1. The father of the defendants sold certain family properties to the plaintiff in 1894. The vendor died in 1904. The defendants sued the plaintiff in 1905 for possession on the ground that the sale was not binding on them. The litigation went up to the High Court and it was there decided that the sale qua the father's share was good, but that the defendants' 5/6th share in the properties was not bound by it. With the consent of all the parties, the defendants were allotted their 5/6th share as on partition.
2. The present suit is to recover 5/6th of the consideration paid for the sale of 1894, on the allegation that the consideration failed to that extent, when the High Court held that the plaintiff was entitled to only 1/6th of the properties sold. The basis of the suit is the pious obligation of the defendants to discharge their father's debt which was neither illegal nor immoral. The courts below have decreed the claim.
3. Before dealing with the main point argued, we may dispose of some of the objections to the form of the decree. It was argued that if the foundation of the action is the failure of consideration, the plaintiff should not be allowed to retain 1/6th of the property, as if it represented a sixth of the debt, but that its value should be deducted from the debt advanced to the father. The analogy of Sections 14 and 15 of the Specific Relief Act may assist this contention. But the point not having been raised in the courts below and the materials available for apportioning the value not being available we must decline to consider the question.
4. The second objection is as to the phrasing of the decree. The decree as it stands makes the assets of the father in the hands of the defendants and their own joint family properties liable for the decree. Whatever may have been the difficulties in passing such a decree under Section 234 of the old Code of Civil Procedure, it seems to us that under Section 52 of the new Code, such a decree is perfectly legitimate. See Kameswaramma v. Venkata Subba Row I.L.R. (1914) M. 1190.
5. The main contention is that as the properties in suit were exonerated from liability in the previous suit, the plaintiff is not entitled to any relief as against them in this suit. In the former litigation, the present plaintiff was defending his title and he could not have legitimately advanced, what strictly speaking would be a counter claim, a right to be paid any portion of the consideration in case the sale to any extent was held invalid. No doubt, Courts, often, to prevent unnecessary litigation, adjust the rights of the parties by a consideration of what is generally termed 'equities on setting aside a sale'. But it cannot be said that the plaintiff was bound to have put forward this defence and that his failure bars his agitating his right in a fresh suit. The general practice, on the other hand, is to permit such suits to be instituted. In Shiam Lal v. Ganeshi Lal I.L.R. (1905) A. 288, in the creditor's suit against both father and son, the son was held not liable and a decree was passed against the father alone. On this decree, the joint family properties were attached. The son sued for a declaration that the attachment would not bind his interests. The learned Judges held that unless the decree debt of the father was illegal or immoral, the liability of the family property, on the pious obligation, cannot be questioned. In Periasami Mudaliar v. Seetharama Chettiar I.L.R. (1904) M. 243 : s.c. 14 M.L.J. 34 a Full Bench of this Court held that a decree debt against the father, which was held unavailable to attach the family property, would furnish a fresh cause of action for a suit against the sons. It was suggested that whatever may be the rule of law, in regard to a decree debt, the same principle cannot apply to what in reality is an unliquidated claim for damages against the father. We are unable to accept this view. There was a debt due from the father when the properties were sold. The sale was held in the last litigation to have wiped off one-sixth of that debt. The 5/6th remained unpaid. The present suit is to recover that portion of the debt. See also Yanamandra Papiah v. Lanka Subba Sastrulu : (1914)27MLJ276 . The decision on Sivaganga Zamindar v. Lakshmana I.L.R. (1883) M. 189 does not really help the appellants. The learned Judges held that, in that case, although the father purported to convey a full interest, he was not competent to do so and that the vendee must be deemed to have purchased only the life-interest. In this view, the Hindu Law liability of the son did not arise.
6. We hold, for the reasons already given, that the decrees of the Courts below are right and dismiss the second appeal with costs.