1. The plaintiffs are the appellants. Plaintiffs Nos. 2 to 4 are the sons of plaintiff No. 1 and they belong to a Hindu Mitakshara Joint family governed by the Madras School of Hindu Law. The case of the plaintiffs is that the first plaintiff borrowed a sum of Rs. 300 in 1946 from late Dudorso Ganda, the father of defendants Nos. 1 and 2. Thereafter plaintiff No. 1 used to borrow small amounts occasionally from Dudorso and by 1949 the loan amounted to Rs 700. For this amount of Rs. 700 the first plaintiff executed a mortgage bond (Ex A/11 dated 5-6-49 on chidni (self-liquidation) basis for a period of 7 years in respect of a portion of the ancestral family lands. The implication of this arrangement is that the mortgage amount would be fully satisfied by the mortgagee enjoying the usufruct of the land for 7 years. After the expiry of the period of 7 years, the defendants failed to return the land in spite of repeated demands made by the plaintiffs. The defendants Nos. 1 and 2 on the other hand claimed that the transaction evidenced fay Ex A/1 was not a mortgage but a sale. The suit was therefore instituted for redemption of the land. It was contended in the alternative that assuming that the transaction was a sale, it was not binding on plaintiffs as it was obtained by fraud. Defendant No. 3 was added as a party being a subsequent alienee of a portion of the suit property from defendants Nos. 1 and 2.
2. Defendants Nos. 1 and 2 who alone contested the suit contended that the transaction evidenced by the document Ex. A/1 was a sale but not a mortgage, that the suit property was not the ancestral property of plaintiff No. 1 but his self-acquired property and that there was legal necessity for the sale.
3. The concurrent findings of the Courts below are that the alienation evidenced bu Ex. A/1 was a sale but not a mortgage: that it was not for legal necessity nor were plaintiffs Nos. 2 to 4 benefited by the transaction and that the alienation was not made for payment of any antecedent debt of plaintiff No. 1 Under the Madras School of Hindu Law to which the parties belong, a coparcener can alienate his own interest in the joint family properties, but where he alienates more than his interest in the joint family properties the alienation not beingone for legal necessity or lor payment by a father of an antecedent debt, the other members are entitled to have the alienation set aside to the extent of their own interest therein. The learned Munsif therefore held that the sale is not valid to the extent of 3/4th interesl of plaintiffs Nos. 2 to 4 and directed that they be put in joint possession of their 3/4th share along with defendants Nos. 1 and 2 and made it conditional on plaintiffs- Nos. 2 to 4 paying the proportionate consideration money amounting to Rs. 525 to the defendants Nos. 1 and 2. This decision of the learned Munsif was upheld in appeal by the District Judge, Jeypore. Being aggrieved by this decision, the plaintiffs have preferred this Second Appeal.
4. Although several grounds were taken up in the memorandum of appeal Sri Y S. N. Murty the learned advocate for the appellants did not press any of them excepting the one relating to the direction of the learned Munsif that as a condition precedent to the plaintiffs Nos. 2 to 4 recovering their 3/4th interest in the suit property they should refund to defendants Nos 1 and 2 the proportionate share of the consideration money amounting to Rs. 525 and this leads us to a consideration of the question as to what the equities are on setting aside the alienation in trip circumstances stated above.
5. There, is a conflict of opinion amongst the several High Courts whether where a sale is effected by the father and the suit is brought by the sons in their father's lifetime to set aside the sale, the sale not being one either for legal necessity or for the payment of an antecedent debt, the sons are entitled to a decree without refunding the whole or any part of the purchase money to the purchaser The High Court of Calcutta has held that they are not entitled to a decree without refunding the whole of the purchase money: Koer Hasmat Rai v. Sunder Das, (1885) ILR 11 Cal 396, while this view has been dissented from by the High Courts of Madras and Allahabad, T.K. Sreenivasa Aiyangar v. Kuppaswami Aiyangar, AIR 1921 Mad 447; Madan Gopal v. Sati Prasad AIR 1917 All 326. The short facts of the case eported in (1885) ILR 11 Cal 396 are that one Raja Dunput Rai who was living jointly with his minor sons sold certain joint family properties for Rs. 10,000 to one Beni Pershad. His two minor sons thereafter instituted a suit claiming their 2/3rd share in the properties sold by the father on the around that they were ancestral properties of the family governed by the Mitakshara School of Hindu Law, that the sale by their father was not made for any legal necessity of the family but solely for the purpose of providing for his own extravagant expenses and that therefore the transaction is not binding on them. The court held that there being no evidence that the money was raised for immoral purposes the plaintiffs were not entitled to a decree without, refunding the whole of thepurchase money The reason for this direc tion is expressed thus:
'Now, if the sale be set aside in this case, it is clear that the purchaser would be entitled to recover the purchase money from Raja Dunput Rai, the father of the plaintiffs It would be, therefore, their father's debt, and unless they show that it was contracted for immoral purposes mentioned in the Hindu Shastras, the whole of the ioint family property, including the disputed mouzabs in their hands, would be liable for it.'
This view was expressly dissented from by a Division Bench of the Madras High Court in the case reported in AIR 1921 Mad 447. Referring to the dictum of Mitter, J. in the Calcutta case referred to above. Sehagiri Aiyar J stated :
'With all respect this dictum ignores the principle that a decree in a partition suit relates back to the date of the filing of the plaint What we have to see is whether on the date of the plaint there was a personal debt if the father which could be enforced in the suit against the sons under the Hindu Shastras On that date, while the sons claimed that the sale should be set aside the father and the alienees contended that the alienation was binding on the plaintiff The possibility of an event happening which might throw on the father an obligation for unliquidated damages is not within the principle relating to the pious obligation of the sons The principle itself is alien to other systems of jurisprudence and therefore its operation should be limited to the letter of the law.'
The Madras case, however, is one where the sons had filed a partition suit against the father in which the alienees were joined for the purpose of setting aside the father's alienations of the joint family property. The decision in that case proceeded on the footing that the severance of the joint family status was brought about the moment the partition suit was filed and that on that date there was no debt of the father. It is only where the alienation is set aside either in whole or in part that the obligation of the father arises to make good the loss sustained by the vendee and this obligation could be enforced against the father by filing a suit Till a decree is passed in the said suit there is no debt of the father which the sons would be bound to discharge. As disruption of the joint family status had already been brought about by institution of the suit the sons would be under no pious obligation to discharge the father's debt which would come into existence after partition
In the case before us there is no disruption of the joint family status between the appellant No. 1 and his sons. The family is still joint. But the mere possibility of defendants Nos 1 and 2 filing a suit against the appellant No. 1 for recovery of a part of the purchase money and obtaining adecree against him' and thereby creating a debt payable by appellant No. 1 does not mean that there is at present a debt due bv appellant No. 1 which appellants 2 to 4 are bound to discharge. In the case reported in AIR 1917 AH 326 the suit was brought by the plaintiffs for setting aside the sale deed executed by their father defendant No 2 in favour of defendant No. 1 and for possession of the property comprised in the sale. The ground upon which the suit was brought was that the sale was not effected to discharge an antecedent debt or for family necessity The trial court dismissed the suit. The lower appellate court held relying on (1885) ILR 11 Cal 396 that the plaintiff could recover the property on condition of paying to the vendee the amount of consideration which was actually advanced by him on the ground that this amount must be deemed to be a debt due by the father. The High Court of Allahabad expressed its disagreement with the view of the Calcutta High Court on the ground that the money paid to the father as consideration for the sale cannot be regarded as a debt of the father until the sale has been set aside and the right of the vendee to get back the sale consideration from the father has accrued. The learned Judges observed that the money so paid to the father may at some subsequent time become a debt of the father but until that contingency arose it cannot be deemed to be a debt for which the sons, at the time when they got the sale deed set aside, can be held liable.
In a case of our High Court, Karra Veebhadraswamy v. Ragumanda Appala Naidu reported in (1959) 1 OJD 60 a minor son brought a suit for setting aside several sale deeds executed by his father in favour of several alienees on the ground that the alienations were not for legal necessity or for payment of antecedent debts. While setting aside some of those alienations the court ordered as a condition precedent to the recovery of the property that the plaintiff should pay the proportionate consideration money to the alienee. The reasons for putting such a condition and the law on the subiect had not neen discussed in this judgment. It cannot therefore be said in the circumstances that the question under consideration has been covered by any decision of this High Court. Reviewing the law on the subject and the conflicting opinions of the different High Courts referred to above I feel that there is considerable merit in the view expressed by the Allahabad High Court The Calcutta view, if I may sav so with respect, is too widely stated. The liability to pay the debts contracted by the father, though for his own benefit arises from an obligation of religious piety which is placed upon the sons under the Mitakshara law to discharge the debt of the father, if the debts are not tainted with immorality. To saddle this liability on the son it is necessary that it must be anexisting debt. At present there is no debt due from the father appellant No. 1. That contingency would arise only after the alienation in respect of the shares of appellants Nos. 2 to 4 is set aside. At the present moment therefore there is no existing debt by the father which the sons are bound to discharge That being so there is no jurisdiction for directing the appellants Nos. 2 to 4 to refund the proportionate amount of the consideration money as condition precedent for setting aside the alienation.
6. I would accordingly allow this appeal in part and modify the decree passed by the trial court to this extent that the appellants Nos. 2 to 4 would not have to refund Rs. 525 as condition precedent to get joint possession of their share in the suit properties alone with defendants Nos. 1 and 2 The appellants Nos 2 to 4 are entitled to recover proportionate costs of this appeal from respondents Nos 1 and 2.
G. K. Misra, J.
7. I agree.