http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17  

PETITIONER: MANIBHAI

       Vs.

RESPONDENT: HEMRAJ

DATE OF JUDGMENT21/03/1990

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) SINGH, K.N. (J)

CITATION:  1990 SCR  (2)  40        1990 SCC  (3)  68  1990 SCALE  (1)574

ACT:     Hindu  Law--Joint Family Property--Alienation by  father to  satisfy  debts contracted for his personal  benefit  and without  any legal necessity--Alienation is binding on  sons if it is not tainted with immorality and illegality and  the debts were antecedent to the alienaton.     Hindu Law--Joint Family Property--Alienation by  father- Validity  of--Transactions of  alienation--Eack  transaction should be examined independently.     Hindu  Law--Doctrine of Pious  obligation--Liability  of sons  to  discharge father’s debt--Doctrine  postulates  fa- ther’s debt must be Vyavaharik. "Antecedent debt"--What is.

HEADNOTE:     ’B’, who received some agricultural lands and a house in the  partition  of his ancestral properties, and  his  minor sons ’H’ and ’R’ (Respondent) mortgaged their properties for a  sum of Rs.5,500 by executing a conditional sale  deed  on 22nd  April,  1948 in favour of ’N’. But by  a  reconveyance deed  dated  11th February, 1953 they got  their  properties reconveyed  in their favour by ’N’. On the same"day i.e.  11 th February, 1953 they sold some agricultural lands and  the house  for Rs.5,500 to ’M’, (Appellant) who was  brother  of ’N’. Subsequently ’M’ sold the house to ’W’ and others.  The remaining land was sold by them on the same date to ’V’  and his brother.     ’B’s sons and wife (Plaintiffs) filed a suit against ’M’ (Defendant No. 1), ’V’ and his brother (Defendant No. 2  and 3), ’W’ and others (Defendant No. 4 to 8) and ’B’ (Defendant No. 9) for a decree of possession of the agricultural  lands and house which came in their share as members of the  Joint Hindu Family contending that alienation made by ’B’ was  not binding on them because it was neither for any legal  neces- sity nor for the benefit of the minors or their Estate,  but was  for  satisfying the personal needs of ’B’ who  had  the vices  of drinking and gambling and was spending  everything he used to earn in his business of grain delali. 41     The  Trial Court dismissed the suit by holding that  (i) ’B’ was not indulging in any vices, (ii) the alienation made by ’B’ was for the satisfaction of’ the antecedent debt  due

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17  

on  mortgage’;  and (iii) ’B’ was a broker who  needed  cash capital  for  his business and (iv) the plaintiffs  and  ’B’ were estopped from challenging the title of ’W’ and  others, since  ’W’  and  others (Defendant No. 4  to  8)  had  spent Rs.25,000 on the reconstruction of the house purchased  from ’M’  within  the knowledge of plaintiffs and  without  their objection.     Plaintiffs  preferred  an appeal before the  High  COurt contending that ’M’ and ’N’ ran a family firm of which  they were owners and the execution of the conditional sale  deed, reconveyance  deed and the subsequent sale deed of the  same day were nothing but a device and were really a part of  one and  the same transaction and that if the original  transac- tion  of 22nd April, 1948 of the conditional sale  with  ’N’ was not valid and binding on the minor sons of ’B’ then  the subsequent  transaction of 11th February, 1953, for  payment of  debt  or liability due under that alienation  cannot  be supported.     Allowing  the appeal, the High Court reversed the  judg- ment of the Trial Court, had passed a decree for  possession of the suit properties in favour of the plaintiffs by  hold- ing (i) that the transactions dated 22nd April, 1948 as well as  all other transactions of 11th February, 1953 were  part of  the same transaction; (ii) that since transaction  dated 22nd April, 1948 was invalid because it was not supported by any  legal  necessity, then the subsequent  transactions  of sale  and  reconveyance  of 11th February,  1953  were  also invalid.  Hence this appeal by special leave by the  defend- ants. Allowing the appeal in part, this Court,     HELD:  1. The doctrine of pious obligation  under  which sons  are held liable to discharge their father’s  debts  is based only on religious considerations. This doctrine inevi- tably postulates that the father’s debts must be vyavaharik. If  the debts are not vyavaharik or are vyavaharik the  doc- trine of pious obligation cannot be invoked. [59E]     Luhar  Amrit  Lal Nagji v. Doshi Jayantilal  Jethalal  & Ors., A.I.R. 1960 SC 964, relied on.     2. Where the sons are joint with their father, and debts have been contracted by the father even for his own personal benefit, the sons are liable to pay the debts provided  they were not incurred for an immoral 42 or  illegal  purpose and such debts were antecedent  to  the alienations impugned. [61B]     2.1  Even  if any loan is taken by the  father  for  his personal  benefit which is found as vyavaharik debt and  not avyavaharik, the sons are liable to discharge their father’s debts  under  the doctrine of pious obligation  and  if  any alienation of the joint family property is subsequently made to  discharge  such antecedent debt or loan of  the  father, such alienation would be binding on the sons. [6 ID]     Mulla,  "Principles of Hindu Law", 15th  Edn.  Paragraph 295; lrukulapati Venkateshwara Rao v. Vemuri Amayya &  Ors., A.I.R. 1939 Mad. 561, referred to.     Vyankates  Dhonddeo Deshpande v. Sou.  Kusum  Dattatraya Kulkarni & Ors., [1979] 1 955, relied on.     Atchutaramayya v. Ratanjee Bhootaji, [1926] A.I.R.  Mad. 211;  Suraj Bansi Koer v. Sheo Prasad Singh, 6 I.A. 88  (PC) cited.     Benares  Bank Ltd. v. Hari Narain & Ors., LIX I.A.  300, distinguished.     3. "Antecedent debt" means antecedent in fact as well as in time i.e. to say, that the debt must be truly independent and  not part of the transaction impeached. To constitute  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17  

debt an "antecedent" debt it is not necessary that the prior and  subsequent creditors should be different  persons.  All that  is  necessary  is that the two  transactions  must  be disassociated in time as well as in fact. [53E-F]     Mulla,  "Principles of Hindu Law", 15th  Edn.  paragraph 295;  Brij  Narain v. Mangala Prasad, A.I.R. 1924  P.C.  50, referred to.     4. It is necessary to examine each transaction independ- ently  and  then to arrive at a conclusion  whether  such  a transaction  or alienation can be held to be valid  or  not. [52G-H]     4.1 The approach of the High Court in considering trans- action  dated  22nd  April, 1948 as well as  all  the  other transactions  of 11th February, 1953 being part of the  same transaction, is not correct. [57B]     5. The conditional sale deed dated 22nd April, 1948  was not void even if the amount was taken by ’B’ for his person- al benefit of starting a 43 new  business  of grain. It was an  independent  transaction both  in fact as well as in time to the subsequent  transac- tions  of 11th February, 1953. The transaction of  reconvey- ance  deed dated 11th February, 1953 was for the benefit  of not only ’B’ but for the entire family including the  plain- tiffs.  There was no consideration for this reconveyance  of the  property except the transaction of sale made in  favour of ’M’ on 11th February, 1953. This sale deed was  perfectly valid  and  was made in order to pay  the  antecedent  debt. [57F-G]     6. So far as the house property is concerned, the  Trial Court’s  finding  that  defendants Nos. 4  to  8  had  spent Rs.25,000  on  the reconstruction of the  house  within  the knowledge and without the objection of the plaintiffs Nos. 1 and 2 and as such plaintiffs No. 1 and 2 and defendant No. 9 were estopped from challenging the title of those defendants had  not been set aside by the High Court. This  finding  of the High Court has to be upheld. [61F-G]     7.  So far as the transactions of sale of the  remaining properties  in favour of ’V’ and his brother are  concerned, they stand on a different footing altogether. The High Court in this regard has recorded a clear finding that the  afore- said  alienations were made neither for any legal  necessity nor  for  the benefit of the State nor for  payment  of  any antecedent debt. [61H; 62B]     The  evidence  in this regard is also  fully  convincing that  the aforesaid transaction had no connection with  pay- ment  of any antecedent debt. The finding of the High  Court has to be upheld in this regard. [62C]     8.  Accordingly  the Judgment and decree passed  by  the High  Court is set aside to the extent of granting a  decree for possession of the house property and agricultural  lands sold  in favour of ’M’ on 11th February, 1953, and the  suit with  regard to these properties is dismissed. The  rest  of the  Judgment  and decree of the High Court  in  respect  of agricultural lands which were alienated in favour of ’V’ and his brother is maintained and’the suit of the plaintiffs for possession  with regard to these properties stands  decreed. [62D-E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  380  of 1980.     From the Judgment and Order dated the 20.11.1979 of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17  

Bombay High Court in F.A. No. 117 of 1968. 44     U.R. Lalit, Dr. N.M. Ghatate and S.V. Deshpande for  the Appellants.     R.K.  Garg, Tripurari Ray, M.N. Shroff and  A.K.  Sanghi for the Respondents. The Judgment of the Court was delivered by     KASLJWAL, J. This Civil Appeal by Special Leave has been filed by the defendants Manibhai, Dhyaneshwar, and Waman Rao Narayan  Rao  aggrieved against the Judgment and  decree  of Bombay High Court dated 20th November, 1979.     Briefly  stated the facts are that one Vithoba  had  two sons  Beni  Ram and Maroti. A partition took place  on  14th July, 1947 by a registered document between Vithoba, his son Beni  Ram and two grandsons of pre-deceased son  Maroti.  In accordance with the above partition Beni Ram got agricultur- al  lands survey Nos. 1, 3, 18 & 19 measuring  11.69  acres, 00.06 acres, 4.48 acres and 8.40 acres respectively, situate in Village Kharbi Tehsil and district Nagpur. Apart from the above  agricultural lands Beni Ram also got a house  No.  82 situate  in  Telipura, Itwari, Nagpur. After  receiving  the above  properties in partition Beni Ram along with  his  two minor sons Hemraj and Ramdass executed a deed of conditional sale  on  22nd April, 1948 (Ex. 48) of their  properties  in favour of Narayan Dass for a sum of Rs.5,500. Thereafter, by a reconveyance deed (Ex. 48) dated 11th February, 1953, Beni Ram,  Hemraj  and Ramdass got the properties  reconveyed  in their  favour  by  Narayan Dass. On the same  day  i.e  11th February,  1953 Beni Ram and his four minor sons executed  a sale  deed (Ex. 40) of house property and agricultural  land survey  Nos. 3 and 18 in favour of Manibhai, the brother  of Narayan  Dass  for a consideration of Rs.5,500.  By  another sale  deed (Ex. 41) of the same date Beni Ram and  his  four minor  sons sold 10.69 acres of land out of survey No. 1  in favour  of  Vithal and his brother Vishwanath for a  sum  of Rs.5,345. Beni Ram and his minor sons then by sale deed (Ex. 61) sold the remaining one acre of land of survey No. 1  and 8.40  acres of survey No. 19 for a sum of Rs.3,000  on  19th July,  1954  in  favour of the  above-mentioned  Vithal  and Vishwanath. Manibhai subsequently sold the house property in favour  of  Waman Rao Narayan Rao, Bhujang Rao,  Yadav  Rao, Namdeo and Nago Rao.     Six  sons  of Beni Ram alongwith their mother  Sona  Bai filed  a suit on 10th February, 1965 against  Manibhar  (de- fendant No. 1), Vithal 45 and Vishwanath (defendants Nos. 2 and 3), Waman Rao, Narayan Rao, Bhujang Rao, Yadav Rao, Namdeo and Nago Rao  (defendant Nos. 4 to 8) and Beni Ram (defendant No. 9) for a decree for possession of the agricultural lands and house which came in their  share as members of Joint Hindu Family. The  case  of the  plaintiffs as set out in the plaint was that Beni  Ram, father  of  the plaintiffs Nos. 1 to 6 and  husband  of  the plaintiff  No.  7 was a person given to heavy  drinking  and gambling  and a satoria. Due to all these vices he  used  to spend away everything whatever he used to earn in his  busi- ness  of grain dalali. The business of grain dalali did  not require  any capital. In the partition of ancestral  proper- ties  made  on  14th July. 1947 Beni Ram  was  allotted  the properties as given in para 3 of the plaint, and details  of which have also been mentioned above. It was further alleged in  the  plaint that the entire properties allotted  to  the share  of  Beni Ram in the aforesaid family  partition  were ancestral  and  the plaintiffs had acquired an  interest  in such properties by birth.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17  

   According  to  the plaintiffs all these  alienations  in favour  of the defendants were illegal and invalid and  were not binding on them. Plaintiffs further alleged that none of these sales were for any legal necessity or for the  benefit of  the estate or for the benefit of the minors.  The  sales were not for preserving or recovering any part of the estate of  the plaintiffs. None of the defendants Nos. 1, 2  and  3 made any reasonable, proper or bona fide enquiries as to the existence  of any necessity before entering into the  afore- said  transactions  with  defendant No.  9.  The  plaintiffs further  stated that the sale proceeds were not applied  for the  benefit of the minors or their estate by the  defendant No. 9 and were squandered by him on his vices.     It was further alleged in the plaint that the  defendant No. 1 sold a portion of the house to defendants Nos. 4 to  7 vide  sale  deed dated 9th August, 1956  and  the  remaining portion  of  the  same house was sold to  defendant  No.  8. Plaintiffs  thus submitting that the defendants Nos. 4 to  8 very well knew about the defendant No. 9’s way of life. They also knew that the defendant No. 9 is a gambler and drunkard and satoria and that he spent everything on these vices. The plaintiffs  thus submitted that the sales in favour  of  de- fendants Nos. 4 to 8 were also illegal, invalid and inopera- tive  in law since their vendor had no valid title in  them. The plaintiffs in the above circumstances alleged that  they were  entitled to share in the joint family properties.  The plaintiffs called upon the defendants to deliver  possession alongwith mesne profits by their notice dated 28th  October, 1964. The defendants received the notice but did not deliver possession nor paid the mesne profits and 46 hence  suit  was  filed for  possession  and  mesne  profits amounting to Rs. 11,470.     Defendant No. 1, Manibhai denied the allegations made in the plaint. He denied that the defendant No. 9 was a  person given  to heavy drinking and gambling and satoria.  He  also denied  that defendant No. 9 used to spend  away  everything whatever he used to earn in the business of grain dalali. It was  denied that the business of grain dalali does  not  re- quire  any capital. It was alleged that defendant No. 9  was the sole owner and in possession of the properties described in Para 3 of the plaint but it was denied that defendent No. 9 acquired the same under the partition deed. The plaintiffs were thus required to be put to strict proof of the same.    The  defendant No. 1 also alleged that he  had  purchased the properties by registered sale deed dated 11th  February, 1953 from defendant No. 9 and plaintiffs Nos. 1 and 4 for  a valuable consideration of Rs.5,500 and plaintiffs Nos. 5 and 6 were not born till then. The sale of the property was  for the  legal necessity and for the benefit of the  plaintiffs. It was further submitted that even if the property was found to  be ancestral one the defendant No. 9 had power  to  sell the said properties being a manager of the joint family,  on behalf  of  the  plaintiffs also. The defendant  No.  9  had executed a mortgage by conditional sale on 22nd April,  1948 2in favour of one Narayan Dass S/o Kalidas Patel for a total consideration of Rs.5,500 mortgaging thereby all the proper- ties  mentioned in Para 3(A) and (B) of the plaint.  It  had been  further  alleged that the answering  defendant  No.  1 purchased  properties described in Para 3-A(ii) &  (iv)  and Para  3-B out of the said properties for a consideration  of Rs.5,500 which was the market value of the said  properties. On 11th February, 1953 the defendant paid Rs.500 towards the earnest  money and the balance of Rs.5,500 was paid  on  the same day before the Sub-Registrar. The defendant No. 9  paid

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17  

this  very  amount to Shri Narayan Dass to  obtain  deed  of reconveyance. Thus the consideration paid by this  defendant for the purchase of the property mentioned above has in fact been applied to make payment to Shri Narayan Dass to get all those  properties released and to obtain the deed of  recon- veyance  from him. The sale deed in favour of the  defendant No.  1 was, therefore, in fact for legal necessity  i.e.  to save  a larger and valuable property from being lost to  the family  and/or  also for payment of the antecedent debts  of defendant  No. 9 and further the defendant No. 9  saved  for himself  and  the plaintiffs. The fields mentioned  in  Para 3A(i) and (iii) of the plaint which subsequently the defend- ant No. 9 and the plaintiffs sold to 47 defendants  Nos. 2 and 3 by two registered sale deeds  dated 11th of February, 1953 and 19th July, 1954 for Rs.5,345  and Rs.3,000 respectively. Thus the plaintiffs got an  advantage of  Rs.8,345  by getting the properties  from  the  original mortgagee  Narayan Dass. It was thus submitted  that  though the sale deed dated 11th February, 1953 executed by  defend- ant No. 9 did not recite all these facts, yet the sale  deed in favour of defendant No. 1 was in fact for legal necessity and for discharging the antecedent debts of defendant No. 9. In the alternative it was submitted that if the business  of grain  dalali was found to be an ancestral one then in  that event  also  the property sold to defendant. No. 1  was  for legal  necessity and for the benefit of the plaintiffs.  The suit  brought by the plaintiffs was bogus and  untenable  in law to the knowledge of the plaintiffs and was liable to  be dismissed with compensatory costs.     It  was also submitted that the suit for possession  and mesne  profits as framed was not maintainable. In  the  sale deeds  dated  11th  February, 1953 the defendant  No.  9  is alleged  to be the Karta of the plaintiffs’ family  and  the plaintiffs  Nos. 1 to 4 were also parties to both  the  sale deeds in favour of the defendant No. 1 as well as in  favour of the defendants Nos. 2 and 3. Plaintiffs Nos. 5 and 6 were not  born till then and plaintiff No. 7 had no title or  his interest  in the property. Thus unless those sale  deeds  or transfers  were not cancelled or set aside,  the  plaintiffs could not seek possession of the properties. It was  further submitted that the plaintiffs Nos. 1 to 6, who were sons  of defendant  No.  9 were under pious obligation  to  discharge their  father’s  debt. The present transfers were  for  dis- charging the father’s debt due to Narayan Dass and hence the plaintiffs  were bound by the transfers. The plaintiffs  had no cause of action for seeking cancellation of the sale deed dated  11th February, 1953. The present suit was  barred  by time  as  the claim for relief of cancellation of  the  sale deed dated 11th February, 1953 was also barred on expiry  of three years from the date of sale deed.     Defendants Nos. 2 and 3 filed a joint written  statement and  apart from denial of defendant No. 9 being  a  gambler, drunkard  or satoria it was alleged that they had  purchased agricultural  field from defendant No. 9 who sold  the  same for  legal necessity and for valuable consideration and  for the benefit of the minors. It was also made to preserve  the estate and to make the repayment of the loans by the defend- ant No. 9. Hence the sales made in their favour were binding on  the  plaintiffs. The plaintiffs have filed  the  present suit  in  collusion with defendant No. 9 with  ulterior  and mala fide intention. 48     Defendants  Nos. 4 to 8 filed a joint written  statement and took almost a similar stand as taken by defendant No. 1.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17  

These defendants further pleaded that they had purchased the suit house some time in the year 1956, with the knowledge of the  plaintiff Nos. 1 and 2 and defendant No. 9.  After  the purchase  of  the house the defendants  demolished  the  old structure  and constructed the whole house from  foundation, at a cost of about Rs.25,000. The plaintiffs Nos. 1 and 2 as also  defendant No. 9 were in the full know of the  fact  of demolition  of old house and new construction. They did  not at  any time, raise any objection or claim to the house  and allowed  the defendants to carry out the work. They did  not at any time show or commit any act as to raise any doubt  in the  minds of defendants regarding their title to the  house in  suit. Thus the defendants Nos. 4 to 8 in good faith  and having  full  belief in their own title to the  suit  house, spent  more than Rs.25,000 on the house and  the  plaintiffs and defendant No. 9 allowed the defendants to carry out  the work  even though they had full knowledge of the  said  con- struction  work and were thus now estopped from denying  the title  of the defendants to the suit house.  The  plaintiffs and  defendant No. 9 having acquiesced in the above acts  of the defendants could not now file the suit and challenge the title  of the defendants. It was also alleged that  the  de- fendant No. 9 was heavily indebted and had in fact  executed a  conditional  sale deed in favour of Narayan Dass  son  of Kalidass for a consideration of Rs.5,500. It was in order to redeem  these properties that the defendant No. 9  sold  the property and utilised the money received as a  consideration of  the sale deed towards the satisfaction of  those  debts. Thus  the  impugned sale deeds were executed  for  good  and valuable  consideration for payment of antecedent debts  and cannot be challenged by the plaintiffs.     Trial  Court after considering the oral and  documentary evidence  led by the parties held that the defendant  No.  9 Beni Ram after getting the ancestral share in the properties in 1947 remained joint with his sons i.e. the plaintiffs. It was  also found that the properties in question were  ances- tral and as such the plaintiffs had acquired interest in  it by  birth. The Trial Court further held that Beni  Ram,  de- fendant No. 9 was not indulging in any vices at the time  he first  mortgaged  the properties by  conditional  sale  vide exhibit  48. The sale initially was for the satisfaction  of the  antecedent  debt due on mortgage (Ex.  48).  The  Trial Court  further held that it was a legal cause and  the  pur- chasers  were  armed  with proper  ground  to  purchase  the property.This  being so, the contention of  the  plaintiffs, that these sales finally were for no legal necessity or  for the benefit of the minors or their estate etc., fell to  the ground. Similarly, their contention that the defendant No. 9 was 49 given  up to drinking and all other such bad habits, and  it was known to the defendant Nos. 1 and 3 also, did not  stand proved.  Trial Court also held that it was proved  that  the defendant  No. 9 was a broker and he needed cash capital  of Rs.4,000 to Rs.5,000 for his business even as a broker.  The evidence also satisfactorily proved that defendant No. 9 had a grain shop. The Trial Court thus arrived at the conclusion that  the plaintiffs had failed to prove  their  allegations that  the  defendant  Nos. 1 to 3  wanted  these  properties somehow or the other and that they managed to get the  sales executed  in their favour from defendant No. 9  without  en- quiry  about  the legal necessity to sell. The  Trial  Court also found proved that the defendants Nos. 4 to 8 had  spent Rs.25,000  on  the reconstruction of the  house  within  the knowledge of the plaintiffs Nos. 1 and 2, after his purchase

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17  

from the defendant No. 1 and still none had objected against it.  The  plaintiffs Nos. 1 and 2 and defendant No.  9  were estopped from’ challenging the title of defendants Nos. 4 to 8.  In view of the findings recorded as mentioned above  the Trial Court dismissed the suit filed by the plaintiffs.     The plaintiffs aggrieved against the Judgment and decree of  the Trial Court flied an appeal before the  Bombay  High Court.  An argument was raised on behalf of  the  plaintiffs before  the High Court that Manibhai and Narayan Dass ran  a family  firm of which they were owners and the execution  of the conditional sale deed, reconveyance deed and the  subse- quent  sale deed of the same day were nothing but  a  device and  were really part of one and the same  transaction.  The transactions were not independent of each other in the  true sense  of  the  term. If the original  transaction  of  22nd April,  1948 of conditional sale deed with Narayan Dass  was not a valid alienation and thus not binding upon the  copar- ceners, minor sons of Beni Ram, then subsequent transactions for  the  payment of the debt or liability  due  under  that alienation  also cannot be supported. The  relationship  be- tween Narayan Dass and Manibhai on the one hand and Beni Ram on the other hand appeared to be that of confidence from the nature of evidence given by Narayan Bhai and Manibhai.  Beni Ram  seemed  to have faith in the two  brothers  which  they apparently used to their advantage.     The  High Court considered the above arguments  and  ob- served  that in Exhibit 48 the reason for alienation of  the property  had been given by Beni ’Ram as for the purpose  of carrying out business and for household purpose. The defend- ants  further did not stick to this reason of alienation  in the  sale  deed and gave evidence to show that it  was  with this  amount that Beni Ram started new business. As to  what was 50 the household purpose, has nowhere been stated or clarified. There was no evidence of any kind whatsoever led to show  of any  enquiry having been made by the alienees in  regard  to the  existence  of legal necessity or any  antecedent  debt. There  was no antecedent debt referred to at all in  Exhibit 48  which was the commencement of the transaction. The  High Court  then considered Exhibit 49 which was  a  reconveyance deed  by which Rs.5,500 were repaid by Beni Ram  to  Narayan Dass.  The High Court then took into consideration  Exhibits 40, 41 and 42(6 11 and arrived at the conclusion that  there was no antecedent debt nor any legal necessity nor the money was  needed for any joint family or ancestral  business,  in order  to make these alienations valid. After analysing  the oral evidence, the High Court recorded the finding that even assuming that Beni Ram started a grain shop, it was admitted by the defendants that his former business was of  brokerage in grain. For a grain broker business no capital was  neces- sary or required. For the purpose of a grain shop, which was an  entirely different business, experience in  salesmanship and  dealing  in  grains as well as the  purchase  of  grain wholesale  or  retail would be necessary. It  would  involve outlay of capital and would be under the circumstances a new business.  The High Court then examined the question  as  to whether  a father can by starting a new venture  expose  the family  ancestral property to be taken and burden it  there- with and alienate for that purpose.     The  High Court placed reliance on the following  dictum laid  down by Privy Council in Benares Bank Limited v.  Hari Narain & Ors., Vol. LIX Indian Appeals, 300. "  The manager of a Joint Hindu Family, whether governed  by the Mitakshara or the Dayabhaga, has no authority to  impose

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17  

upon a minor member the risk and liability of a new business started  by  him; that the manager is father  of  the  minor makes no difference."     The  High Court thus observed that in the  present  case the  father had started new business with the alienation  of the  property  and he had no right to impose  the  risk  and liability upon the minor members. If the business which Beni Ram, therefore, started were a new business and which he had no right to start so as to expose the interest of the  minor coparceners  in the family property, then Exhibit 48  cannot be  supported  on the ground either of  legal  necessity  or benefit to the estate. The High Court further observed  that if Exhibit 48, therefore, was a transaction which the father was not entitled to enter into and 51 expose the family property to the risk then Exhibit 48  fell and could not be held to be a valid and binding transaction; then  the  transaction of 11th February, 1953,  first  of  a reconveyance  and then of a sale, evidenced by  exhibits  49 and 40 also must fall and cannot be supported. The  evidence went  to show that Beni Ram had confidence in  Manibhai  and Narayan Dass. The reconveyance in favour of Narayan Dass and the immediate sale in favour of Manibhai on the same day was a mere device to support the transaction of sale Exhibit  40 in  favour of Manibhai by a repayment of alleged  antecedent debt.  The  High Court held that they had no  hesitation  in thinking  that if the alleged antecedent debt itself was  an invalid transaction, was not an independent transaction  but was  a part of the same transaction, merely because  it  was separated in point of time it would not support the  aliena- tion in favour of Manibhai. The High Court also referred the five  propositions laid down in Brij Narain v. Mangala  pra- sad,  AIR 1924 Privy Council, 50 and held that so  far  they were concerned the fourth proposition was relevant which was to the following effect: "Antecedent  debt  means antecedent in fact as  well  as  in time;  i.e. to say that the debt must be  truly  independent and not part of the transaction impeached."     It was then held that applying the proposition laid down it  was  to be found out whether the transaction  which  was impeached, was a truly independent transaction and the  debt discharged  thereby was a truly independent antecedent  debt and whether it was or it was not a part of the same transac- tion.  According to the High Court apart from the fact  that the  alienation dated 22nd April, 1948 was  not  supportable and  was  invalid, the transaction was nothing  but  a  mere device  to  clothe the debt due under Exhibit  48  with  the antecedent character, when Exhibit 40 on 11th February, 1953 was executed. The transaction Exhibit 40 must stand or  fall alongwith  the  liability said to have been  incurred  under Exhibit  48.  Thus in the view taken of Exhibit 48  and  the liability  incurred  thereunder, Exhibit 40 must  also  fall therewith.     As  regards  Exhibits 41 and 42(61) the High  Court  ob- served  that  whatever  little justification  there  was  to sustain  the transaction under Exhibit 40 even that did  not hold  good and was not available for the  alienations  under Exhibits  41 and 42. There was not even a semblance  of  an- tecedent  debt existing or due from Beni Ram on 11th  Febru- ary, 1953 after the alleged liability under the  conditional sale deed was discharged, so as to alienate survey No. 1  or subsequently in 1954 the remaining portion of survey Nos.  1 and 19. After recording the above 52 findings  the High Court observed that the present suit  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17  

brought  by  the  minors who had 6/7th share  in  the  Joint family  properties and had brought the suit for the  purpose of  possession  alleging that the  alienations  effected  by defendant  No. 9 thereafter were not binding upon  them.  In such a case, the only consequence would be that the share of defendant No. 9 will go to the alienees. But in such a  suit the coparceners whose shares were not affected were entitled to  possession and the alienees were not entitled  to  joint possession  with  them. The alienees in such  a  case  could bring, if so inclined and so advised a suit for working  out their  share  in the family property. In such  a  suit,  the entire  family properties shall be brought in and the  share of  the alienor coparcener worked out. Thus  the  plaintiffs having succeeded, the alienees defendants Nos. 1 to 3 can be relegated  to  their right and work out their  rights  in  a separate  suit  than making an order for  joint  possession. Consequently  the High Court allowed the appeal,  set  aside and  reversed  the Judgment and decree passed by  the  Trial Court,  and instead a decree was passed in favour of  plain- tiffs Nos. 1 to 6 for possession of the properties in suit.     As  regards,  the  mesne profits it was  held  that  the plaintiffs  had not led any evidence and as such relief  for mesne  profits was denied. The plaintiffs were further  held entitled to future mesne profits from the date of suit under Order 0.20 Rule 12 C.P.C.     Manibhai,  defendant  No. 1 Dhyaneshwar  S/o  Vithal  as legal  representative  of  defendant No. 2  and  Waman  Rao, Narayan Rao, defendant No. 3 have filed this appeal  against the Judgment of the High Court.     We have heard Learned counsel for the parties at  length and  have  thoroughly  perused the  record.  The  properties having  come in the hands of Beni Ram after partition  being ancestral  and  the plaintiffs having share  as  members  of coparcenary were no longer in dispute before us. The finding that  the plaintiffs had not been able to prove  that  their father Beni Ram was a drunkard, ’gambler and satoria and the alienation made by him were not invalid on that account  was also  not challenged before us. It may be mentioned  at  the outset that the very approach of the High Court in consider- ing transaction Exhibit 48 dated 22nd April, 1948 as well as all the other transactions of 11th February, 1953 being part of the same transaction, is not correct. It is necessary  to examine each transaction independently and then to arrive at a conclusion whether such a transaction or alienation can be held  to be valid or not. The High Court also  committed  an error in 53 examining  the transaction as if the same were without  con- sideration  and  on that account treating  the  transactions invalid,  though no such plea was raised by  the  plaintiffs even  in the plaint. The alienations were challenged by  the plaintiffs only on the ground of being without legal  neces- sity  and  not  for the benefit of the  estate  and  further tainted  with immorality on the ground of their father  Beni Ram  being indulging in the vices of drinking, gambling  and satoria.     Mulla  in  "Principles  of Hindu Law"  15th  Edition  in paragraph  295 has dealt with the question of sale or  mort- gage of coparcenary property for payment of antecedent  debt as under:     "The father of a Joint Hindu Family may sell or mortgage the  joint  family  property including  the  sons’  interest therein  to discharge a debt contracted by him for  his  own personal  benefit, and such alienation binds the sons,  pro- vided--(a)  the debt was antecedent to the  alienation,  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17  

(b) it was not incurred for an immoral purpose.     The  validity  of  an alienation made  to  discharge  an antecedent  debt  rests upon the pious duty of the  sons  to discharge his father’s debt not tainted with immorality. The mere  circumstance, however, of a pious obligation does  not validate the alienation. To validate an alienation so as  to bind the son, there must also be an antecedent debt.  Gener- ally,  there  is no question of legal necessity  in  such  a case. "Antecedent Debt" means antecedent in fact as well  as in  time, that is to say, that the debt must be truly  inde- pendent  of  and not part of the  transaction  impeached.  A borrowing made on the occasion of the grant of a mortgage is not an antecedent debt.     To  constitute  a debt an "antecedent" debt  it  is  not necessary that the prior and subsequent creditors should  be different  persons.  All that is necessary is that  the  two transactions  must  be  dissociated in time as  well  as  in fact".     It  is  thus clear that where the sons  are  joint  with their  father, and debts have been contracted by the  father even  for his own personal benefit, the sons are  liable  to pay the debts provided they were not incurred for an immoral or  illegal  purpose and such debts were antecedent  to  the alienations impugned.     The liability to pay the debts contracted by the father, for  his own benefit, arises from an obligation of  religion and piety which is placed upon the sons under the Mitakshara Law to discharge the 54 father’s debt, where the debts are not tainted with immoral- ity. In any event an alienation by the Manager of the  Joint Hindu  Family even without legal necessity and  not  tainted with  immorality  but  for his  personal  benefit  would  be voidable and not void.     Now,  we shall examine all the transactions  which  took place on 11th February, 1953. So far as Exhibit 49 dated  11 th February, 1953 is concerned, it is a reconveyance deed by which  an  amount of Rs.5,500 was alleged to have  been  re- turned to Narayan Dass and the possession of the  properties mentioned  in  the conditional sale deed dated  22nd  April, 1948  were  handed back to Beni Ram.  This  transaction  was admittedly  for the benefit of not only Beni Ram  but  other members  of  his family including  the  plaintiffs.  Another document  executed on 11th February, 1953 is Exhibit  40  by which Beni Ram and his four sons sold the house property and agricultural  land  of  survey Nos. 3 and 18  in  favour  of Manibhai.  The consideration of this sale deed  is  Rs.5,500 and it was this amount which was repaid to Narayan Dass  for getting the reconveyance deed Exhibit 49. Narayan Dass being the brother of Manibhai, it can be understood that no amount in fact may have reached the hands of Beni Ram by these  two transactions  of Exhibit 49 and Exhibit 40, but  it  becomes clear that the reconveyance deed Exhibit 49 could have  been executed  only when Rs.5,500 were returned to  Narayan  Dass and  this  amount could have only come by executing  a  sale deed  Exhibit  40 in favour of Manibhai. If we took  at  the matter  from another angle, it is abundantly clear  that  on 22nd April, 1948 when conditional sale deed was executed  by Beni  Ram on his own behalf and two minor sons, he was  paid Rs.5,500 by Narayan Dass. This is not the case of the plain- tiffs that Exhibit 48 was without consideration or that Beni Ram  did  not receive Rs.5,500 when  this  transaction  took place.  We  accept the finding of the High Court  that  this amount  of Rs.5,500 was taken by Beni Ram for  his  business i.e.  for  his own personal benefit and not  for  any  legal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17  

necessity or benefit of the joint family. Even then the sale transaction  exhibit  40  dated 11th February,  1953  for  a consideration  of  Rs.5,500 in respect of house No.  82  and agricultural  lands Nos. 3 and 18 is valid as such  transac- tion  was made of payment of an antecedent debt of  Rs.5,500 which  was  taken by Beni Ram on 22nd April,  1948.  Neither plaintiffs nor Beni Ram have come forward with the case that for reconveyance deed Exhibit 49 the amount of Rs.5,500  was repaid to Narayan Dass in any other manner except the trans- action Exhibit 40 dated 11th February, 1953. The transaction Exhibit 40 dated 11th February, 1953 is valid and binding on the plaintiffs as it was made in order to pay the antecedent debt  of Beni Ram taken on 22nd April, 1948 and getting  the recon- 55 veyance of the property vide Exhibit 49.     In  Raja Brij Narain v. Mangala Prasad, case (supra)  it has been laid down that antecedent debt means "antecedent in fact  as well as in time i.e. to say, that the debt must  be truly   independent   and  not  part  of   the   transaction impeached."     Applying the above dictum also to the facts of the  ease in  hand before us, it is clear that the amount of  Rs.5,500 taken  by Beni Ram by way of transaction dated  22nd  April, 1948 was antecedent in fact as well as in time to the trans- actions of 11th February, 1953 which have been impeached  by the plaintiffs. By no stretch of imagination the transaction of 22nd April, 1948 can be said to be a part of the transac- tion  impeached. It makes no difference if Manibhai was  the brother of Narayan Dass and the consideration paid by Manib- hai  of the transaction Exhibit 40 may have gone to  Narayan Dass  for  getting the reconveyance deed Exhibit 49  or  may have  come back to Manibhai himself as Manibhai and  Narayan Dass were running some business jointly in a shop from where this money may have come. Even if for argument’s sake we may accept the contention of Mr. R.K. Garg, Learned counsel  for the  plaintiffs that no money actually came in the hands  of Beni  Ram while executing Exhibit 49 and Exhibit 40 on  11th February,  1953, it will not make any difference in as  much as  Beni Ram was required to return the amount  of  Rs.5,500 taken by him on 22nd April, 1948 and transactions Exhibit 49 and  Exhibit 40 were truly independent transactions  to  pay the antecedent debt of 22nd April, 1948. The High Court  has unnecessarily  imputed  the allegation of collusion  on  the defendants  to hold their transactions invalid. There  could not  have been any collusion unless Beni Ram, father of  the plaintiffs  may have joined hands with the  defendants  from the  very  beginning i.e. 22nd April, 1948 when he  took  an amount  of Rs.5,500 as consideration for executing a  condi- tional  sale deed. There is nothing on record to infer  such conduct on the part of defendants; on the other hand conduct of Beni Ram shows that he is all out in supporting his  sons and to save the joint family property and to get the aliena- tions  declared invalid. The trial court and the High  Court both  have  recorded a finding against the  plaintiffs  that Beni Ram was not indulged in the vices of gambling, drinking and satta, and alienations were not invalid on that account.     Hemraj P.W. 1, one of the plaintiffs has appeared in the witness box but he nowhere stated that exhibit 48 was  ille- gal in any manner. On the contrary he stated that his father had  said to him that he had taken loans and had to pay  the same. These loans were taken from 56 Narayan  Dass. Sale deed conditional dated 22nd April,  1948 was  shown  and he admitted that it contained  his  father’s

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17  

signature on it. Narayan Dass has appeared as D.W. 1 and  he clearly  stated  that  he knew defendant No. 9  and  he  had loaned  to him Rs.5,500 for his grain business vide  Exhibit 48.  It  was  conditional sale dated 22nd  April,  1948.  He further paid him back the money of Rs.5,500 as received from Manibhai  and deposited Rs.3,745 on 11th February, 1953  out of  the  consideration  received from  Vithoba.  In  further cross-examination he stated that the account showed that  on 10.2.1953  Rs.5,500 were credited in it as paid by  Mahibhai on behalf of Beni Ram. This was the consideration of  Manib- hai’s  purchase of the property from Beni Ram. It is  perti- nent  to  mention that even the High Court in  its  Judgment observed as under: "As we pointed out Exhibit 48 itself is the first alienation and  there is no debt which is antecedent to 28th  February, 1948  which can support Exhibit 48. Though Exhibit 40  dated the 11th February, 1953, can be said to be an alienation for the  purpose  of discharging a debt or liability  due  under Exhibit  48,  as we shall presently show  if  the  liability created or incurred under Exhibit 48 is not binding upon the minor  coparcener and sons of Beni Ram then Exhibit 48  also will not be binding upon them" The High Court further observed in this regard as under: "In the present case, as we have pointed out it is with  the alienation of the property that the father has started a new business,  which  he  had no right to impose  the  risk  and liability upon the minor members. If the business which Beni Ram, therefore, started were a new business and which he had no right to start so as to expose the interest of the  minor coparceners  in the family property, then we do not see  how Exhibit  48 can be supported on the ground either  of  legal necessity  or benefit to the estate. If Exhibit  48,  there- fore, is a transaction which the father was not entitled  to enter into and expose the family property to the risk,  then we think that Exhibit 48 cannot be supported and is not  for legal  necessity. If Exhibit 48 fails and cannot be held  to be  a valid and binding transaction upon the alienates  then the  transaction of 11th February, 1953, first of  reconvey- ance  and  then of a sale, evidenced by Exhibits 49  and  40 also must fail and cannot be supported." 57     The above observations made by the High Court clearly go to show that the High Court was considering the validity  of the  transaction of Exhibit 48 itself on the  touchstone  of its  binding nature on the basis of any legal  necessity  or for the benefit of the estate of the joint family. The  High Court in this regard committed a clear error in assuming and treating  the transaction of 22nd April, 1948 as a part  and parcel  of transactions of 11th February, 1953. As a  matter of fact the transactions of Exhibit 49 and Exhibit 40  dated 11th  February, 1953 were independent but rather to pay  the antecedent debt of 22nd April, 1948.     Mr.  Garg Learned counsel. for the  plaintiff-respondent contended  that  the transaction of  conditional  sale  deed dated 22nd April, 1948 was void for want of legal  necessity in as much as starting of a new business by Beni Ram did not constitute  legal necessity. It was also contended  that  in any case after the execution of reconveyance deed Exhibit 49 there  was  no antecedent debt that may have  survived.  The reconveyance  deed  Exhibit 49 does not mention  receipt  of money from the vendee for repayment of any antecedent  debt. Exhibit 40 sale deed in favour of Manibhai was subsequent to reconveyance deed Exhibit 49 and the alleged payment by  the vendee  before the Registrar do not constitute  payment  for any independent antecedent debt which in fact and in reality

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17  

existed on 11th February, 1953. Strong reliance is placed on Benares  Bank Limited v. Hari Narain & Ors., 59  Indian  Ap- peals, P. 300).     We do not find any force in the above contention of  Mr. Garg.  We have already discussed in detail that  the  condi- tional  sale deed Exhibit 48 dated 22nd April, 1948 was  not void  even if the amount was taken by Beni Ram for his  per- sonal benefit of starting a new business of grain. It was an independent  transaction both in fact as well as in time  to the  subsequent  transactions of 11th  February,  1953.  The transaction  of reconveyance deed dated 11th February,  1953 vide Exhibit 49 was for the benefit of not only Beni Ram but for the entire family including the plaintiffs. There was no consideration  for this reconveyance of the property  except the  transaction of sale made in favour of Manibhai on  11th February,  1953 vide Exhibit 40. Thus sale deed  Exhibit  40 was  perfectly  valid and was made in order to pay  the  an- tecedent debt of Exhibit 48.     So  far  as Benares Bank Limited v.  Hari  Narain,  case (supra)  is concerned, it did not lay down  any  proposition against the conclusions arrived at by us. In the above  case the appellant Bank had instituted a 58 suit against the members of a joint Hindu family governed by the Mitakashara Law to recover the balance due on and  mort- gage  of  a joint family property to secure  an  advance  of Rs.28,000. The mortgage deed was executed by Jagdish  Narain and  Raghubir Narain each on behalf of his minor  sons;  the adult  sons of Jagdish Narain were also joined in the  deed. The  deed recited that the advance was required to  pay  off two earlier mortgages and to carry on the mortgagor’s  busi- ness.  Only the respondents, who were minors at the date  of the  mortgage, appeared to defend the suit. The Trial  Judge passed a preliminary decree for sale for the sum claimed. On appeal  the High Court of Allahabad held that  the  mortgage was  valid only as to Rs. 18,000 which sum had been used  to discharge  antecedent debts. As to the remaining sum of  Rs. 10,000  they found it had not been proved that  the  alleged debt  of  Rs.6,342 existed, and that the  business  for  the purposes  of which the balance of Rs.3,658 had been  applied was  not an ancestral business, and that,  therefore,  there was no authority to bind the minor members in respect of it. On further appeal their Lordships of the Privy Council  held that  the mortgage as regards the item of Rs.6,342  must  be deemed  to have been made for the payment of  an  antecedent debt of Jagdish Narain and Raghubir, and it was,  therefore, binding  upon  their sons. As regards the item  of  Rs.3,658 their Lordships found that this amount was borrowed for  the Thika business. Their Lordships after examining the evidence in this regard held that the business was started by Jagdish Narain  and  Raghubir Narain as managers of  the  family.  A business, therefore, cannot be said to be ancestral so as to render  the  minors’ interest in the joint  family  property liable for the debt. Their Lordships did not agree with  the argument  that  a business started by a father  as  manager, even if new, must be regarded as ancestral. Thus it was held that the mortgage as to Rs.3,658 being neither for a  neces- sity  recognised  by the law nor for the payment of  an  an- tecedent debt was wholly invalid under the Mitakashara  Law, as  applied  in  United Provinces and it did  not  pass  the shares even of the alienating coparceners. Thus in the above case their Lordships considered the mortgage as not  binding only to the extent of Rs.3,658 which amount was given by the bank  by the transaction in dispute itself. In the  case  in hand  before us the facts are entirely different and  as  we

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17  

have  already observed, an amount of Rs.5,500 was  taken  by Beni  Ram in 1948 and if the same was paid back by  transac- tion  Exhibit  40 dated 11th February, 1953, then  it  would certainly  be a valid transaction for making the payment  of an antecedent debt.     In  Irukulapati Venkateswara Rao v. Vemuri  Ammayya  and Others, AIR 1939, Madras 561 it was held as under: 59 "On the above finding, Exhibit A would prima facie be  bind- ing on defendant 2’s share as well. But it has been contend- ed  on his behalf that as the debts of defendant No. 1  were incurred  by him in connection with a trade started by  him- self, when trade was not the normal occupation of the  fami- ly,  the debts must be held to be avyavaharik debts  and  as such  not  binding on the son. The Learned counsel  for  the appellant submitted that this contention was opposed to  the decision in Atchutaramayya v. Ratanjee Bhootaji, [1926]  AIR Madras  49  211; but he argued that it is supported  by  the decision  of  the Privy Council in Benares Bank  Limited  v. Hari  Narain & Ors., 54 ALL 564. We find nothing in  54  All 564  that  supports  this argument.  Their  Lordships  there decided  only the question of the binding character  of  the mortgage  as such on the footing that moneys had  been  bor- rowed contemporaneously with the mortgage for the purpose of carrying on a trade started by the father. They declined  to deal  with the question of the son’s liability for the  debt under the pious obligation doctrine, on the ground that  the question had not been raised in the Court in India."     A  Bench of three Judges of the Supreme Court  in  Luhar Amrit  Lal  Nagji v. Doshi Jayantilal Jethalal &  Ors.,  AIR 1960  SC  964 has already held that the  doctrine  of  pious obligation  under  which sons are held liable  to  discharge their  father’s debts is based only on religious  considera- tions. This doctrine inevitably postulates that the father’s debts must be vyavaharik. If the debts are not vyavaharik or are  avyavaharik the doctrine of pious obligation cannot  be invoked.     Their  Lordships quoted with approval the five  proposi- tions  laid  down by the Privy Council in the case  of  Brij Narain v. Mangala Prasad, (supra). Dealing with Suraj  Bansi Koer, case 6 Indian Appeals 88 (PC) observed as under: "We  have  carefully considered this matter and we  are  not dispossessed to answer this question in favour of the appel- lants.  First  and foremost in cases of this  character  the principle of stare decisis must inevitably come into  opera- tion.  For  a number of years transactions as  to  immovable property  belonging to Hindu families have taken  place  and titles  passed  in favour of alienees on  the  understanding that the propositions of law laid down by the Privy  Council in 60 the  case of Suraj Bansi Koer, 6 Indian Appeals 88 PC,  cor- rectly  represent the true position under Hindu Law in  that behalf.  It would, we think, be inexpedient to  reopen  this question after such a long lapse of time," It was further observed in the above case. "It  is also well known that, in dealing with  questions  of Hindu  Law, the Privy Council introduced  considerations  of justice,  equity and good conscience and the  interpretation of  the  relevant texts sometimes was  influenced  by  these considerations.  In  fact, the principle about  the  binding character  of  the antecedent debts of the  father  and  the provisions about the enquiry to be made by the creditor have all  been introduced on considerations of equity  and  fair- play. When the Privy Council laid down the two  propositions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17  

in  the  case of Suraj Bansi Koer, 6 Indian Appeals  88  PC, what was really intended was to protect the bona fide  alie- nees  against  frivolous  or collusive claims  made  by  the debtor’s  sons challenging the transactions- Since the  said propositions  have been laid down with the object  of  doing justice  to the claims of bona fide alienees, we do not  see any  justification  for  disturbing  this   well-established position on academic considerations which may perhaps  arise if we were to look for guidance to the ancient texts  today. In  our opinion, if there are any anomalies in the  adminis- tration of this branch of Hindu Law their solution lies with the legislature and not with the courts. What the  commenta- tors  attempted  to do in the past can  now  be  effectively achieved by the adoption of the legislative process.  There- fore,  we  are  not prepared to accede  to  the  appellants’ argument  that we should attempt to decide the point  raised by them purely in the light of ancient Sanskrit Texts."     In Vyankates Dhonddeo Deshpande v. Sou. Kusum Dattatraya Kulkarni  & Ors., [1979] 1 SCR 955, this Court clearly  laid down as under: "Assuming we are not right in holding that the debt, was for the  benefit of the estate of the joint family  and,  there- fore,  a  joint family debt, and assuming that  Mr.  pal  is right  in  contending that it was the personal debt  of  the father, 61 yet  the doctrine of pious obligation of the son to pay  the father’s  debt would still permit the creditor to bring  the whole joint family property to auction for recovery of  such debts. Where the sons are joint with their father and  debts have been contracted by the father for his personal benefit, the sons are liable to pay the debts provided they were  not incurred  for an illegal or immoral purpose. This  liability to  pay the debt has been described as pious  obligation  of the son to pay the father’s debt not tainted with illegality or  immorality. It was once believed that the  liability  of the  son to pay the debts contracted by the  father,  though for  his own benefit, arises from an obligation of  religion and piety which is placed upon the sons under the Mitakshara Law to discharge the father’s debts, where the debts are not tainted with immorality, yet in course of time this liabili- ty has passed into the realm of law."     Thus we also hold that even if any loan is taken by  the father for his personal benefit which is found as vyavaharik debt  and not avyavaharik, the sons are liable to  discharge their father’s debts under the doctrine of pious  obligation and  in  this view of the matter if any  alienation  of  the joint family property is subsequently made to discharge such antecedent debt or loan of the father, such alienation would be binding on the sons.     Now, so far as the house property is concerned, the same was subsequently sold by Manibhai to defendants Nos. 4 to 8. The  defendants  Nos.  4 to 8 demolished the  house  and  by spending an amount of Rs.25,000 constructed a new house much before the filing of the present suit. The issue No. 10  was framed in this regard and the Trial Court gave a categorical finding  that the defendants Nos. 4-8 had proved  that  they had  spent  Rs.25,000  on the reconstruction  of  the  house within  the knowledge of the plaintiffs Nos. 1 and  2  after his  purchase  from the defendant No. 1 and still  none  had objected or noticed them against it. In this view the plain- tiffs Nos. 1 and 2 and the defendant No. 9 would be estopped from  challenging the title of defendants Nos. 4 to  8  now. The High Court also did not set aside the above finding  and as  such  we uphold the finding of the Trial Court  in  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17  

regard.     Now,  so far as the transactions Exhibit 41 and  Exhibit 42(61)  are  concerned, they stand on  a  different  footing altogether. By Exhibit 41 part of agricultural field  survey No. 1 measuring 10.69 acres has been 62 sold by Beni Ram and his four sons to Vishwanath and  Vithal Rao  for  a  sum of Rs.5,345. By  another  transaction  vide Exhibit 42(61) Beni Ram and his sons sold one acre of  agri- cultural  land of survey No. 1 and 8.40 acres.of survey  No. 19  in  favour  of Vithal Rao and Vishwanath for  a  sum  of Rs.3,000  on 19th July, 1954. The High Court in this  regard has recorded a clear finding that the aforesaid  alienations were made neither for any legal necessity nor for the  bene- fit of the estate nor for payment of any antecedent debt. We have  also gone through the evidence in this regard  and  we are fully convinced that the aforesaid transactions’ had  no connection  with Exhibit 48 or to pay any  other  antecedent debt and we agree with the finding of the High Court in this regard.     The  net  result of the above discussion  is  that  this appeal is allowed in part. The Judgment and decree passed by the  High  Court is set aside to the extent  of  granting  a decree for possession of the house property and agricultural land  survey Nos. 3 and 18 sold in favour of  Manibhai  vide Exhibit  40  dated  11th February, 1953 and  the  suit  with regard  to  these properties is dismissed. The rest  of  the Judgment and decree of the High Court in respect of agricul- tural  lands  survey Nos. 1 and 19 which were  alienated  in favour of Vithal Rao and Vishwanath, defendants Nos. 2 and 3 vide  Exhibits 41 and 42(61) is maintained and the  suit  of the  plaintiffs for possession with regard to these  proper- ties stands decreed.     In the facts and circumstances of the case, the  parties shall bear their own costs. T.N.A.                                       Appeal allowed. 63