Supreme Court of India
MANIBHAIversusHEMRAJ
- Citation
- 1990 INSC 97
- Decided
- 21 March 1990
- Disposal
- Appeal(s) allowed
- Bench
- K N SINGH
Holding
The 1953 sale to Manibhai was valid and binding as it discharged an antecedent debt, while the later sales to Vithal and Vishwanath were invalid, leading to a partial reversal of the High Court decree.
Summary
The case concerned the alienation of ancestral joint Hindu family property by Beni Ram, the father, who mortgaged the property to satisfy a personal loan of Rs.5,500 and later reconveyed it, selling portions to Manibhai and to Vithal and Vishwanath. The plaintiffs, Beni Ram's minor sons and wife, challenged the validity of these alienations, arguing that the father’s debts were not for legal necessity, were incurred for personal vices, and that the transactions were part of a single collusive scheme. The Supreme Court held that the 22 April 1948 conditional sale was a valid independent transaction and that the subsequent 11 February 1953 sale to Manibhai was made to discharge an antecedent debt, thus binding the coparceners under the doctrine of pious obligation. However, the later sales of other lands to Vithal and Vishwanath were not for any antecedent debt or legal necessity and were therefore invalid. The Court also upheld the trial court’s finding of estoppel against the plaintiffs concerning the house reconstructed by defendants 4‑8. Consequently, the appeal was allowed in part: the High Court decree granting possession of the property sold to Manibhai was set aside, while the decree granting possession of the lands sold to Vithal and Vishwanath was affirmed.
Issues considered
- The validity of alienation of joint Hindu family property by a father for his personal benefit.
- Whether the doctrine of pious obligation binds the minor coparceners to the father's antecedent debts.
- The definition and applicability of "antecedent debt" in the context of successive transactions.
- Whether the 1948 conditional sale and the 1953 sale to Manibhai constitute independent transactions.
- The validity of the later sales to Vithal and Vishwanath lacking antecedent debt or legal necessity.
- The effect of estoppel on the plaintiffs' claim against defendants who reconstructed the house.
Subjects
Hindu lawJoint family propertyAlienationAntecedent debtPious obligationMinor coparcenersEstoppelSale deedMortgage
Judgment
MANIBHAI
A
v.
HEMRAJ
MARCH 21, 1990
B [K.N. SINGH AND N.M. KASLIWAL, JJ.]
Hindu Law-Joint Family Property-Alienation by father to
satisfy debts contracted for his personal benefit and without any legal
necessity~Alienation is binding on sons if it is not tainted with immor-
ality and illegality and the debts were antecedent to the alienaton.
c Hindu Law-Joint Family Property-Alienation by father-
Validity of-Transactions of alienation-Eack transaction should be
examined independently.
Hindu Law-Doctrine of Pious obligation-Liability of sons to
D discharge father's debt-Doctrine postulates father's debt must be
Vyavaharik.
"Antecedent debt"-What is.
'B', who received some agricultural lands and a house in the
E partition of his ancestral properties, and his minor sons 'H' and 'R'
(Respondent) mortgaged their properties for a sum of Rs.5,500 by
executing a conditional sale deed on 22nd April, 1948 in favour of 'N'.
But by a reconveyance deed dated 11th February, 1953 they got their
properties reconveyed in their favour by 'N'. On the same day i.e. 11th
February, 1953 they sold some agricultural lands and the house for
r Rs.5,500 to 'M', (Appellant) who was brother of 'N'. Subsequently 'M'
sold the house to 'W' and others. The remaining land was sold by them
on the same date to 'V' and his brother.
'B's sons and wife (Plaintiffs) filed a suit against 'M' (Defendant
No. 1), 'V' and his brother (Defendant No. 2 and 3), 'W' and others
(Defendant No. 4 to 8) and 'B' (Defendant No. 9) for a decree of posses-
G sion of the a21"itultural lands and house which came in their share as
members of the Joint Hindu Famity contending that alienation made by
'B' was not bindiug on them because it was neither for any legal neces-
sity nor for the benefit of the minors or their Estate, but was for satisfy-
ing the personal needs of 'B' who had the vices of drinking and gambl-
ing and was spending everything he used to earn in his business of grain
H
delali.
40
MANIBHAI v. HEMRAJ 41
The Trial Court dismissed the suit by holding that (i) 'B' was not
A
indulging in any vices, (ii) the alienation made by 'B' was for the
~ satisfaction of the antecedent debt due on mortgage'; and (iii) 'B' was a
broker who needed cash capital for bis business and (iv) the plaintiffs
and 'B' were estopped from challenging the title of 'W' and others,
since 'W' and others (Defendant No. 4 to 8) had spent Rs.25,000 on the
reconstruction of the house purchased from 'M' within the knowledge B
of plaintiffs and without their objection.
I Plaintiffs preferred an ap.peal before the High Court contending
). that 'M' and 'N' ran a family firm of which they were owners and the
execution of the conditional sale deed, reconveyance deed and the sub-
sequent sale deed of the same day were nothing but a device and were
really a part of one and the same transaction and that if tbe original
c
transaction of 22nd April, 1948 of the conditional sale with 'N' was nut
valid and binding on the minor sons of 'B' then the subsequent transac-
. -'.
lion of 11th February, 1953, for payment of debt or liability due under
that alientation cannot be •11pported.
[
Allowing the appeal, the High Court reversed the judgment of the
Trial Court, 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 neces- E
"' sity, then the subsequent transactions of sale and reconveyance of 11th
February, 1953 were also invalid. Hence this appeal by special leave by
the defendants.
~·
' Allowing the appeal in part, this Court,
F
HELD: 1. The doctrine of pious obligation under which sous are
~~-
held liable to discharge their father's debts is based only on religious
considerations. This doctrine inevitably postulates that the father's
debts must be vyavaharik. If the debts are not vyavaharik or are
avyavaharik the doctrine of pious obligation cannot be invoked. [59E]
' G
Luhar Amrit Lal Nagji v. Doshi Jayantilal Jetha/al & Ors.,
A.I.R. 1960 SC 964, relied on.
_,
2. Where the sons are joint with their father, and debts have been
contracted by the father even for his own personal benefit, the sons are
liable to pay the debts provided they were not incurred for an immoral H
42 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A or illegal purpose and such debts were antecedent to the alientations
impugned. l61HJ
2.1 Even if any loan is taken by the father for his personal benefit
which is found as vyavaharik debt and not avyavaharik, the sons are
liable to discharge their father's debts under the doctrine of pious obli-
B gation and if any alienation of the joint family property is subsequently
made to discharge such antecedent debt or loan of the father, such
alienation would be binding on the sons. [6IDJ
Mui/a, "Principles of Hindu Law'', 15th Edn. Paragraph 295;
Jrukulapati Venkateshwara Rao v. Vemuri Amayya & Ors., A.I.R.
c 1939 Mad. 561, referred to.
Vyankates Dhonddeo Deshpande v. Sou. Kusum Dattatraya •
Kulkarni & Ors., [1979] 1955, relied on.
. ..>-
I Atchutaramayya v. Ratanjee Bhootaji, [1926) A.I.R. Mad. 211;
ID Suraj Bansi Kaer v. Shea Prasad Singh, 6 I.A. 88 (PC) cited.
Benares Bank Ltd. v. Hari Narain & Ors., LIX I.A. 300,
distinghished.
3. "Antecedent debt" means antecedent in fact as well as in time
E i.e. to say, that the debt must be truly independent and not part of the
transactlon impeached. To constitute a debt an "antecedent" debt it is
not necessary that the prior and subsequent creditors should be diffe-
rent persons. All that is necessary is that the two transactions must be
disassociated In time as well as in fact. [53E-F]
F Mui/a, "Principles of Hindu Law", 15th Edn. paragraph 295;
Brij Narain v. Mangala Prasad, A.I.R. 1924 P.C. 50, referred to.
4. It is necessary to examine each transaction iodependently and
then to arrive at a conclusion whether such a transaction or alientation
can be held to be valid or not. [52G-H]
4.1 The approach of the High Court io cousideriog 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. [57B)
5. The conditional sale deed dated 22nd April, 1948 was not void
H even ifthe amount was taken by 'B' for his personal benefit of starting a
MANIBHAI v. HEMRAJ 43
new business of grain. It was an independent transaction both in fact as
A
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 'B' 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 'M' on 11th
February, 1953. This sale deed was perfectly valid and was made in B
order to pay the antecedent debt. [57F-G]
) 6. So far as the house property is concerned, the Trial Court's
t finding that defendants Nos. 4 to 8 had spent Rs.25,000 on the recon-
struction of the house within the knowledge and without the objection of
the plaintiffs Nos. 1 and 2 and as such plaintiffs No. 1 and 2 and
defendant No. 9 were estopped from challenging the title of those
c
defendants had not been set aside by the High Court. This finding of the
High Court has to be upheld. [6IF-G]
7. So far as the transactions of sale of the remaining properties in
favour of 'V' and his brother are concerned, they stand on a different D
footing altogether. The High Court in this regard has recorded a clear
finding that the aforesaid alienations were made neither for anv legal
necessitv nor for the benefit of the State nor for payment of any antece-
dent debt. [61H; 62B]
The evidence in this regard is also fully convmcmg that the E
aforesaid transaction had no connection with payment of any antece-
dent debt. The finding of the High Court has to be upheld in this
regard. [62CJ
8. Accordingly the Judgment and decree passed by the High
Court is set aside to the extent of granting a decree for possession of the F
house property and agricultural lands sold in favour of 'M' on 11th
February, 1953, and the suit with regard to these properties is ~ismis
sed. The rest of the Judgment and decree of the High Court in respect of
agricultural lands which were allienated in f'!VOlll' of 'V' and his brother
... is maintained and ·the suit of the plaintiffs for possession with regard to
these properties stamJs decreed. [62D-EI G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 380
of 1980.
From the Judgment and Order dated the 20.11.1979 of the
Bombay High Court in F.A. No. 117of1968. H
44 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A U.R. Lalit, Dr. N.M. Ghatate and S.V. Deshpande for the
Appellants.
R.K. Garg, Tripurari Ray, M.N. Shroff and A.K. Sanghi for the
Respondents.
B The Judgment of the Court was delivered by
KASLIW AL, J. This Civil Appeal by Special Leave has been
filed by the defendants Manibhai, Dhyaneshwar, and Waman Rao
Narayan Rao aggrieved against the Judgment and decree of Bombay
High Court dated 20th November, 1979.
c Briefly stated the facts are that one Vithoba had two sons Beni
Ram and Maroti. A partition took place on 14th July, 1947 by a
registered document between Vithoba, his son Beni Ram and two
grandsons of pre-deceased son Maroti. In accordance with the above .>-·
partition Beni Ram got agricultural lands survey Nos. 1, 3, 18 & 19
D measuring 11.69 acres, 00.06 acres, 4.48 acres and 8.40 acres respec-
tively, situate in Village Kharbi Tehsil and district Nagpur. Apart from
the above agricultural lands Beni Ram also got a house No. 82 situate
in Telipura, Itwari, Nagpur. After receiving the above properties in
partition Beni Ram along with his two minor sons Hemraj and
Ramdass executed a deed of conditional sale on 22nd April, 1948
E (Ex. 48) of their properties in favour of Narayan Dass for a sum of
/'
Rs.5,500. Thereafter, by a reconveyance deed (Ex. 48) dated 11th
February, 1953, Beni Ram, Hemraj and Ramdass got the properties
reconveyed in their favour by Narayan Dass. On the same day i.e 11th
February, 1953 Beni Ram and his four minor sons executed a sale deed
(Ex. 40) of house property and agricultural land survey Nos. 3 and 18
F in favour of Manibhai, the brother of Narayan Dass for a consideration
of Rs.5,500. By another sale deed (Ex. 41) of the same date Beni Ram
and his four minor sons sold 10.69 acres of land out of sutvey No. 1 in
favour of Vithal and his brother Vishwanath for a sum 6t Rs.5,345.
Beni Ram and his minor sons then by sale deed (Ex. 6 sold thelJ
remaining one acre of land of survey No. 1 and 8.40 acres of survey
G No. 19 for a sum of Rs.3,000 on 19th July, 1954 in favour ot the
above-mentioned Vithal and Vishwanath. Manibhai subsequently sold
the house property in favour of Waman Rao Narayan Rao, Bhujang
Rao, Yadav Rao, Namdeo and Nago Rao.
Six sons of Beni Ram alongwith their mother Sona Bai filed a suit
H on 10th February, 1965 against Manibha1 (defendant No. 1), Vithal
MANIBHAI v. HEMRAJ [KASLIWAL, J.] 45
and Vishwanath (defendants Nos. 2 and 3), Waman Rao, Narayan
Rao, Bhujang Rao, Yadav Rao, Namdeo and Nago Rao (defendant A
Nos. 4 to 8) and Beni Ram (defendant No. 9) for a decree for posses-
sion of the agricultural lands and house which came in their share as
members of Joint Hindu Family. The case of the plaintiffs as set out in
the plaint was that Beni Ram, father of the plaintiffs Nos. 1 to 6 and
husband of the plaintiff No. 7 was a person given to heavy drinking and B
gambling and a satoria. Due to all these vices he used to spend away
everything whatever he used to earn in his business of grain dalali. The
} business of grain dalali did not require any capital. In the partition of
• ancestral properties made on 14th July, 1947 Beni Ram was allotted
the properties as given in para 3 of the plaint, and details of which have
also been mentioned above. It was further alleged in the plaint that the
entire properties allotted to the share of Beni Ram in the aforesaid c
family partition were ancestral and the plaintiffs had acquired an
interest in such properties by birth.
According to the plaintiffs all these alienations in favour of the
defendants were illegal and invalid and were not binding on them. D
Plaintiffs further alleged that none of these sales were for any legal
necessity or for the benefit of the estate or for the benefit of the
minors. The sales were not for preserving or recovering any part of the
estate of the plaintiffs. None of the defendants Nos. 1, 2 and 3 made
any reasonable, proper or bona fide enquiries as to the existence of
any necessity before entering into the aforesaid transactions with E
defendant No. 9. The plaintiffs further stated that the sale proceeds
were not applied for the benefit of the minors or their estate by the
defend;mt No. 9 and were sqandered by him on his vices.
- It was further alleged in the plaint that the defendant No. 1 sold a
portion of the house to defendants Nos. 4 to 7 vide sale deed dated 9th F
August, 1956 and the remaining portion of the same house was sold to
__,,, -- defendant No. 8. Plaintiffs thus submitting that the defendants Nos. 4
to 8 very well knew about the defendant No. 9's way of life. They also
knew that the defendant No. 9 is a gambler and drunkard and satoria
and that he spent everything on these vices. The plaintiffs thus submit-
ted that the sales in favour of defendants Nos. 4 to 8 were also illegal, G
invalid and inoperative in law since their vendor had no valid title in
them. The plaintiffs in the above circumstances alleged that they were
.~
entitled to share in the joint family properties. The plaintiffs called
upon the defendants to deliver possession alongwith mesne profits by
their notice dated 28th October, 1964. The defendants received the
notice but did not deliver possession nor paid the mesne profits and H
46 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A hence suit was filed for possession and mesne profits amounting to
Rs.11,470.
Defendant No. 1, Manibhai denied the allegations made in the
plaint. He denied that the defendant No. 9 was a person given to heavy
drinking and gambling and satoria. He also denied that defendant No.
8 9 used to spend away everything whatever he used to earn in the
business of grain dalali. It was denied that the business of grain dalali
does not require any capital. It was alleged that defendant No. 9 was
the sole owner and in possession of the properties described in Para 3 ·\
of the plaint but it was denied that defendent No. 9 acquired the same i
under the partition deed. The plaintiffs were thus required to be put to
C strict proof of the same. ___
The defendant No. 1 also alleged that he had purchased the
properties by registered sale deed dated 1 lth February, 1953 from
defendant No. 9 and plaintiffs Nos. 1 and 4 for a valuable considera-
tion of Rs.5,500 and plaintiffs Nos. 5 and 6 were not born till then. The
D sale of the property was for the legal necessity and for the benefit of
the plaintiffs. It was further submitted that even if the property was
found to be ancestral one the defendant No. 9 bad power to sell the
said properties being a manager of. the joint family, on behalf of the
plaintiffs also. The defendant No. 9 had executed a mortgage by condi-
tional sale on 22nd April, 1948 in favour of one Narayan Dass S/o
E Kalidas Patel for a total consideration of Rs.5,500 mortgaging thereby
all the properties mentioned in Para 3(A) and (B) of the plaint. It had
been further alleged that the answering defendant No. 1 purchased
properties described in Para 3-A(ii) & (iv) and Para 3-B out of the said
properties for a consideration of Rs.5 ,500 which was the market value
of the said properties. On 11th February, 1953 the defendant paid
F Rs.500 towards the earnest money and the balance of Rs.5,500 was
paid on the same day before the Sub-Registrar. The defendant No. 9
paid this very amount to Shri Narayan Dass to obtain deed of recon-
veyance. Thus the consideration paid by this defendant for the pur- -·
chase of the property mentioned above has in fact been applied to
make payment to Shri Narayan Dass to get all those properties
G released and to obtain the deed of reconveyance from him. The sale
deed in favour of the defendant No. 1 was, therefore, in fact for legal
necessity i.e. to save a larger and valuable property from being lost to
the family and/or also for payment of the antecedent debts of
defendant No. 9 and further the defendant No. 9 saved for himself and
the plaintiffs. The fields mentioned in Para 3A(i) and (iii) of the plaint
H which subsequently the defendant No. 9 and the plaintiffs sold to
MANIBHAI v. HEMRAJ [KASLIWAL, J.] 47
defendants Nos. 2 and 3 by two registered sale deeds dated l lth of February, A
1953 and 19th July, 1954 for Rs.5,345 and Rs.3,000 respectively. Thus
the plaintiffs got an advantage of Rs.8,345 by getting the properties
from the original mortgagee Narayan Dass. It was thus submitted that
though the sale deed dated 11th February, 1953 executed by defendant
No. 9 did not recite all these facts, yet the sale deed in favour of
B
. defendant Ko. 1 was in fact for legal necessity and for discharging the
antecedent debts of defendant No. 9. In the alternative it was submit-
ted that if the business of grain dalali was found to be an ancestral one
) then in that event also the property sold to defendant. No. 1 was for
• legal necessity and for the benefit of the plaintiffs. The suit brought by
the plaintiffs was bogus and untenable in law to the knowledge of the
plaintiffs and was liable to be dismissed with compensatory costs. c
It was also submitted that the suit for possession and mesne
profits as framed was not maintainable. In the sale deeds dated 1lth
February, 1953 the defendant No. 9 is alleged to be the Karla of the
_plaintiffs' family and the plaintiffs Nos. 1 to 4 were also parties to both
D
the sale deeds in favour of the defendant No. 1 as well as in favour of
the defendants Nos. 2 and 3. Plaintiffs Nos. 5 and 6 were not born till
then and plaintiff No. 7 had no title or his interest in the property.
Thus unless those sale deeds or transfers were not cancelled or set
aside, the plaintiffs could not seek possession of the properties. It was
further submitted that the plaintiffs Nos. 1 to 6, who were sons of
/
.. defendant No. 9 were under pious obligation to discharge their father's
E
debt. The present transfers were for discharging the father's debt due
to Narayan Dass and hence the plaintiffs were bound by the transfers.
The plaintiffs had no cause of action for seeking cancellation of the
--- sale deed dated 1lth February, 1953. The present suit was barred by
time as the claim for relief of cancellation of the sale deed dated) lth
F
February, 1953 was also barred on expiry of three years from the date
of sale deed.
Defendants Nos. 2 and 3 filed a joint written statement and apart
from denial of defendant No. 9 being a gambler, drunkard or satoria it
was alleged that they had purchased agricultural field from defendant
.- No. 9 who sold the same for legal necessity and for valuable considera- G
tion and for the benefit of the minors. It was also made to preserve the
estate and to make the repayment of the Joans by the defendant No. 9.
Hence the sales made in their favour were binding on the plaintiffs.
The plaintiffs have filed the present suit in collusion with defendant
No. 9 with ulterior and ma/a fide intention.
H
SUPREME COURT REPORTS I1990] 2 S.C.R.
Defendants Nos. 4 to 8 filed a joint written statement and took
A
almost a similar stand as taken by defendant No. 1. These defendants
further pleaded that they had purchased the suit house some time in
the year 1956, with the knowledge of the plaintiff Nos. 1 and 2 and
defendant No. 9. After the purchase of the house the defendants
demolished the old structure and constructed the whole house from
B foundation, at a cost of about Rs.25,000. The plaintiffs Nos. 1 and 2 as
also defendant No. 9 were in the full know of the fact of demolition of
old house and new construction. They did not at any time, raise any
objection or claim to the house and allowed the defendants to carry \
out the work. They did not at any time show or commit any act as to 1
raise any doubt in the minds of defendants regarding their title to the
house in suit. Thus the defendants Nos. 4 to 8 in good faith and having
c full belief in their own title to the suit house, spent more than
Rs.25 ,000 on the house and the plaintiffs and defendant No. 9 allowed
the defendants to carry out the work even though they had full
knowledge of the said construction work and were thus now estopped
from denying the title of the defendants to the suit house. The
D plaintiffs and defendant No. 9 having acquiesced in the above acts of
the defendants could not now file the suit and challenge the title of the
defendants. It was also alleged that the defendant No. 9 was heavily
indebted and had in fact executed a conditional sale deed in favour of
Narayan Dass son of Kalidass for a consideration of Rs.5,500. It was in
order to redeem these properties that the defendant No. 9 sold the
E property and utilised the money received as a consideration of the sale
deed towards the satisfaction of those debts. Thus the impugned sale
deeds were executed for good and valuable consideration for payment
of antecedent debts and cannot be challenged by the plaintiffs.
Trial Court after considering the oral and documentary evidence
F led by the parties held that the defendant No. 9 Beni Ram after getting
the ancestral share in the properties in 1947 remained joint with his
sons i.e. the plaintiffs. It was also found that the properties in question
were ancestral and as such the plaintiffs had acquired interest in it by
birth. The Trial Court further held that Beni Ram, defendant No. 9
was not indulging in any vices at the time he first mortgaged the pro-
G perties by conditional sale vide exhibit 48. The sale initially was for the
satisfaction of the antecedent debt due on mortgage (Ex. 48). The
Trial Court further held that it was a legal cause and the purchasers
were armed with proper ground to purchase the property. This being
so, the contention of the plaintiffs, that these sales finally were for no
legal necessity or for the benefit of the minors or their estate etc., fell
H to the ground. Similarly, their contention that the defendant No. 9 was
MANIBHAI v. HEMRAJ [KASLIWAL, J.J 49
given up to drinking and all other such bad habits, and it was known to
A
the defendant Nos. 1 and 3 also, did not stand proved. Trial Court also
held that it was proved that the defendant No. 9 was a broker and he
needed cash capital of Rs.4,000 to Rs.5,000 for his business even as a
broker. The evidence also satisfactorily proved that defendant No. 9
had a grain shop. The Trial Court thus arrived at the conclusion that
the plaintiffs had failed to prove their allegations that the defendant B
Nos. 1 to 3 wanted these properties somehow or the other and that
they managed to get the sales executed in their favour from defendant
J No. 9 without enquiry about the legal necessity to sell. The Trial Court
:, also found proved that the defendants Nos. 4 to 8 had spent Rs.25,000
-· on the reconstruction of the house within the knowledge of the
plaintiffs Nos.· 1 ancl 2, after his purchase from the defendant No. 1
and still none had objected against it. The plaintiffs Nos. 1 and 2 and
defendant No. 9 were estopped from· challenging the title of defen-
dants Nos. 4 to 8. In view of the findings recorded as mentioned above
c
the Trial Court dismissed t.he suit filed by the plaintiffs.
The plaintiffs aggrieved against the Judgment and decree of the D
Trial Court filed an appeal before the Bombay High Court. An argu-
ment was raised on behalf of the plaintiffs before the High Court that
Manibhai and Narayan Dass ran a family firm of which they were
owners and the execution of the conditional sale deed, reconveyance
deed and the subsequent sale deed of the same day were nothing but a
;... device and were really part of one and the same transaction. The E
transactions were not independent of each other in the true sense of
the term. If the original transaction of 22nd April, 1948 of conditional
sale deed with Narayan Dass was not a valid alienation and thus not
binding upon the coparceners, minor sons of Beni Ram, then subse-
quent transactions for the payment of the debt or liability due under
that alienation also cannot be supported. The relationship between F
Narayan Dass and Manibhai on the one hand and Beni Ram on the
other hand appeared to be that of confidence from the nature of
evidence given by Narayan Bhai and Manibhai. Beni Ram seemed to
have faith in the two brothers which they apparently used to their
advantage.
G
The High Court considered the above arguments and observed
that in Exhibit 48 the reason for alienation of the property had been
-< given by Beni Ram as for the purpose of carrying out business and for
household purpose. The defendants further did not stick to this reason
of alienation in the sale deed and gave evidence to show that it was
with this amount that Beni Ram started new business. As to what was H
:i () SUPREME COURT REPORTS I 1990] 2 S.G.R.
A the household purpose, has nowhere been stated or clarified. There
was no evidence of any kind whatsoever led to show of any enquiry
having been made by the alienees in regard to the existence of legal '!"
necessity or any antecedent debt. There was no antecedent debt refer-
red to at all in Exhibit 48 which was the commencement of the transac-
tion. The High Court then considered Exhibit 49 which was a recon-
B veyance deed by which Rs.5,500 were repaid by Beni Ram to Narayan
Dass. The High Court then took into consideration Exhibits 40, 41 and
42(61) and arrived at the conclusion that there was no antecedent debt
nor any legal necessity nor the money was needed for any joint family '
or ancestral business, in order to make these alienations valid. After f-
analysing the oral evidence, the High Court recorded the finding that
C even assuming that Beni Ram started a grain shop, it was admitted by "-
the defendants that his former business was of brokerage in grain. For
a grain broker business no capital was necessary or required. For the
purpose of a grain shop, which was an entirely different business,
experience in salesmanship and dealing in grains as well as the pur- .. 5--
chase of grain wholesale or retail would be necessary. It would involve
D an outlay of capital and would be under the circumstances a new
business. The High Court then examined the question as to whether a
father can by starting a new venture expose the family ancestral pro-
perty to be taken and burden it therewith and alienate for that
purpose.
E The High Court placed reliance on the following dictum laid
down by Privy Council in Benares Bank Limited v. Hari Narain &
Ors., Vol. LIX Indian Appeals, 300.
"The manager of a Joint Hindu Family, whether governed
by the Mitakshara or the Dayabhaga, has no authority to
F impose upon a minor member the risk and liability of a new
business started by him; that the manager is father of the
minor makes no difference."
The High Court thus observed that in the present case the father
had started new business with the alienation of the property and he
G had no right to impose the risk and liability upon the minor members.
If the business which Beni Ram, therefore, started were a new busi-
ness and which he had no right to start so as to expose the interest of
the minor coparceners in the family property, then Exhibit 48 cannot >-·
be supported on the ground either of legal necessity or benefit to the
estate. The High Court further observed that if Exhibit 48, therefore,
H was a transaction which the father was not entitled to enter into and
MANIBHAI v. HEMRAJ [KASLJWAL, J.) 51
-~----._
expose the family property to the risk then Exhibit 48 fell and could
not be held to be a valid and binding transaction; then the transaction A
y of 11th February, 1953, first of a reconveyance and then of a sale,
evidenced by exhibits 49 and 40 also must fall and cannot be sup-
ported. The evidence went to show that Beni Ram had confidence in
Manibhai and Narayan Dass. The reconveyance in favour of Narayan
Dass and the immediate sale in favour of Manibhai on the same day B
,- was a mere device to support the transaction of sale Exhibif 40 in
favour of Manibhai by a repayment of alleged antecedent debt. The
High Court held that they had no hesitation in thinking that if the
alleged antecedent debt itself was an invalid transaction, was not an
independent transaction but was a part of the same transaction, then ,
.
0
merely because it was separated in point of time it would not support . ~
the alienation in favour of Manibhai. The High Court also referred to
the five propositions laid down in Brij Narain v. Mangala Prasad, AIR
1924 Privy Council, 50 and held that so far they were concerned the
--i. - fourth proposition was relevant which was to the following effect:
"Antecedent debt means antecedent in fact as well as in D
time; i.e. to say that the debt must be truly independent
and not part of the transaction impeached."
It was then held that applying the proposition laid down it was to
be found out whether the transaction which was impeached, was a
t truly independent transaction and the debt discharged thereby was a
truly independent antecedent debt and whether it was or it was not a
E
part of the same transaction. According to the High Court apart from
the fact that the alienation dated 22nd April, 1948 was not supportable
and was invalid, the transaction was nothing but a mere device to
-t· clothe the debt due under Exhibit48 with the antecedent character,
when Exhibit 40 on I Ith February, 1953 was executed, The transaction F
Exhibit 40 must stand or fall alongwith the liability said to have been
......_.. incurred under Exhibit 48. Thus in the view taken of Exhibit 48. and
the liability incurred thereunder, Exhibit 40 must also fall therewith.
As regards Exhibits 41 and 42(61) the High Court observed that
whatever little justification there was to sustain the transaction under G
Exhibit 40 even that did not hold good and was not available for the
alienations under Exhibits 41 and 42. There was not even a semblance
...... of antecedent debt existing ·or due from Beni Ram on 11th February,
1953 after the alleged liability under the conditional sale deed was
discharged, so as to alienate ·survey No. 1 or subsequently in 1954 the
rema!ning portion of survey Nos. 1 and 19. After recording the above · H
52 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
~·-- -
findings the High Court observed that the present suit was brought by
A
the minors who had 6/7th share in the Joint family properties and had
brought the suit for the purpose of possession alleging .that the aliena-
tions effected by defendant No. 9 thereafter were not binding upon
them. In such a case, the only consequence would be that the share of
defendant No. 9 will go to the alienees. But in such a suit the copar-
.B ceners whose shares were not affected were entitled to possession and
the alienees .were not entitled to joint possessi~n with them. The
alienees in such a case could bring, if so inclined and so advised a suit
for working out their share in the family property. In such a suit, the I,
entire family properties shall be brought in and the share of the alienor t
· coparcener. worked out. Thus the plaintiffs having succeeded, the
alienees defendants Nos. 1to3 can be relegated to their right and work
c out their rights in a separate suit than making an orcter for joint posses-
sion. Consequently the High Court allowed th~ appeal, set aside and
reversed the Judgment and decree passed by the Trial Court, and
instead a decree was passed in favour of plaintiffs Nos. 1 to 6 for
possession of the properties in suit.
D
As regards, the mesne profits it was held that the plaintiffs had
not led any evidence and as such relief for mesne profits was denied.
The plaintiffs were further held entitled to future mesne profits from
the date of suit under Order0.20Rule 12 C.P.C.
E Manibhai, defendant No. 1 Dhyaneshwar S/o Vithal as legal
representative of defendant No. 2 and Waman Rao, Narayan Rao,
defendant No. 3 have filed this appeal against the Judgment of the
High Court. · ·
F
We have heard Learned counsel for the parties at length and
have thoroughly perused the reoord. The properties having eome in
the hands of Beni Ram after partition being ancestral and the plaintiffs
+
having share as members of coparcenary were no longer in dispute ~-
before us. The finding that the plaintiffs had not been able to prove
that their father Beni Ram was a drunkard, gambler and satoria and
the alienation made by him were not invalid on that account was also
G not challenged before us. It may be mentioned at the outset that the
very approach of the High Court in considering transaction Exhibit 48
dated 22nd April, 1948 as well as all the other transactions of 11th
February, 1953 being part of the same transaction, is not correct. It
is necessary to examine each transaction. independently and then to
arrive at a conclusion whether such a transaction or alienation can be
H held to be valid or not. The High Court also committed an error in
MANIBHAI v. HEMRAJ [KASLIWAL, J.] 53
examining the transaction as if the same were without consideration
A
and on that account treating the transactions invalid, though no such
plea was raised by the plaintiffs even in 'th;, plaint. The alienations
were challenged by the plaintiffs only on the ground of being without
legal necessity and not for the benefit of the estate and further tainted
with immorality on the ground of their father Beni Ram being indulg-
ing in the vices of drinking, gambling and satoria. - B
Mulla in "Principles of Hindu Law" 15th Edition in paragraph
295 has dealt with the question of sale or mortgage of coparcenary
property for payment of antecedent debt as under: , '
"The father of a Joint Hindu Family may sell or mortgage the
joint family property including the sons' interest therein to discharge a c
debt contracted by him for his own personal benefit, and such aliena-
tion binds the sons, provided-(a) the debt was antecedent to the
alienation, and (b) it was not incurred for an immoral purpose.
The validity of an alienation made to discharge an antecedent D
debt rests upon the pious duty of the sons to discharge his father's debt
not tainted with immorality. Tue mere circumstance,_ however, of a
pious obligation does not validate the alienation. To validate an alie-
nation so as to bind the son, there must also be an antecedent debt.
Generally, there is no question of legal necessity in such a case.
"Antecedent Debt" means antecedent in fact as well as in time, that is E
(_. to say, that the debt must be truly independent of and not part of the
transaction impeached. A borrowing made on the occasion. of the
grant of a mortgage is not an antecedent debt.
To constitute a debt an "antecedent" debt it is not necessary that
the prior and subsequent creditors should be different persons. All F
that is necessary is that the two transactions must be dissociated in
time as well as in fact". ·
It is thus clear that where the sons are joint with their father, and
debts have been contracted by the father even for his own personal
benefit, the sons are liable to pay the debts provided they were not G.
incurred for an immoral or illegal purpose and such debts were antece-
. dent to the alienations impugned. ·
The liability to pay the debts contracted by the father, for his
. own benefit, arises from an obligation of religion and piety which is
placed upon the sons under the Mitakshara Law to discharge the H
-SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A father's debt, where the debts are not tainted with immorality. In any
event an alienation by the Manager. of the Joint Hindu Family even
without legal necessity and not tainted with immorality but for his
personal benefit would be viodable and not void:
_Now, we shall examine all the transactions which took place on
B 11th February, 1953. So far as Exhibit 49 dated 11th February, 1953 is
concerned, it is a reconveyance deed by which an aniounf of Rs.5,500
was alleged to have been returned to Narayan Dass and the possession
of the properties mentioned in the conditional sale deed dated 22nd --~
April;- 1948 were handed back to Beni Ram. This·transaction was
admittedly for the benefit of not only Beni Ram but other membe;s of
C his family including the plaintiffs. Another document executed on 11th
February, 1953 is Exhibit 40 by which Beni Rain and his four sons sold
the house property and agricultural land of survey Nos. 3 and 18 in
favour of Manibhai. The consideration of this sale deed is Rs.5,500
and it was this amount which was repaid to Narayan Dass for getting
the reconveyance deed Exhibit 49. Narayan Dass being the brother of
D Manibhai, it can· be undersiood that no amount in fact may have
reached the hands of Beni Ram by these two transactions of Exhibit 49
and Exhibit 40, but it becomes dear that the reconveyance deed
Exhibit 49 could have been executed only when Rs.5,500 were re-
turned to Narayan Da~s and this amount could _have only come by
executing a sale deed Exhibit 40 in favour of Manibhai. If we took at
E the matter from another angle, it is abundantly clear that on 22nd
April, 1948 when conditional sale deed was executed by Beni Ram on
his own behalf and two minor sons, he was paid Rs.5,500 by Narayan
Dass, This is not the case of the plaintiffs that Exhibit 48 was without
consideration or that Beni Ram did not receive Rs.5,500 when this
F
transaction took place. We accept the finding of the High Court that
this amount of Rs.5,500 was taken by Beni Ram for -his business i.e.
t
for his own personal benefit and not for any legal necessity or benefit
of the joint family. Even then the sale transaction exhibit 40 dated I Ith
February, 1953 for a consideration of Rs.5,500 in respect of house No.
82 and agricultural lands Nos. 3 and 18 is valid as such transaction was
made of payment of an antecedent debt of Rs.5,500 which was taken
G by Beni Ram on 22nd April, 1948. Neither plaintiffs nor Beni Ram
have come forward with the case that for reconveyance deed Exhibit
49 the amount of Rs.5,500 was repaid to Narayan Dass in any other
manner except the transaction Exhibit 40 dated 11th February, 1953.
The transaction Exhibit 40 dated l Ith February, 1953 is valid and
binding on the plaintiffs as it was made in order to pay the antecedent
H debt of Beni Ram taken on 22nd April, 1948 and getting the re.con-
MANIBHAI v. HEMRAJ (KASLIWAL, J.I 55.
veyance of the property vide Exhibit 49.
A
In Raja Brij Narain v. Mangala Prasad, ~ase (supra) it has been
laid down that antecedent debt means "antecedent in fact as well as in
time i.e. to say, that the debt must be truly independent and not part of
the transaction impeached." ·
B
Applying the above dictum also to the facts of the Clise in hand
before us, it is clear that the amount of Rs.5,500 taken by Beni Ram by
way of transaction dated 22nd April, 1948 was antecedent in fact as
·well as in time to the transactions of 11th February, 1953 which have
been impeached by the plaintiffs. By no stretch of imagination the
transaction of 22nd April, 1948 can be said to be a part of the transac-
tion impeached. It makes no difference if Manibhai was the brother of c
Narayan Dass and the consideration paid by Manibh~i of the transac-
tion Exhibit 40 may have gone to Narayan Dass for getting the recon·
veyance deed Exhibit 49 or may have come back to Manibhai himself
·as Manibhai and Narayan Dass were running some business jointly in a
shop from where this money may have come. Even if for argument's D
sake we may accept the contention of Mr. R.K. Garg, Learned counsel
for the plaintiffs that no money actually came in the hands of Beni
Ram while executing Exhibit 49 and Exhibit 40. on !Ith February,
1953, it will not make any difference in as much as Berri Ram was
required to return the amount of Rs.5,500 taken by him on 22nd April,
1948 and transactions Exhibit 49 and Exhibit 40 were truly indepen· · E
dent transactions to pay the antecedent debt of 22nd April, 1948. The
High Court has unnecessarily imputed the allegation of collusion on
the defendants to hold their transactions invalid. There could not have
- been any collusi_on unless Berri Ram, father of the plaintiffs may have ·
joined hands with the defendants from the very beginning i.e. 22nd
April, 1948 when he took ·an amount of Rs.5,500 as consideration for F
executing a conditional sale deed. There is nothing on record to infer
such conduct on the part of defendants; on the other hand conduct of
.------· Beni Ram shows that he is all out in supporting his sons and to save the
joint family property and to get the alienations declared invalid. The
trial court and the High Court both have recorded a finding against the
plaintiffs that Beni. Ram was not indulged in the vices of gambling, G
drinking and satta, and alienations were not invalid on that account.
----
Hemraj P. W. I, one of the plafritiffs has appeared iri the witness
box but he nowhere stated that exhibit 48 was illegal in any manner.
On the contrary he stated that his father had said to him that he had
taken loans and had to pay the same. These loans were taken from H
56 -. SUPREME COURT REPORTS [1990] 2 S.C.R.
-----·--
Narayan Dass. Sale- deed conditional dated 22nd April, 1948 was
A
shown and he admiited that it contained his father's signature on it.
Narayan Dass has appeared as D.W. 1 and he clearly stated that he
knew defendant No. 9 and he had loaned to him Rs.5,500 for his grain
business vide Exhibit 48. It was conditional sale dated 22nd April,
1948. He further paid him back the money of Rs.5,500 as received
B from Manibhai and deposited Rs.3,745 on !Ith February, 1953 out of
the consideration received from Vithoba. In further cross-examination
he stated that the account showed that on 10.2.1953 Rs.5,500 were
credited in it as paid by Mahibhai on behalf of Beni Ram. This was the
consideration of Manibhai's purchase of the property from Beni Ram.
It is pertinent to mention that even the High Court in its Judgment
observed as under: · "
c
"As we pointed out Exhibit 48 itself is the first ·alienation
and there is no debt which is antecedent to 28th February,
1948 which can support Exhibit 48. Though Exhibit 40
dated the I.Ith February, 1953, can be said to be an aliena-
D tion for the purpose of discharging a debt or liability due
under Exhibit 48, as we shall presently show if the liability
created or incurred under Exhibit 48 is not binding upon
the minor coparcener and sons of Beni Ram then Exhibit
48 also ~ill not be binding upon them" ~ /
E The High Court further observed in this regard as under: •
"In the present case, as we have pointed out it is with the
alienation of the property that the father has started a new
business, which he had no right to impose the risk and
liability upon the minor members. If the business which
F Beni Ram, therefore, started were a new· business and
which he had no right to start so as to expose the interest of
the minor coparceners in the family property, then we do
not see how Exhibit 48 can be supported on the ground
either of legal necessity or benefit to the estate. If Exhibit
48, therefore, is a transaction which the father was not
G entitled to enter into and expose the family property to the
risk, then we think th~t Exhibit 48 cannot be supported and
is not for legal necessi_ty ._If Exhibit 48 fails and cannot be
held to be a valid and binding transaction upon the
alienatees then the transaction of 11th February, 1953, first
of reconveyance and then of a sale, evidenced by Exhibits
H 49 and 40 also must fail and cannot be supported."
MANIBHAI v. HEMRAJ IKASLIWAL, J.] 57
The above observations made by the High Court clearly go to
show that the High Court was considering the validity of the transac- A
tion of Exhibit 48 itself on the touchstone of its binding nature on the
basis of any legal necessity or for the benefit of the estate of the joint
family. The High Court in this regard committed a clear error in
assuming and treating the transaction of 22nd April, 1948 as a part and
parcel of transactions of 11th February, 1953. As a matter of fact the B
transactions of Exhibit 49 and Exhibit 40 dated 11th February, 1953
were independent but rather to pay the antecedent debt of 22nd Ap1il,
,
I 1948.
Mr. Garg Learned counsel for the plaintiff-respondent conten-
ded that the transaction of conditional sale deed dated 22nd April,
1948 was void for want of legal necessity in as much as starting of a new c
business by Beni Ram did not constitute legal necessity. It was also
contended that in any case after the execution of reconveyance deed
·--~-. Exhibit 49 there was no antecedent debt that may have survived. The
reconveyance deed Exhibit 49 does not mention receipt of money from
the vendee for repayment of any antecedent debt. Exhibit 40 sale deed D
in favour of Manibhai was subsequent to reconveyance deed Exhibit 49
and the alleged payment by the vendee before the Registrar dQ not
constitute payment tor any independent antecedent debt which in fact
and in reality existed on 11th February, 1953. Strong reliance is placed
on Benares Bank Limited v. Hari Narain & Ors., 59 Indian Appeals,
P. 300). E
We do not find any force in the above contention of Mr. Garg.
We have already discussed in detail that the conditional sale deed
Exhibit 48 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 F
time to the subsequent transactions of 11th February, 1953. The trans-
action of reconveyance deed dated 11th February, 1953 vide Exhibit 49
was for the benefit of not only Beni Ram but for the entire family
including the plaintiffs. There was no consideration for this recon-
veyance of the property except the transaction of sale made in favour
of Manibhai on 11th February, 1953 vide Exhibit 40. Thus sale deed G
Exhibit 40 was perfectly valid and was made in order to pay the antece-
dent debt of Exhibit 48.
So far as Benares Bank Limited v. Hari Narain, case (supra) is
concerned, it did not lay down any proposition against the conclusions
arrived at by us. In the above case the appellant Bank had instituted a H
58 SUPREME COURT REPORTS I 1990] 2 S.C:R.
suit against the members of a joint Hindu family governed by the
A
Mitakashara Law to recover the balance due on and mortgage of a
joint family property to secure an advance of Rs.28,000. The mortgage
deed was executed by Jagdish Narain and Raghubir Narain each on
behalf of his minor sons; the adult sons of Jagdish Narain were also
joined in the deed. The deed recited that the advance was required to
B pay off two earlier mortgages and to carry on the mortgagor's busi-
ness. Only the respondents, who were minors at the date of the mort-
gage, appeared to defend the suit. The Trial Judge passed a preli-
minary decree for sale for the suw claimed. On appeal the High Court \
l
of Allahabad held that the mortgage was valid only as to Rs.18,000
which sum had been used to discharge antecedent debts. As to the
remaining sum of Rs.10,000 they found it had not been proved that the
c alleged debt of Rs.6,342 existed, and that the business for the purposes
of which the balance of Rs.3,658 had ben applied was not an ancestral
business, and that, therefore, there was no authority to bind the minor
members in -respect of it. On further a11peal their Lordships of the
Privy Council held that the mortgage as regards the item of Rs.6,342
D must be deemed to have been made for the payment of an antecedent
debt of Jagdish Narain and Raghubir, and it was, therefore, binding
upon their sons. As regards the item of Rs.3,658 their Lordships found
that this amount was borrowed for the Thika business. ~-Lordships
after examining the evidence in this regard held that the busipess was
started by Jagdish Narain and Raghubir Narain as managers of the
E family. A business, therefore, cannot be said to be ancestral so as to
render the minors' interest in the joint family property liable for the
debt. Their Lordships did not agree with the argument that a business
started by a father as manager, even if new, must be regarded as
ancestral. Thus it was held that the mortgage as to Rs.3,658 being
neither for a necessity recognised by the law nor for the payment of an
F antecedent debt was wholly invalid under the Mitakashara Law, as
applied in United Provinces and it did not pass the shares even of the
alienating coparceners. Thus in the above case their Lordships con-
sidered the mortgage as not binding only to the extent of Rs.3,658
which amount was given by the bank by the transaction in dispute
itself. In the case in hand before us the facts are entirely different and
G as we have already observed, an amount of Rs.5,500 was taken by
Beni Ram in 1948 and if the same was paid back by transaction Exhibit
40 dated 11th February, 1953, then it would certainly be a valid trans-
action for making the payment of an antecedent debt.
In 1rukulapati Venkateswara Rao v. Vemuri Ammayya and
H Others, AIR 1939, Madras 561 it was held as under:
MANIBHAI v. HEMRAJ° (KASLIWAL, J.J 59
"On the above finding, Exhibit A would prima facie be
A
binding on defendant 2's share as well. But it has been
contended on his behalf that as the debts of defendant No.
1 were incurred by him in connection with a trade started
by himself, when trade was not the normal occupation of
the family, the debts must be held to be avyavaharik debts
and as such not binding on the son. The Learned counsel B
for the appellant submitted that this contention was
opposed to the decision in Atchutaramayya v. Ratanjee
I Bhootaji, [1926] AIR Madras 49 211; but he argued that it
f is supported by the decision of the Privy Council in Benares
Bank Limited v. Hari Narain & Ors., 54 ALL 564. We find
nothing in 54 All 564 that supports this argument. Their
Lordships there decided only the question of the binding c
character of the mortgage as such on the footing that
moneys had been borrowed contemporaneously with the
mortgage for the purpose of carrying on a trade started by
the father. They declined to deal with the question of the
son's liability for the debt under the pious obligation D
doctrine, on the ground that the question had not been
raised in the Court in India."
A Bench of three Judges of the Supreme Court in Luhar Amrit
Lal Nagji v. Doshi Jayantilal Jethalal & Ors., AIR 1960 SC 964 has
already held that the doctrine of pious obligation under which sons are E
held liable to discharge their father's debts is based only on religious
considerations. This doctrine inevitably postulates that the father's
debts must be vyavaharik. If the debts are not vyavaharik or are
avyavaharik the doctrine of pious obligation cannot be invoked.
Their Lordships quoted with approval the five propositions laid F
down by the Privy Council in the case of Brij Narain v. Mangala
Prasad, (supra). Dealing with Suraj Bansi Kaer, case 6 Indian Appeals
88 (PC) observed as under:
"We have carefully considered this matter and we are not
dispossessed to answer this question in favour of the appel- G
!ants. First and foremost in cases of this character the
principle of stare decisis must inevitably come into opera-
tion. For a number of years transactions as to immovable
property belonging to Hindu families have taken place and
titles passed in favour of alienees on the understanding that
the propositions of law laid down by the Privy Council in H
60 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A the case of Suraj Bansi Koer, 6 Indian Appeals 88 PC,
correctly represent the true position under Hindu Law in
that behalf. It would, we think, be inexpedientto reopen
this question after such a loi;ig lapse of time,"
It was further observed in the above case.
B
"It is also well known that, in dealing with questions of
Hindu Law, the Privy Council introduced considerations of
justice, equity and good conscience and the interpretation
of the relevant texts sometimes was influenced by these
considerations. In fact, the principle about the binding
character of the antecedent debts of the father and the
c provisions about the enquiry to be made by the creditor
have all been introduced on considerations of equity and
fairplay. When the Privy Council laid down the two pro-
positions in the case of Suraj Bansi Koer, 6 Indian Appeals
88 PC, what was really intended was to protect the bona
D fide alienees against frivolous or collusive claims made by
the debtor's sons challenging the transactions. Since the
said propositions have been laid down with the object of
doing justice to the claims of bona fide alienees, we do not
see any justification for disturbing this well-established
position on academic considerations which may perhaps
E arise if we were to look for guidance to the ancient texts
today. In our opinion~ if there are any anomalies in the
administration of this branch of Hindu Law their solution
lies with the legislature and not with the courts. What the
commentators attempted to do in the past can now be
effectively achieved by the adoption of the legislative pro-
F cess. Therefore, we are not prepared to accede to the
appellants' argument that we should attempt to decide the
point raised by them purely in the light of ancient Sanskrit
Texts."
In Vyankates Dhonddeo Deshpande v. Sou. Kusum Dattatraya
G Kulkarni & Ors., [1979] 1 SCR 955, this Court clearly laid down as
under:
"Assuming we are not right in holding that the debt, was
for the benefit of the estate of the joint family and, there-
fore, a joint family debt, and assuming that Mr. Bal is right.
H in contending that it was the personal debt of the father,
MANIBHAI v. HEMRAJ [KASLIWAL, J.] 61
yet the doctrine of pious obligation of the son to pay the
A
father's debt would still permit the creditor to bring the
whole joint family property to auction for recovery of such
debts. Where the sons are joint with their father and debts
have been contracted by the father for his personal benefit,
the sons are liable to pay the debts provided they were not
incurred for an illegal or immoral purpose. This liability to B
pay the debt has been described as pious obligation of the
son to pay the father's debt not tainted with illegality or
immorality. It was once believed that the liability of the son
to pay the debts contracted by the father, though for his
- own benefit, arises from an obligation of religion and piety
which is placed upon the sons under the Mitakshara Law to
discharge the father's debts, where the debts are not
tainted with immorality, yet in course of time this liability
c
has passed into the realm of law."
Thus we also hold that even if any loan is taken by the father for
his personal benefit which is found as vyavaharik debt and not D
avyavaharik, the sons are liable to discharge their father's debts under
the doctrine of pious obligation and in this view of the matter if any
alien.ation of the joint family property is subseq).lently made to dis-
charge such antecedent debt or loan of the father, such alienation
would be binding on the sons.
~. E
Now, so far as the house property is concerned, the same was
subsequently sold by Manibhai to defendants Nos. 4 to 8. The
defendants Nos. 4 to 8 demolished the house and by spending an
amount of Rs.25,000 constructed a new house much before the filing
of the present suit. The issue No. 10 was framed in this regard and the
Trial Court gave a categorical finding that the defendants Nos. 4-8 had F
proved that they had spent Rs.25,000 on the reconstruction of the
house within the knowledge of the plaintiffs Nos. 1 and 2 after his
purchase from the defendant No. 1 and still none had objected or
noticed them against it. In this view the plaintiffs Nos. 1 and 2 and
the defendant No. 9 would be estopped from challenging the title
of defendants Nos. 4 to 8 now. The High Court also did not set aside G
tht above finding and as such we uphold the finding of the Trial Court
in this regard.
Now, so far as the transactions Exhibit 41 and Exhibit 42(61) are
concerned, they stand on a different footing altogether. By Exhibit 41
part of agricultural field survey No. 1 measuring 10.69 acres has been H
6£ SUPREME COURT REPORTS [ 1990] 2 S.C.R.
A sold by Beni Ram and his four sons to Vishwanath and Vithal Rao for
a sum of Rs.5,345. By another transaction vide Exhibit 42(61) Beni
Ram and his sons sold one acre of agricultural land of survey No. 1 and .,...,
8.40 acres.of survey No. 19 in favour of Vithal Rao and Vishwanath for
a sum of Rs.3,000 on 19th July, 1954. The High Court in this regard
B has recorded a clear finding that the aforesaid alienations were made
neither for any legal necessity nor for the benefit of the estate nor for
payment of any antecedent debt. We have also gone through the evi-
dence in this. regard and we are fully convinced that the aforesaid
transactions-had no connection with Exhibit 48 or to pay any other ~
antecedent debt and we agree with the finding of the High Court in this
regard.
c
The net result of the above discussion is that this appeal is
allowed in part. 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 survey Nos. 3 and 18 sold in favour of. __..<. -
D Manibhai vide Exhibit 40 dated 11th February, 1953 and the suit Vl(ith
regard to these properties is dismissed. The rest of the Judgment and
decree of the High Court in respect of agricultural lands survey Nos. 1
and 19 which were alienated in favour of Vithal Rao and Vishwanath,
·defendants Nos. 2 and 3 vide Exhibits 41and42(61) is maintained and
the suit of the plaintiffs for possession with regard to these properties
stands decreed.
E
In the facts and circumstances of the case, the parties shall bear
their own costs.
T.N.A. Appeal allowed .
. .
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Hindu law"Sign in to search