The main legal point established in the judgment is that the setting aside of alienations should not be conditional on the refund by the sons of the consideration for the alienations paid by the alienees to the father, and that the sons are not under a pious obligation to relieve the father from the consequences of his immoral act in making the alienation.

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 fathers 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 fathers 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 fathers 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 (1885) I.L.R., 11 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 I.A., 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 (1885) I.L.R., 11 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 (1917) I.L.R., 39 All., 437 (P.C.) L.R., 44 I.A., 126. 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 fathers 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 o