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CHANAKYA NATIONAL LAW UNIVERSITY

Antecedent debt

Family law - II
Faculty of Family Law Dr. Shaiwal Satyarthi

MADHUKAR ANAND
ROLL NO 747
2ndyear, 4TH SEMESTER

ACKNOWLEDGEMET

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.

Madhukar Anand

RESEARCH METHODOLOGY

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

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 PROJECT1

ARTICLES

BOOKS

WEBSITES

METHOD 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 CONTENTS

1. INTRODUCTION..
.05
2. HISTORICAL BACKGROUND AND DOCTRINE OF PIOUS OBLIGATION
07
3. ANTECEDENT
DEBT.1
0

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 DEBT
4. HINDU SUCCESSION (AMENDMENT ACT) 2005
The Kerala Joint Hindu Family System (Abolition) Act, 1975
5. CASES
..19
6. CONCLUSION..
..24
7. BIBLIOGRAPHY
..25

INTRODUCTION
HUF 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 nature

That 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 fact

The 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 impeached1.

1 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 common2. 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.
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.
2

Hindu Joint Family, http://en.wikipedia.org/wiki/Hindu_joint_family>, [Researched on may 14, 20114]

The Apex Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal 3, 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."

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 debts incurred 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 time
2. The debts must be prior in fact.
3

1960 AIR 964

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 in Luhar
Marit Lal Nagji v. Doshi Jayantilal Jethalal4, 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

Antecedent Debt
In Hindu Law, the expression antecedent debt is defined as antecedent in-fact as well as intime, i.e., not a part of the transaction impeached. Thus, two conditions are necessary5.

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 Kaur6, 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.
5

Dr. Paras Diwan, Modern Hindu Law (Codified & Uncodified), Allahabad Law Agency, 20 th Edition, 2009, p. 337

AIR 1967 SC 724

In Pathak Haygriv Vishwanath v. Pathak Thakoral Manilal 7, 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.
In Devabhaktuni Kesavanarayana v. Challa Lakshmavadhani8, 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. Jayantilal9, 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.
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.
7

AIR 1967 Guj 192

AIR 1984 AP 85

AIR 1960 SC 964

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 10, but later the
Privy Council decision in Panchaiti v. Surajpa11, appears to insist on a restricted meaning

being given to the expression.


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 arise12.


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
10

1944) 2 MLJ 395

11

ILR (1942) 2 M 502

12

N.R. Raghavachariar, Hindu Law Principles and Precedents, Golden Jubilee Publication, 8 th Edition, 1987, p. 278.

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 antecedent13.

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 sons14.
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 Lals15 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.

13

Dr. Paras Diwan, op.cit., p.337.

14

N.R. Raghavachariar, op. cit., p. 279.

15

(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 Prasad16 case under the
following propositions:
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.

16

AIR 1924 PC 50

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. Govindaswami17, 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.
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 greatgrandfather 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
17

1982 SCCI

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, 2005


As 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 under
After 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, or
b) 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 tenantsin-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.

CASEs
A. Manibhai v. Hemraj 1990 SCC (3) 68
Court: The Supreme Court of India
Petitioner: Manibahi
Respondent: Hemraj
Bench: 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
1250
Court: The High Court of Rajasthan
Plaintiff(s): Ram Kishan and Ors.
Defendant(s): Dev Kishan and Ors. LRs. of Kishan5
Bench: Honble Justice S.K. Garg
Date: 9th May, 2002
FACTS:
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.

CONCLUSION
The 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.

BIBLIOGRAPHY

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, 2014
2. http://leguminfo.com/?p=101, ON January 29, 2011.
3. http://en.wikipedia.org/wiki/Hindu_joint_family
4. http://www.keralawyer.com
Other References:

The Hindu Succession (Amendment) Act, 2005