Kishan Singh vs Bachna

Chopra, J.—This petition for revision by the Defendant arises out of a suit to challenge an alienation effected by one Nathu, a third degree collateral of the Plaintiff, on the usual grounds that the land was ancestral and that the sale was without consideration and necessity. 3 big has 19 bis was of land was sold by Nathu by a registered deed dated 16th Chet 1988 for Rs. 300/- to Kishan Singh Petitioner. The suit to impugn this sale was brought by the Respondent on 22nd Bhadon 2003 i.e. more than 14 years after. Both the Courts below have found all the issues raised in the case against the Defendant and have granted the Plaintiffs a declaration that after the death of the vendor. The Defendant has, come in revision to this Court.

The main point urged by S. Tirath Singh, the learned Counsel for the Petitioner, is that the District Judge was not right in holding that the timer barred antecedent debt which formed a part of the sale-consideration could not be regarded as valid necessity for the sale. Rs. 255/- out of the sale. consideration was to be credited towards a debt due to the vendee and this was recited as the necessity for which the sale was effected The remaining amount of Rs. 45/- was paid be-fore the Sub-Registrar. The Defendant produced [his account book in which a balance for Rs. 100/- was struck by Nathu on Jeth Shudi 4, 1981, and got it proved by the evidence of its scribe Jethu Mai. The balance contains the name of Jethu Mai as its scribe and also purports'' to bear the attestation of one Jit Singh and the thumb impressions of Nathu and Sant Singh, Anr. marginal-witness. The Defendant as his own witness placed on record the accounts which lead to this balance of Rs. 100/- and deposed that the sub-sequent accounts could not be produced because they got lost in the debris of his house that has fallen. Prom his.'' statement it appears that some other balances were also struck but they could not be produced probably because of the lapse of time.

On a consideration of all. the evidence on record neither of the Courts below found any reason to doubt the genuineness of this balance. The learned District Judge while holding the debt to be proved left it out of consideration because in his opinion a time barred debt could not form necessity for a sale of his ancestral property even, by a male proprietor. This, I think, is not a correct view of the law on the point. A Just antecedent, debt is one which is actually due and which is not: tainted with immorality and had not been recklessly incurred. This definition of a just antecedent debt was laid down by a Full Bench of the Lahore Chief Court in - ''Devi Ditta v. Saudagar Singh'' 65 Pun Re 1900 (A) and has ever since been consistently followed. The view expressed'' in a previous authority of the same Court - ''Sardari Mai v. Khan Bahadur Khan'' 11 Pun Re 1899 (B) that such a debt should also be recoverable from the person or property of the Judgment-debtor, was not accepted by the Pull Bench and it was held that to form a just antecedent debt it was not necessary that it should also be recoverable through the assistance of the Court. A time-barred debt is undoubtedly a debt which, continues to be due from the debtor though the'' remedy for its recovery through Courts might have been barred. u/s 25, Contract Act a debtor can enter into an agreement in writing to [pay whole or part of a debt of which the creditor might have enforced payment but for the law of "limitation of .suits. As a matter of fact a debt can be liquidated only by means of its payment or by its having been given up by the creditor but it cannot be regarded as wiped off or non-existent merely by lapse of time.

Even if the contention of the Defendant that "the/subsequent balances in his favor had been lost'' and could not, therefore, be produced is ruled out, the balance of 1981, which had become time-barred, could be accepted by means of a written agreement by the debtor as valid and binding and he was within his rights to arrange for its payment by side. of his property. Nothing could stand in his way to accept his liability for payment of or to actually pay the debt even though it could not fee: recovered, from his person or property through of suit by accredit or, and if he has done so it cannot be said that the debt could not form valid necessity for the sale. I am supported in this view by the decision of a Division inch of the Lahore High Court in - ''Budh Singh v. Bhan Singh AIR 1934 Lah 962 (2)(C), in which it was held that

a just antecedent debt does not cease to be a just antecedent debt when it is time-barred and an alienation of ancestral property to pay off such antecedent debt is binding on the reversioners. In a Pull Bench decision of the Allahabad High Court - Gajadhar Vs. Jagannath, it was laid down that a right to enforce its payment, subsists even if the remedy by action has become barred by time. A sale in this case by the Manager of a joint Hindu family to pay off a time-barred debt was therefore, held to be valid and binding on other members of the joint family.

If interest for about 8 years be added to the amount for which the balance was struck, the total at the time of the sale comes to about Rs. 220/-. In the sale deed the amount due on the Behi account was mentioned as Rs. 255/-, but there is nothing suspicious about it. This might have been due to the compound interest charged through some subsequent balances which probably were not traceable after the lapse of 15 years. Otherwise also, since a major portion of the sale-consideration was proved to have formed a just and antecedent debt, the sale challenged after a number of years could not be set aside merely because a portion of the sale consideration was not proved for necessity.

For all these reasons this petition is accepted with costs and the decree of the District Judge set aside. The suit stands dismissed.