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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

Illustration:

The father of a joint family borrows Rs. 2,000 from C for his no use. Subsequently he executes a mortgage of the joint family property to C to secure the debts. The money was not used for immoral purposes. The mortgage binds the father’s as well as the son’s interest in the property, Here the debt is antecedent to the mortgage in fact as well as in time [Madhusudan v. Bhagwan, (1929) Bom, 444, 118 I.C. (29) A.B. 213],

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The validity of an alienation made to discharge an antecedent debt rests upon the duty of the son to discharge fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transactions impeached. The debt may be a debt incurred in connection with a trade started by the father (Prasad v. Govindaswami Mkudaliar (1982) 1 S. C. C. 185).

The father of a joint family may sell or mortgage the joint family property including the son’s interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons, provided-

(a) The debt was antecedent to the alienation; and

(b) It was not incurred for an immoral purpose. [Sat Narin v. Sri Krishna Dass, ((1936) 63 I.A. 384.17 Lah. 644, 38 Bom. L.R. 1129, 164 I.C. 6. A. P.c. 277],

The validity of the alienation rests upon the principle of the pious obligation of the son to pay his father’s debt not tainted with immorality. But it is necessary that there must be an antece­dent debt. This is the condition precedent for the validity of the sale or mortgage. To constitute a debt antecedent it is not neces­sary that the prior and subsequent creditor must be different persons; what it necessary is only this that the two transactions must be different in time as well as in fact.

It is for the alienee to prove that the antecedent debt existed. The burden of proof for the immoral or illegal purposes is upon the son. The son must prove that the father used the money taken on loan for immoral or illegal purpose. There must be a direct connection between the debt and the immorality set up by the son. It is not sufficient to prove that the father lived an immoral life.

If the debt is antecedent and not for immoral purposes the alienation is valid and it will bind the father’s as well as the son’s interest in the property.

When a partition has taken place between the father and the son, the father cannot alienate the share of the son after the parti­tion though the debt was incurred when the family was joint. It is a different thing altogether that the son is under the pious obliga­tion to pay such debt.

If the share of the son is attached in execution of decree in respect of his personal debt the father cannot alienate such shares.

In the case of the legal necessity the father can alienate the son’s share, and it will be binding upon the son. The son cannot take the plea of non-existence of antecedent debt for not binding his shares.

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