K.R. Gopivallabha Iyengar, J.
1.The plaintiffs in Civil Suit No. 226 of 1963 are the appellants In this second appeal. The contesting respondents are defendants 2. 4 and 6. The suit was filed for partition and separate possession of 2/3 share of the appellants in the suit properties. They challenge the alienations effected bv their father who was impleaded as defendant No. 1 in the original suit under Exhi-bits. 26, 27, 28 and 29 in favour of the 2nd defendant's father, 4th defendant and 6th defendant. It may further be mentioned that Exhibits 26 and 27 are in favour of the 4th defendant It is undisputed that defendant 1 and the plaintiff are members of an undivided joint Hindu family and that the suit properties are the ancestral properties. The plaintiffs challenge the binding character of the aforesaid alienations in so far as they are concerned on the ground that those alienations are not supported by legal necessity. They also impeached the alienations on the ground that they were tainted with immorality and illegality. The learned Munsiff took the view that the alienations are not supported by legal necessity. In view of this finding, he did not go into the question whether the alienations were tainted by immorality or illegality. On the basis of the finding that the alienations referred to above are not binding on the plaintiff's share in the suit schedule properties, he decreed the suit declaring that the plaintiffs have a 2/3 share in the properties concerned in this appeal. He also granted future mesne profits from the concerned defendants in respect of their shares in the suit properties under Order XX. Rule 12 (c) of the Code of Civil Procedure. Defendants 2 to 4 being aggrieved with this decree preferred R. A. No. 128 of 1964 before the Civil Judge. Bijapur. The learned Civil Judge modified the decree of the trial Court. He confirmed the findings of the learned Munsiff. On the 3rd issue in the case relating to the legal necessity, the Civil Judge held that the alienations referred to are not for legal necessity. He went into the question as to whether the transactions are tainted by immorality but gave a finding against the plaintiffs. It appears to me that this finding is quite immaterial in view of the fact that the appellate Court has confirmed the finding of the learned Munsiff that the alienations in question are not sup-ported by the legal necessity. He was correct in confirming the decree of the trial Court. But the appellate Court proceeded to consider the question of the equities arising in the case. It observed :--
'.....In the absence of proof of direct connections between immoral acts of their father and the alienations in question, there is possibility of these sales having been contracted for the personal expenses of Bharamappa, not tainted with immorality or even for his personal pleasure not amounting to immoral actions.....'
This conclusion is considered necessary for considering the adjustment of equities in consequence of the finding that the transactions in question are not supported by any legal necessity and as such not binding on the respondents and they being entitled to 2/3 share in each of the alienated properties. In adjusting the equities the appellate Judge relied on the decision of this Court in R. A. No. 121 of 1957 (Mys). He held that the Ruling given in the above case governs the present case. He therefore held that equities in favour of the respondent entitled them to the refund of a share of the consideration in respect of the alienation in their favour. He held that the respondents are entitled to the refund of 2/3rd share of the consideration amount of the respective transactions from the appellants before they take possession of their respective shares in the properties alienated. The decree passed by the trial Court was accordingly modified by the Civil Judge. Against this decision, the plaintiffs have preferred the above second appeal.
2. It is strenuously argued by Sri K. A. Swamy. learned counsel for the appellants, that the condition imposed by the Civil Judge is opposed to law. He submits that in view of the concurrent finding that the alienations in favour of the respondents are not supported bv legal necessity, the appellate Court ought to have confirmed the decree as passed by the learned Munsiff. His contention is that the decision in R. A. No. 121 of 1957 (Mys), on the file of this Court is distinguishable and does not apply to the facts of the present case. Further, it is submitted that if the observations made by this Court in the above said decision are to be understood in the manner done by the Civil Judge, it is opposed to the decision of the Supreme Court reported in Virdhachalam Pillai v. Chaldean Bank, : 5SCR647 . He also invited my attention to the observations in Mulla's Hindu Law 13th Edition at page 305. It must be first observed that neither the statement of law in Mulla's Hindu Law nor the decision of the Supreme Court referred to above were brought to the notice of this Court while it decided R. A. No. 121 of 1957 (Mys).
3. It is submitted for the respondents that if the alienations effected by the first defendant in favour of defendants 2, 4 and 6 are set aside, there would arise failure of consideration on the part of the first defendants which would give rise to his liability to refund the proportionate part of the sale consideration to the alienees. Thus the debt of the first defendant would come into existence; the plaintiffs have moral obligation to discharge the same and therefore the condition imposed by the lower appellate Court is correct. The observations in the decision of our Court referred to above and on which reliance is placed are as follows :--
'.....Hence the consequence of setting aside the alienation so far as the sons' 2/3 Interest is concerned Is that the father becomes liable to his alienee the second defendant to refund the consideration pertaining to his sons' 2/3 share on the ground of failure of consideration. In other words, he becomes the debtor of his alienee and that part of the consideration becomes the father's debt so far as the plaintiffs are concerned. There is no evidence whatever to make out that the said debt was either illegal or immoral...'
'The result therefore would be that on the setting aside of the alienation to the extent of 2/3 share of the sons, there will arise a debt of 8,000/- rupees payable by the father which is not shown to be illegal or immoral and is therefore payable by his sons on the doctrine of pious obligation. Consequently that portion of the debt of the father amounting to rupees eight thousand will have to be allotted to the share of the sons in the course of the partition.....'
These observations, no doubt, seem to support the view taken by the lower appellate Court. It is clear from the above observations that this Court has not considered the question, whether the pious obligation could arise in the circumstances of the case. The Court has not gone into the question as to whether the obligation of the father is antecedent or subsequent to the decree. The Court has proceeded on the assumption that the debt is antecedent giving rise to a pious obligation on the part of the sons to discharge the same. This view is contrary to the view taken by the Supreme Court in : 5SCR647 . referred to above. It is unfortunate that this decision was not brought to the notice of this Court while deciding R. A. No. 121 of 1957 (Mys.) The Supreme Court observes as follows In paragraph 11 of the Judgment:
'(11) The authorities to which it is wholly unnecessary to refer have firmly established the following and the position is not in doubt; (1) A father can by incurring a debt even though the same be not for any purpose necessary or beneficial to the family so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of that debt.
(2) The father can. so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral.
In other words the power of the father to alienate for satisfying his debts. is co-extensive with the right of the creditors to obtain satisfaction out of family propertyincluding the share of the sons in such property.
(3) Where father purports to burden the estate by mortgage for purposes not necessary and beneficial to the family, the mortgage qua mortgage would not be binding on the sons unless the same was for the discharge of an antecedent debt, Where there is no an antecedency, a mortgage by the father would stand in the same position as an out and out sale by the father of family property for a purpose not binding on the family under which he receives the sale price which is utilised for his personal needs.
It need hardly be added that after the joint status of the family is disputed by a partition, the father has no right to deal with the family property by sale or mortgage even to discharge an antecedent debt, nor is the son under any legal or moral obligation to discharge the post-partition debts of the father.
(4) Antecedent debt in this context means a debt antecedent in fact as well as in time, i.e., the debt must be truly independent and not part of the mortgage which is impeached. In other words, the prior debt must be independent of the debt for which the mortgage is created and the two transactions must be dissociated in fact so that they cannot be regarded as part of the same transaction.'
These observations make it clear that, whether the transaction is a mortgage or an out and out sale, there can be no any antecedency regarding the alienee's obligation to refund if the mortgage or the sale Is set aside. It must be noticed that the liabilities of the father on the ground of failure of consideration would arise only as a consequence of the decree for partition. Therefore, the obligation or debt if any which the father has to bear is a post-partition debt and not an antecedent debt. If this is the position, then in such a case no moral obligation would attach to the son to bear the obligation of the father. This aspect of the matter has not been considered in the decision in R. A No. 121 of 1957 (Mys). In any event the decision of the Supreme Court cited above takes the view which is contrary to what has been done in R. A. No. 121 of 1957 (Mys). This Court is bound to follow the decision of the Supreme Court. The relevant passage in Mulla's Hindu Law is as follows:--
'Where an alienation is not for legal necessity or for payment of an antecedent debt, and it is set aside at the instance of the other coparceners as regards their shares, there is no equity. entitling the alienee to a refund of a proportionate part of the purchase money in respect of those shares. And it has been held that even if a suit is brought by the sons for partition and for setting aside an alienation made by their father, the sons are not, as a condition to recovering their share of the property, under a pious obligation to refund to the alienee their share of the consideration received by the father. The ground of the decision is that the pious obligation to pav the father's debts attaches only to a debt existing at the date of the suit and that the consideration received by the father from the alienee is not in the first instance a debt due from the father. It becomes a debt only when the alienation is set aside and a decree is obtained by the alienee against the father for failure of consideration.'
(underlining is mine). In the view of the decision of the Supreme Court cited above supported by the observation in Mulla's Hindu Law quoted above, it appears to me that there is no support for the condition imposed by the learned Civil Judge.
4. Sri C. M. Desai, learned counsel for the respondent submitted that the question as to whether the sons would be liable to bear the obligation of the father arising out of the failure of the consideration in respect of the alienations effected by him may be referred to a Bench for reconsideration of the decision in R. A. No. 121 of 1957 (Mys). It appears to me unnecessary to do so for the reason that the question that arises in this case as to the nature of the debt whether it is antecedent or not has not been considered in the above decision. The decision of the Supreme Court leaves no doubt regarding the legal position. A3 submitted by the appellant's counsel the condition imposed on the plaintiff amounts to compelling them to purchase their share and the plaintiffs cannot be compelled to do so. Such a condition nullifies the right of a coparcener to impeach the alienations not supported by, any legal necessity,
5. In these circumstances, the second appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the learned Munsiff are restored. In the circumstances of the case, I direct each party to bear his costs.