Dev Kishan And Ors. Lrs. Of Kishan ... vs Ram Kishan AndOrs. - Synopsis
Team SoOLEGAL 18 Aug 2021

BENCH: S K Garg

DATE OF JUDGEMENT: 9, MAY 2002

 

BRIEF FACTS OF THE CASE:

The Karta in the instant case effected a sub- mortgage and a sale of the two houses belonging to the JFP, which according to him were to be utilised for the marriage of the 3 minor children, who were in the age group of 8-12 year.

ISSUE:

1.     Whether the taking of the debts through mortgage deeds by a major member or Karta of the family for the purpose of marrying minor member of the family is a debt incurred for legal necessity or not?

2.      Whether the debt incurred by the father for satisfying the earlier mortgages should be considered to have been incurred for legal necessity?

OBSERVATIONS:

Lower court observed that in the present case there was no question of legal necessity as the expense in the marriage were not incurred by the defendant. Apart from that a transaction for the purpose of marrying minors after executing a mortgage deed and sale deed becomes void as it is opposed to public policy in view of the prohibition of child marriage under Child Marriage Act 1929 and therefore the amount if spent, on the marriage of minor children can’t be termed as legal necessity.

Further it was confirmed by the court that expense of marriage was borne by the mother and brothers they were earning members and amount taken by the defendant was not utilised for the welfare of the family.

The decision of lower court was confirmed by the Civil Judge.

CONTENTION: it was submitted on behalf of appellant-defendant (Karta), while placing reliance on the decision of Allahabad High Court in Parasaram’s case which held:

“Marriage of Hindu male below 18 years of age with Hindu girl below 15 years of age is not invalidated or rendered illegal by force of CMRA 1929. The object of the Act is to restrain a marriage of minor but doesn’t prohibit the marriage, rendering it illegal or invalid. Therefore, a debt incurred by the major member of the JF for marriage of minor is not an illegal purpose, as the marriage is illegal. The debt is binding on JFP”

DECISION:

While referring to the various cases come to the conclusion that, where the marriage is performed in violation of the provisions of Child Marriage Act 1929, the debt incurred for the purpose which was not lawful, can’t be regarded as a lawful debt and alienation on that ground can’t be binding upon the minor.

While considering the second issue, it may be stated here that a debt may be contracted by a Hindu male for his private purposes or for the Joint family, in the present case the debt was not taken for the lawful purpose of legal necessity and can’t be termed as antecedent debt. Where “Antecedent Debt” means antecedent in fact as well as in time, that is to say that the debt must be truly independent of and not part of the transaction impeached.

A borrowing made on the occasion of the grant of a mortgage is not a antecedent debt. The father of JFP may sell or mortgage the JFP including son’s interest to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided

1.     The debt was antecedent to the alienation purpose

2.     and it was not incurred for immoral purpose.

Hence the Court come to the conclusion that the debt taken by defendant can’t be regarded as debt for payment of antecedent debt and substantially not for legal necessity.

Appeal remains dismissed and the court held that mortgage of JFP by father as manager for discharging his debt not for legal necessity or for payment of any antecedent debt, his son is entitled to impeach mortgage even after the mortgage has obtained preliminary or final decree against the father or mortgagor.

 

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