Explain clearly the law relating to antecedent debt.
Question: Explain clearly the law relating to antecedent debt. Find the answer only on Legal Bites. [Explain clearly the law relating to antecedent debt.] Answer Lord Dunedin defined the antecedent debt as “antecedent in fact as well as in time”. Thus, two conditions are necessary: The debt must be prior in time, and The debt must be prior… Read More »
Question: Explain clearly the law relating to antecedent debt.
Find the answer only on Legal Bites. [Explain clearly the law relating to antecedent debt.]
Answer
Lord Dunedin defined the antecedent debt as “antecedent in fact as well as in time”. Thus, two conditions are necessary:
- The debt must be prior in time, and
- The debt must be prior in fact.
The doctrine of antecedent debts is an example of what a father belonging to a Hindu joint family cannot do directly he can do it indirectly. Normally a father cannot alienate the joint family property by taking money for any personal gains. But this can be done if he takes personal debts and is failing to pay them, such alienation is binding on sons.
In the case of Brijnarain v. Mangala Pd., AIR 1924 PC 50, it was established that “Antecedent” literally means prior or preceding in point of time, but the words “antecedent debt” as used in Hindu Law implies two things;
- The antecedent in time, and
- The antecedent in fact in nature,
that is to say, the debt must be truly independent of and not part of the transaction impeached.
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.
In Brij Narain v. Mangala Pd., 51 IA 189, the Privy Council laid down the following propositions:
- The Karta of a joint family except for legal necessity cannot alienate the joint property nor can mortgage it.
- 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.
- He cannot mortgage the joint family property unless the mortgage was done for the payment of some antecedent debt.
- “Antecedent debt” means a debt that is prior in time as well as in fact.
- The fact that the father is alive or dead does not affect the liability.
In the case of the Father’s power of sale to satisfy antecedent debts, it is not well settled that the liability of a son to pay the debts of his father exists, whether the father is, alive or dead. It is open for the father during his lifetime to effect a transfer of any joint family property including the interests of his sons in order to pay off the antecedent debt, provided it is not tainted with immorality. The father can alienate only such property in the exercise of his power of alienation which the sons would have exercised discharge of their pious duty which they owed him.
