CASE COMMENT ON – DEV KISHAN VS RAM KISHAN

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

SUBMITTED BY:
VAIBHAV KAYATH
SECTION-A, ENROLLMENT No. – 1020220113

SUBMITTED TO:
Dr. Sarita, Assistant Professor of Law

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 Acknowledgment

I, Vaibhav kayath, am overjoyed as it brings me great pleasure to work and research on the
subjectof CASE COMMENT ON DEV KISHAN VS RAM KISHAN. After researching on this project
for a while I have gained invaluable insight and reached a successful conclusion. In
acknowledging the help, I have received from others in the work presented here,I must begin
by recalling my sincerest appreciation to my teacher Dr. Sarita, Assistant Professorof Law who
enlightened me to elucidate and ponder over the research topic. Without her help,it would
have been impossible for me to string even a few paragraphs.

I would also like to extend my warmest gratitude to the staff and administration of Himachal
Pradesh National Law University, Shimla who have been a great help to me.

I would also like to convey my heartfelt regards to my parents for their constant motivation and
support along with my batch mates who have helped me throughout this great experience. I also
revere Almighty God for imparting me the strength and determination to complete the project
in time.

Thank You

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 CONTENT

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Facts Of The Case

Issue 5 to 6

FIRST APPEAL 7

SECOND APPEAL 8

PETITIONERS ARGUMENT 8

RESPONDENTS ARGUMENT 9

DECISION 10

CASE COMMENT 11

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 DEV KISHAN VS RAM KISHAN
CASE COMMENT
Defendant no. 1 – Legal represtatives of kishan lal

Defendant no. 2 to 5 - Madan Lal, Laxmi Chand, Megh Raj and Badri Das have been made
respondents in this second appeal also, but for convenience, Madan Lal, who was Karta of the
family, would hereinafter be referred to as defendant No. 2.

Plaintiff - Ram Kishan and Kailash, respondents No. 1 and 2 to this second appeal.

FACTS OF THE CASE

The plaintiffs Ram Kishan and Kailash filed a suit in the Court of Civil Judge, Bikaner on
18.3.1969 against the appellant-defendant No. 1 and also against the defendants No. 2 to 5
with the prayer that the sale deed dated 12.5.1967 and void against the plaintiffs as well as
against the defendants No. 2 to 5. It was alleged in the plaint that the plaintiffs and defendants
No. 2 to 5 were members of joint Hindu Family, but the defendant No. 2 Madanlal, who was
Karta of the family, was under the influence of the appellant-defendant No. 1. It was further
alleged in the plaint that two houses mentioned in para No. 2 of the plaint were joint properties
of that joint Hindu family and the plaintiffs in the month of Jan. 1969 came to know that the
defendant No. 2 on 12.5.1967 sold the said two houses to the appellant-defendant No. 1 through
registered sale deed Ex.A/3 for a consideration of Rs. 2000/- though the value of these two
houses was about Rs. 16,000/- and not only this, the defendant No. 2 also got the signatures of
the defendants No. 3 to 5 on that sale deed by undue influence and the amount taken by the
defendant No. 2 after sale was not distributed by him to any other members of the family.1

Thereafter, the plaintiffs approached the appellant-defendant No. 1 and asked him to show the
documents and upon this, the appellant-defendant No. 1 first tried to avoid, but then he showed
to the plaintiffs the sale deed dated 12.5.1967 (Ex.A/3) and mortgage deed dated 19.5,1964
(Ex.A/2) and in that mortgage deed Ex.A/2 dated 19.5.1964, there was mention of another
mortgage deed dated 6.12.1962 (Ex.A/1). The further case of the plaintiffs was that the
defendant No. 2 under the influence of appellant- defendant No. 1 first mortgaged the
properties in question in favour of the appellant-defendant No. 1 for a consideration of Rs.
500/- on 6.12.1962 and that mortgage deed is Ex.A/1 and furthermore, the same properties
were further mortgaged by the defendant No. 2 in favour of the appellant-defendant No. 1 on
19.5.1964 for a consideration of Rs. 900/ and that mortgage deed is Ex.A/2 and since the sale
deed dated 12.5.1967 (Ex.A/3) was got executed by the appellant defendant No. 1 through
defendant No. 2 in his favour after making influence over defendant No. 2, therefore, it should
be declared null and void against the interest of the plaintiffs and defendants No. 2 to 5 and
similarly, the rent deed Ex.A/4 by which the plaintiffs and defendants No. 2 to 5 were termed
as tenants of appellant defendant No. 1 be also declared as null and void on various grounds

1
Dev Kishan And Ors. Lrs. Of Kishan Lal vs Ram Kishan And Ors. RLW2003(2)RAJ1250.

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mentioned in para 8 of the plaint and one of them was that there was no legal necessity for
mortgaging as well as for selling the properties in question in favour of the appellant defendant
No. 1 by the defendant No. 2 and if, at the most, properties were sold for the illegal and immoral
purposes, for that the plaintiffs were not bound. Hence, it was prayed that the suit be decreed.

ISSUE

After hearing both the parties and taking into consideration the entire evidence and materials
available on record, the learned Munsiff, Bikaner through his judgment and decree dated
30.9.1977 decreed the suit of the plaintiffs against the appellant-defendant No. 1 (Ex.A/3) in
respect of two houses mentioned in the plaint and rent deed Ex.A/4 to be null and void against
the plaintiffs and defendants No:2 to 5. In decreeing the suit of the plaintiffs, the learned
Munsiff came to the following conclusions on issue No. 1:
(1) That from perusing the mortgage deed dated 6.12.1962 (Ex.A/1), it clearly appears that Rs.
500/- were taken by the defendant- No. 2 from the appellant-defendant No. 1 for the purposes
of marrying his daughter Vimla and through another mortgage deed dated 19.5.1964 (Ex.A/2),
Rs. 900/- were taken by the defendant No. 2 from the appellant defendant No. 1 for the purposes
of marrying No. 1 for the purposes of marrying Vimla and Pushpa and through registered sale
deed dated 12.5.1967 (Ex.A/3), the amount was taken by the defendant No. 2 from the appellant
defendant No. 1 for the purposes of marrying Ram Kishan, plaintiff No. 1.
(2) That Vimla, Pushpa and Ram Kishan were all minors when the properties were mortgaged
by the defendant No. 2 in favour of the appellant defendant No. 1 and when sale deed Ex.A/3
was executed by the defendant No. 2 in favour of the appellant- defendant No. 1.

(3) That the loan taken by the defendant No. 2 from the appellant-defendant No. 1 cannot be
termed as loan for payment of antecedent debt as the loan was taken by the defendant No. 2 for
the purposes of marrying him minor daughters and, thus, the learned Munsiff came to the
conclusion that the present transactions cannot be regarded as transaction for payment of
antecedent debt.
(4) That the learned Munsiff also did not find the case of legal necessity as the expenses in the
marriage of Vimla, Pushpa and Ram Kishan (plaintiff No. 1) were not incurred by the defendant
No. 2 and furthermore, there was no necessity for taking loan for their marriages.

(5) That apart from that, the age of Vimla and Pushpa at the time of their marriages was 12
and 8 years respectively and, therefore, taking loan for their marriages could have not been
visualised looking to their age and thus, the submission that the loan was taken for their
marriages was wrong.

(6) That even for the sake of argument, the loans were taken by the defendant No. 2 from the
appellant defendant No. 1 for the purposes of marrying his minors after executing mortgage
deeds and sale deed, such transactions became void being opposed to public policy in view of
prohibition of child marriage under the Child Marriage Restraint Act, 1929 (hereinafter referred

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to as "the Act of 1929") and, therefore, the amount, if spent on the marriages of minor children,
cannot be termed as legal necessity.

(7) That sale deed Ex.A/3 dated 12.5.1967 was executed on the same day when there was
marriage of Ram Kishan, plaintiff No. 1 and, therefore, when the marriage of plaintiff No. 1
Ram Kishan was going to be performed on the date of execution of sale deed Ex.A/3, to say
that the amount taken by the defendant No. 2 from the appellant defendant No. 1 through sale
deed Ex.A/3 dated 12.5.1967 was to be utilised for the purpose of marriage of Ram Kishan,
plaintiff No. 1 was wrong one and thus, the learned Munsiff came to the conclusion that the
amount even of sale deed Ex.A/3 dated 12.5.1967 was not utilised by the defendant No. 2 for
the marriage of Ram Kishan, plaintiff No. 1.

(8) That it is difficult to believe that the properties worth Rs. 7000-8000/- would be mortgaged
or sold for a consideration of Rs. 400-500/-on the pretext of marrying minor daughters, as
according to the learned Munsiff, other brothers and mother of these minor daughters were
earning members and, therefore, in no case, the properties were mortgaged for taking loan for
the purposes of marrying minor daughters2.

In these circumstances, since the properties were not mortgaged and sold by the defendant No.
2 in favour of the appellant defendant No. 1 for the purposes of legal necessity and there was
no question of payment of antecedent debt, therefore, the learned Munsiff came to the
conclusion that the plaintiffs and defendants No. 2 to 5 would not be bound by the terms of the
sale deed dated 12.5.1967 (Ex.A/3) and that should be declared null and void against them.
Thus, the learned Munsiff decided issue No. 1 in favour of the plaintiffs and against the
appellant- defendant No. 1 and decreed the suit of the plaintiffs in the manner as indicated
above.

2
Indian Kanoon - http://indiankanoon.org/doc/1805713/

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 FIRST APPEAL
Aggrieved from the said judgment and decree dated 30.9.1977 passed by the learned Munsiff,
Bikaner, the appellant-defendant No. 1 preferred first appeal before the learned District Judge,
Bikaner, which was transferred to the learned Civil Judge, Bikaner and the learned Civil Judge,
Bikaner through his judgment and decree dated 15.9.1980 dismissed the appeal of the appellant
defendant No. 1 and upheld the judgment and decree dated 30.9.1977 passed by the learned
Munsiff, Bikaner holding inter-alia :

(1) That the debt was taken by the defendant.No.2 from the appellant defendant No. 1 for the
purpose of marriages of his minor daughters through mortgage deeds dated 6.12.1964 (Ex.A/1)
19.5.1964 (Ex.A/2) and that debt was opposed to public policy because of prohibition of child
marriage under Act of 1929 and in this respect, the learned Civil Judge placed reliance on the
decision of the Orissa High Court in Maheshwar Das and Ors. v. Sakhi Dei, AIR 1978 Orissa
84 and the law laid down in Indian Kanoon - http://indiankanoon.org/doc/1805713/ 4 Dev
Kishan And Ors. Lrs. Of Kishan Lal vs Ram Kishan And Ors. on 9 May, 2002 Parasram and
Ors. v. Smt. Naraini Devi and Ors., AIR 1972 Allahabad 357, and Rulia and Ors. v. Jagdish and
Anr., AIR 1973 Punjab & Haryana 335, was not found favourable by the learned Civil Judge.
Thus, he confirmed the findings of the learned Munsiff on that point.

(2) That the expenses of the marriages of Vimlaj Pushpa and Ram Kishan were not borne by
the defendant No. 2, father of these minor children, but on the contrary the expenses were borne
by their mother and brothers, as they were earning members and thus, the amount taken by the
defendant No. 2 from the appellant defendant No. 1 was not utilized for the welfare of the
family.

(3) That no liability of the plaintiffs was found in respect of the antecedent debt also and in this
respect, the learned Civil Judge also confirmed the findings of the learned Munsiff.

Aggrieved from the said judgment and decree dated 15.9.1980 passed by the learned Civil
Judge, Bikaner, this second appeal has been filed by the appellant-defendant No. 1.3

3
Dev Kishan And Ors. Lrs. Of Kishan Lal vs Ram Kishan And Ors., 2002(4)WLC130.

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 ISSUE IN SECOND APPEAL
This Court while admitting this second appeal framed the following substantial questions of
law on 22.1.1981:

(1) Whether the taking of a debt by a major member of the family for the marriage of a minor
member of the family is a debt incurred for a legal necessity or is for illegal purpose?

(2) Whether the debts incurred by the father for satisfying the earlier mortgages should be
considered to have been incurred for legal necessity?

(3) Whether the sale for satisfying the earlier mortgage debt of the Joint Hindu Family and for
performing the marriage of a minor member of the family was rightly held to be void by the
learned first appellate court?"4

PETITIONERS ARGUMENT
On this point, it was submitted by the learned counsel appearing for the appellant-defendant
No. 1 that the debt was taken by the defendant No. 2 for the purposes of marrying his minor
daughters, after executing mortgage deeds Ex.A/1 and Ex.A/2 in favour of the appellant
defendant No. 1 and the debt incurred by major members for marriage of a minor though
restrained under the Act of 1929 is a debt for legal necessity. Thus, taking of debt by the
defendant No. 2 from the appellant defendant No. 1 for the purposes of marrying his minor
daughters was legal necessity. Hence, the findings of the courts below that the properties were
not mortgaged by the defendant No. 2 in favour of the appellant defendant No. 1 for legal
necessity are wholly erroneous one and cannot be sustained. In this respect, he has placed
reliance on the decision of the Allahabad High Court in Parasram's case (supra), where it was
held :-

"Marriage of a Hindu male below 18 years of age with a Hindu girl below 15 years of age is
not invalidated or rendered illegal by the force of Child Marriage Restraint Act, 1929. The
object of the Act is to restrain a marriage of minors but does not prohibit the marriage rendering
it illegal or invalid. A debt incurred by major members of joint Hindu family for marriage of
minor is not for an illegal purpose, as the marriage is legal. The debt is binding on joint family
property."

17. Both the courts below further came to the conclusion that though the money as per the both
mortgage deed Ex.A/1 and Ex.A/2 was taken by the defendant No. 2 from the appellant
defendant No. 1 for the purposes of marrying minor daughters, but that amount was not spent
by him on their marriages and thus, the properties were not mortgaged by the defendant No. 2
in favour of the appellant- defendant No. 1 for legal necessity of the joint Hindu family. Hence,
the loan taken by the defendant No. 2 from the appellant defendant No. 1 cannot be termed as
taking of loan for legal necessity of the joint Hindu family.

4
Dev Kishan And Ors. Lrs. Of Kishan Lal vs Ram Kishan And Ors,. 2002(4)WLN481.

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 RESPONDENTS ARGUMENT
On the other hand, the learned counsel appearing for the respondents submitted that the debt
was taken by the defendant No. 2 from the appellant defendant No. 1 for the purposes of
marrying his minor daughters and since the child marriage was prohibited under the Act of
1929, therefore, the debt was not lawful debt and alienation on that ground cannot be regarded
as lawful alienation binding upon the minors. The expenses incurred in connection with
marriage of minor child cannot constitute legal necessity, in view of the prohibition of child
marriage under the Act of 1929. In this respect, he has placed reliance on the following
decisions :-

(1) Panmull Lodha and Ors. v. R.B. Gadhmull, AIR 1937 Calcutta 257.5

(2) Hansraj Bhuteria and Anr. v. Askaran Bhuteria and Anr., AIR 1941 Calcutta 2446.

(3) Rambhau Ganjaram v. Rajaram Laxman and Ors., AIR 1956 Bombay 250.7

(4) Maheswar Das v. Sakhi Dei (supra)8

27. Apart from that, as already held above, the debt taken by the defendant No. 2 from the
appellant defendant No. 1 for the purposes of marriages of his minor children, which were not
lawful, was not a lawful debt. Furthermore, expenses incurred in the marriage of minor
children, which has taken place in contravention of the Act of 1929, cannot constitute legal
necessity.

32. It has been submitted by the learned counsel appearing for the appellant defendant No. 1
that since the sale deed Ex.A/3 was executed not only by the defendant No. 2, but also by
defendants No. 3 to 5, therefore, it should be held as legal sale deed so far as the defendants
No. 2 to 5 are concerned and it could not be set aside against them.9

5
Panmull Lodha And Ors. vs R.B. Gadhmull Lodha And Ors. on 26 February, 1936
6
Hansraj Bhuteria And Anr. vs Askaran Bhuteria And Anr. on 4 June, 1940, AIR1941CAL244, AIR 1941
CALCUTTA 244.
7
Rambhau Ganjaram vs Rajaram Laxman And Ors. on 6 October, 1955, AIR1956BOM250, AIR 1956
BOMBAY 250.
8
Maheswar Das And Ors. vs Sakhi Dei on 31 October, 1977, AIR1978ORI84, AIR 1978 ORISSA 84.
9
Dev Kishan And Ors. Lrs. Of Kishan Lal vs Ram Kishan And Ors. on 9 May, 2002.

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 RATIO DECIDENDI:
JUDGE: S K Garg

The trial court held that there was no question of legal necessity here since the defendant did
not incur any cost of the wedlock.

Secondly, after a sale deed and a mortgage deed are signed, the same is void ab initio on the
grounds of public policy, especially in the wake of the prohibition under the Child Marriage
Act of 1929. Hence, none of the expenses of marriage of minors can be said to be a valid
necessity.

The court further established the fact that the mother and siblings, who helped in the family
income, paid for the wedding expenses and that they never used the money seized from the
defendant to the advantage of the family.10

DECISION:
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 Joint Family Property may sell or mortgage the Joint Family Propert,
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.

Accordingly, the Court finds that the act of commitment by the defendant cannot
be classified as a debt to be used in the discharge of an earlier debt and is not required by laws.
The appeal was dismissed, and the court stated that even subsequent to the
mortgage having acquired a preliminary or final decree against the father or mortgagor, his
son can impeach the mortgage since it was executed by his father in his capacity as
manager to pay off his debt and not for necessity in law or payment of any antecedent debt.11

10
Dev Kishan vs Ram Kishan, (2002) SCC Online.
11
Dev Kishan And Ors. Lrs. Of Kishan Lal vs Ram Kishan And Ors. RLW2003(2)RAJ1250.

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 CASE COMMENT
The decision in Dev Kishan v. Ram Kishan illustrates a close scrutiny of Hindu family law
concepts, i.e., the rights of the Karta (the elder of a Hindu joint family) to alienate joint family
property. Historically, a Karta possesses certain rights to manage and perhaps dispose of joint
family property; the rights, however, are not unlimited—they need to be exercised for the
benefit of the family and only for purposes of legal necessities or for the benefit of the estate.
Here, Madan Lal, who was the Karta, had executed a mortgage and sale deed in connection
with joint family property to make arrangements for amounts to be utilized in the marriage of
his minor daughters. The central question that arose before the Court was whether such a
transaction could be justified on the grounds of fulfilling a "legal necessity." The Court aptly
noted that marriages to minors are illegal under the Child Marriage Restraint Act of 1929, and
thus it would follow that any transaction for the purpose of financing such an act cannot be said
to fulfill a legal necessity.
This ruling reflects an emerging concept of "legal necessity" under Hindu law. Historically,
marriages—particularly those arranged by patriarchal heads of families—were regarded as
necessities, and hence provided adequate cause for alienation of property. But by establishing
a definite distinction between permissible and impermissible purposes, the Court made the
concept of legal necessity clear. The ruling made it clear that if the debt is incurred for an illegal
or immoral purpose, like facilitating a child marriage, it is not enforceable against the joint
family, and it is not a valid cause for dissociation of family property.
The Court also looked into the doctrine of antecedent debt. Although a Karta could have
possibly accumulated debts earlier, the same have to be valid and for legal reasons in order to
legitimize any dealings that followed. In the present case, since the source issue—i.e., child
marriages—was illegal as well as against public policy, the debt was not held to be antecedent
legally.

By declaring the mortgage and sale deeds to be void, the Court not only upheld statutory law
but also asserted the protective role of the judiciary in children's matters. The judgment is thus
a welcome reference point for balancing customary Hindu legal norms against the dominant
principles of legality, moral norms, and public interest. It conveys a clear message that
customary norms cannot prevail over statutory protection, particularly where the interests of
children are at stake.

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