In Dev Kishan vs Ram Kishan case, the Karta took out a sub-mortgage and sold the Joint Family Property’s two residences, which he said would be used for the marriage of the JFP’s three minor children, all of whom were between the ages of eight and twelve.
- The plaintiff, Ram Kishan, filed a lawsuit against the defendants, the appellants. The plaintiffs and defendants are both Hindu family members. Defendant number. 2 is the karta, who has sold and mortgaged the property for unlawful and immoral reasons, such as the marriage of underage daughters Vimla and Pushpa, while under the influence of defendant no. 1.
- For a consideration of Rs 400 to Rs 900, the Karta effected a mortgage, a sub-mortgage, and a sale of two residences belonging to the joint family valued roughly 8000 to 9000, which he said would be used for the marriage of his three minor children.
- Is it a debt committed for legal necessity or not when a main member or Karta of the family takes on debts through mortgage deeds in order to marry a minor member of the family?
- Is it reasonable to assume that the debt incurred by the father to pay off previous mortgages was incurred for legitimate reasons?
The defendant claimed that he needed the loan for legal reasons.
- BENCH: S K Garg
- The lower court stated that there was no question of legal need in this case because the defendant did not pay any expenses related to the marriage.
- Apart from that, after executing a mortgage deed and a sale deed, a transaction to marry minors becomes void as it is against public policy considering the prohibition of child marriage under the Child Marriage Act 1929, and thus the amount spent on the marriage of minor children cannot be considered a legal necessity.
- The court also verified that the mother and brothers, who were earning members of the family, bore the cost of the marriage, and that they did not use the money seized by the defendant for the family’s welfare.
- When a marriage is performed in contravention of the terms of the Child Marriage Act 1929, the debt incurred for the purpose of which the marriage was not legitimate cannot be treated as a valid debt, and alienation on that account cannot be enforceable upon the child.
- In the second point, it should be noted that while a Hindu man may incur debt for his own reasons or for the Joint family, the debt, in this case, was not acquired for the authorized purpose of legal need and hence cannot be classified as antecedent debt.
- Where “Antecedent Debt” means antecedent in fact and in time that the debt must be truly independent off and not part of the transaction impeached.
- A loan taken out in conjunction with the grant of a mortgage is not considered an antecedent obligation. The father of JFP may sell or mortgage the JFP, including the son’s interest, to pay off a debt he committed for his own profit, and such alienation binds the sons if the loan is for his own benefit.
- The debt existed prior to the alienation’s goal.
- It was not incurred for an immoral reason.
- As a result, the Court concludes the obligation incurred by the defendant cannot be considered a debt for the payment of an antecedent debt and is not required by law.
- The appeal was dismissed, and the court held that even after the mortgage has obtained a preliminary or final decree against the father or mortgagor, his son is entitled to impeach the mortgage because it was taken out by his father as manager for the purpose of discharging his debt, not for legal necessity or payment of any antecedent debt.
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