Skip to content


Tirlok Saithwar Vs. Lalsa Saithwar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in71Ind.Cas.465
AppellantTirlok Saithwar
RespondentLalsa Saithwar and ors.
Cases ReferredSuraj Prasad v. Makhan Lal
Excerpt:
hindu law - mortgage by hindu father before birth of son--antecedent debt. - - (a) 200. even apart from authority, the question appears to me as a matter of principle to be perfectly clear. the debt was, therefore, not incurred on the security of any joint family property and the transaction entered into by the father was one which he was perfectly entitled to enter into and which no one could question......i.a. 126. (p.c.). the mortgage in suit was executed by the father of the plaintiff as head of the joint family. part of the consideration was applied to pay off a mortgage executed by the father at a time when the plaintiff was not born and no joint family was in existence. the lower appellate court held that this constituted a valid antecedent debt and that the plaintiff was not entitled to challenge it. there is direct authority for the view which it has taken in the case of suraj prasad v. makhan lal 66 ind. cas. 134 : 44 a. 382 : 20 a.l.j. 51 : (1922) a.i.r. (a) 200. even apart from authority, the question appears to me as a matter of principle to be perfectly clear. the privy council laid down that to constitute antecedent debt the original debt must have been incurred apart from.....
Judgment:

Daniels, J.

1. The present appeal raises a question of what constitutes antecedent debt within the meaning of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 29 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 39 A. 437 : 44 I.A. 126. (P.C.). The mortgage in suit was executed by the father of the plaintiff as head of the joint family. Part of the consideration was applied to pay off a mortgage executed by the father at a time when the plaintiff was not born and no joint family was in existence. The lower Appellate Court held that this constituted a valid antecedent debt and that the plaintiff was not entitled to challenge it. There is direct authority for the view which it has taken in the case of Suraj Prasad v. Makhan Lal 66 Ind. Cas. 134 : 44 A. 382 : 20 A.L.J. 51 : (1922) A.I.R. (A) 200. Even apart from authority, the question appears to me as a matter of principle to be perfectly clear. The Privy Council laid down that to constitute antecedent debt the original debt must have been incurred apart from the security afforded by the joint family property which the manager is not, except under particular conditions, entitled to alienate. Here, at the time when the original debt was incurred, there was no joint family property because no joint family was in existence. The debt was, therefore, not incurred on the security of any joint family property and the transaction entered into by the father was one which he was perfectly entitled to enter into and which no one could question. There is no reason, either of principle or of authority why this should not constitute valid antecedent debt for the purpose of supporting a subsequent alienation. Agreeing with the view of the Court below I dismiss the appeal under Order XLI, Rule 11.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //