AIR 1960 SUPREME COURT 964 ::1962 (1) SCJ 282 ::1960 3 SCR 842 ::1962 (1) AndhLT 327

Supreme Court Of India

(From Saurashtra : AIR 1954 Sau. 36).

Hon'ble Judge(s): P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta , JJJ

(A) Hindu Law , — Alienation by father to pay off antecedent debt- Sons challenging alienation have to prove both immoral character of debt and notice of it to alienee - Rule applies to alienation by way of mortgage. ILR 28 All 508, Overruled. Where ancestral property has been alienated either under a conveyance executed by the father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, the sons who challenge the alienation have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so tainted. In this respect no valid distinction can be made between a mortgage and a purchase and the above principle will apply to a mortgage created by the father. ILR 5 Cal 148 (PC) and AIR 1924 PC 50, Foll. ILR 28 All 508, Overruled.(Para 12 15 21) Though for the words 'antecedent debt' used for the first time in ILR 5 Cal 148 (PC), there is nothing corresponding in the ancient Hindu texts, and so also, the distinction made in AIR 1924 PC 50 between a simple personal money debt by the father and a debt secured by a mortgage is not borne out by the ancient texts, yet, it would not be expedient at this stage to consider the que....