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Bhim Singh Vs. Ram Singh and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All309; 84Ind.Cas.13
AppellantBhim Singh
RespondentRam Singh and anr.
Cases ReferredBrij Narain Rai v. Mangla Prasad Rai
Excerpt:
hindu law - joint family--alienation by father--mortgage, previous, whether antecedent debt--immoral purpose. - - ). we have no doubt that on the principles laid down in that decision the older mortgage of 1910 and the decree passed upon the mortgage of 1904 constitute antecedent debts, being, as their lordships have put it, antecedent in fact as well as in time......us. it has been found that the consideration for the sale consisted of the satisfaction of two older debts. one of these was incurred under a mortgage of december 5th, 1904, and one under a mortgage of the 19th of july 1910. on the bond of 1904 a suit had been brought and a decree passed. the satisfaction of this decree formed the major part of the consideration for the sale in suit. the satisfaction of the mortgage of 1910 constituted the remainder of the consideration. both these mortgages had been contracted by the father of the plaintiffs. in the plaint the transactions were challenged on the ground that these older debts, incurred in the years 1904 and 1910, were for immoral purposes, and therefore, not binding upon the sons. this point was found against the plaintiffs......
Judgment:

1. This was a suit by two Hindu sons to contest an alienation of joint family property made by way of sale on the 14th of October 1919 by their father, in favour of one Bhim Singh, who is now the appellant before us. It has been found that the consideration for the sale consisted of the satisfaction of two older debts. One of these was incurred under a mortgage of December 5th, 1904, and one under a mortgage of the 19th of July 1910. On the bond of 1904 a suit had been brought and a decree passed. The satisfaction of this decree formed the major part of the consideration for the sale in suit. The satisfaction of the mortgage of 1910 constituted the remainder of the consideration. Both these mortgages had been contracted by the father of the plaintiffs. In the plaint the transactions were challenged on the ground that these older debts, incurred in the years 1904 and 1910, were for immoral purposes, and therefore, not binding upon the sons. This point was found against the plaintiffs. Nevertheless the lower Appellate. Court, and the learned Judge of this Court who heard the case in second appeal, having regard to the principles which have been deduced by this Court from the decision of their Lordships of the Privy Council in the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 44 I.A. 126 : 15 A.L.J. 437 : 21 C,W,N, 698 : 1 P.L.W. 557 : 19 Bom. L.R. 498 : 26 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 : (P.C.), held that the older mortgages of 1904 and 1910 could not in themselves constitute antecedent debts for the discharge of which the father could alienate a portion of the joint family estate. It was not proved to the satisfaction of the lower Appellate Court that these older mortgages had themselves been executed for lawful necessity, and consequently the suit brought by the sons was decreed. Since the decision of the learned Judge of this Court their Lordships of the Privy Council have reviewed the entire question in the case of Brij Narain Rai v. Mangla Prasad Rai 77 Ind. Cas. 689 : 21 A.L.J. 934 : 46 M.L.J. 23 : 5 P.L.T. 1 : 28 C.W.N. 253 : (1924) M.W.N. 68 : 19 L.W. 72 : 2 P.L.R. 41 : 10 O. and A.L.R. (P.C.) 50 : 33 M.L.T. 457 : 46 A.L.R. 82 : (1924) A.I.R. 500 : 11 O.L.J. 107 (P.C.). We have no doubt that on the principles laid down in that decision the older mortgage of 1910 and the decree passed upon the mortgage of 1904 constitute antecedent debts, being, as their Lordships have put it, antecedent in fact as well as in time. They were wholly independent of the transaction now impeached, namely, the sale of October 14, 1919, and were in no sense parts of that transactions. It was, therefore, within the competence of the father of the plaintiffs to alienate a portion of the joint family property in satisfaction of these antecedent debts of his own, so long as those debts had not been incurred for an immoral, purpose. This appeal must, therefore, succeed. We set aside the decree of the learned Judge of this Court and also that of the lower Appellate Court. We restore the decree of the Court of first instance dismissing the plaintiffs' suit. The defendant is entitled to his costs throughout, including fees on the higher scale in respect of both hearings in this Court.


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