Antecedent debt means a debt which is antecedent in fact as well as in time, i.e., the debt must be truly independent of, and not part of, the transaction impeached. (Brij Narain Rai v. Mangla Prasad, 51 I.A. 129) The prior debt must be independent of the second debt, and the transaction must be dissociated in fact, so that they cannot be regarded as part of the same transaction.
Thus, an antecedent debt of the father means an indebtedness of the father (i) prior in time to, and (ii) independent in origin of, the particular dealing with the family property, whether by way of sale or mortgage, which it is sought to enforce against the son.
Thus, to constitute an antecedent debt, it is not necessary that the prior and the subsequent creditors must be different persons. All that is necessary is that the two transactions must be different or dissociated in time as well as in fact.
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ADVERTISEMENTS:
A father alone had the right to burden the family estate for his antecedent debt. [Chiranji Lal v. Bonkey Lal, 55 All. 370; Kishori Lal v. Bhavani Shanker, 42 Bom. L.R. 1144 (P.C.)] An antecedent debt need not necessarily be in favour of the person to whom the particular alienation is made. (Pandurang v. Bhagwandas, 44 Bom. 341)
To support an alienation of joint family property by the father, the antecedent debt need not be for legal necessity or for the benefit of the estate. It may be even for a new business started by the father; or it may even be for his own personal benefit, as long as it is not incurred for an illegal or immoral purpose.
Brij Narain v. Mangla Prasad, 51 I.A. 129 S and his two minor sons constituted a Mitakshara joint Hindu family. S executed a mortgaga in favour of С to pay off two prior mortgages made by him in favour of A and B. The mortgagee, C, obtained an ex-parte decree against S on the mortgage, but before the sale of the property, the sons sued for a declaration that the mortgage and the decree were not binding on them. It was held that the mortgage to C, having been made to pay off the antecedent debts due to A and B, it would bind the joint family property, including the son’s interest therein, and С was entitled to a decree for the sale of the whole property.
ADVERTISEMENTS:
The following propositions were laid down in the judgment of the Privy Council:
1. The manager can alienate property for necessity.
2. He may incur any reasonable debt.
3. If he purports to burden the estate by a mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.
ADVERTISEMENTS:
4. An antecedent debt must be truly independent, and not part of the transaction impeached.