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Dev Kishan and Ors. Lrs. of Kishan Lal vs. Ram Kishan and Ors. (2002)

August 1, 2024

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This article is written by Subhangee Biswas. The article discusses the judgement of Dev Kishan and Ors., Lrs., of Kishan Lal vs. Ram Kishan And Ors. (2002) in the background of the concept of antecedent debt in the Hindu Undivided Family system. This article proceeds to discuss the facts of the case, stating the arguments of both parties along with stating in detail the laws and precedents involved. The article concludes with the judgement and an overall analysis of the case.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

The Hindu Undivided Family, as a family system in Hindu law, consists of a common ancestor and its male descendants with their wives and children and unmarried daughters. The head of the family is called the Karta, who makes all the decisions for the family. The members of the family are also coparceners (i.e., members of a Hindu Undivided Family having an interest in their ancestral property by birth. To know more about coparceners and coparcenary under Hindu Law, click here) having a share in the joint family property.

In Hindu law, paying off one’s debts is considered to be a religious, moral, and legal duty. If one does not pay off their debts, it is considered a sin, and the consequences are said to be faced in the afterlife or next birth. The Karta of a family may incur debts due to various reasons; for example, debts may be incurred by the Karta for the benefit of the family or for the marriage of the daughters of the household. If the Karta fails to pay off such debts, the liability to repay them lies with the legitimate legal heirs.

A ‘Karta’ is prohibited from the sale or mortgage of the joint family property unless such mortgage or sale is backed by a legal necessity, the benefit of the joint family estate or any religious obligation. There is one exception to the category of “legal necessity,” which is antecedent debt. If the Karta borrows money to secure the joint family estate and then, at a later stage, mortgages the same, the first debt becomes an antecedent debt. This binds the entire property along with the interests of the sons.

In the case of Dev Kishan And Ors. Lrs. of Kishan Lal vs. Ram Kishan And Ors. (2002), the concept of antecedent debt and the liability of the coparceners to pay off the debts acquired by the predecessor members of the family were highlighted. The case proceeds to discuss the importance of the nature of the debt in deciding whether the liability bound the heirs. The legality or morality of debt also plays an important part in deciding the same. In the instant case, the Karta had executed mortgages and the sale of their joint family properties for the alleged purpose of bearing the expenses of the marriage of his three minor children. Later, the sale was challenged by the son before the Court of Civil Judge, Bikaner on the ground that the consent of the Karta for the sale deed was obtained by undue influence by the buyer and that there was an absence of legal necessity, which made the sale deed void and not binding on them. This led to the filing of the suit. Let us discuss all the sections related to the case in detail.

Details

Case name: Dev Kishan and Ors., Lrs. of Kishan Lal vs. Ram Kishan and Ors.
Equivalent citations: RLW 2003 (2) RAJ 1250; 2002 (4) WLC 130; 2002 (4) WLN 481.
The law involved: Rule of antecedent debt.
Appellant: Kishan Lal, represented by his legal heirs after his demise.
Respondents: Ram Kishan, Kailash, Madan Lal, Laxmi Chand, Megh Raj and Badri Das.
Court: High Court of Rajasthan.
Bench: Justice Sunil Kumar Garg.
Judgement date: 06th May 2002.
Final decision: The Rajasthan High Court dismissed the second appeal by the appellant and upheld the judgement of the lower courts.

Facts of the case

Background

On March 18, 1969, Ram Kishan and Kailash (plaintiff in the original suit and respondent in the present appeal, hereinafter referred to as respondent) filed a suit in the Court of Civil Judge, Bikaner, against Kishan Lal (defendant in the original suit and appellant in the present appeal, hereinafter referred to as appellant) and also against Madan Lal, Laxmi Chand, Megh Raj, and Badri Das (hereinafter referred to as defendants no. 2 to 5). In the plaint, they prayed that the sale dated May 12, 1967 be declared void against the respondents and the defendants no. 2 to 5.

Proceedings before the learned Munsiff, Bikaner

Details mentioned in the original plaint by the respondents in the suit dated March 18, 1969

The respondents, as well as defendants no. 2 to 5, were members of a joint Hindu family. The Karta of the family was Madan Lal (defendant no. 2). It is alleged that Madan Lal was under the influence of Kishan Lal, the appellant. There were two houses, both of which were joint properties belonging to their family.

In January 1969, the respondents came to know that Madan Lal (defendant no. 2) had sold both houses to the appellant Kishan Lal on May 12, 1967, through a registered sale deed. The consideration charged by defendant no. 2 was Rs. 2,000, whereas the respondents alleged that the value of both houses came to Rs. 16,000. They further mentioned that the signatures of the defendant’s no. 3 to 5 on the sale deed dated May 12, 1967, were obtained by means of undue influence by defendant no. 2 . Moreover, the consideration amount received was alleged to not have been distributed among the other members by defendant no. 2.

The respondents then approached the appellant and demanded to show the documents. Initially, the appellant ignored but then showed the following two documents to the respondents:

The sale deed, dated May 12, 1967,
The mortgage deed dated May 19, 1964, in which another mortgage deed dated December 6, 1962, was mentioned.

The respondents alleged that defendant no. 2, i.e., the ‘Karta’ Madan Lal, acted under the influence of the appellant, i.e., Kishan Lal, and committed the following acts:

Mortgaged the two houses in favour of the appellant via the above-mentioned mortgage deed dated December 6, 1962 for a consideration of Rs. 500.
Further mortgaged the same properties, in the favour of the appellant via the above-mentioned mortgage deed dated May 19, 1964 for a consideration of Rs. 900.
Executed the above-mentioned sale deed dated May 12, 1967 in favour of appellant.

Moreover, since the properties were sold to the appellant (Kishan Lal), the family members of the joint Hindu family, i.e., the respondents and the defendants no. 2 to 5, living in the properties, became tenants of the appellant and thus, a rent deed was also executed for that purpose between the defendant no. 2 (Madan Lal) and the appellant.

The respondents claimed that since defendant no. 2 executed the sale deed while being under the influence of the appellant, the same should be declared null and void as against the interests of the respondents and defendants no. 2 to 5.

Moreover, they also claimed that the rent deed should also be declared to be null and void. The respondents cited various reasons and one reason was that there was no legal necessity on the part of the defendant no. 2 to either mortgage or sell the properties in favour of the appellant. The respondents contended that, despite the absence of any legal necessity, if the properties were sold for any illegal or immoral purpose, the deeds would not have any binding effect on them.

Allegations mentioned in the written statement filed by the appellant in the suit dated March 18, 1969

The appellant, Kishan Lal, filed a written statement on August 4, 1969. In his written statement, he contended that the Karta of the family, defendant no. 2, had taken a loan from him for some legal necessity related to the family. Therefore, the loan should be considered an “ancestral debt,” which makes the respondents and the defendants no. 2 to 5 liable to pay the same back to the appellant.

The appellant had also denied the existence of any undue influence on this part over the defendant no. 2. He also denied the occurrence of any illegal or immoral transaction.

He also claimed that, as per the mortgage deed dated December 6, 1962, it was evident that the joint family properties were mortgaged by defendant no. 2 in favour of the appellant, with the intention of marrying his daughter Vimla with the consideration received. Further, the same properties were again mortgaged by the mortgage deed dated May 19, 1964, by defendant no. 2 in favour of the appellant for marrying his two daughters, Vimla and Pushpa.

The appellant concluded that since there was a presence of legal necessity behind all the transactions, the suit should be dismissed.

Decision of the Munsiff, Bikaner, in Civil Suit No. 17/69 (116/70 after transfer)

The Munsiff heard both sides, considered the materials and evidence on record and gave his judgement on September 30, 1977. Through his judgement, he decreed the suit against the appellant regarding the two houses and also declared the rent deed null and void against the respondents and defendants no. 2 to 5.

The learned Munsiff observed that during the three transactions, defendant no. 2 had taken money for the marriage of his children. For the first mortgage deed dated December 6, 1962, defendant no. 2 took Rs. 500 from the appellant for the marriage of his daughter Vimla. For the second mortgage deed dated March 19, 1964, defendant no. 2 took Rs. 900 from the appellant for the marriage of his daughters, Vimla and Pushpa. For the registered sale deed dated May 12, 1967, defendant no. 2 took the sale amount from the appellant for the marriage of his son, Ram Kishan, who is one of the plaintiffs in the suit before the Munsiff.

The learned Munsiff further observed that the three children, namely, Vimla, Pushpa, and Ram Kishan, were all minors when the mortgage deeds and the sale deed were executed.

It was stated by Munsiff that the loans taken by defendant no. 2 could not be considered “a loan for repayment of antecedent debt” as the purpose of the loan was the marriage of minor daughters. Therefore, the Munsiff concluded that the said transaction could not be termed as a transaction for the payment of antecedent debt.

The learned Munsiff denied the existence of any legal necessity since defendant no. 2 had not incurred the expenses of the marriages of the three children. Moreover, taking a loan to afford the expenses of the marriages of children could not be considered a necessity.

The Munsiff also took note of the age of Vimla and Pushpa at the time they got married. Vimla was 12 years old and Pushpa was 8 years old. It could not be accepted that the loan was taken for their marriages, considering that they were too young for their marriages to be anticipated.

It was further stated that even if it is accepted that the loans were taken for the purpose of marrying the minor children, the transactions, namely, the execution of the mortgage deeds and the sale deed, become void since they are opposed to the public policy. Marriage of minor children is prohibited under the Child Marriage Restraint Act, 1929, thus, any amount spent on a child marriage cannot be accepted as a “legal necessity.”

The learned Munsiff pointed out the date of execution of the sale deed, which was the same day when the marriage of Ram Kishan took place. Hence, the contention that the amount received as a consideration from the sale deed was to be used for meeting the expenses of the marriage of Ram Kishan was irrational. In this regard, it was held that the amount received out of the sale deed dated May 12, 1967, by defendant no. 2 was not used for the marriage of Ram Kishan.

It was stated that mortgaging or selling properties worth Rs. 7,000 – 8,000 for a mere consideration of Rs. 400 – 500 under the guise of the marriage of minor daughters could not be trusted. Moreover, the other brothers and the mother of the minor daughters were also earning, hence, the claim that the properties were mortgaged to provide for the expenses of the marriage of the minor daughters could not be accepted.

Considering the above-mentioned observations, Munsiff concluded the following:

The properties were not mortgaged or sold for any legal necessity,
There was no antecedent debt,
The respondents and the defendants no. 2 to 5 were not liable under the terms of the sale deed dated May 12, 1967,
The sale deed dated May 12, 1967, was to be declared null and void as against the respondents and the defendants no. 2 to 5.

First appeal before the learned District Judge, Bikaner

The appellant, Kishan Lal, aggrieved by the judgement and decree dated September 30, 1977, by the learned Munsiff of Bikaner, made a first appeal before the learned District Judge of Bikaner. The appeal was transferred to the learned Civil Judge.

The decision of the Civil Judge, Bikaner in Appeal No. 30/77

The appeal of the appellant was dismissed by the Civil Judge through his judgement and decree dated September 15, 1980, upholding the judgement and decree of the learned Munsiff.

The Civil Judge held that the debt taken by defendant no. 2 through both mortgages was for the purpose of the marriage of his two minor daughters. Such debt was opposed to public policy since child marriage was prohibited under the Child Marriage Restraint Act, 1929. In this regard, the decision of the learned Munsiff was upheld.

It had already been pointed out by the learned Munsiff that the brothers and the mother of the respondents were earning members. The learned Civil Judge held that the marriage expenses of the two minor daughters and Ram Kishan, who is one of the respondents, were not borne by the defendant no. 2 but were borne by the brothers and the mother, which concludes that the amount received by the defendant no. 2 as a debt through the mortgages for the purpose of marriage of his children was not utilised for the said purpose.

The Civil judge concluded by holding that the respondents had no liability with regard to the antecedent debt.

Second appeal before the Rajasthan High Court

Being aggrieved by the judgement and decree, dated September 15, 1980, of the learned Civil Judge of Bikaner, the appellant filed a second appeal before the Rajasthan High Court.

Issues raised before the Rajasthan High Court

The Rajasthan High Court framed three significant questions of law related to the above-mentioned facts. The issues were as follows:

Whether a debt acquired by the adult members of a family for the purpose of the marriage of the minor members of the family is a debt acquired for legal necessity or the purpose qualifies as an illegal purpose.
Whether the debts acquired by the father to repay the earlier mortgages should be considered to be a debt acquired for legal necessity?
Whether the sale made to pay off the previous mortgage debt of the Joint Hindu Family and to incur the expenses of the marriage of a minor member of the family was correctly held as void by the first appellate court?
Whether the debt was taken for illegal purposes since child marriage is against public policy?

Arguments of the parties

Appellant

The counsel for the appellant Kishan Lal made the following submissions:

The debt was acquired by defendant no. 2 for the marriage of his minor daughters and this purpose was a legal necessity.
The debt acquired by the adult members of a family for the purpose of the marriage of a minor member of the family is indeed a debt for legal necessity, though such marriage is prohibited under the Child Marriage Restraint Act, 1929. Therefore, it was argued that the debt acquired by defendant no. 2 from the appellant for the marriage of his minor daughters was out of legal necessity.
The lower courts erred in holding that there was no legal necessity for defendant no. 2 to mortgage the properties and thus the same decision could not be sustained.
Regarding the sale deed, it was submitted that the sale deed was executed by the other defendants, that is, the defendant no. 3 to 5 along with defendant no. 2 and thus, it was legal and could not be set aside as against defendant no. 3 to 5.

The counsel for the appellant also relied on certain judgements to support their arguments. The same has been dealt with under a separate heading in detail in the latter part of the article.

Respondent

The counsel for the respondents made the following submissions:

The debt was acquired by defendant no. 2 from the appellant for the marriage of his minor daughters and this purpose did not qualify as a legal necessity.
Child marriage, being prohibited under the Child Marriage Restraint Act, 1929, the purpose of the debt becomes illegal so the debt also becomes unlawful debt, and therefore, the alienation of the property could not be accepted as a lawful alienation which has a binding effect upon the minor members of the family.
The expenses incurred with respect to the marriage of a minor child could not be accepted to amount to legal necessity considering the fact that the Act of 1929 prohibits child marriage.

Laws and concepts involved in Dev Kishan and Ors. Lrs. of Kishan Lal vs. Ram Kishan and Ors. (2002)

Doctrine of antecedent debt

In simple words, “antecedent debt” means a pre-existing debt or liability on a claim. It must exist independent of the concerned transaction.

As defined by Lord Dunedin, an “antecedent debt” is a debt that is “antecedent in fact as well as in time.” There are two essentials:

The debt must be prior in time, and
the debt must be prior in fact.

The rule of antecedent debt is used to decide upon those debts that were created before the adoption of certain laws and regulations. This doctrine provides protection to creditors by allowing them to pursue prior debts; nonetheless, the new laws and regulations alter, cancel, or replace the debts. According to this doctrine, when new laws are enforced, they essentially apply to the debts and commitments made after the enactment. The debts made prior to the enactment would still be governed by the framework that was in force at that time.

In Hindu law, there is a doctrine of pious obligation, which has originated from customs and ancient texts. According to this doctrine, the next male generation has to repay any existing debt of the father. Two things are to be kept in mind while extending this liability to the son:

The debts are only those debts which are for legal purposes, excluding the debts taken for unethical and immoral purposes.
The liability of the son is not personal but is restricted to the amount of share obtained from the ancestral property.

To know more about the doctrine of pious obligation click here.

Combining these two doctrines, it is implied that in the case of a debt acquired by a father, only if such debt is for lawful purposes, the son would be held liable to pay it off. These two doctrines conclude that the son has a religious as well as legal obligation to pay off and settle the debts of their father. However, such liability is only up to the extent of their interest in the joint family property. The sons are not personally liable to repay their father’s debts.

A Karta of the Joint Hindu Family may sell or mortgage the entire joint family property to discharge a debt acquired by him for any legal purpose or even for his own personal benefit. Such alienation of property would be binding on the successors if the following conditions are fulfilled:

The debt was antecedent and independent of the alienation, i.e., the debt and the alienation must be two different and independent transactions, with the debt taking place before the occurrence of alienation,
The debt was for a legal purpose and not any immoral purpose.

The liability to pay off a father’s debt is only upon the sons and the daughters or female coparceners are excluded from this liability. The liability of a son is not affected by whether the father is alive or dead. Moreover, the father can mortgage or sell the joint family property, including the interests of the male successors, during his lifetime, to pay any antecedent debt. However, the debt must not be for immoral purposes.

Child Marriage Restraint Act, 1929

As the name suggests and according to the preamble, the purpose of the Act was to restrain the solemnisation of child marriages in India. The Act was passed as early as 1929, when child marriages were very common in our country. Girls were often married at the young age of 8 or 9 years old. To curb the increasing practice of child marriages, this Act was passed by the Indian Government, thus, fixing the age of marriage for both boys and girls. Initially, the minimum age for marriage for boys and girls was fixed at 18 and 14 years, respectively. With each amendment, the age for marriage was increased. In 2006, the Prohibition of Child Marriage Act, 2006 replaced the Child Marriage Restraint Act, 1929 wherein, the minimum age for marriage is fixed at 21 and 18 years of age for boys and girls, respectively.

To know more in detail about the Act, click here.

Precedents involved in Dev Kishan and Ors. Lrs. of Kishan Lal vs. Ram Kishan and Ors. (2002)

Parasram and Ors. vs. Smt. Naraini Devi and Ors. (1972)

In this case, a mortgage was executed to secure a loan for the purpose of the marriage of the minor brother of the mortgagors. It was contended that the mortgagors were gamblers; they had taken the loan for immoral purposes and not out of some legal necessity. Lastly, it was contended that the loan was taken in their personal capacities and not as a member of the Joint Hindu Family. It was prayed that the mortgage debt was binding neither on the family members nor on the family properties.

The question considered by the Court was whether the minority of the brother of the mortgagors at the time of his marriage would render the mortgage transaction illegal and not binding on the family.

The Allahabad High Court, in this case, had held that the marriage of two Hindus, the male being under 18 years of age and the female being under 15 years of age is not annulled or rendered illegal by the effect of the Child Marriage Restraint Act, 1929. Then it proceeded to discuss the object of the Act, regarding which it stated that the objective is to restrain marriages of minors, but the marriage is not rendered illegal or invalid. The Court continued to add that a debt acquired by the adult members of a Hindu Undivided Family for the marriage of a minor member is not for any illegal purpose as the marriage continues to be legal. This results in the debt being binding on the joint family property.

Rulia and Ors. vs. Jagdish and Anr. (1973)

In this case, a number of mortgage deeds and sale deeds were executed regarding the ancestral land. Two of the sale deeds were found to have been executed for the marriage of the Karta’s minor son. The lower appellate court had upheld the two sale deeds reasoning that both of them were made for consideration and were backed by a necessity, i.e., the expenses of the marriage of the minor child. Though the marriage of the son took place a year after the sale, the age of the child was 15-16 years when the sale was executed. The appellant, thus, had argued that the Karta’s son was a minor at the time of the sale and that the solemnisation of a minor’s marriage amounts to an offence under the Child Marriage Restraint Act, 1929.

The Punjab and Haryana High Court held that in a case where the Karta of the family executes a sale deed concerning the ancestral land to provide for the expenses of the marriage of the son, who was almost the lawful age for marriage, i.e., the age of majority, then the sale was held to be a valid sale for necessity. Further, it was ruled that where it has been proved that the necessity of two-thirds of the sale price of the ancestral land existed and the remaining sale price was paid to the alienor, such alienation could be said to be for necessity.

Panmull Lodha and Ors. vs. R.B. Gadhmull Lodha and Ors. (1937)

In this case, an application was made on behalf of the minor plaintiff to authorise a certain amount to afford the expenses of the marriage of the plaintiff’s minor sister. Such an amount was to be debited from the share of the plaintiff in the joint estate.

The Calcutta High Court, in this case, held that the Child Marriage Restraint Act, 1929 renders the marriage of a minor in India a punishable offence. It was further observed that the judiciary should not promote such acts that have been penalised by the legislature for being detrimental to society, citing such reasons that the parties agreed to perform such marriages in a place where minor marriage is not punishable by the law of that place. The Calcutta High Court had also stated that when a court-appointed receiver has been entrusted with the handling of a minor’s estate and an application has been made in place of such a minor to authorise some amount as the expenditure of the marriage of his minor sister with a minor boy, the Court should not allow such application that encourages child marriage as defined under the Act of 1929 within India or any other place.

Hansraj Bhuteria and Anr. vs. Askaran Bhuteria and Anr. (1941)

In this case, the plaintiffs had submitted an application to obtain permission to spend out of the estate, which was being administered by the Court, a certain amount to cover the expenses incurred in the marriage of one of the plaintiffs, who was a minor. The application was challenged by the executors on the ground that the marriage of a minor would be invalid considering the provisions of the Child Marriage Restraint Act, 1929.

The Calcutta High Court, in this regard, held that such an application could not be allowed, as the Court ought not to promote any conduct that the legislature has established as penal, even if such marriage was allowed under the Bikaner Hindu Marriage Act, 1928.

Rambhau Ganjaram vs. Rajaram Laxman And Ors. (1956)

In this case, both the parents had died, leaving their three minor sons. The maternal uncle took the responsibility of the management of the property of the minor sons and became the de facto guardian. He sold some properties belonging to the minor plaintiffs to the defendant to repay the debts incurred for the marriage of plaintiff no. 1. After attaining the age of majority, plaintiff no. 1 filed a suit against the defendant, stating that the sale deed by the maternal uncle in favour of the defendant was void and not binding on them. Further, he demanded the possession of the property, future mesne profits, and also the cost of the suit. The defendant opposed, stating that the property was sold for legal necessity. The trial judge dismissed the suit, stating that the maternal uncle was the de facto guardian and the sale deed was executed as a legal necessity.

It was further held by the Bombay High Court that if a debt has been acquired by the de facto guardian for the marriage of a minor, the alienation executed to meet such debts could not be considered as a lawful alienation and to be binding upon such minors. The same was held considering the fact that the marriage of a minor violates the provisions of the Act of 1929 and thus, the purpose behind the debt was unlawful.

Maheswar Das and Ors. vs. Sakhi Dei (1978)

In this case, one of the sale deeds was executed to afford the expenses of the marriage of a minor. Regarding the validity of such a sale deed, the Orissa High Court held that if the consideration under a sale deed was to provide for the expenses of the marriage of a minor girl, the sale becomes a void transaction as it is opposed to the public policy.

Faqir Chand vs. Harnam Kaur and Anr. (1967)

In this case, the father of the appellant was the manager of a joint family. He had borrowed some money from the respondent and had mortgaged a joint family property to secure the repayment of the loan. A portion of the loan was to discharge an antecedent mortgage debt. Then, the respondent initiated a suit claiming a preliminary decree for the sale of the property. This led to the initiation of a suit by the appellant, where he claimed a declaration that the mortgage deed was for immoral and illegal purposes and without any legal necessity, and thus, the same was not binding on him.

The Supreme Court held that when the father makes a mortgage of the joint family property as a manager neither for any legal necessity nor for the payment of an antecedent debt but to discharge his debt, his son has the right to challenge the mortgage and such a right is not affected by the obtainment of any preliminary or final decree against the father or the mortgage by the mortgagee.

Pinninti Venkataramana and Anr. vs. State (1977)

In this case, a common question was decided that if a Hindu marriage is solemnised between two parties where one or both of them are under the age as mentioned under Clause (iii) of Section 5 of the Hindu Marriage Act, 1955, such marriage would be void ab initio.

The Andhra Pradesh High Court had held that if a marriage is solemnised in contradiction to Clause (iii) to Section 5 of the Hindu Marriage Act, 1955, the same is neither void nor voidable.

However, regarding this precedent, the Rajasthan High Court observed that since the point involved and the facts of the case were different in nature, relying on the same would not be of any use.

Judgement in Dev Kishan and Ors. Lrs. of Kishan Lal vs. Ram Kishan and Ors. (2002)

Before deciding on the case, the Rajasthan High Court accepted and pointed out a few facts. It was accepted that defendant no. 2, through the mortgage deeds dated 06.12.1962 and 19.05.1964, had mortgaged the above-mentioned properties in favour of the appellant for considerations amounting to Rs. 500 and Rs. 900, respectively. The reason behind mortgaging the properties was to bear the expenses of the marriages of his daughters, Vimla and Pushpa. It was also noticed that both the daughters were minors when the mortgage deeds were executed. However, the consideration received by defendant no. 2 through the mortgages was not utilised for the marriage of the minor daughters.

Regarding the role of the Karta of joint family property, the Court observed that the Karta of a Hindu Undivided Family possesses the power to alienate joint family property for benefit, and this would bind the interests of all the coparceners in the property, including any adult or minor coparcener. The only condition is that the alienation has to be made for legal necessity or in the interest of the estate. Further, the absence of legal necessity behind the alienation of joint family property by its Karta does not render such alienation void but rather makes it voidable at the option of the other coparceners. It was also added by the Court that the expenses incurred in the marriage of both the male coparceners and the daughters of coparceners are included under the scope of legal necessity.

Whether debt taken for marriage of minor children can be regarded as a lawful debt and whether it constitutes a legal necessity

The Rajasthan High Court considered the decisions of the two lower courts. Both of the courts had deduced that the debt was acquired by defendant no. 2 from the appellant for the marriage of his minor daughters. Since the marriage of a minor was against the Act of 1929, the debt also became opposed to public policy. The lower courts also concluded that though the mortgages were executed for the purposes of the marriage of the minor daughters, defendant no. 2 had not utilised the amount so received on their marriages. Therefore, the mortgages made by defendant no. 2 in favour of the appellant were not due to any legal necessity. As a result, both the lower courts held that the loan acquired by defendant no. 2 from the appellant could not be considered to be a loan taken for some legal necessity of the joint Hindu family.

The Rajasthan High Court opined that since the marriage of a minor is prohibited under the Act of 1929, any debt incurred for the purpose of marrying a minor could not be considered to be a lawful debt. It further stated that alienation of family property for the same could not be considered to be a lawful alienation and such an alienation would not be binding upon the minors. The High Court also mentioned that the mortgaging and selling of property to provide for the marriage of minors would be opposed to public policy since child marriage is prohibited under the Act of 1929.

Whether debt incurred by defendant no. 2 to pay off previous mortgages can be regarded as having been incurred out of legal necessity

The Rajasthan High Court observed that a Hindu male may acquire a debt either for his own private purpose or for the legal necessity of the family. The lower courts, in this regard, had held that the debt acquired by defendant no. 2 was not out of any legal necessity for the family. It was also held by them that the alienation of properties done by defendant no. 2 in favour of the appellant was not to pay off the antecedent debt.

The Rajasthan High Court analysed the concept of “antecedent debt”. It stated that an antecedent debt has to be pre-existing in fact and in time, i.e., the debt must have an independent existence and must not form a part of the impeached transaction. The Court proceeded to state that the Karta of a Joint Hindu Family possesses the right to sell or mortgage the joint family property, including the interest of any of his children for the clearance of a debt made by him for his personal benefit. Such an alienation would bind such a child, provided that-

The debt was antecedent, that is, pre-existing before the alienation took place, and
The debt was not taken for any immoral purpose.

The lower courts had held that the debt acquired by defendant no. 2 from the appellant could not be termed as a debt for the payment of an antecedent debt. Considering the facts of the case and the submissions of both parties, the lower courts concluded that the mortgage or sale of properties by defendant no. 2 was not done to discharge some personal debt but to provide for the marriage of his minor children. Hence, the transaction could not be termed as a transaction for the payment of an antecedent debt since the loan was taken for the purpose of marriage.

The High Court held that since the debt was taken for an unlawful purpose, that is, for the marriage expenses of minor children, the debt was also unlawful. Moreover, it was also stated that the expenses of the marriage of the minor children, which is itself in contravention of the Act of 1929, could not be taken to have constituted a legal necessity.

The decision of the lower courts in this regard was upheld by the Rajasthan High Court that the debt acquired by defendant no. 2 from the appellant could not be regarded as a debt for the payment of antecedent debt as the same was acquired by defendant no. 2 to marry his minor children.

Lastly, the Rajasthan High Court held that the debt acquired by defendant no. 2 to repay the previous mortgages should not be regarded as having been taken out of legal necessity.

Whether the sale was valid

The Rajasthan High Court, upholding the decision of the first appellate court, held that since the debt was unlawful, it was not acquired for the benefit of the Hindu Undivided Family and it was also not taken to satisfy any antecedent debt, the sale deed amounts to being void as against the interests of the respondents.

Thus, it was held that the sale made to pay off the previous mortgage debts of the Hindu Undivided Family and to afford the expenses of the marriage of a minor member of the family was void as held by the first appellate court.

The High Court then proceeded to analyse the contention of the appellant that the sale deed was valid considering that it was executed by defendant no. 2 and the other defendant no. 3 to 5. It stated that such an argument could not be supported since the respondents had challenged this sale deed. The respondents were minors at the time of execution of the sale deed; hence, the sale deed was not void but it was voidable at the option of the minors, acting through their guardians. The Rajasthan High Court referred to the verdict of the Supreme Court in Faqir Chand vs. Sardarni Harnam Kaur (1967) where the right of the son to challenge a mortgage made by his father to discharge a personal debt was discussed. Then, the Rajasthan High Court proceeded to state that since both the lower courts had held that neither the transactions were backed by legal necessity nor were they taken for payment of antecedent debt, the respondents possessed the right to challenge the concerned sale deed.

Final judgement

The Rajasthan High Court dismissed the second appeal, upholding the decision of the lower courts. The decision by the Rajasthan High Court states the following:

Since child marriage is prohibited under the Act of 1929, debt taken for the purpose of bearing the expenses of child marriage could not be termed to be a lawful debt.
An alienation of family property made for the same purpose could not accepted as a lawful alienation.
The debt taken could not be said to be for the repayment of an antecedent debt since the purpose behind taking such debt was to bear the expenses of the marriage of the minor children.
Moreover, since child marriage is prohibited and against public policy, a debt taken for the same purpose could not be said to have been acquired out of legal necessity.
The sale deed was held to be void since it was made to pay the earlier mortgage debts, the debts itself being unlawful, and to provide for the marriage of minor children, which again, is prohibited by law.
The respondents possessed the right to challenge the sale deed since it was made when they were minors. This results in the sale deed not being void but voidable at the option of the respondents. Moreover, the sale deed being executed without any legal necessity and not for the purpose of repaying an antecedent debt supports this statement.

Analysis of the case

The case of Dev Kishan And Ors. Lrs. of Kishan Lal vs. Ram Kishan And Ors. (2002) highlights the arrangement of repayment of a debt in Hindu law. The customary practice is that the male descendants are liable to pay the unpaid debts of their male ascendants. However, such liability is not absolute. The present case analyses the same.

It is seen that two mortgages and one sale of a Hindu Undivided Family property were made by defendant no. 2 for the alleged purpose of the marriage of his minor children. As the case progressed, it was observed that the debts acquired for the alleged purpose were never used for the same.

When this case came up before the Munsiff of Bikaner, the judge denied the existence of any legal necessity since marriage expenses could not be termed as a legal necessity. The illegality of child marriage under the provisions of the Act of 1929 strengthened this statement. The fact that the debts were not acquired to satisfy an antecedent debt, there was no legal necessity and that child marriage is prohibited under law, made the respondents free from any liability of repayment.

The Civil Judge of Bikaner also upheld this judgement. This led to the appeal before the Rajasthan High Court.

The High Court, through various precedents, established the fact that any debt incurred for the marriage of a minor child renders the transaction incurring that debt void. The reason behind rendering such debt void is that child marriage is prohibited under law and it is the duty of the judiciary to discourage any conduct that supports acts prohibited by law.

The Rajasthan High Court rightly upheld the decision of the lower courts, stating that given that child marriage is prohibited under law and, moreover, defendant no. 2 had not utilised the same for the alleged purpose, there is no question of the existence of any legal necessity. Additionally, the illegality of child marriage made the alienation of the joint family property unlawful and not binding on minors.

Conclusion

The present case emphasises the importance of the legality of the purpose of acquiring a debt in determining whether the same comes under the scope of legal necessity.

Apart from the legality of the purpose behind the acquisition of debt, the issue of child marriage was also focused on and its prohibition under legislation was also stressed. It was reiterated that since child marriage was prohibited under law, any conduct encouraging the same was also to be prohibited by the Court. Therefore, incurring a debt for the purpose of the marriage of minor children would not be considered to be lawful and thus, it would not be counted as a legal necessity.

The concept of antecedent debt was also examined and it was observed that any alienation of a joint family property will bind the successors only when such alienation is made to pay an antecedent debt or a debt that is not immoral. It is comprehended from the facts of the case that Karta had incurred the debt for bearing the expenses of the marriage of his minor children. Therefore, the possibility of the debt being an antecedent debt is negated. Regarding another possibility of a moral debt, the Court pointed out that since child marriage is prohibited under the law, the same cannot be considered to be a lawful purpose behind acquiring a debt. As a result, the Court absolved the respondents of the liability to be bound by the sale deed, the sale deed being declared void as well.

Frequently Asked Questions (FAQs)

What is the Child Marriage Restraint Act, 1929 about?

In pre-independence India, child marriages were very common. The Child Marriage Restraint Act, 1929 was passed to prevent minor girls from getting married at a very young age. The object of the Act is to restrain the solemnisation of child marriages. It sets out a minimum age to marry for both males and females.

What is the penalty for contracting child marriage in India?

Under the Child Marriage Restraint Act, 1929, a person contracting a child marriage is considered to have committed an offence. This offence is punishable with simple imprisonment of a maximum of 15 days or a fine extending up to Rs. 1,000 or both, in case the person contracting the child marriage is in the age group of 18 – 21 years. If the person contracting the child marriage is over 21 years of age, then the punishment prescribed is simple imprisonment for a maximum term of 3 months along with a fine.

Does the Act of 1929 declare every child marriage to be void ab initio?

The Act of 1929 does not declare a child marriage to be void. The marriage is voidable at the option of the parties after they attain the age of majority.

What are the two kinds of antecedent debts?

The two kinds of antecedent debts are as follows:

Vyavaharika antecedent debts– These debts are lawful. They do not violate public policy or morality. Such debts are usually taken for the benefit of the family, its development, or expansion. The male descendants are liable to pay back these debts.
Avyavaharika antecedent debts– These debts are unlawful or immoral. They are acquired for immoral or improper purposes and hence the descendants are not liable to repay them.