P M RAMASWAMY CHETTIAR Vs. RAJA KUPPA CHETTI

JUDGEMENT

(1.) ROYA Kuppa Chetti, the first defendant to the suit out of which this second appeal arises, and Krishnaswami Chetti (the second defendant), his grandson born of his deceased son, were members of a Joint Hindu family. Krishnaswami Chetti, still a minor, is under the care and protection of his mother Sundarammal, who has been impleaded as the 3rd defendant in the suit. Both of them are living in the house, which is the subject matter of this litigation. Roya Kuppa Chetti however did not take to them kindly; it has been found that his attitude towards his grandson was hostile. Being thus obliged by circumstances, the mother of the minor acting on his behalf, issued a notice on 22-12-1953, to his grandfather unequivocally expressing an intention to separate from the family and demanding partition. There was no response to the demand. Instead Roya Kuppa Chetti sold on 1-2-1954 the suit property to the plaintiff purporting to do so on behalf of the joint family consisting of himself and minor Krishnaswami chetti; the alienation was stated to be for discharging certain liabilities of the family but both the courts below have found that the debts were not genuine. The alienee relying on the sale deed in his favour institute the suit out of which this appeal arises for recovery of possession of the property. Roya Kuppa Chetti filed a written statement supporting the case of the alienee; but he absented himself at trial and was set ex parte. The claim of the alienee was contested on behalf of the other two defendants on two grounds (1) as there was no joint family on the date of alienation in question, the minor having been divided in status from his grandfather by reason of the notice demanding partition, it was not competent for Roya Kupa Chetti to sell the entire house and (2) even otherwise, the sale was not for any necessity as the debts in discharge of which it was purported to be made were spurious. Both the courts have held that the notice dated 22-12-1953 issued by the minor's natural guardian was one conceived in his interests and that it validly effected a division in status between the two members of the coparcenary. They also held, overruling an objection on behalf of the alienee, that it was competent to the court in this litigation itself to find whether the notice was one issued for the benefit of the minor. On the second question the trial court accepted the defendants' case that the alienation, though supported by consideration so far as the alienor was concerned was not for any necessity of the family. The learned Subordinate Judge, though he gave sufficient indication in the judgment that he was of the same view, did not record a definite finding to that defect. On the findings arrived at by the trial court, it was open to that court to have dismissed the suit which was one in ejectment, leaving the alienee who in the circumstances, obtained only his alienor's interest in the suit property, to file a separate suit for general partition. But that course was not adopted. Instead the court granted a decree for partition on the footing that the sale deed validly conveyed Roya Kuppa Chetti's half share in the suit property. The decree for partition was not challenged by the contesting defendants. The alienee, on the other hand, filed an appeal against the trial court's decree claiming that the joint family of Roya Kuppa Chetti and his grandson continued and that the sale was one which would bind the interest of the latter. That appeal failed.

(2.) AGGRIEVED by the decree in so far as it declined to give him the entire properties the alienee has come forward with this second appeal. The only question argued on his behalf is that it was not competent for the court in this suit for possession to entertain the plea that there had been a division in status between the minor and his grandfather by reason of the issue of a notice as that could be done only in a suit for partition brought by him. In other words, the contention is that unless a declaration of an intention to divide expressed on behalf of a minor is followed up by a suit for partition at his instance, a court could not give effect to the same; and as the present suit is one for possession by an alienee, the court would have no jurisdiction to adjudicate the question as to existence of a division in status in the manner claimed. We are by no means sure whether the appellant has realized that the acceptance of the contention, in the circumstances of this case, would result only in the dismissal of his suit. The suit is one for ejectment; it would be competent for the defendant to show that the plaintiff's title is defective. It would not be open to a court to refuse to entertain a plea of the defendant that plaintiff's title is defective and at the same time decree the suit. The suit could only be dismissed. It cannot be disputed that a plea that the authority of the manager of a joint Hindu family had ceased by reason of the disruption of the joint family and that the alienation of an item of family property would not be valid to convey the entirely of the interest therein goes to the root of title claimed by the plaintiff. If the defendant in such a suit is a major it is not denied that it would be open to him to plead that the plaintiff would not be entitled to claim his share as the alienating manager had ceased to represent him by reason of the division in status. There is nothing in law to deprive a minor coparcener from raising such a plea. In Peda Subbayya v. Akkamma, it was held that the exercise of a volition on behalf of a minor by a person to get him separated in status form the joint family was really the act of the guardian and not the act of the court, though such a demand would be subject to approval by court. Therefore, the plea that there was a division in status by reason of the guardian or some person on behalf of a minor demanding partition can be raised on behalf of the minor. The court would be entitled to investigate the question whether there had been an anterior division between the minor and the other coparceners by reason of the notice of demand issue on his behalf as the issue raise in substance relates to the extent of title question is bound up with the further question whether the notice of demand was one made in the minor's interests and for his benefit. To hold that the court cannot consider the question of the division in status would mean that a decree could be passed against a minor in possession of the property without even a finding as to whether the plaintiff has obtained title to the entire property. Such a proposition cannot obviously be accepted.

(3.) LEARNED counsel for the appellant contends broadly that a minor can never get himself divided in status from a joint family be means of a declaration made on his behalf expressing an intention to divide except where such declaration is followed up by a suit for partition and in that suit it is decided that expression of the intention made on the minor coparcener's behalf was one for his benefit. Support for this contention is sought in the decision of the Andhra Pradesh High Court in ayyanna v. Kottayya, It was held in that case that a decree in favour of the minor coparcener in his suit for partition was a condition precedent for holding that he had separated because of an earlier unequivocal expression of the intention made on his behalf to separate, and that a mere issue of a notice demanding partition would not be sufficient to create a division in status unless it was followed by a suit for partition. That rule is mainly deduced on the basis of two propositions: (1) that an expression of an intention to divide on behalf of a minor in order to be operative should be sanctioned by court, and (2) that such sanction could be given only in a partition suit where alone the equities of the alienees could be worded out. Before considering the view taken by the learned Judges it will be useful to refer to the facts of that case which are somewhat peculiar. One Chenchayya had three wives, the second of them alone having a son. The other two had only daughters. The second wife, purporting to act on behalf of her minor son, issued a notice to chenchayya demanding partition of the ancestral properties. There was no response on the part of Chenchayya to this demand; he continued to enjoy the properties and sold certain of the items for discharge of his debts. No suit for partition was filed on behalf of the minor while his father was alive. After chenchayya's death, his son filed a suit to recover possession of the properties left by him which were in the hands of the daughters of the deceased as well as with the various alienees. It is not however clear as to whether the plaintiff in the case claimed as the sole surviving coparcener or as on succession. The learned Judges in the course of their judgment observed. "the question that arises for decision in this Letters Patent Appeal is whether a court can sanction a notice by a minor to separate when he be the 'sole coparcener' and there be no suit for partition by him" (italics (here in ' ') ours ). This would suggest that the claim was made by the plaintiff as the sole surviving coparcener; such a claim would hardly go with an inconsistent claim on the basis of an anterior division in status.