AIR 1917 NAGPUR 13 ::(1918) 14 Nag LR 41 ::(1918) 44 Ind Cas 506

Nagpur High Court

Hon'ble Judge(s): Drake-brockman , J

Hindu Law- Alienation - Father - Antecedent debt - Meaning explained - Father can mortgage joint family property to discharge antecedent debt and such mortgage can be enforced against son during father's lifetime - Son may however prove that original debts were contracted for immoral or illegal purposes. A cash advance does not constitute an "antecedent" debt if its payment and the transfer seeming its repayment are in reality parts of the same transaction. A mortgage of joint ancestral property will not be binding on the mortgagor's son after his death unless the debt secured thereby was either an antecedent debt or was justified by legal necessity: A Hindu father can make a mortgage of the joint family estate in order to discharge an antecedent debt and such a mortgage can be enforced during his lifetime against his son. This is an exception to the general rule that the ancestral property cannot be alienated except with the consent of all the coparceners or for legal necessity. It is, however, open to the son to prove that the original debts were incurred for immoral purposes. A son who seeks to avoid debts contracted by his father on the ground of their having been borrowed for an immoral or illegal purpose is not bound to show that the creditor had knowledge of the immoral or illegal purpose whe....