The existence of antecedent debts and their discharge can validate an alienation of joint family property, even in the absence of other legal necessity or family benefit.

FAKIRAPPA VS. VENKATESH

( 1 ) THE legal representatives of defendant-1 and defendants 2 to 6 in L. C. Suit No. 44/1961 on the file of the Munsiff, Laxmeshwar, are the appellants in this second appeal. The plaintiffs who are respondents 1 and 2 in this second appeal instituted the said suit for a declaration that the alienation of the suit schedule property made by their father Parashuram in favour of defendant-1 devendrappa was not binding on them and for partition and separate possession of their 2/3rds share in the suit property. Their case was that the suit land belonged to the joint family consisting of their father Parashuram and themselves that Parashuram alienated it in favour of defendant-1 under a sale deed dated 12-6-1942, although, the said transaction was not supported by legal necessity or family benefit and that therefore the alienation was not binding on them. They also pleaded that the consideration alleged to have been paid under the said sale deed was inadequate. Defendant-2 is the son of defendant-1. Defendants 3 to 6 are the sons of defendant-2. They pleaded that the sale deed was executed in favour of the 1st defendant by the father of the plaintiffs for the purpose of discharging two mortgage debts contracted by him earlier, that the consideration paid under the sale deed was actually utilised for discharging those antecedent debts and that therefore, the sale was binding on the plaintiffs. They also pleaded that the transaction was supported by legal necessity and family benefit. The plaintiffs did not file any rejoinder stating that the antecedent debts in question were not in existence on the date of the sale nor did they plead that the said debts were avyavaharika debts. At the conclusion of the trial, the learned Munsiff came to the conclusion that the defendants had not proved that the sale in favour of the 1st defendant was binding on the plaintiffs and accordingly made a decree in their favour. The lower appellate Court has affirmed the said decree. Hence, this second appeal.

( 2 ) SRI S. R. Bannurmut, learned Counsel for the appellants contended that the decision of the lower appellate Court which proceeded on the basis that in the instant case where the father had sold the property in order to discharge his antecedent debts, it was necessary to prove that there was legal necessity or family benefit in order to sustain the sale was erroneous, in the absence of any plea on the part of the plaintiffs that the antecedent debts were tainted with immorality. Shri raghuramachar, learned Counsel for the respondents, did not dispute the correctness of the legal proposition put forward by the learned Counsel for the appellants. He, however, argued that in the instant case the defendants had not established the existence of the debts for discharging which the sale deed in question was executed by the father of the plaintiffs. The sale deed is dated 12-6-1942. The suit was instituted in the year 1961 and the learned Munsiff tried it in the year 1967 nearly 25 years after the date of the sale deed in question. By the, time the case was taken up for trial, defendant-1 who had purchased the property under the sale deed was dead. The father of the plaintiffs who had executed the sale deed had died before the institution of the quit. The defendants in support of their case relied upon the recital in the sale deed Exhibition stating that it had been executed by the father of the plaintiffs in favour of defendant-1 for the purpose of discharging two mortgaged loans which he had obtained from Shivanagouda Patil under two registered mortgage deeds dated 27-3-1924 and 24-11-1930 and that the said mortgage deeds had been handed over to defendant-1 with the endorsements of discharge recorded on them by the mortgage. They also produced before the Court Exhibit-D-2 which was the certified copy of the registered mortgage deed dated 24-11-1930 and Exhibit-D-3 which was the certified copy of the registered mortgage deed da

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