Subramanian Poti, J.
1. The second defendant in the suit, one Sastha Pillai, along with his mother, the first defendant executed a simple mortgage of items 2 to 5 and 1 acre 71 cents out of item 1 in the plaint schedule in favour of the 3rd defendant, the Caldian Syrian Bank Limited, Trichur, Sastha Pillai belonged to a family governed by Hindu Mitakshara Law and the properties dealt with by him under this mortgage, Ext. D2 of 8-10-1954 were those obtained by him on the death of his father and therefore were necessarily ancestral properties in his hands. The third defendant bank obtained a decree on Ext. D2 mortgage in O. S. 9 of 1957 of the Sub Court, Tiravalla. This was on 24-8-1957. On 1-2-1961 the second defendant and his mother together executed a sale deed for the entire item 1 in favour of the 4th defendant. Item 1 constituted, besides the 1 acre 71 cents included in the simple mortgage, Ext. D2, comprised in Survey No. 472/2, an extent of 1 acre 12 cents in Survey No. 471/11 also together making 2 acres 83 cents. It was this 2 acres 83 cents that was so sold under Ext. D1. The property comprised in Survey No. 471/11, 1 acre 12 cents was that acquired by the first (second?) defendant ir. his own name. It is claimed by the plaintiffs in the suit who are the wife and children of the second defendant that all the plaint items are joint family properties, items 2 to 4 and 1 acre 71 cents in item 1 having been obtained from their ancestor and 1 acre 12 cents in item 1 having been purchased in the name of the first (second?) defendant for the joint family while the first (second?) defendant was the manager. The mortgage to the 3rd defendant Bank and the sale deed of item 1 to 4th defendant are challenged in the suit as imprudent acts on the part of Sastha Pillai not binding on the joint family. It is said that the documents were unsupported by consideration as well as any necessity binding on the joint family, that at the time of the death of Narayana Pillai, the grandfather of plaintiffs 2 to 10, the joint family had no debts, but had considerable income from the properties and therefore there was no justification for the manager to incur debts or to alienate properties as had been done by Exts. D2 and D1. On these grounds plaintiffs seek the setting aside of these documents and recovery of item 1. It may also be mentioned that based on Ext. D2 mortgage the third defendant had obtained a decree in O. S. 9 of 1957 and there was a prayer in the plaint to set aside that decree also.
2. The suit was resisted by defendants 3 and 4 according to whom the documents taken by them were supported by consideration as well as necessity and they were binding on the joint family of the plaintiffs.
3. The evidence in the case indicates that Sastha Pillai, who was an advocate, took interest in many other activities. He began the construction of a cinema theatre and as it appears from the evidence, found that this was not a paying prospect when some rival theatre sprung up near about his own theatre. The evidence also indicates that he ventured into the business of production of motion pictures. It is also seen that contrary to his expectations he did not become prosperous but on the other hand became heavily involved. He had been incurring debts and consequently a number of decrees against him came to be passed. When he executed Ext. D2, the hypothecation deed in 1954, it is said that he had several debts. Ext. D2 was executed on receipt of amount due on prizing a kuri. He received Rs. 15,000/- as prize amount and executed the bond for securing the timely payment of future subscriptions. As to the purpose for which he prized the kuri and received the amount, there is a mention made in Ext. D2-
(Original in Malayalam omitted--Ed.)
There is no reference to discharge of any debt due from the second defendant. Ext. Dl was executed for a consideration of Rs. 18,500/-out of which Rs. 1,200/- was recited as having been received earlier, Rs. 7,000/- was recited as having been reserved for payment subsequently on demand by the second defendant and Rs. 10,300/- received in cash on the date of the document before the Sub-Registrar. There is no mention that any of these amounts were received or reserved for the purpose of discharging any debts of the second defendant or of the family. In fact there is no mention of the purpose for which the amount was received and the balance was reserved. On the other hand the document mentions that if any loss is caused to thevendee by any reason whatsoever besides the executants and their properties the properties to be purchased from out of the proceeds of the sale would also be answerable suggesting that the consideration under Ext. D1 was intended also for investment in other properties Of course, we may state here that there is no case or evidence that it was so invested in any other properties. On the other hand the evidence indicates that it was utilised by the second defendant. As to how he utilised it, there is difference of opinion between the parties, to which we will advert shortly.
4. The Court below has found, on the evidence in the case, that both the mortgage Ext. D2 as well as the sale, Ext. D1 are supported by consideration. That finding is not challenged before us. It is also found by the Court below that neither the mortgage nor the sale are supported by legal necessity. In fact no serious attempt has been made to show that there was necessity for executing the sale deed or the earlier mortgage. Of course, as we have pointed out, the documents do not refer to any such necessity. The circumstances relating to the situation of the parties do not also justify the Court inferring that the second defendant was so pressed as to enter into these transactions. It has not been shown that the business of the second defendant relating to the cinema was a joint family business. The Court below has rightly found that this business was not a joint family business. That too is not challenged here. Possibly the indulgence in such activities cost the second defendant heavily and necessitated his borrowing from all and sundry. There has been an attempt to show that he owed Ext. D7 decree amount to D. W. 2, Ext. D6 decree amount to D. W. 5, Exts. D10 and D11 decree amounts to D. W. 6 and Ext. D8 decree amount to D. W. 7. But it was not shown by the evidence in the case that the pressure by reason of any debt which the second defendant was bound to pay was such that Exts. D2 and Dl were necessitated and it was also not attempted to be shown that these debts were binding on the joint family of the plaintiffs. Hence we do not think that we should consider the question of legal necessity any further.
5. Nevertheless the alienation by a Hindu father in regard to properties of a coparcenary consisting of himself and his sons would be binding on the sons on the theory of pious obligation provided the alienations are effected for the discharge of antecedent debts. Of course, this is subject to the exception that the debt should (not?) be avyya-harika, not tainted by illegality or immorality. Parties here have no case or complaint against the conduct of Sastha Pillai that the debts incurred by him were incurred as a result of indulgence by him in any immoral life or by reason of illegal activities carried on by him. Therefore if these transactions were ef-fected to discharge antecedent debts, then, of course, they will have to be upheld as binding on the sons.
6. At the time Ext. D1 sale deed was executed the property covered by it was, as we have indicated, outstanding under Ext. D2 mortgage, 1 acre 71 cents out of item 1 was one of the items comprised in Ex. D2. There was no provision made in the sale deed to the 4th defendant even for paying off the third defendant Bank wholly or in part out of the sale consideration. Nor is there, as we have said, any indication in the document itself to show that the parties contemplated discharge of any liabilities of the second defendant by alienating the joint family properties. We may mention here that the court below has found that 1 acre 12 cents comprised in Survey No. 471/11 which is part of Item 1 has also been held to be joint family property. On that again there is no dispute in this case. Normally when property of a joint family is alienated by the manager and there are members other than those who are eo nomine parties to the document, it is to be expected that the alienee would take care to have the purpose for which the alienation is made stated in the document. In other words when such transactions are entered into, it is normal for parties to recite the necessity justifying such documents (transactions?) in the documents themselves. In assessing the answer to the question whether an impugned transaction is supported by necessity this would be one of the relevant matters. Though the creditor's duty extends only to making enquiries as to the existence of debts and the bona fides of the representation by the manager that it is for the discharge of debts binding on the family and such creditor has no further duty to see that the amounts received are applied for the discharge of the debts concerned, in a case where, as in the one before us, there is no mention of the necessity in the document itself, evidence of application of the proceeds of the sale towards discharge of the debts would perhaps go a long way to substantiate the case of intention of the parties to execute the sale for the discharge of antecedent debts. It is true that there has been some attempt at showing that the money obtained under Ext. Dl was applied for the discharge of debts. If that was what was intended by examination of D. Ws. 2, 5, 6 and 7, we must say that this attempt has miserably failed. On the other hand, their evidence indicates that there has been no application of the proceeds of the sale for meeting any of the liabilities of the second defendant. Their evidence is quite vague. They do not speak to a discharge of any particular sum at or about the time of Ext. D2 sale deed. In fact all of them speak to payment in small driblets of the decree amounts or portions thereof due from Sastha Pillai as a result of the coercive process taken by them in execution. That is why we have to observe that their evidence, possibly intended to show that there were debts payable bySastha Pillai at that time, will not be of any assistance to the alienees in proving that there was any application of the proceeds of Ext. D2 for payment of the debts. The mere fact that there were some debts owing from the second defendant at the relevant time may not be sufficient. What is relevant is that the sale deed should have been executed for the purpose of discharging these debts. Sastha Pillai could have equally well-received the amounts for his own use for further ventures or adventures. The recitals themselves if at all indicate that this must be the case. Evidence does not justify a contrary view. Hence it is not possible to agree with the view taken by the Court below that Ext. Dl was executed for discharge of antecedent debts. The sale deed must therefore be held to be not binding on the joint family of the plaintiffs.
7. Ext. D2 simple mortgage has to be held to be not supported by legal necessity. That is also not shown to be for any discharge of any antecedent debt. The liability to pay future subscriptions under a prized kuri is not a liability to pay a debt already incurred. The kuri subscribers and the foreman are governed by the terms of the contract between them and the obligation to pay instalments of the kuri even after the prizing arises not by reason of any bond executed by the prized subscriber but by the terms of the chitty variyola. The security bond, Ext. D2 in this case, is not executed for creating an obligation by way of repayment of any loan received. The prize amount received by the subscriber is so received as of right and is not repayable as a loan. What is paid subsequently is not to be taken as repayment of the prized money but only payment of the chitty subscriptions in terms of the original contract between the parties. The kuri bond is executed only to secure such payments which even otherwise would be due from the subscriber under the terms of the kuri variyola but for which an additional security by way of properties is created by Ext. D2. We have considered the nature of a debt arising by reason of the execution of kuri bond by the prized subscriber in A. S. 80 of 1969. In accordance with the view taken therein we hold that the bond was not executed for the payment of any debt and therefore it cannot be said that it is supportable on the ground that the father mortgaged the property for the purpose of paying off any antecedent debt of his.
8. A decree has been obtained on the basis of the mortgage. The decree is against the father. The decree is personally against him and also charged on the properties. This decree is challenged by the plaintiffs as not binding on their family. The mortgage deed too is challenged. The Court below has held that the third defendant, decree-holder, could proceed against the properties pursuant to the decree obtained by the third defendant by way of sale and that is challenged by the plaintiffs in this appeal.
9. The statement of the law in the case of Brij Narain v. Mangla Prasad, (AIR 1924 PC 50), the doctrine of pious obligation, was approved by the Supreme Court in Amrit Lal v. Jayantilal, (AIR 1960 SC 964). The Privy Council laid down five propositions of which the first three are relevant for the purpose of this appeal :
'1. The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purpose of necessity.
2. If he is the father and the rever-sionaries are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.
3. If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind more than his own interest.'
10. The Supreme Court had occasion to examine the scope of these propositions rather elaborately in the decision in Faquir Chand v. Harnam Kaur, (AIR 1967 SC 727). In that case one Murari Lal, the manager of a joint family consisting of himself and his son, Faquir Chand, borrowed Rs. 75,000/-from one Harnam Kaur and by a registered mortgage deed of the same date secured the immovable property of the joint family for the repayment of the loan. There was also a personal covenant therein to repay the loan. Part of the amount was received for discharge of antecedent mortgage debt. The suit was instituted on the mortgage and a preliminary decree for sale was obtained. The son, before such preliminary decree was so obtained by the mortgagee, instituted a suit against the mortgagee and his father claiming a declaration that the mortgage deed was for immoral and illegal purposes, was executed without legal necessity and was not binding on him. When the preliminary decree was passed he sought the amendment of the plaint and on such amendment the suit was one for declaration that the decree passed in the mortgage suit was not binding on him. Ultimately the matter reached the Supreme Court and the sale was stayed pending the decision of the appeal in that Court. The question that the Court had to consider was the scope of the liability of the share of a Hindu son to answer for a decree debt obtained on a mortgage executed by the father which mortgage was not shown to have been supported by legal necessity or as having been executed for the discharge of antecedent debts. It is quite well settled that when a money decree is obtained against the father, the creditor can proceed against the sons' interest in the joint family properties even though the son may not be a party to the decree and even though the debt is not one binding on the joint family. The only escape for the son in such a case is to plead and prove that the debt was avyavaharika. Whether therewould be any difference in a case where the father executed a mortgage of the properties of the joint family and the decree is obtained on the basis of such a mortgage was examined in the light of the propositions laid down by the Privy Council in Brij Narain's case AIR 1924 PC 50. That was the question the Supreme Court was concerned with. Possibly the third proposition as stated in Brij Narain's case may give room for a doubt that where the father purports to burden the estate by mortgage and it is not for discharge ot an antecedent debt, it would not bind more than his own interest and therefore a decree obtained on such mortgage would not be one for which the son is answerable. Such a view had been expressed in some earlier-decisions. But the Supreme Court categorically stated its view that in such a case also the son would be liable as on an ordinary debt so long as the debt was not tainted. The mortgage debt is as much a debt as a simple debt. In addition to the character of a loan there is the security of property also in a mortgage and therefore when a decree is obtained on a mortgage it nevertheless is a decree for payment of a debt. There is no reason why the Court should hold that to such a case the pious obligation of a son to discharge the decree debt of his father does not extend. The Supreme Court found that it was not open to the son to seek to restrain the execution of the decree.
11. But the Supreme Court had to consider another contention also in that case. It was urged by Faquir Chand, the son, that he was entitled to challenge the very mortgage on the basis of which the decree was obtained. The fact that the decree had been passed would not make any difference and that challenge could be on the basis that the mortgage itself was shown to be not one for discharge of any antecedent debt. The question was whether such a plea could be raised when as a decree debt the son's share of the family property was answerable on the theory of pious obligation. The learned Judges, dealing with this question, said-
'Counsel for the appellant stated that under the law by which the appellant is governed, a mortgage of a joint family property not being one for legal necessity or for payment of an antecedent debt will not bind the property only to the extent of the son's interest therein. Before the mortgagee obtained the decree on the mortgage, the appellant was therefore entitled to a declaration that such a mortgage did not bind his interest in the property. Is the position altered by the passing of the decree? We think not. The decree against the father does not of its own force create a mortgage binding on the son's interest. The security of the creditor is not enlarged by the passing of the decree. In spite of the passing of the preliminary ot final decree for sale against the father, the mortgage will not, as before, bind the son's interest in the property, and the son will beentitled to ask for a declaration that his interest has not been alienated either by the mortgage or by the decree.' In the view that the Court took the matter could not be disposed of without a finding on the question of legal necessity and though the evidence in the case left much to be desired their Lordships, in view of the fact that the case was fairly old, found on the evidence available that the mortgage was supported by legal necessity. In that view naturally the appeal had to be dismissed.
12. The counsel on both sides have attempted to read the decision of the Supreme Court in AIR 1967 SC 727 as supporting their respective cases. While, according to the alienee, the doctrine of pious obligation obliges the Hindu son to discharge the decree debt as an antecedent debt against the father and that is what has been found by the Supreme Court, counsel for the son relies on the further investigation made by the Court as to the binding character of the mortgage in support of his plea that, notwithstanding the decree, unless the mortgage is shown to be for an antecedent debt the decree could be avoided.
13. It appears to us that though the son cannot restrain the execution of a decree obtained against a Hindu father on the basis of a mortgage executed by the father that only renders the son's share being answerable for such decree. Even in such a case it is open to him to show that the mortgage is not binding as the enquiry by the Supreme Court in the very same judgment indicates. That such enquiry is relevant is evident. That would mean that, if in that case, it had been established that the mortgage had not been supported by legal necessity the result would have been different. In that event the Court would have been called upon to declare that the mortgage was unsupported by legal necessity or benefit to the Estate and not shown to be for antecedent debts. Such an enquiry and consequent finding would be relevant only for an ultimate finding that the mortgage was not binding on the interests of the sons in the joint family. The decree-holder will nevertheless be entitled to proceed to execute the decree obtained by him on the mortgage. But that would be not as if it was a mortgage decree obtained against the joint family but as a mortgage decree in regard to the share of the father and as a money decree against the interests of the sons in the joint family property. That may make a difference in many a case. In such a case the son's share may have to be attached before proceeding to sell it unlike the father's share answerable by reason of the charge under the decree. That would make a difference in law because any proceeding by the creditor against the interests of the sons in the joint family under a mortgage decree would not be subject to any rights that intervene between the date of the mortgage and the date of the sak whereas if it is not by virtue of a mort-gage decree that the sons' interests are proceeded against it will be only such rights as the sons possess in the property at the time of attachment that could be brought to sale.
14. To sum up : The Mortgage Ext. D2 though not shown to be supported by legal necessity binding on the joint family and not shown to be for discharge of antecedent debts is binding on the interests of the father and therefore the mortgage decree could be operative and executable as such in regard to his interest. The mortgage will not be binding on the interests of the plaintiffs in the joint family properties and therefore not executable as a mortgage decree as against them. All the same, by reason of the theory of pious obligation the interests of the plaintiffs in the mortgaged property and in the joint family properties would also be answerable for the decree obtained by the creditor on the debt and the decree is therefore liable to be enforced in that manner. The decree of the Court below in this regard, therefore, requires appropriate modification in the light of what we have said here. With regard to the sale deed we have already found that it has to be set aside and. the appeal has to be allowed to that extent.
15. As a result of setting aside Ext. D1 sale deed plaintiffs will be entitled to recover on behalf of the joint family item 1 of the plaint schedule. But since the 4th defendant is entitled to the value of improvements, if any, effected on that item before such recovery, the decree granted herein will only be a preliminary decree declaring that Ext. D1 sale deed stands set aside and that plaintiffs are entitled to recover possession subject to payment of value of improvements to be determined in the final decree proceedings. The question of mesne profits also will be considered at the time of passing such final decree and appropriate reliefs granted. The 4th defendant is no doubt entitled to the share of his alienor. The 4th defendant is an alienee of a specific item of joint family property and not an alienee of a share of a coparcener in the joint family properties. In such case he has only a right to seek appropriate decree for partition and allotment. What the remedy of a purchaser such as the 4th defendant would be could best be seen from the decision in Krishnan Nair v. Abraham, (1971 Ker LJ 162) = (AIR 1971 Ker 154).
16. It will be open to the plaintiffs to sue for partition as indicated in that decision and the decision in this case will in no way be a bar to such a course. We have already held as to what should be the modification with regard to the decree in regard to the declaration prayed for concerning Ext. D2 mortgage deed. Parties are directed to suffer costs in this appeal.
17. Though there is seen in the file what is termed as a cross-objection, it is not really a cross-objection, but only objection tofindings. No point raised in the said objection has been urged before us.