ANTECEDENT DEBTS

INTRODUCTION

A Karta cannot sell or mortgage the joint property unless there is a legal necessity, or
for the benefit of the estate, or there are religious obligations. Antecedent Debts are
one such exception coming under the head of legal necessity. Antecedent Debts refers
to the legal obligation prior to the time in question about paying off one.

Even though the antecedent indicates something in prior to the time, the Hon’ble
Supreme Court through various judgments have bifurcated an “Antecedent debt” into
one in fact and the one in time.

Lord Dunedin defined the antecedent debt as “antecedent in fact as well as in time”.
Thus, two conditions are necessary:

 The debt must be prior in time, and

 The debt must be prior in fact.

The doctrine of antecedent debts is an example of what a father belonging to a Hindu

joint family cannot do directly he can do it indirectly. Normally a father cannot
alienate the joint family property by taking money for any personal gains. But this can
be done if he takes personal debts and is failing to pay them, such alienation is binding
on son.

CASE LAWS

In the case of Brijnarain v. Mangala Pd., AIR 1924 PC 50, it was established that
“Antecedent” literally means prior or preceding in point of time, but the words
“antecedent debt” as used in Hindu Law implies two things;

 The antecedent in time, and

 The antecedent in fact in nature,

that is to say, the debt must be truly independent of and not part of the transaction
impeached.
The father of a joint family may sell or mortgage joint family property including the
son’s interest in the property to discharge a debt contracted by him for his personal
benefit, provided the following two conditions are satisfied:

(a) the debt, for which alienation is made, must be antecedent in TIME
(b) the debt must not have been taken for an illegal or immoral purpose.

In Brij Narain v. Mangala Pd., 51 IA 189, the Privy Council laid down the following
propositions:

 The Karta of a joint family except for legal necessity cannot alienate the joint
property nor can mortgage it.
 If a decree has been passed for the payment of the debt it can be executed
against the entire estate, provided the son and the father living jointly.
 He cannot mortgage the joint family property unless the mortgage was done for
the payment of some antecedent debt.
 “Antecedent debt” means a debt that is prior in time as well as in fact.
 The fact that the father is alive or dead does not affect the liability.

In the case of the Father’s power of sale to satisfy antecedent debts, it is not well
settled that the liability of a son to pay the debts of his father exists, whether the father
is, alive or dead. It is open for the father during his lifetime to effect a transfer of any
joint family propertIn the case of the Father’s power of sale to satisfy antecedent
debts, it is not well settled that the liability of a son to pay the debts of his father
exists, whether the father is, alive or dead.

It is open for the father during his lifetime to effect a transfer of any joint family
property including the interests of his sons in order to pay off the antecedent debt,
provided it is not tainted with immorality. The father can alienate only such property
in the exercise of his power of alienation which the sons would have exercised
discharge of their pious duty which they owed him.
CONCLUSION

"Antecedent" debt means antecedent in fact as well as in time. The debt must be
independent of and not part of the transactions impeached. The debt may be a debt
incurred In connection with a trade started by the father. The father alone can alienate
the sons' share in the case of joint family. The privilege of alienating the whole of joint
family property for payment of an antecedent debt is a privilege only of the father,
grandfather and great grandfather qua the son or grandson only. No other person has
any such privilege.