K PERAMANAYAKAM PILLAI Vs. S T SIVARAMAN

JUDGEMENT

(1.) The third defendant is the appellant in this second appeal. The facts are not seriously in dispute and are not complicated. The question raised is also a simple one, though the arguments before us ranged and covered a wider ground not strictly germane to the disposal of the case. The case itself was heard in the first instance by Panchapagesa Sastri J. who directed the papers to be placed before the Hon'ble the Chief Justice for the case to be heard either by a Bench or a Full Bench in view of the conflicting decisions relating to the method of adjusting the equities between the alienee and the non-alienating coparcener under a sale, part of the consideration of which was applied for purposes binding on the family. The case then came up for hearing before a Full Bench of three Judges who referred the case to a fuller Bench of five Judges. When the matter was referred to the Fuller Bench, the case itself and not any particular question was referred and therefore the scope of the hearing before the Full Bench was not restricted or confined to any particular question or questions. The case was argued ably on both sides for about six days and all the available authorities including the Hindu Law texts were placed before us.

(2.) The plaintiff is the son of the first defendant. The father sold under Ex. D. 1 dated the 28th November 1934 six acres 56 cents of land specified in Schedule II attached to the plaint for a consideration of Rs. 13,400 out of which, as has now been concurrently found by the Courts below, only a sum of Rs. 7,022 was applied for discharge of binding debts of the family. The father was adjudicated an insolvent in I. P. No. 17 of 1935, Sub-Court, Tirunelveli and the properties specified in Schedules 4 to 12 appended to the plaint were sold by the Official Receiver in whom the interest of the insolvent had vested by reason of the adjudication. The present suit was filed by the son on the 11th January 1945 impleading all the alienees of the father as well as the Official Receiver as defendants. The relief claimed in the suit is partition and separate possession of each item of property in each of the schedules 1 to 12 into two equal parts and for an allotment to him his share, one of the parts in each item. The plaint proceeds on the footing that on the date of the action, the plaintiff and the first defendant were members of a Mitakshara joint family and that the alienations made, either by the first defendant or the Official Receiver, do not bind the plaintiff's interest in the family properties specified in Schedules 1 to 12 of the plaint. The plaintiff examined on his side, the first defendant, his father as P. W. 1 who admitted in his evidence that he and the plaintiff were undivided on the date of the suit and that the properties were ancestral properties allotted to the father's share in a partition between himself and his elder brother in 1930. In this appeal we are concerned only with the alienation by the father in 1934 in favour of the third defendant of Schedule II properties. The plaintiff attacked the sale in favour of the third defendant alleging that it was neither for necessity nor for the benefit of the joint family and that it was an undersale. It has been found that the value of the properties conveyed under Ex. D. 1 was not Rs. 13,400 but Rs. 16,400 on the date of the sale and that the consideration from out of this sale was binding on the family only to the extent of Rs. 7022. As a result of this finding, a preliminary decree for partition and recovery of possession of the plaintiff's half share in the properties comprised in Schedule II was granted in favour of the plaintiff without making any provision for the payment by the plaintiff of a proportionate shave of the binding consideration. This decree was affirmed on appeal by the District Judge. Both the Courts, in rejecting the claim of the third defendant for a provision for payment by the plaintiff of a proportionate share of the binding consideration as a condition precedent for the recovery of a half share in the properties, followed 'Venkata Pathi v. Pappiah', 51 Mad 824.

(3.) In this second appeal by the third defendant, there is no dispute regarding the decree which recognised the right of this third defendant to a half share of the properties conveyed under Ex. D. 1, as the plaintiff claimed in the suit itself to recover only a half share in the properties. The question debated is whether or not the third defendant is entitled to a conditional decree making it obligatory upon the plaintiff to pay a half share of the binding consideration before he is allowed to recover possession of his half share after partition of the properties by metes and bounds. The appellant invokes, in support of his contention, the decision of this Court in 'Vadivelam v. Natesam', 37 Mad 435, while the respondent maintains that that case was wrongly decided and that the decision proceeded on an erroneous assumption of Hindu Law and should not therefore be followed and that the appellant is not entitled to any equity and his right is only to the half share admitted by the plaintiff. In other words, learned counsel for the respondent stated the position he takes up as follows: The alienee from a coparcener of joint family property is entitled only to work out his rights by way of a general partition and is not entitled to claim to retain any specific item of property or a portion of it conveyed to him. Secondly, if without marshalling and a general partition, the alienee is allowed by the consent of the non-alienating coparcener to remain in possession of a share of the property alienated, any claim that he may have against the joint family in respect of the binding portion of the consideration must be regarded as satisfied 'pro tanto' by the value of the property allowed to be kept by him. This, according to his contention, exhausts the entire equity which an alienee from a coparcener is entitled to under Hindu Law. Of course, during the progress of the arguments, he did not stick to this extreme contention.