Alfred Henry Lionel Leach, C.J.
1. The rule of Hindu law which makes a son, liable for his father's debts, provided they '.have not been incurred for illegal or immoral purposes has been discussed in innumerable cases in the Courts of India and many of the cases have been carried to the Privy Council This appeal calls for a further discussion of the rule in order to settle a conflict of opinion in this Court with regard to its application.
2. In 1917 the first and second respondents with their father Lingayya constituted an undivided Hindu family. On the 22nd June, 1917, Lingayya purporting to act for his sons as well as himself, sold to the appellant for Rs. 1,350 land belonging to the family. The area covered by the deed was 6.34 acres. On the 19th July, 1917, the father died. On the 1st December, 1924, the first and second respondents filed in the District Munsif's Court a suit for a decree setting aside the sale to the appellant. They pleaded that their father was insane at the time of the transaction, that no consideration had passed and that there was no necessity for the sale. 'The District Munsif held that the father was sane and that consideration had passed, but that there was no necessity for the sale so far as the family was concerned. Consequently he declared the transfer to be invalid to the extent of two-thirds. On appeal the Subordinate Judge of Bapatla concurred in the decision of the District Munsif and the land was then partitioned between the first and second respondents,and the appellant under the decree of the Subordinate Court. On the 5th December, 1934, the appellant filed the present suit to recover a proportionate part of the purchase price. He claimed that he was entitled to a decree for Rs. 1,478, being two-thirds of the Rs. 1,350 with interest, on the ground that the pious obligation rule applied and that the vendor's sons were liable to the extent of the family property which had come into their hands. He also claimed that the first and second respondents were in possession, of properties belonging to their father personally and were liable as the representatives of his estate. The District Munsif considered that the pious obligation rule did not apply in such circumstances and dismissed the suit. The Subordinate Judge was of the same opinion and the present appeal is from the decree of the Subordinate Judge dismissing the appeal from the decision of the District Munsif.
3. The appeal has been placed before a Full Bench because of the conflict of opinion to be found in the judgments of this Court in Raman Panditham v. Satha Cudumban : (1916)31MLJ502 and Srinivasa Aiyangar v. Kuppuswami Aiyangar I.L.R.(1920) Mad. 801. In the first of these two cases the facts were very similar to the facts in the case now before the Court In 1894, the father of the defendants sold certain family properties to the plaintiff. The father died in 1904 and in the following year his sons sued the plaintiff for possession of their shares on the ground that the sale was not binding on them. It was held that the sale was unlawful so far as they were concerned and as their shares amounted to live-sixths of the whole ft was set aside to this extent. The vendee then, sued the sons to recover five-sixths of the purchase consideration, basing his claim on the pious obligation rule, and Seshagiri Aiyar and Napier, JJ., held that the claim was well founded. In the second of the two cases a sen during the lifetime of his father sued for partition of the family estate and also asked that certain alienations of family property which his father had made should be set aside. The Court was called upon to decide merely whether the son was entitled to a decree for his share in the family properties without being required to refund the consideration paid to his father by the alienees. It was held by Wallis, C.J., and Seshagiri Aiyar, J., that the son was entitled to recover his share without any obligation to refund being imposed upon him. If the judgments had stopped there the present controversy would probably have not arisen, but both Wallis, C.J., and Seshagiri Aiyar, J., went beyond the immediate question and the Court has now to consider whether their further observations can be accepted. There exists an important distinction between that case and the present one. There the question was whether the sons were entitled in a suit for partition filed by them against their father to have unlawful alienations made by him set aside unconditionally. Here the question is whether the sons can in a suit by the vendee be compelled by reason of their personal law to discharge a liability incurred by their father, namely a liability to refund a proportionate share of the purchase consideration. The liability to the vendee is the father's liability and until the transaction has been set aside the vendee is not in a position to invoke the pious obligation rule and if the father meets the vendee's claim the question of the application of the rule can, never arise.
4. Wallis, C.J., laid great stress on the judgment of the Privy Council in Sahu Bam Chandra v. Bhup Singh (1917) .33 M.L.J. 14 : L.R. 44 IndAp. 126 : I.L.R. 39 All. 437 .(P.C.) and after observing that it was 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 legalise any such transaction, he added:
It follows in my opinion that the Courts are bound to afford the sons adequate relief in the nature of a restitute in integrum unfettered 'by any conditions based on the alleged pious obligation of the sons to pay their debts. I am moreover 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 Ms unsuccessful attempt to defraud them.
It is true that in delivering the judgment of the Board in Sahu Ram Chandra v. Bhup Singh (1917) 33 M.L.J. 14 : L.R. 44 IndAp. 126 : I.L.R. 39 All. 437 .(P.C.) Lord Shaw expressed the opinion that the father, as the manager of the joint family of which he is the head, is in the position of a trustee and to permit him to use the family property for Ms own purposes would be equivalent to sanctioning a plain, and it might be, a deliberate breach of trust. The judgment delivered by Lord Shaw Was the subject of much comment, as at first it was read as laying down the proposition that a loan raised by a father for his own necessity on the security of joint family property could not be regarded as constituting an antecedent debt which would render a subsequent mortgage of family property binding on his sons. The pious obligation rule makes the sons of a Hindu father liable for his debts when they have not been incurred for an illegal or immoral purpose. The important factor is the purpose for which the debt is incurred. Though the father may in abuse of his powers have executed a deed purporting to charge family property this will not make the debt illegal or immoral. Two years after the judgment in Sahu Ram Chandra v. Bhup Singh (1917) 33 M.L.J. 14 : L.R. 44 IndAp. 126 : I.L.R. 39 All. 437 .(P.C.) was delivered a Full Bench of five Judges of this Court, Wallis, C.J., presiding, considered its effect in Armugham Chetty v. Muthu Koundan : (1919)37MLJ166 and the conclusion arrived at was that the Privy Council did no! intend to depart from what had upto then been accepted as the law and consequently held that a debt contracted by a Hindu father on the security of the joint family estate, provided that it was not contracted for an illegal or immoral purpose, is an antecedent debt and will support a subsequent mortgage which will involve the sons' shares in the property charged. Shortly after this decision had been given a Bench of this Court in Kandasami Goundan v. Kuppu Mooppan (1919) 38 M.L.J. 203 : I.L.R. Mad. 421 held that in a suit instituted against a Hindu father and his sons on a mortgage bond executed by the father alone the mortgagee was, notwithstanding that the mortgage was not binding on the sons, entitled to a conditional decree against the father personally and against the joint family property of himself and his undivided sons for the recovery of the balance should the proceeds of sale of the father's share of the mortgaged properties prove insufficient. In Brij Narain v. Mangal. Prasad a Full Board of the Privy Council accepted this Court's interpretation of Sahu Ram Chandra v. Bhup Singh (1917) .33 M.L.J. 14 : L.R. 44 IndAp. 126 : I.L.R. 39 All. 437 .(P.C.) and there laid down the following propositions of law : '
(1) The managing coparcener of. a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but
(2) If he is the father and the reversionaries 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 the estate.
(3) If he purports to burden the estate by mortgage, then unless that is to say, that the debt must be truly independent and not part of the transaction impeached.
(5) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.
In view of the judgment of the Judicial Committee in Brij Narain's case the dicta of Wallis, C.J., in Srinivasa Aiyangar v. Kuppuswami Aiyangar I.L.R.(1920) Mad. 801 cannot be accepted as correctly stating the law. Notwithstanding that in charging the family properties for his own necessity the father has exceeded his powers the debt incurred by him is one which falls within the purview of the pious obligation rule and can be enforced against the sons to the extent of their interests in the family property, The Hindu law makes no difference between a mortgage and a sale in this connection and; therefore the fact that the father has abused his powers does not, taint his obligation to the alienee to an extent which would justify the Court in holding that it is not vyavaharika.
5. The observations of Seshagiri Aiyar, J., in Srinwasa Aiyangar v. Kuppuswami Aiyangar I.L.R.(1920) Mad. 801 remain to be considered. Seshagiri Aiyar, J., said in effect that the pious obligation rule only applies to debts of the father which were enforceable when the? family was joint. He considered that the liability of the father to refund to the alienee the purchase price when an alienation of family property is set aside is a liability for unliquidated damages and not a debt, but even if it becomes a debt, it is not a debt on the date of the suit for partition. Seshagiri Aiyar, J., referred to his previous decision and distinguished it on the ground that in that case there had been no severance of the joint family status. In my judgment this distinction is not sufficient and I find myself also unable to accept the opinion which Seshagiri Aiyar, J., ex-.pressed with regard to the nature of the obligations to which the rule applies. I consider that the rule has a much wider application.
6. In Nachimuthu Goundan v. Balasubramania Goundan : AIR1939Mad450 my learned brother Krishnaswami Aiyangar examined with great care in the light thrown by the ancient texts, with which he is so well acquainted, the nature of the obligation of a Hindu son to die-charge his father's debts and his conclusion was that the rule is not confined to a debt known to the English Common few, but applies to other financial obligations incurred by the father, unless of course incurred for illegal or immoral purposes. I respectfully agree with all that my learned brother said there. He was not, however, called upon to express an opinion on the question whether the rule applies in the case where the father's liability is contingent and the contingency arises only after his death. That is the position in the present case and therefore it is necessary to carry the discussion somewhat further.
7. When a father sells family property without the needs of the family requiring the transaction to be entered into he becomes liable to return to the vendee a proportionate part of the purchase consideration should the other coparceners insist, as they have the right to do, on the sale being set aside so far as they are concerned. On this event happening the vendee can compel the father to ' make the refund. The position then is that until the transaction is set aside at the instance of one or more of the other coparceners the father's liability is contingent, but when the event has happened the liability becomes a present one. The basis of the pious obligation rule is the benefit which will accrue to the soul of the father by the discharge of his earthly obligations. This being the case it is difficult to see what difference the nature of the father's liability in the law can make, provide that it is a liability which the law recognises and is prepared to enforce in terms of money. When an unlawful sale of family property is set aside during the father's lifetime the vendee has an enforceable claim against the father for the return of a proportionate part of the purchase consideration and it seems to me that a liability of this nature must come within the rule, if it is to be applied in accordance with the wording of the texts and the underlying idea. If the transaction is set aside after his death the vendee has a claim against his estate and the situation is the same.
8. In Srinivasa Aiyangar v. Kuppuswami Aiyangar I.L.R.(1029) Mad. 801 Seshagiri Aiyar, J., said that 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. In Subramania Aiyar v. Sabapathi Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad 361 Coutts Trotter, C.J., described the rule as being an illogical relic of' antiquity, unsuited to any but a primitive society. Even if the description given by Seshagiri Aiyar, J., of the attitude of the Hindu son is a true one--it is not for me to express an opinion--I cannot imagine what difference it will make to the father if the son discharges a parental obligation with imprecations on his lips or with a smile on his face. What matters is payment to the father's creditor. The criticism of Coutts Trotter, C.J., is equally irrelevant in view of the fact that the rule still remains a rule of Hindu law and, as I. had occasion to paint out in Mohana Reddi v, Gangaraju : AIR1941Mad772 . the Court is bound to apply it unless the Legislature steps in and alters the law.
9. For the reasons indicated I consider that Raman Pandithan v. Satha Cudumban : (1916)31MLJ502 were rightly decided and that the observations in Srinivasa Aiyangar v. Kuppuswami Aiyangar I.L.R. (1920) Mad. 801 which are in conflict should be disregarded. It follows that in my opinion the Courts below erred in dismissing the suit and I would remand the case to the trial Court for decision on the other issues.
10. Learned Counsel for the respondent has intimated that his clients claim to be entitled to a scaling down of the debt in accordance with the provisions of the Madras Agriculturists' Relief Act. In the circumstances this claim should be made in the District Munsif's Court.
11. The appellant is entitled to his costs here and in the Subordinate Judge's Court. The decree for costs passed against him by the trial Court should be set aside and a direction given that the costs of that Court should abide the result of the trial. The appellant is also entitled to the refund of court-fees paid on this appeal to the Subordinate Court and on his appeal to this Court.
12. I agree and have nothing to add.
Krishnaswami Aiyangar, J.
13. While I concur with the judgment just now pronounced by my Lord, I have considered it necessary, in view of the importance of the question at issue, to add a few words of my own by way of criticism of some of the opinions expressed in Srinivasa Aiyangar v. Kuppuswami Aiyangar I.L.R.(1920) Mad. 801 The actual decision reached in that case, on the facts such as they were, is not open to question, if I may say so with respect. In arriving at the conclusion, that the alienee is not entitled to relief in the very suit in which the alienation is set aside, Wallis, C.J., was only following, as he himself stated, the practice of the Court according to which a condition for the refund of the consideration is not ordinarily attached to the decree. Such a condition can properly be imposed where the alienation is justifiable in part, but not in whole, as in such a case the alienee is obviously entitled to an equity in respect of that part of the consideration which is found good. But where on account of a total absence either of necessity or antecedent debt, the father's sale is declared not binding on the sons to any extent whatever, the alienee can claim no equity as the liability of the sons to refund the consideration arises independently of the sale successfully impeached by them in the suit.. It is in fact an extraneous obligation cast upon them by their personal law. On this ground it was that the learned Chief Justice came to the conclusion that the sons were entitled to relief in the nature of restitutio in integrum unfetted by any condition for the refund of the purchase money. This was sufficient to dispose of the case and the further question whether the disappointed alienee has a remedy against the sons by recourse to a separate suit did not arise for determination. But the Chief Justice went on to express the opinion that the father's liability to refund the consideration in the circumstances mentioned, does not constitute such a debt as the sons will be bound to discharge by reason of their pious obligation. Support for this opinion was derived from the observations of the Privy Council in Sahu Ram, Chandra v. Bhup Singh (1917) 33 M.L.J. 14 : L.R. .44 IndAp 126 : I.L.R. 39 All. 437. (P.C.) in which Lord Shaw authoritatively defined an antecedent debt as meaning a debt antecedent in time and dissociated in fact from the alienation in question. The noble Lord proceeded however to explain the principle in language which literally taken would tend to displace a long current of Indian authority and upset numberless titles to property. He observed that the joint family estate cannot be effectively sold or charged so as for bind the sons except when it is made,
In order to discharge, an obligation not only antecedently incurred but incurred wholly apart from the ownership of the joint estate or the security-afforded or supposed to 'be available for such joint estate.
The words italicised suggest a qualification not theretofore known to Hindu law, Sami Aiyangar v. Ponnammal I.L.R.(1897) Mad. 28 and for sometime was understood as laying down the proposition that no mortgage for ready money could ever be an antecedent debt the payment of which was capable of supporting a new and later mortgage. This qualification has since been declared untenable first by a Full Bench of this Court in Armugham Chetty v. Muthu Koundan : (1919)37MLJ166 and later by a Full Board of the Privy Council in Brij Narain v. Mangal Prasad (1923) 46 M.L.J. 23 : I.A. 51 I.A. 129 : I.L.R. 46 All. 95 (PC) on the ground that the observations of Lord Shaw were in the; nature of obiter dicta and not a decision on the point. It is in the passage thus commented on, there occur the other observations referred to by Wallis, C.J. which were obviously made for the purpose of elucidating the theory underlying the doctrine since exploded as mentioned. Lord Shaw said that to permit a father to mortgage the family property for his own purposes would be to enable him to sacrifice those very, rights which he was bound to conserve and that this would be 'equivalent' to sanctioning a plain, and it may be, a deliberate breach of trust.' Breaches of trust are of course offences against morality and may even sound in crime; and it may well be that a liability arising out of a breach of trust bears the taint of illegality or immorality. But even apart from authority, it is difficult to accept the proposition that an alienation by the father, when there was no necessity or antecedent debt, is a breach of trust in this sense; Legal expressions and legal concepts peculiar to one system of law do not always accurately fit into another system with a different origin and history and founded upon different theories. For instance the notion that the property of maths and similar religious institutions is trust property and those charged with its administration are trustees caught the fancy of lawyers and held the field for sometime in this country until the Privy Council set aside this view in Vidya Varuthi v. Balusami explaining away a previous decision of the Board in Ram Par-hash Das v. Anand Das . If I may say so with respect, expressions such as 'trust' and 'breach of trust' are strictly speaking out of place in describing the position of a father or manager in a joint Hindu family. Neither of them fills the position of an agent with respect to the family property in his charge, though it may be that some of his duties and functions may appear to be similar in character to those of trustees strictly so called (See Annamalai Chetty v. Murugasa Chetty . But it is necessary to bear in mind the warning uttered more than once before--the decision of the Privy Council in Arumilli Perrazu v. Subbamyadu is an instance in point--that it is a mistake to apply to such persons the strict rules of law applicable to trustees without the necessary qualification. Neither a father nor a manager is in law accountable as a trustee. Neither of them is legally bound to keep or render accounts. Neither of them is under a duty to save, economise or invest the funds of the family. They cannot be called upon to account for acts of negligence. In the distribution of the family income they are guided not by the quantum of the share of the individual members but by their actual needs as conceived by them.. Such being their position, it will not be incorrect to describe it as one far removed from those duties and restrictions which are associated With trustees strictly so-called. It is not perhaps necessary to labour the point in view of the decision of the Board in Brij Narain v. Mangal Prasad (1928) 46 M.L.J. .23 : L.R. 51 IndAp 129 : I.L.R. 46 All. 95 (P.C.) already referred to, where their Lordships accepted after a critical examination of Lord Shaw's observations in the earlier case, the proposition that an independent debt contracted by a Hindu father on the security of the family property is still an antecedent debt sufficient to support a later mortgage of the sons' share, notwithstanding that the debt was incurred simultaneously with the execution of the prior mortgage. The theory of breach of trust must therefore be held to have been laid to rest for good as otherwise the invalid charge created by the father on the family property, invalid for the reason that there was a simultaneous borrowing of ready money, could not have been held to have been a good antecedent debt which was neither illegal nor immoral. There can be no doubt that the Privy Council held the debt to be a good antecedent debt. It is impossible to mistake the meaning of the illustration given by their Lordships at page 102 of the report:
For after all, if looked at straight in the face, what position could be more anomalous than this. A father who is manager, borrows a like sum from A and B. To A he gives a mortgage on the family estate containing a personal covenant. To B he gives a simple acknowledgment of loan. B sues and gets a decree; on this decree execution can follow and the estate can be taken. A suing upon his mortgage, cannot recover. It seems to have been felt that if the debt for which a mortgage was given was in any proper sense antecedent, then it, so to speak, escaped the direct infringement of the principle that the father manager could not burden the estate except for necessity.
In fact and apart from the dicta to be found in Sahu Bam Chandra v. Bhup Singh (1917) 33 M.L.J. 14 :1917 L.R. 44 IndAp 126 : I.L.R. 39 All. 437 (P.C.) no authority for the proposition can be found either in the texts or the decided cases. Even in that case it is to be observed that the Judicial Committee were not dealing with the nature or incidents of a father's alienation for the purpose of fixing the character of his liability consequent on the alienation being set aside at the instance of the sons; much less for the purpose of determining the scope of the pious obligation of the latter. It would therefore be wrong, in my opinion) to rely on this decision in justification of the view that the liability to refund is an immoral debt which the sons are not bound to discharge ; and this in my opinion receives support by the decision of this Court in Kandasami Goundan v. Kuppu Mooppan (1919) 38 M.L.J. 203 : I.L.R. Mad 421 'What has always to be remembered in this connection is that a father's debt even though incurred for his own personal purposes has still to be discharged by the sons, notwithstanding that it met no necessity or procured no benefit for the joint family. It is therefore difficult to see how the fact that money was obtained for such purposes under a purported sale, so long as the object was neither illegal nor immoral, can alter the character of the liability or convert the resulting obligation into an Avyvaharika debt. It is the purpose for which the money is obtained which determines the character of the debt and not the means adopted which may vary. It follows from what has been said that the observations of the learned Chief Justice cannot be taken to represent the correct rule of law on the point in question.
14. Seshagiri Aiyar,' J., delivered a separate judgment though he concurred with the Chief Justice, He took the occasion for expressing the view that the pious obligation of the son to discharge the debts of the father which were neither illegal nor immoral I.L.R.(1932) All. 283 was in the nature of a moral precept which should never have been recognised by Courts of law and indeed he went the length of wishing that the texts on the point had been consigned to the limbo of oblivion as, in his opinion, they involved a theory incongruous with modern conditions. This however, is an opinion which few, I consider, will share. As long as the joint family system lasts with its doctrine of survivorship and the recognition of equal and co-ordinate rights in the sons, so long it seems to me that the theory of pious obligation should be maintained in the interests of the fair name of Hindu law, and its title to take rank with civilized systems of jurisprudence. Mayne in his well known treatise on Hindu law (Mayne's Hindu Law, 9th edition, para. 348) ex-'plains the rule underlying the principle thus:
The notion of a religious as well as a civil obligation to pay debts evidences the introduction of Brahmanical theories into a law which was previously founded merely upon natural justice. The kindred theory that the soul of a deceased debtor could not find repose till his debts were discharged probably grew up still later. The religious theory of obligation could well co-exist with the civil theory, as affording an additional sanction for a liability which was already recognised. The antiquity of the texts which state this religious theory shows that it had sprung up before the family bonds were relaxed, by allowing the sons to possess a co-ordinate interest in the property and a right to restrain their father in his dealings with it. But even after this later development, natural equity and convenience would continue to attach a specially binding character to debts which were contracted by the official head and representative of the family, while the religious obligation would assume greater prominence in proportion as the secular obligation was weakened.
The italics are mine. The basis of the rule also fell to be explained by the Allahabad High Court in Lalta Prasad v. Gajdirdhar Shukul I.L.R.(1932) All. 283 where Iqbal Ahmad, J., as he then was, made the following pertinent observations:
So far as I can see, this rule was introduced as a sort of corrective to the rule that every male member of a joint Hindu family acquires an interest in the joint family property from the moment of his birth, and therefore no member of such family can predicate the extent of his share or can alienate the same. If by the mere fact of his birth the newly born son acquires an interest in the joint family property, and thus automatically reduces' the extent of his father's interest in the same, it is but fair and just that he should shoulder, along with the father, the liabilities of the father. To make provision for the payment of debts due to a creditor, far from being 'unsuited to any' but a primitive and patriarchal society' is in consonance with common honesty and is, I should think, the recognised practice of the civilized world. The liability imposed on a son to pay the just debts of his father is not a gratuitous obligation thrust on him by ' Hindu law but is a necessary corollary--if,not a salutary counter-balancing proviso-to the principle that the son from the moment of his birth acquires along with the father, an interest in joint family property.
It appears to me that the statement of the law contained in the passages extracted above exhibit a truer perception of the fundamentals of the doctrine and there would seem to be little reason either for those who are governed by the Hindu law to feel ashamed of it or for the Courts which are called upon to administer it to feel any compunction in enforcing it. I also regret to say that; I find it difficult to follow the dictum that a 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. With religious beliefs held or denied, the Court has nothing to do But even under the ancient texts, it is to be remembered that the liability of the son whether it had its origin in secular or religious considerations, was a rule of law and not a rule of morality binding merely on the conscience. However that may be, it is hard to appreciate the argument; for, surely the redemption of the, father cannot depend upon the state of mind of the son who pays the debt but on the fact of its discharge whatever the reason behind.
15. The learned Judge has also expressed the view that the statement of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh (1917) 33 M.L.J. 14 : L.R. 44 IndAp 126 : I.L.R. 39 All.,437 (P.C.) about the sale by the father amounting : to a breach of trust deserved to be strictly enforced in which event, he was of opinion that the decisions in Venugopala Naidu v. Ramanadhan Chetty : (1912)23MLJ61 Hanumath Mahton v. Sonadhari Singh (1919) 4 Pat.L.J. 653 Ramakrishna Trimbah v. Narayan I.L.R.(1915) 40 Bom. 126 and Hanmant Kashinath v. Ganesh Annaji I.L.R.(1918) 43 Bom. 612 would stand in need of review as they tried to put a strained construction on the rule of pious obligation. Here again, there is need for caution and a wholesale denunciation is, if I may say so with respect, scarcely warranted. If the theory that a sale by the father even when made for no justifiable purpose is a breach of trust is negatived, as I think it should be, the learned Judge's criticism of these cases, even if sound, would be found to be of little weight in advancing the argument. But it may be pointed out that the cases decided by this Court bearing on the question whether a son is liable for the debt of the father connected with a breach of trust have been recently considered by this Court in Alapati Ananda Rao v. President, Co-operative Credit Society, Pedatddepalli : AIR1940Mad828 in the light of the decision of the Privy Council in Toshanpal Singh v. district Judge of Agra and my Lord the Chief Justice has, if 1 may say so with respect, clearly stated the principle in the following Words:
This Court has always held that where a father has lawfully received money the fact that he misappropriates it later will not change the character of the debt and the son is liable under the pious obligation rule. Where a person receives money on behalf of another a civil liability immediately arises and the fact that the person who has received it fails in his duty to pay it over to the person entitled to it does not alter the civil character of the debt.
The question which arises in this class of cases is whether a liability of the father having its origin in a criminal act of his gives rise to a debt falling within the pious obligation rule, and the answer clearly is that it does not. It is certainly not a crime or anything akin to it for a father to raise money for his personal needs by selling family property. The restraint on his powers in this behalf is merely designed to provide some measure of check, albeit temporary in character.
16. A close examination of the judgment of Seshagiri Aiyar, J., reveals that it is based upon two grounds, namely:
(1) that the claim of the disappointed purchaser for a refund of the consideration on,the sale in his favour being set aside at the instance of the sons is really in the nature of a claim for damages against the father which does not materialise into a debt until the sale is set aside;
(2) that if on that date the father was already dead or a division in status had been established between him and his sons, the latter would not in either event be liable.
With respect to the first ground, I have little to add to what has fallen from my Lord the Chief Justice. As regards the second ground I may perhaps add that the law on the point which was involved in a certain amount of doubt has since been elucidated by the Pull Bench decision in Subramania Aiyar v. Sabapathi Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 (F.B.) which has firmly established the liability of the sons after partition for a debt of the father incurred before it., After this decision the only point which may require consideration is whether the obligation is one which has been incurred by the father before partition, and whether it is tainted by illegality or immorality. His subsequent death would make no difference; neither would a subsequent severance of status. I respectfully agree with my Lord in holding that the liability of the father, contingent though it be, is still inherent in the sale itself, and not a new liability coming into existence for the first time when the sale is set aside.
17. Of the decision's referred to' by Seshagiri Aiyar, J., at page 809, the case in Sivaganga Zamindar v. Lakshmana I.L.R.(1885) Mad. 188 will be found on examination to have no reference to the question of the liability of the sons for a debt of the father after partition. Krishnaswami Konan v. Ramasami Aiyar (1899) 9 M.L.J. 127 : I.L.R. Mad. 519 has been interpreted in the Full Bench decision in Subramania v. Sabapathi Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 (F.B.) and held not to affect the principle laid down in it. The actual decision in Kilaru Kotayya v. Polavarapu Durgayya : (1918)35MLJ451 goes no further than that in the suit by the sons for the recovery of their share in the joint family property sold by their father for purposes not binding on the family, the purchaser is not entitled to any charge on the sons' share for any portion of the consideration paid by him. It expressly left open the question whether or not he was entitled to sue the father and the sons by a separate suit for the refund of the consideration which had failed. The learned Judge's judgment in Raman Panditian v. Satha Cudumban : (1916)31MLJ502 is clearly in point, and there the Court held that the debt of the father arose when he made the invalid sale and that it made no difference to the liability of the sons that the purchaser's claim was in the nature of unliquidated damages against the father. The position here taken is, if I may say so with respect, quite correct, only we must understand the word 'debt' used in this decision as well as in the case in Kilaru Koiayya v. 'Polavarapu Durgayya' : (1918)35MLJ451 in the wider sense in which the word 'rina' is used in Hindu law.
18. For the reasons explained I am of opinion that the view of Seshagiri Aiyar, J., that the death of the father or the disruption of the joint family before the sale is set aside, would deprive the purchaser of his remedies as against the sons cannot be supported either on principle or authority. I may add that for an obligation of the father to be enforceable against the sons, it does not require to be converted into a decree in the first instance.