T K SREENIVASA AIYANGAR Vs. KUPPUSWAMI AIYANGAR

JUDGEMENT

(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/s. Golbur Singh 9 W.R. 511 : B.L.R. Sup. Vol. 1018 (F.B.), 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/s. Sunder Das 11 C. 396 : 10 Ind. Jur. 26 : 5 Ind. Dec. (N.S.) 1023 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/s. Kantoo Lall 1 I.A. 321 : 14 B.L.R. 187 (P.C.) : 22 W.R. 56 : 3 Sar. P.C.J. 380, 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/s. Sunder Das 11 C. 396 : 10 Ind. Jur. 26 : 5 Ind. Dec. (N.S.) 1023 and the cases which have followed it with the principles underlying the most resent decision of the Privy Council in Sahu Ram Chandra V/s. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : (sic) P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.). 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/s. Sunder Das 11 C. 396 : 10 Ind. Jur. 26 : 5 Ind. Dec. (N.S.) 1023.