1. This is an appeal by the plaintiffs to the extent to which the suit has been dismissed by the learned Subordinate Judge of Cuddalore. They are the sons of the first defendant, Kannikonda Reddiar. Plaintiffs 2 and 3 are minors represented by their elder brother, the first plaintiff, as their next friend. The suit was for partition and the question raised relates to the binding character of the alienations effected by the first defendant. The family was agriculturists. But the father also ventured upon a bus business. The learned trial Judge held that the alienations were justified and granted a decree only in respect of items which had not been alienated. In this appeal, the plaintiffs question the finding of the learned Subordinate Judge in respect of the alienations.
2. The first alienation is a mortgage Exhibit B-3, executed by the first defendant for himself and as guardian for his three sons in 1958, for a sum of Rs. 12,000/- in favour of Konda Reddiar, the predecessor-in-title of defendants 2 to 6. That culminated in a suit in O. S. No. 103 of 1964 wherein the defendants 2 to 6 obtained a decree. It is seen from the judgment of the learned Subordinate Judge that the consideration really passed and that the mortgage was effected for agricultural purposes. Hence, no question arises in respect of this alienation and we confirm the finding of the learned Subordinate Judge.
3. The next alienation is under Ex. B-9 dated 10-8-1963. That is a sale deed executed by the first defendant for himself and as guardian for his sons plaintiffs 1 to 3 in favour of defendants 7 to 10 for Rs. 12,000/-. As pointed out bv the learned Subordinate Judge, the consideration is made up of three items, namely, (i) Rs. 3,000/- in discharge of an earlier usufructuary mortgage under Exhibit B-7, (2) Rs. 3,000/- payable by the vendees towards the debt due on the original of Exhibit B-3, and (3) Rs. 6,000/-paid in cash for family expenses for the maintenance of the minors, for discharge of the antecedent debts of the joint family and for payment of the instalment due for the bus belonging to the joint family. The learned Subordinate Judge finds that these items of consideration were real and nothing has been said before us by Sri K.N. Balasubramaniam to enable us to take a different view. We confirm the finding of the learned Subordinate Judge. On the findings, it will be seen that all the debts to discharge which the sale was effected were antecedent debts and therefore the sale would be justified according to the decision of the Privy Council in Brij Narain v. Mangal Prasad, ILR 46 All 95 : AIR 1924 PC 50; Sri K. N. Balasubramaniam, however, urged that in so far as the last item of consideration was in part utilised for the bus business newly started by the father, the first defendant, the father had no right to impose that new business on his sons according to the decision of the Privv Council in Benares Bank Ltd. v. Hari Narain . But as explained by Varadachariar and Abdur Rahman, JJ. in Venkateswara Rao v. Ammayya : AIR1939Mad561 the scope of the decision in the Benares Bank case was limited. All that their Lordships pointed out in that case was that just as a manager of a joint family cannot encumber the joint family properties by starting a new business, a father also cannot alienate, ancestral properties for starting a new business. But they did not decide the question of liability of the sons under the pious obligation theory to satisfy the debt incurred by the father. Varadachariar and Abdur Rahman, JJ. pointed out that the question was sought to be raised in the Benares Bank case but their Lordships did not allow this point to be raised before them because the question had not been raised in the Court below, and the learned Judges make it quite clear that all that the Benares Bank case holds is that a mortgage sale would not be valid as such where the father mortgages or sells ancestral property for starting a new. business. But where he sells ancestral property in order to discharge an antecedent debt, it would be binding even though the antecedent debt had been Contracted for starting a new business. That is precisely the case here. The learned Judges clearly point out that starting a new business like the bus in this case cannot be called Avyaharika and that the sons would be liable to pay it on the pious obligation theory, (see also para. 317 of N.R. Raghavachariar. Hindu Law), Hence, in the case of Ex. B-9, the sale is binding on the plaintiffs.
4. The third item is in respect of item No. 25 mortgaged in favour of the thirteenth defendant. Really it was a transaction of exchange and it seems to us that it was beneficial for the family. So it would be justified even on the grounds of benefit.
5. The appeal has to fail in respect of defendants 7 to 11 and 13 to 15 on another ground, namely, that though the properties are in the possession of such strangers, court-fee has not been Paid for recovery of possession from them as required by Section 37(1) of the Court-fees Act, 1955.
6. There is no merit in the appeal and it is accordingly dismissed, but without costs.