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 purpose of petting 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 sons 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 (sic) as observed in Modhoo Dyal Singh v. Golbur Singh 9 W.R. 511, but it has never been the practice of his 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 11 C. 396 that this judgment of Sir Barnes Peacock and the Fall Bench was virtually overruled by Sir Barnes Peacock himself delivering the judgment of the Judicial Committee in Giridharee Lall v. Kantoo Lall 14 B.L.R. 187 (P.C.) , 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 11 C. 396 and the cases which have followed it with the principles underlying the most resent decision of the Privy Council in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280. 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, 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 his unsuccessful attempt to defraud them. I do not think the decided cases oblige us to go so far. To recognise 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 Aiyar, 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 the Moffussil 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 recognised by Hindu Law. Mr. Narasimha Aiyangar 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 pre-existing 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 11 C. 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 sums due by their father for spirituous liquors, for losses at play, for promises made without any consideration, or under the influence of lust or wrath : or sums for which he was a surety, or a fine or toll, or the balance of either,' nor generally 'any debt for a cause repugnant to good morals.' Every recognised Smriti writer has embodied this injunction. The principle underlying the test 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 protestor 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 they are ill-suited to the times or were intended only as directory admonitions and not as mandatory rules. 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 defense in a creditor's action against the sons is to attribute to the father illegality, immorality and all other vises 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 Venugopal Naidu v. Ramanadhan Chetty 14 Ind. Cas. 705 it was held that the son was liable for the father having unauthorisedly spent temple money. In Ramkrishna Trimbak v. Narayan Shivrao 31 Ind. Cas. 201 the son was held liable to pay a debt contracted by the father in carrying on a trade prohibited by Government. In Hanumat Mahton v. Sonadhari Singh 52 Ind. Cas. 734 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 51 Ind. Cas. 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 a 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. Chandra v. Bhup Singh 39 Ind. Cas. 280 : 19 Bom. L.R. 498 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 is 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 benefited them may have to be reviewed. In my opinion the decisions commencing from Nunna Brahmayya Setti v. Chidaraboyina 26 M. 214 , wherein Sir V. Bashyam 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 may be executed against this sons share in the family property, should all be reconsidered. Fortunately this case can be disposed of without directly impugning the authorities I have quoted.
5. Now I shall proceed to consider the judgment of Mr. Justice Mitter in. Koer Hasmat Rai v. Sunder Das 11 C. 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 plaintiff, It would be, therefore, their father's debt, and unless they show that it was contracted for immopral Purposes mentioned in the Hindu Shastras.the whole of the joint family property, including the disputed Mouzahs in their bands, would be liable for it.' 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 Shostras. 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 damages 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.
6. In Peda venkanna v. Sreenivasa Deekshatulu 43 Ind. Cas. 225 it was held by the learned Chief Justice and Kumaraswami Sastri, J., that the decision of the Judical Committee in.Sahu Ram. Chandra v. Bhup Singh 39 Ind. Cas. 280 : 26 C.L.J. 1 should not be regarded as upsetting the long course of decisions in this Presidency that the pious obligation arises even during the lifetime of the father. In Calcutta the same view has been taken But no decision has laid down, excepting the one in Koer Hasmat Rai v. Sunder Das 11 C. 396 , that a possible unliquidated claim for damages should be considered as a debt Payable during the lifetime of the father. In Kilaru Kotayya v. Polavarapu Durgayya 47 Ind. Cas. 192 Mr. Justice Abdur (sic) '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.' I entirely agree with this observation. In Subbaiya Mudaliar v. Thulasi Mudaliar 22 Ind. Cas. 44 Mr. Justice Sadasiva Ayyar took the same view: Madan Gopal v. Sate Prasad 40 Ind. Cas. 451 is also to the same effect.
7. I have already, in a general way, referred to some of the Madras decisions quoted by Mr. Bashyam Ayyangar. I shall now deal with a few of them specifically. The observation of Mr. Justice Bhashyam Ayyangar in Periasami Mudaliar v. Seetharama Chettiar 27 M. 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 Kudumban 36 Ind. Cas. 387 , 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' shares in the family property. In Muthukrishna Naidu v. Kanoki (Muthukrishnappa Naidu) 39 Ind. Cas. 504 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 9.M. 188 , to which Mr. Justice Muthuswami Ayyar was a party, in Krishna Swami Konan v. Ramasami Ayyar 22 M. 519 , decided by Subrahmania Ayyar and Davies, JJ., and in Killaru Kotayya v. Polavarapu Durgayya 47 Ind. Cas. 192 it was held that after division, no question of pious obligation arises.
8. I respectfully follow these decisions and hold that the decree of the Subordinate Judge directing the plaintiff and the second defendants 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.
9. 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 Nos. 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 2nd defendant regarding items covered by Exhibits XIIa, XIII, XV, XVa, XVIIIa, XX, XXVIII and XXXa. Either parties will be allowed to file fresh evidence and two months will be allowed for the return of findings and 10 days for filing objections. Plaintiff is entitled to his costs against the alienee.
10. In accordance with the above order of this Court, the Subordinate Judge of Kumbakonam submitted the following
11. Finding.--I have been directed to submit 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 XII-a, XIII, XV, XV-a, XVIII-a, XXI, XXVIII and XXX-a.'
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3. The plaintiff and the 2nd defendant are, of course, entitled to one-third share each in the above extents, Houses are also comprised in Exhibits XII-a and XXVIII, but no mesne profits are claimed in respect of them.
12. This appeal coming on for final hearing, after the return of the finding of the lower Court upon the issue referred by this Court for trial and also the memoranda of objections to the said finding filed by the appellant as also by the 2nd respondent, the Court delivered the following
13. We accept the finding as to the rate of mesne profits, The plaintiff and 2nd defendant will each be entitled to mesne profits from the date of plaint to date of delivery of possession of their respective one-third shares at the annual rates mentioned in column seven an against the defendants mentioned in column two of the statement filed and appended to the judgment.