Critically examine the doctrine of Antecedent Debt under Hindu Law. Is this doctrine affected in any way by the Hindu Succession (Amendment) Act, 2005?

Question: Critically examine the doctrine of Antecedent Debt under Hindu Law. Is this doctrine affected in any way by the Hindu Succession (Amendment) Act, 2005?[HJS 2006]

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Answer

"Antecedent" literally means prior or preceding in point of time, but the words "antecedent debt" as used in Hindu Law implies two things, antecedent in time, and antecedent in fact in nature, that is to say, the debt must be truly independent of and not part of the transaction impeached.

Lord Dunedin defined the antecedent debt as "antecedent 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 Supreme Court in Prasad v. Govind Swami Mudaliar, AIR 1982 SC 84, reaffirmed that the "antecedent debt" means antecedent as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. The debt may be incurred in connection with a trade started by the father. The privilege of alienating the whole of joint family property for payment of an antecedent debt is the privilege only of the father, the grandfather, and great grandfather qua the son or grandson only.

As was mentioned in the case of Sat Narain v. Sri Kishen Das, (1936) 63 IA 384, the father of a joint Hindu family may sell or mortgage the joint family property including the son's interest therein to discharge a debt contracted by him for his benefit, and such alienation binds the sons, provided:

• the debt was an antecedent to the alienation; and
• it was not incurred for an immoral purpose.

The validity of alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality. The mere circumstance, however, of a pious obligation, does not validate the alienation. There must also be an antecedent debt to validate an alienation to bind the son. In the case of Rama Rao v. Hanumantha, (1929) 52 Mad 856, it was said that generally, there is no question of legal necessity in such a case.

However, in the case of Bal Rajaram Tukaram v. Maneklal Mansukhbhai, (1932) 56 Bom 36, it was established that, where the antecedent debts carried no compound interest and yet the mortgage effected by the father to discharge them provided for compound interest at a high rate with quarterly rests, to that extent, the onus is on the creditor to show that the loan could be obtained only on such terms and if no evidence is adduced, the lender has not discharged the burden.

'Antecedent debt' means antecedent as well as in time, i.e., 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 an antecedent debt.

In the case of Ramkaran Thakur v. Baldeo Thakur, (1938) 17 Pat 168 it was held that to constitute a debt as an antecedent debt, the prior and subsequent creditors don't need to be different persons. All that is necessary is that the two transactions must be dissociated in time as well as in fact.

After the Hindu Succession (Amendment) Act, of 2005

Antecedent debt means a debt preceding in point of time and prior in fact. The pious obligation is the obligation of a son to discharge his father from the sin of his debts. Under this doctrine liability to pay the debts contracted by the father arises from an obligation of religion and piety which is placed upon the son under Mitakshara law. Such liability arises where the debts are not tainted with immorality. Furthermore, under this doctrine, liability is confined to assets received by the son in his share of the joint family property or to his interest therein.

Under Hindu Law, a creditor may sue for recovery of personal debts of the father and such a suit may be brought during the lifetime or after the death, of the father.

However, the recent amendment made to Hindu Succession Act in the year 2005 has made changes in the doctrine of Antecedent Debt so far as the right to proceed against a son, grandson, or great-grandson for recovery of such debt contracted after the commencement of the Amendment Act of 2005. Sub-section (4) of Section 6 of the Hindu Succession Act, 1956 provides that after the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson, or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt.

It further provides that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect:

• the right of any creditor to proceed against the son, grandson, or great-grandson, as the case may be; or
• any alienation made in respect of or in satisfaction of any such debt and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

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