ANTECEDENT

DEBT
Submitted To:-Mrs.Homa
Bansal Mam

SUBMITTED By:- Reg.no -11605106

R.no-55
Section-L1601
 1

INDEX
1. Introduction………………………………………………..4
2. Historical Background……………………………………..4
3. Brief Discussion…………………………………………….5-10
Debts under Dayabhaga and Mitakshara schools
Meaning of Antecedent debt
Moral Obligation
Alienation by Father
Suit by the Creditor
Legal Obligation
Suit in the Life Time of the Father
Time-Barred Debts and Son’s Liability to Pay
4. Analysis with case laws…………………………………..11-16
The Hindu Succession (Amendment) Act, 2005
The Kerala Joint Hindu Family System (Abolition) Act, 1975
What does or does not qualify as Antecedent Debt?
Father’s Right to Alienate Coparcenary Property Nature
Father’s Power of Alienation for Antecedent Debt?
Who can alienate for Ancestor’s Antecedent Debts?
Cases:-
Brig Narain V. Mangal Prasad
Fauquier Chand V. Harnam Kaur
In Sashi v. Subhash, AIR 1972 Del 84
Prasad v. Govinda Swami, AIR 1982 SC 84
Prasad V. Govindswami 1982
Anthony Swamy V. M.R. Chinaswamy koundan (AIR 1970 SC 223)
5. Difference between Pious obligation and Antecedent Debt………..17
6. Conclusion …………………………………………………………….18
7. Suggestion/Comments………………………………………………...18
8. Bibliography……………………………………………………………18
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ACKNOWLEDGEMENT

In performing our assignment, I had to take the help and guideline of some
respected persons, who deserve our greatest gratitude. The completion of this
assignment gives us much Pleasure. We would like to show our gratitude Ms.
HOMA BANSAL for giving us a good guideline for assignment throughout
numerous consultations. We would also like to expand our deepest gratitude to all
those who have directly and indirectly guided us in writing this assignment.
I have taken efforts in this project. However, it would not have been possible
without the kind support and help of many individuals.I would like to extend my
sincere thanks to all of them. I came to know about so many new things I am really
thankful to them. Secondly i would also like to thank my parents and friends who
helped me a lot in finalizing this assignment within the limited time frame.
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RESEARCH TOOLS

DOCTRINAL RESEARCH :- It can be defined as research into legal doctrines

through analysis of statutory provisions and cases by the application of reasoning.
The emphasis is upon analysis of legal rules, principles or doctrines. As compared
to non-doctrinal legal research which aims at research on relationship of law with
society, groups and people. It involves an empirical inquiry into the operation of
law, how the doctrine or principle which has been adopted in real world settings.
Thus, the doctrinal legal research emphasize upon research in law focusing on the
black letter of the law, the non-doctrinal research focuses on research about law,
here the researcher is interested in knowing about the law in action. The former can
be understood as armchair research or basic or fundamental research, the latter is
empirical research.
Basic Tools of Doctrinal Research:-Statutory materials, subordinate legal
materials and case laws constitute the primary resource. While the secondary
resources the researcher refers to are the textbooks, legal articles, parliamentary
debate, etc. for example, if someone has to undertake a study on the Family Law,
then the relevant provisions of the Hindu marriage act 1995, Special marriage Act
constitutes primary sources. While the commentaries on the provision pertain to
Hindu and Mohammad Law in standard text books, commentaries, articles in law
Journals, news reports, blogs etc. would constitute secondary sources.
 4

ANTECEDENT DEBT UNDER HINDU LAW

 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 relatives1. 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. Coparceners2 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 don’t have right to demand
the share of the property. Hindu Law lays emphasis on payment of one’s 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 sin and has to face consequences 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 Debt3 notwithstanding that it was secured on the family estate.
Then it binds the whole property including the interest of the sons4.
 Historical Background- There is several schools of Hindu Law, such as the Mitakshara, the
Dayabhaga, the Marumakkattayam, and the Aliyasanthana etc. Broadly, Mitakshara and
Dayabhaga systems of laws are very common. Family ties are given more importance than
marital ties. The arrangement provides a kind of social security in a familial atmosphere. The
‘Dayabhaga 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.

 BRIEF DISCUSSION:-

Dayabhaga Law: The following are the rules of Dayabhaga Law of debts Contracted by a Hindu
for his own private purposes–
a) The separate property of a Hindu is liable for payment of his debt under all circumstances.
b) The interest of a coparcener, being defined, one is liable for the payment of his debt not only
in his lifetime but also after his death.

1
Hindu undivided family act 2010
2
The word coparcener has been used very widely in relation to the Hindu law and the HUF. In relation to
HUF property, a coparcener is a person who acquires a right in the ancestral property by birth and a
person who has a right to demand partition in the HUF property.
3
Lord Dunedin defined the antecedent debt as “antecedent in fact as well as in time”.
4
“Hindu Joint Family”, http://en.wikipedia.org/wiki/Hindu_joint_family>, [Researched on July 13, 2011]
 5

c) The father being the sole owner of the ancestral property can sell or mortgage the whole of it
in his hand for payment of his debt though tainted with immorality or illegality.
The rule of Dayabhaga Law relating to debts contracted for joint-family purposes are the
Same as those of Mitakshara Law.

Debts under Mitakshara Law: Under the Hindu law, the liability to pay debts of another has a
religious, moral and legal origin–
a) Liability to Pay the Debts of a Person by His Heir: A Hindu heir is liable to pay the debts
(whether properly incurred or for an immoral or unlawful purpose) of the deceased, out of the
assets he has inherited from the deceased. In such cases, he is not personally liable at all, even if
the deceased was his own father.
b) Liability for the Debts of a Coparcener: Every coparcener is under a legal obligation to pay
his debts. Undivided interest of a coparcener can be attached and sold in execution of a money
decree against him before his death by a creditor. Thus, if a coparcener had died with some
personal debts, these debts cannot be enforced against his interest in JFP 5after his death.
However, if interest has been attached during his life-time/or before judgment and coparcener
dies during pendency of suit, his interest can be sold. Further, a creditor could claim from the
persons inheriting the coparcener's property.
c) Liability of a Son to Pay the Debts of His Father (Pious Obligation of a Son): A son (as
well as grandson and great-grandson) is under a pious obligation to pay his father's debts (not
immoral or illegal) incurred when they were joint (pre-partition debt), and his obligation
continues even after a partition between them, but is limited to his share in the JFP (thus, the
Liability is not personal). The son, however, is not liable for a debt contracted by the father after
partition. The doctrine of pious obligation6 of sons to discharge the personal debts of the
Father is peculiar to Hindu law. The basis of it is the spiritual benefit which will accrue to the
soul of the father by the discharge of his earthly obligations. Thus, the liability does not arise
from contract It depends upon the relationship between the father and the son. The doctrine is not
intended in any sense for the benefit of the creditor. "He who having received a sum lent or the
like does not repay it to the owner will be born hereafter in his creditor's house, a slave,
a servant, a woman, or a quadrupted" 7
The obligation exists whether the sons are major or minor, or whether the father is alive or dead.
The liability exists even during the father's life-time (then, both son and father will be liable),
and subsists so long as the father is liable. Thus, for a time-barred debt or when the father is
adjudicated insolvent, the son is not liable. The father in a HJF may sell or mortgage the whole
of JFP, to discharge a debt contracted by him for his own personal benefit. Such an alienation
will bind the sons provided that–
a) The debt was antecedent to the alienation8
b) The debt was not incurred for an immoral purpose (untainted debt),

5
Joint family property
6
Dr. Paras Diwan, Modern Hindu Law
7
Family Law in India By K. B. Agrawal

8
Dr. Alpana Sharma, “Pious Obligation And Antecedent debt Under Family Law”, <http://leguminfo.com/?p=101>,
July 4, 2011 [Researched on July 13, 2011]
 6

c) The father acted like a prudent man, and did not sacrifice the property for an Inadequate
consideration.
“Antecedent” literally means prior or preceding in point of time, but the words “antecedent
debt” as used in Hindu Law implies two things,
(a) Antecedent in time
(b) Antecedent in fact in nature

That is to say, the debt must be truly independent of and not part of the transaction impeached.
Lord Dunedin 9defined the antecedent debt as “antecedent in fact as well as in time”
(a) The debt must be prior in time
(b) The debt must be prior in fact.
In other words "Antecedent" debt means antecedent in fact as well as in time. The debt must be
independent of and not part of the transactions impeached. The debt may be a deb; incurred In
connection with a trade started by the father. The father alone can alienate the sons' share in the
case of joint family. The privilege of alienating the whole of joint family property for payment of
an antecedent debt is a privilege only of the father, grandfather and great grandfather qua the son
or grandson only. No other person has any such privilege. An 'antecedent debt' is one which is
antecedent in fact as well as in time i.e. the debt must be truly independent, and not part of the
transaction (alienation) which is impeached. Thus, it implies an indebtedness of the father–prior
in time to, and, independent in origin of, the particular dealing with the family property, whether
byways of sale or mortgage, which it is sought to enforce against the son. Thus, father has no
power to alienate his sons' share, after a partition between him and his son, even though the
alienation is in respect of a debt contracted before partition.
Antecedent debt need not be for legal necessity or for the benefit or the estate. It may be even for
a new business started by the father or it may even be for his own personal benefit.
An 'immoral or illegal' (avyavabarika) debts is "repugnant to good morals". It includes all debts
which the court regards as inequitable of unjust to make the son liable. According to Hindu texts,
the sons are not compellable to pay debts incurred10
For–
a) Losses at play;
b) Alcoholic drinks;
c) Promises without consideration;
d) Promises made out of lust, etc.;
e) Surety ship; or
f) Fines or bribes.

The burden of proof that the debt is 'tainted' is not on the creditor, but on the son. The son is not
liable to pay debt incurred by the father in the circumstances which would render the father liable
to a criminal prosecution; but he is liable for money which the father has to account in a purely
civil capacity11. Where the father's act which give rise to a debt is a mere tort or breach of

9
a Scottish politician and judge.
10
B.M. Gandhi, Hindu Law, Eastern Book Company, 2nd Edition, 2003, p. 93
11
Lexis Nexis Butterworths, Wadhwa, Nagpur,12th Edition, 2007
 7

contract, the debt, is not avyavabarika, and the son will be liable for it. It may be noted that a
time-barred debt 12is not avyavabarika13.
 The Supreme Court re-affirmed14 that the “antecedent debt” means antecedent in fact as
well as in time, that is to say, that the debt must be truly independent of and not part of
the transaction impeached. The debt may be incurred in connection with a trade started
by the father. The privilege of alienating the whole of joint family property for payment
of an antecedent debt is the privilege only of the father, the grand-father and great grand-
father qua the son or grand-son only.
For Eg-Where the father executed a simple mortgage and total consideration of Rs. 10,000/- was
received by the mortgagor in which Rs. 7,000/- was received in installments and Rs. 3,000/- at
the time of mortgage. Rs. 7,000/- was advanced on express condition that a mortgage would be
executed later. In this case it was held, that the amount of Rs. 7,000/- was not an antecedent debt
so as to fasten the liability on sons of mortgagor15.

Thus, it is now well settled that the father of Hindu joint family enjoys full right to sell or
mortgage the joint family property including the son’s interest therein to discharge antecedent
debt. A sale of joint family property, which is made to discharge a debt taken at that very time or
as a part of the sale transaction, is not valid because the debt in this case is not an antecedent
debt. the father has got the power to sell or mortgage the joint family property for the payment of
the debt, may it be for his personal benefit. It would be binding on sons, provided—

(a) The debt was antecedent to the alienation

(b) It was not contracted for an immoral purpose.

In Brij Narain v. Mangala Pd. the Privy Council16 laid down the following propositions:—

1. The Karta17 of a joint family except for legal necessity cannot alienate the joint property nor
can mortgage it.

2. If a decree has been passed for the payment of the debt it can be executed against the entire
estate, provided the son and the father living jointly.
3. He cannot mortgage the joint family property unless the mortgage was done for the payment
of some antecedent debt.
4. “Antecedent debt” means a debt which is prior in time as well as in fact.
5. The fact that the father is alive or dead does not affect the liability.

12
debt collectors have a limited number of years
13
Avyavaharika debts incurred by his father or grandfather but only Avyavaharika debts.

14
http://www.shareyouressays.com/knowledge/what-is-antecedent-debts-under-the-hindu-law
15
Examples of antecedent debts in family law by B.M Gandhi

16
AIR (1924) 26 BOMLR 500

17
The head of the family is known as Karta. He is the senior most male member of the family and as a head or
manager of the family, he is the representative of the family and acts for or on behalf of the family
 8

Alienation18 by Father: The father of a joint family may sell or mortgage joint family
property including the son’s interest in the property to discharge a debt contracted by him
for his personal benefit, provided the following two conditions are satisfied:—

(a) The debt, for which alienation is made, must be antecedent in time.

(b) The debt must not have been taken for an illegal or immoral purpose.

The Kerala High Court has held that in absence of a plea that the debt, for the discharge of
which a Hindu father has alienated the ancestral property was vitiated by illegality or
immorality, the sale is not liable to be challenged, if it is shown that it has been executed for the
discharge of the antecedent debt of the father19.

If the alienation has been shown to have been made by the father for the payment of an
antecedent debt, the son can still get rid of it, provided he is able to prove that the debt was
tainted with illegality or immorality. The burden of proving both these facts is not on the alienee
but on the son himself.

2. Moral Obligation:

It is also a moral duty of the sons to pay the debt of the father as they inherit the property from
him. One, who inherits the estate of another, must pay such other’s debt. A Hindu heir is,
therefore, liable to pay the debts of the deceased out of the assets; he has inherited from the
deceased. The liability is moral and therefore absolute irrespective of the fact that the debt was
incurred for moral or immoral purposes. The successor is bound to pay his ancestor’s immoral
debts out of such property.

3. Legal Obligation:

Besides religious and moral duties, there is also a legal obligation to pay back the debt secured
by the father. With respect to a money debt of the father, sons may be bound by proper

18
neither the Karta nor any other coparceners singly, possesses full power of alienation over the joint family
property
19
1964 AIR 1425, 1964 SCR (5) 647
 9

proceedings taken in a Court of law by a creditor 20against the father, although the sons are not
made parties to the suit. The whole family property is liable for debts, incurred for the benefit of
the family, by the father as manager. Reasonable interest on such debt is also payable by the
family.

Suit by the Creditor:

In Panna Lal v.Narayan21: when a decree is obtained by a creditor of the father, sons are not
necessary parties to the suits but it seems that sons are necessary parties to execution
proceedings.
The creditor may bring a suit to recover the debt either—
(i) In the lifetime of the father, or
(ii) After the death of the father.

Suit in the Life Time of the Father:

The suit may be instituted against the father alone or both against the father and son and in
execution of the decree22 the entire family property including the interests of the sons may be
attached and sold. The creditor is not bound to join the sons as parties to the suit against the
father. But during the lifetime of the father the suit cannot be brought against the sons only, as
the liability has arisen on them only along with the father. After the joint family is attached
towards the payment of the debt in execution proceeding but before its sale in execution, the sons
have got the right to challenge the attachment and the sale. They could challenge the attachment
under Order 21 Rule 58 of the Civil Procedure Code on the ground of its being contracted for
immoral purposes.

Further, they cannot file a fresh suit for a declaration to the effect that the decree was not binding
upon them and also for an injunction23 so that the decree holder may not acquire the entire joint
family property. When the coparcenary property has been sold out in the execution of a debt
decree, the sons would not be entitled to recover the same unless they establish the fact that the
debt was contracted for an immoral or illegal purpose within the knowledge of the creditor and
he was kept posted with the purpose of the debt.

20
a person or company to whom money is owing
21
AIR 1962 SC 170
22
An official order that has the force of law.
23
a judicial order restraining a person from beginning or continuing an action threatening or invading the legal right
of another, or compelling a person to carry out a certain act, e.g. to make restitution to an injured party.
 10

The onus is on the sons to prove that the debt was contracted for some immoral or illegal
purposes. This burden is not discharged by showing that the father lived an immoral extravagant
life. A distinction between the debt and the alleged immorality must be proved.

Suit after the Death of the Father:

In cases where the father dies before the decree against him has been fully satisfied it may be
executed by attachment and sale of the entire joint family property in the hands of the sons,
unless the debt was incurred for an illegal or immoral purpose. (Section 53 of the Civil
Procedure Code)24 The objections on the ground of immorality or illegality of the debt should be
determined in execution and not by a separate suit. But where the sons allege that no debt was
really contracted a fresh suit to this effect should be instituted.

Time-Barred Debts and Son’s Liability to Pay:

Hindu law does not recognise any rule of limitation for the recovery of debts. According to it
every Hindu is bound to pay the debts notwithstanding that it was time-barred because he is
under a religious and moral obligation to pay the same. But under the Indian Limitation Act,
1963, if the debt was barred against the father, the sons are no longer under a pious obligation to
pay such debts.

But a Hindu father may pass a promissory note for a time-barred debt. Such a note would
constitute a binding contract in the context of Section 25(3) of the Indian Contract Act, 1872
25
and it may be enforced against him, and after his death, against the sons. The sons, however,
would be liable to the extent of their shares in the coparcenary or self-acquired property which
has come to their hands on the father’s death.

A time barred debt is not Avyavabarika and therefore it has been held that when the father
alienated joint family property in consideration of a debt that is barred by the law of limitation,
the alienation is binding on the sons.

24
Liability of ancestral property.- For the purposes of section 50 and section 52, property in the hands of a son or
other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of
which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the
son or other descendant as his legal representative
25
It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or
specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced
payment but for the law for the limitation of suits.
 11

 Analysis with case laws:-

Note:-[After the amendment of 2005, section 6(4) of the Hindu Succession Act has
abolished the pious obligation of the son, grandson or great grandson to pay the personal
debts of father, but the liability of the son, grandson with respect to any such debt
contracted by father before the Amendment of 2005, continuous]

 Amendment of 2005 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 debt26.

 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 affect27

 Doctrine of Pious obligation and antecedent debts:

Pious obligation28- Pious' means 'godly, religious, devout, and reverential. 'Pious obligation'
means duty of a Hindu due to deep devotion to religion. Hindu law states that 'He who having
received a sum lent or the like does not repay it to the owner will be born hereafter in his
creditors house a slave, a servant or a woman or a quadruped29 '
Avyavabarika debts:- Generally speaking, a debt is said to be “Avyavaharika” when it is
“repugnant to good morals”. In considering this question, “one principle is firmly established,
namely, that the son would not be liable for a debt incurred by the father in circumstances which
would render the father liable to a criminal prosecution; but he would be liable for money for
which the father has to account in a purely civil capacity30”
 Instances of Avyavaharika Debts

26
Dr. Paras Diwan, Modern Hindu Law (Codified & Uncodified), Allahabad Law Agency, 20th Edition, 2009, p.
337
27
“The Kerala Joint Hindu Family System (Abolition) Act, 1975”,
28
Priyanka Tiwari and Ritu Sharma, “Family Law - Son's Pious Obligation”, <
http://legalserviceindia.com/articles/sons_p.htm>
29
N.R. Raghavachariar, Hindu Law Principles and Precedents, Golden Jubilee Publication, 8th Edition, 1987.
30
Mulla, The Principles of Hindu Law, Volume 1, Lexis Nexis Butterworths, Wadhwa, Nagpur, 12th Edition, 2007.
 12

If the liability of the father arises directly from a criminal act, the debt is Avyavaharika, and the
son is not liable to pay it. Thus instances of such debts would be debts incurred —
 For the payment of damages awarded against him for malicious prosecution
 To pay a fine imposed as a result of a criminal trial

The Supreme Court in - Anthony Swamy V. M.R. Chinaswamy koundan31, the doctrine of Pious
Obligation is not merely a religious doctrine but has passed into the realm of law. The doctrine is
a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the
ancestral property and both these conceptions are correlated. The liability on the son to pay the
debt of his father is not a gratuitous Obligation thrust on him by Hindu law but is a salutary
counter balance to the principal that the son from the moment of his birth acquires along with his
father an interest in the joint family property. The doctrine is in consonance with justice, equity
and good conscience.

Again in Venkatesh Dhonddev Deshpande V. Son, Kusum dattatraya Kulkarini32, the

court observed that where the father as karta contracted the debts for family purposes, the son's
as members of the family are bound to pay the debts to the extent of their interests in the
coparcenary property,

Under Old Law, the doctrine (Obligation to discharge the debts) arises after the
death (of the father). But, according to the modern doctrine (new law) the Obligation arises even
during the life time of the father (Brij vs. Mangal Prasad)33. Further, under the old law, the son
had an obligation to pay the debts with interest. The grandson was liable for the principal amount
only (i.e. without interest). The great grandson was not liable, unless he had received the
property from the ancestor. But according to the modern doctrine/law all i.e. son, son's son and
son's son's son are liable to pay the debts with interest When the father being the karta/Manager
of a Hindu joint family contracts a loan for legal necessary, the loan is binding on all the
members of the joint family. If he incurs debts, for his personal purpose, he is personally liable.
To clear off such debts, he may have to alienate his personal property or his son's property. In
son's property is alienated, his son should not question him.
In Sat Narain v. Sri Kishan Dass34the Privy Council held that the basis of doctrine is spiritual and
its sole object is to confer spiritual benefit on the father. This doctrine was not based on pious
obligation of the sons to see their father's debt is paid. The condition is that the debt must not be for
an immoral or illegal purpose.

 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

31
(AIR 1970 SC 223)
32
(AIR 1978 SC 1791),
33
( 1946, all. 951 (PC)
34
AIR 1936 P.C. 277
 13

independent, separate and distinct35. 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 father’s interest as well as his son’s 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 but later the Privy Council decision in Panchaiti v.
Surajpal, appears to insist on a restricted meaning being given to the expression16. 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. 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 debt18. 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.

 Father’s Right to Alienate Coparcenary Property Nature

As expressed in Girdhari Lal v. Kantoo Lal’s36 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. These rights of a father is
additional to his ordinary right as a manager charge or alienate the property in case of legal
necessity.
The question of legal necessity therefore is not to be considered here. 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 necessity37.

 Father’s Power of Alienation for Antecedent Debt?

The Dharmashastra imposed the liability to pay father’s 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
father’s debts during father’s life time28. 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

35
“Alienation for necessity”, < http://punjabrevenue.nic.in/cust61.htm> < https://www.advocatekhoj.com> <
http://indiakanoon.org>
36
. Citation 1973 AIR 2384 2 (1977)
37
Dr. Paras Diwan, Modern Hindu Law (Codified & Uncodified), Allahabad Law Agency, 20th Edition, 2009.
 14

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, and provided the debt is not tainted with immorality”.

 Who can alienate for Ancestor’s 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 son’s 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 father’s 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 nephew’s
share or by a brother of his brother’s share, for discharging an ancestor’s 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 son’s interest by his alienation
for his discharge. So also where 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

Cases:
(i) Brig Narain V. Mangal Prasad38 : Sitaram F had two minor sons SI and S2. F mortgaged
joint Hindu family property called "X" to A; later he executed a second mortgage on the same
property to B. After two years he executed a third mortgage to pay off the earlier two debts, to
"C" After 4 years 'C' sued F on mortgage. It was held that the objective of the third mortgage was
to discharge the earlier two debts. Held, C was entitled to succeed under pious obligation39.
There a sons were: The debt was not for illegal or immoral purposes; the third mortgage was to
discharge earlier debts (that is antecedent debt); the antecedent debt was a debt in fact as well as
in point of time, and was an independent Transaction.

38
AIR (1924) 26 BOMLR 500

39
Dr. Paras Diwan, Modern Hindu Law (Codified & Uncodified), Allahabad Law Agency, 20th Edition, 2009, p.
 15

Fauquier Chand V. Harnam Kaur 40-The Supreme Court held that the rule relating to
antecedent debt was applicable whether the debt is secured or unsecured. A joint family had M
(father) and his son S. M borrowed Rs; 75,000/- and mortgaged joint family property to
discharge earlier mortgage loan and other purposes. M Claimed that the mortgage was not for
legal necessity and hence he was not liable. Held, M was liable, as this antecedent debt not an
Avyavaharika debt

In Sashi v. Subhash41it was observed that the father can himself alienate
the joint family property for the discharge of his personal debts and sons can challenge it only if
debts is tainted i.e. debts were taken for immoral purpose.
Doctrine of antecedent debts is an example of what father cannot do directly he can do indirectly.
Generally a father cannot alienate joint family property for obtaining money for his personal use.
But he can take personal debts and failing to pay it, alienate the joint family property, such
alienation is binding on the sons.
Mulla in his Principles of Hindu law has stated "Where the sons are joint with their father and
debts have been contracted by the father for his own personal benefit the sons are liable to pay
the debts, provided they were not incurred for an illegal or immoral purpose." (S. 298)42.

In Prasad v. Govinda Swami,43Supreme Court observed the validity of an alienation made to

discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt
not tainted with immorality. "Antecedent debt" means antecedent in fact as well as in time, that
is to say, that the debt must be truly independent of and not part of the transaction impeached.
The debt may be a debt incurred in connection with a trade started by the father. The father alone
can alienate the sons' share in the case of a joint family. The joint family property for payment of
an antecedent debt is the privilege only of the father, grandfather and great-grandfather qua the
son or grandson only. No other person has any such privilege. There is, however, another
condition which must be satisfied before the son could be held liable, i.e., that the father or the
manager acted like a prudent man and did not sacrifice the property for an inadequate
consideration. In the instant case on the finding arrived at that the consideration for the sale deed
in question was thoroughly inadequate, the sale could not be upheld, an obligation of religion
and piety which is placed upon the sons under Mitakshara law is to discharge the father's debt
where the debts are not trained with immortality.'

Prasad V. Govindswami44.
Conclusion:
The doctrine of pious obligation fixes pious duty on son to discharge the liability of father, in
regard to "antecedent debt". This debt according to Dunedin means: a debt antecedent in Fact
and in time, that is it should be truly antecedent and not part of the same Transaction which has
been questioned in the court. If the purpose is tainted with illegality or immorality, it is not for
legal necessity; the doctrine of pious obligation applies. But, if it is to discharge an earlier debt,
the liability continues and the son becomes liable. Hence no court shall recognise any right to

40
AIR 1967 Guj 192
41
, AIR 1972 Del 84
42
Mulla, The Principles of Hindu Law, Volume 1, Lexis Nexis Butterworths, Wadhwa, Nagpur,12th Edition, 2007
43
AIR 1982 SC 84
44
AIR 1983SC 48
 16

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
Exception 45
1 Debt before 2005 Act
2 To a partition made before 20/12/200446

45
N.R. Raghavachariar, Hindu Law Principles and Precedents, Golden Jubilee Publication, 8th Edition, 1987
46
Amendment of 2005 After the commencement of the Hindu Succession (Amendment) Act,
2005
 17

Differences Between Pious obligation and Antecedent Debt under Hindu Law

PIOUS OBLIGATION ANTECEDENT DEBT

Under this the holy duty of a son to pay off or The liability of the son continues in respect of
discharge his father's debts. an "antecedent debt" incurred by the father, and,
will not end on the death of the father

Though this is the rule, there are many It the "debt" is not immoral, the second
exceptions alienation is valid, and
Illegal or Immoral debts, Will be bidding on the Sons, under pious
Avyavabarika debts etc. obligation.

After the amendment of 2005, section 6(4) of Antecedent Debt recognized under the Hindu
the Hindu Succession Act has abolished the Law.
pious obligation of the son, grandson or great
grandson to pay the personal debts of father, but
the liability of the son ,grandson with respect to
any such debt contracted by father before the
Amendment of 2005,continuous

Example of pious obligation- if fathers took
loans of rupees 20,000 then after his death his
son’s liability to pay off his all debt. Under old
law Hence court shall recognise 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
Example of Antecedent debt:-Where the father
executed a simple mortgage and total
consideration of Rs. 10,000/- was received by
the mortgagor in which Rs. 7,000/- was received
in installments and Rs. 3,000/- at the time of
mortgage. Rs. 7,000/- was advanced on express
condition that a mortgage would be executed
later. In this case it was held, that the amount of
Rs. 7,000/- was not an antecedent debt so as to
fasten the liability on sons of mortgagor.
 18

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
father’s and the son’s interest in the ancestral property, if the father’s debts be not contracted for
illegal or immoral purposes. And accordingly it was at first held that 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 great grandsons. 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. https://vdocuments.site/antecedent-debt-published.html
3. http://leguminfo.com/?p=101, ON January 29, 2011.
4. http://en.wikipedia.org/wiki/Hindu_joint_family
5. http://www.keralawyer.com

Other References:-
1. The Hindu Succession (Amendment) Act, 2005
2. The Kerala Joint Hindu Family System (Abolition) Act, 1975