John Wallis, C.J.
1. We have been asked in this case to depart from the usual form of decree in suits for partition between sons and their father in which alienees are joined for the purposes of setting aside the father's alienations of the joint family property, one of the commonest classes of suits in this Presidency, by making the setting aside of the alienations conditional on the refund by the sons of the moneys paid to the father in consideration of the alienations on the ground that the father becomes liable to make such a refund on the setting aside of the alienations and that his sons at the same time incur a pious obligation to discharge the liability. The setting aside of such alienations has often been made conditional on the refund to the alienees of such part of the consideration as was shown to have been advanced by them for necessary purposes, including in that term the discharge of the father's debts antecedent to the alienations in discharge of which the son's shares could have been brought to sale by reason of their pious obligation to discharge their father's debts, and a similar equity would no doubt be recognized if it were shown that the purchase money had been carried to the joint family assets, as observed in Modhoo Dyal Singh v. Golbur Singh (1868) 9 W. R , 511 but it has never been the practice of this Court to make the setting aside conditional on the refund by the sons of the consideration for the alienations paid by the alienees to the father. Further, it was held by Sir Barnes Peacock and a Full Bench of the Calcutta High Court in the case already cited that no such condition could be imposed except in circumstances such as I have mentioned. I am unable, with great respect, to agree with the view of Mitter, J., in Koer Hasmat Rai v. Sunder Das I.L.R.(1885) , Calc., 396 , that this judgment of Sir Barnes Peacock and the Full Bench was virtually overruled by Sir Barnes Peacock himself delivering the judgment of the Judicial Committee in Girdharee Lall v. Kantoo Lall (1874) L.R., 1 IndAp, 321 , where this question is nowhere dealt with. On the contrary, it seems to me that the Calcutta Full Bench decision is much more in accordance, than Koer Hasmat Rai v. Sunder Das I.L.R.,(1885) Calc., 396 , and the cases which have followed it, with the principles underlying the most recent decision of the Privy Council in Sahu Ram Chundra v. Bhup Singh I.L.R.,(1917) All., 437. It is there pointed out that the alienation of joint family property by a father where there is neither necessity nor antecedent debt amounts to a plain breach of trust, and that the Mitakshara Law does not warrant or legalize any such transaction. It follows in my opinion that the Courts are bound to afford the sons adequate relief in the nature of a restitutio in integrum unfettered by any conditions based on the alleged pious obligation of the sons to pay their father's debts. I am more over not satisfied that any such pious obligation exists in this case. Any liability which the father may incur to the alienees on such unconditional setting aside of the alienation arises from his own immoral act in making the alienation in the first instance, in breach of the duty which he owed to his sons as manager of the joint family property, and I do not think the sons can properly be held to be under any pious obligation to relieve him from the consequences of his unsuccessful attempt to defraud them. I do not think the decided cases oblige us to go so far. To recognize such an obligation would in my opinion be very largely destructive of the sound and wholesome principles enforced by the Privy Council in the case referred to and opposed to the settled practice of the Court in suits of this nature. Otherwise, I agree with the order proposed by my learned brother.
Seshagiri Ayyar, J.
2. We have now dealt with the various alienations. The Subordinate Judge has held that, even though the alienations are not binding on the plaintiff and the second defendant, they should pay to the alienees their share of the money which the first defendant, the father, received for the conveyances he executed.
3. The practice on the Original Side of the High Court and in mufassal is opposed to this conclusion. In suits for partition, the usual decree is to direct the co-parcener to pay his share of the debt which is found to be binding on the family. The decided cases support this practice. It was contended that as the consideration paid for the alienations was not spent for illegal or immoral purposes, it should be regarded as a personal debt of the father which the son is bound to discharge as a pious obligation recognized by Hindu Law. Mr. Narasimha Ayyangar contended that, as on the date of the suit, there was no debt due from the father, no question of pious obligation arises. There can be no doubt that a partition decree speaks from the date of the plaint and it is well-established that the moment that a plaint in a contested suit is filed there is a severance of the joint family. On the date of the plaint, there were alienations of the family property, but they were made for consideration received and not for any antecedent debt. Under Section 54 of the Transfer of Property Act, in effecting a sale otherwise than for a preexisting debt, the vendor is either paid or promised a consideration. Such a consideration is not a debt owed by the vendor. Therefore, when the suit was filed there was no debt of the father. On the alienation being set aside, an obligation to make good the loss sustained by the vendee to the extent the consideration fails would arise. This obligation could be enforced against the father by filing a suit for damages. Till a decree is obtained, there is no debt of the father. The only authority which supports the contrary view is Koer Hasmat Rai v. Sunder Das I.L.R.,(1885) Calc.,396.
4. Before dealing with this case, I shall make a few observations on the theory of the pious obligation of the sons. I had originally intended to rest my decision on the decided cases, but after a discussion with the learned Chief Justice on the point and having regard to the case law on the subject, I think it desirable that I should state my view on this branch of the Hindu Law. As is well-known the liability to a personal debt of the father is founded on a text which has been translated by Mayne thus:
The sons are not compellable to pay Hums due by their father for spirituous liquors, for losses at play, for promises made without any consideration or under the influence of last or wrath; or sums for which he was a surety or a fine or a toll or the balance of either,
nor generally any debt for a cause repugnant to good morals.
5. Every recognized smriti writer has embodied this injunction. The principle underlying the text is that the son should relieve the father from the pangs of hell by paying off his undischarged debts. A high ideal of moral responsibility and of filial duty is responsible for introducing this principle. In the ancient patriarchal days, when the father was the law-giver of the family, its protector and practically its Divinity, the sons-were enjoined from motives of piety to pay the debt which the father had contracted. It is a pity that this moral precept was ever seriously enforced in a Court of Law. Many a text has been consigned to the limbo of oblivion on the ground that it is ill-suited to the times or was intended only as a directory admonition and not as a mandatory rule. This text should have shared the same fate. In my opinion the father, can hardly be expected to be rescued from hell when the son is compelled, very much against his will and with imprecations in his mouth, by a decree of Court to make the payment. One of the commonest forms of defence in a creditor's action against the sons is to attribute to the father illegality, immorality and all other vices known to law. In such a state of society, the enforcement of the theory of pious obligation seems incongruous. Unfortunately, however, on. this text has been founded a large number of decisions which have practically ignored the root principle underlying it. The decisions have laid down that a son is bound to pay the debt of a father which has been brought into existence by the committing of a breach of trust. For example, in Venugopala Naidu v. Ramanadhan Chetty I.L.R.,(1914) Mad., 458, it was held that the son was liable for the father having unauthorizedly spent temple money. In Ramkrishna Trimbak v. Narayan I.L.R.(1916) , 40 Bom., 126, the son was held liable to pay a debt contracted by the father in carrying on a trade prohibited by Government. In Hanumat Mabton v. Sonadhari Singh (1919) 4 Patna L.J., 653, a mortgage by the father created for meeting charges of a criminal offence was held binding on the son. In Hanmant Kashinath v. Ganesh Annaji I.L.R.(1919) , 43 Bom., 612, the son was held liable for a civil breach of trust committed by the father. No doubt it has been held that if there has been a criminal breach of trust the son will not be liable, but the distinction between a civil and criminal breach of trust is very thin and it would not be easy in all cases to say whether the breach of trust is of such a character as would not subject the father to a prosecution. I have cited these cases for the purpose of showing to what extent the theory of pious obligation has been pushed. In Sahu 'Ram Chundra v. Bhup Singh I.L.R(1917) , All., 437, Lord Shaw, in delivering the judgment of the Judicial Committee, said that a father' alienating property not for any of the purposes warranted by law would be committing a breach of trust. Now, if a son is liable for a debt arising from a civil breach of trust against third parties, can it be said that he should not be liable for a technical breach of trust committed against himself I wish that this statement of the law by the Judicial Committee should be enforced strictly. In that case, all these decisions which have put a strained construction upon the theory of pious obligation by compelling sons to pay the debts which have in no way benefitted them may have to be reviewed. In my opinion the decisions commencing with Nunna Setti v. Chidaraboyina I.L.R.(1903) , Mad., 214 , wherein Sir V. Bhashyam Ayyangar, J., speaks of a decree debt giving rise to a fresh cause of action against the sons, and ending with the decision to which I was a party, where it was held that a decree obtained against a father when the father and the sons were undivided for damages for failure of consideration should all be reconsidered. Fortunately, this case can be disposed of without directly impugning the authorities I have quoted.
6. Now I shall proceed to consider the Judgment of Mr. Justice Mitter in Koer Hasmat Rai v. Sunder Das I.L.R(1885) ., Calc., 396, The learned Judge says:
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 Dunpat 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 joint family property, including the disputed mouzahs in their hands, would be liable for it.
7. 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 of 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 damage 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.
8. In Peda Venkanna v. Sreenivasa Deekshatulu I.L.R.,(1918) Mad., 136 it was held by the learned Chief Justice and KUMARASWAMI SASTRI J., that the decision of the Judicial Committee in Sahu Ram Chundra v. Bhup Singh L.R., 44 IndAp, 126 , should not be regarded as upsetting the long course of decisions in this Presidency that the pious obligation arises even daring the life-time of the father. In Calcutta the same view has been taken. But no decision has laid down, excepting Koer Hasmat Rai v. Sunder Das (1885) I.L.R., 11 Calc., 396, that a possible unliquidated claim for damages should be considered as a debt payable during the life-time of the father. In Kilaru Kotayya v. Polavarapu Durgayya : (1918)35MLJ451 , Mr. Justice Abdur Rahim says:
The consideration of Rs. 800 was paid for the sale of the property and no question of debt could arise until, at least, the sale is set aside.
9. I entirely agree with this observation. In Subbaya Mudaliar v. Thulasi Mudaliar (1914) M.W.N., 16 , Mr. Justice Sadasiva Ayyar took the same view. Madan Gopal v. Sati Prasad I.L.R.(1917) , All., 485 is also to the same effect.
10. I have already, in a general way, referred to some of the Madras decisions quoted by Mr. BHASHYAM AYYANGAR. I shall now deal with a few of them specifically. The observation of Mr. Justice Bhashyam Ayyangar in Periasami Mudaliar v. Seetharam Chettiar I.L.R.(1904) , Mad., 243 , that such an obligation becomes a debt of record for which a new cause of action will arise has been accepted in more recent decisions. In Raman Pandithan v. Satha Cudumban : (1916)31MLJ502 , to which I was a party, we held that where, on the setting aside of a sale, a decree was obtained against the father for failure of consideration, that decree may be executed against the sons' share in the family property. In Muthu Krishna Naidu v. Muthu Krishnappa Naidu (1917) M.W.N., 273, the same view was taken. In all these cases, there was no severance of the joint family status; and it was held that, when after setting aside the sale, the family continues to be joint and a personal obligation is converted into a decree debt, the principle of pious obligation could be invoked in favour of the alienee, but where, as in the present case, the joint family is disrupted by the filing of the suit and a decree for partition is given, the principle has no application. In Sivaganga Zamindar v. Lakshmana I.L.R(1886) ., Mad, 188, to which Mr. Justice Muttuswamt Ayyar was a party, in Krishnasami Konan v. Ramasami Ayyar I.L.R.,(1899) Mad., 519 decided by Subrahmanya Ayyar and Davies, JJ., and in Kilaru Kotayya v. Polavarapu Durgayya : (1918)35MLJ451 , it was held that after division no question of pious obligation arises.
11. I respectfully follow these decisions and hold that the decree of the Subordinate Judge directing the plaintiff and the second defendant to pay their share of the money received by the father for the conveyance should be set aside to that extent. We may point out that, wherever possible, in passing the final decree the father's share should comprise such of the properties as have been already alienated by him.
12. The Subordinate Judge is also wrong in his conclusion on the third issue. A money decree was obtained against the plaintiff before this suit and that decree was satisfied by the first defendant, the father, from out of the joint family funds. The Subordinate Judge has directed the plaintiff to pay to the defendants 1 and 2 a third share each in the said decree debt. This is wrong. The debt having been paid from family funds, the plaintiff is not bound to pay his father or his brother any portion of it. The decree to that extent also must be varied. Before finally disposing of the Appeal, we must direct the Subordinate Judge to return a finding regarding the amount of mesne profits from the date of plaint due to the share of the plaintiff and the second defendant regarding items covered by Exhibits XI Ia, XIII, XV, XVa, XVIlla, XXI, XXVIII and XXXa. Either party will be allowed to file fresh evidence and 2 months will be allowed for the return of findings and 10 days for filing objections. Plaintiff is entitled to his cost against the alienee.