique feature of the Indian society and the concept of pious obligation acts as a thread which binds the family together and prevents it from disintegration. Pious obligation includes both spiritual as well as material aspects. To qualify as an "antecedent debt", it must be truly independent of the transaction impeached. In other words, the two transactions must be dissociated in times as well as fact. Debts which were incurred after agreement relating to the sale was entered into and which were later on included in the consideration for that sale cannot be properly held to be "antecedent debts". Our courts of justice have transformed the future pious duty into a present legal liability limited by both the fathers and the sons interest in the ancestral property, if the fathers debts be not contracted for illegal or immoral purposes. And accordingly it was at first held that an alienation by sale, mortgage or the like, of the family property by the head of the family for antecedent lawful debts is valid and binding on the sons. Ancestral property is not generally liable for payment of just debts of deceased, unless expressly charged on property. But creditor can prove special custom to the contrary.Suggestions/Comments:With due respect to the Hindu Law and the Hindu Undivided Family system, the doctrine of pious obligation under which sons are held liable to discharge their father's debts is based solely on religious considerations has not been always fair to the sons, grandsons and greatgrandsons. The burden is on the son to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so tainted. Even in fair cases, sons were neither allowed to challenge nor were able to prove immorality in order to protect the name of the family. In light of that the commencement of the Hindu Succession (Amendment) Act of 2005 is a blessing.
BOOKS:-1. Dr. Paras Diwan, Modern Hindu Law (Codified & Uncodified), Allahabad Law Agency, 20th Edition, 2009.2. B.M. Gandhi, Hindu Law, Eastern Book Company, 2nd Edition, 2003.3. N.R. Raghavachariar, Hindu Law Principles and Precedents, Golden Jubilee Publication, 8th Edition, 1987.4. Mulla, The Principles of Hindu Law, Volume 1, Lexis Nexis Butterworths, Wadhwa, Nagpur,12th Edition, 2007.
WEBSITES:-1. http://www.assettreat.com/2014/01/complete-information-on-hindu-ndivided.html>, January 18, 20142. http://leguminfo.com/?p=101, ON January 29, 2011.3. http://en.wikipedia.org/wiki/Hindu_joint_family4. http://www.keralawyer.comOther References:- The Hindu Succession (Amendment) Act, 2005