SITAMAHALAKSHMI Vs. RAMACHANDRA RAO

JUDGEMENT

(1.) 1. I agree with the conclusions reached by my learned brother, but having regard to the importance of one of the questions involved in this appeal, I would like to say something in regard thereto. The material facts are set out in his judgment and it is not necessary for me to state them once again except to give a brief resume for appreciation of the problems arising herein. The suit giving rise to this appeal was instituted for recovering possession of plaint A scheduled properties or alternatively for a sufficient extent of the peoperties in the B schedule from the share of defendants 4 and 6 and equal in the aggregate to the plaint A scheduled properties in all respects and for profits. The 6th defendant is the husband of the plaintiff, the 4th defendant being their adopted son. 1st defendant is the natural father of the 4th defendant and brother of 6th defendant, defedants 2, 3 and 5 being the sons of the 1st defendant. The 6th defendant having had no children thought of taking the 4th defendant his brother's son in adoption in the year 1941. His wife was against this adoption being anxious that some one of her own relations should be chosen for that purpose. Through the intervention of a lawyer who was a family friend she was made to agree to the adoption and in consideration of it a settlement deed was executed under which she was given ac. 11-0 of land with life interest. All the members of the mamily were parties to the settlement, the defendants then constituting members of an undivided joint Hindu family. Later on, the 6th defendant challenged the factum and validity of adoption of the 4th defendant, while the latter brought a suit for recovery of his share of the properties on the basis of adoption. The litigation resulted in the adoption being upheld and a decrte granted for separate possession of the share of the adopted son in the properties of the 6th defendant's branch. In that litigation, the present plaintiff sailed with her husband and did not take steps to obtain possession of the ac. 11-0 demised to her under the settlement deed referred to above. She now filed the suit for the relief mentioned above. The suit was resisted on grounds inter alia that the plaintiff could not recover any properties from defendants 4 and 6 and that the suit was barred by limitation. The Subordinate Judge dismissed the suit in toto holding that the plaintiff could not recover either the extent of ac. 11-0 settled on her or any portion of the B scheduled properties in substitution of the ac 11-0 and if at all she is entitled to any relief, it was only as against the properties that had fallen to the share of her husband. In his view, the suit was also barred by limitation. The aggrieved plaintiff has preferred this appeal. Two of the questions that were debated before us were whether the plaintiff could claim properties from the sharf s of defendants 4 and 6 equivalent in value to A scheduled properties and whether the suit was batted by limitation. The first question was argued at great lenth on either side. This matter has not arisen in any case directly i e., in the form in which it presents itself now, thougn there are observations in decided cases supporting either contention. We have to examine this question at some length having regard to the divergence of judicial opinion especially in view of the dictum laid down in a recent Full Bench decision of our High Court in Venkatasubbayya v. Kondayya. While it is argued by Mr Ramachandra Rao, counsel for the appellant, that the appellant could ask for allotment of an extent of land equal in value of the ac. 11-0 conveyed to her under the settlement deed, if for any reason she could not recover the specified lands, it is urged by Mr. Chandra Sekara Sastry on the authority of Venlkatasubbayya v. Kondayya that the alternative relief prayed for by the plaintiff could not be granted whatever might be her other remedies against the settlors. We have now to decide which of the two views should prevail. My learned brother in his judgment has shown how the plaintiff is a transferee for value and I do not propose to go into that question again. Here, the rights will be determined on the basis of this theory. The right of a coparcener to dispose of his share in the ancestral undivided family property even by private contract or conveyance for value is the result of the gradual growth of law and is inconsistent with the strict notions of Mitakshara law. This is not based on-any text of Hindu law but on the equitable doctrine that the alienee should be all'owed to stand in the place of his alienor, and work out his means by way of a suit for partition. See Suraj Bunsi Koer v. Sheo Persad Singh The alienee may purchase either his whole undivided interst in the joint property or his interest-in some of the items of property or specified items of the family properties. In any of these cases, the purchaser or the transferee does not acquire any interest as of right and he does not become a tenant in common with the non-alienating coparceners. His only right is to demand a partition of the family property. We are now concerned with the rights of a purchaser of a specific item of property. Indisputably, he can ask at the general partition that that specific item of property could be assigned to the share of his vendor. All the authorities are agreed about it. But, the further question is, if, for any reason, that item of property could not be allocated to his vendor's share, whether the vendee could have recourse against some other property that might be included in the share of his vendor. The earlier rulings of the courts related to the rights of a mortgagee of either the undivided share of a coparcener or specific items in the joint family property etc. In this context, I may first refer to Ayyagari Venkataramayya v. Ayyagari Ramayya which has an important bearing on this issue. There, a purchaser from a coparcener of an undivided half share in two definite plots of land forming part of the joint family properties of the vendor and his two undivided nephews filed a a suit to enforce his share after the death of the alienor against his nephews. The question arose whether that suit was maintainable. The Full Bench answered it in the affirmative. In discussing that matter, Bashyam lyengar, J. who wrote the leading judgment remarked at page 718 : " Whether the transferee brings his suit immediately after the transfer or at any time during or after the life-time of the transferor, the transfer will have to be enforced by effecting a partition in the same way as it would bo if the partition were effected immediately before the transfer. If it be found impracticable or inequitable to allow to the transferor's share the whole or any portion of the specific property transferred, the transfer will become inoperative either in whole or in part as the case may be and in that case the tranferee can only have an equitable claim for compensation against the alienor,'' It is this last sentence that was largely responsible for the dictum of Viswanatha Sastry, J. in Venkatasubbayya v. Kondayya, We will next turn to Manjaya Mudali v. Shanmuga Mudali. The question that fell to be considered there was whether an alienee of a specific item of property from a coparcener could pursue it into the hands of another to whose share the specified item had fallen. The learned Judges answered it in the negative and in dealing with this it was inter alia stated by Justice Sankar Nair that the property alienated should be given to the alienee as the transferee of such a coparcener if it could be done without any injustice to other coparceners. In dividing the family properties, the court will set apart for the alienating coparcener's share the property alienated. " If such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share though it may not be the property that was alienated in his favour. The property allotted will take the place of the property which has been alienated to him so far as he is concerned." In referring the matter to a Full Bench in Rangayya Reddy v. Subrahmania Ayyar Justice Oldfield, one of the Judges of the Bench, accepted this rule as correct. Another Bench of that same High Court in Sabapathi Pillai v., Thandavaraya Odayar made a reference to the dictum of Sankar Nayar, J. with approval. In this case, a purchaser in a court auction of specific items of property said to belong to a member of the joint Hindu family claimed to be entitled to have the equivalent of the properties bought by him out of the properties allotted to the share of the judgment-debtor, when some of the properties purchased by him fell to the share of two other members, only some being allotted to the share of the judgment debtor. It was held by the Bench that the purchaser was only entitled to such of the items as were common to the sale certificate and the share of the judgment-debtor under the decree and that he could not compel the judgment-debtors to give him some other properties in substitution. The argument that there was a conflict between the views of Bashyam lyengar, J. in Aiyyagari Venkataramayya v. Aiyyagari Eamayya and that of Sankar Nair J. in Manjaya Mudali v. Shanmuga Mudali did not weigh with the learned Judges. They stated that there was really no conflict between the two statements, and drew a distinction between a purchaser by private contract and a court auction- purchaser. The ratio decidendi of the above ruling was that there was no warranty of title and privity of contract between the alienee and the judgmentdebtor. A codtrary view was expressed in Vasudeo v. Kankochand . It is to resolve this conflict that the Full Bench in Venkatasubbayya v. Kondayya was constituted. I may also refer to Dadha Saheb v. Muhammad Sultan where it was held that even though a vendee of specific lands from a member of an undivided Hindu family may be entitled to properties of equal value out of the lands assigned to his vendor in a subsequent partition in the family, a vendee from the first vendee had no such right, his only remedy being to claim damages from his vendor. This indicates that the learned Judges weie inclined ro agrte with the view of Justice Sankar Nair. In fact they have referred to Manjaya Mudali v. Shanmuga Mudali and observed that rhe principle of the case was acquiesced in two other decisions of that court and they were prepared to assume tor the purpose of argument that the proposition of law was correct. They procetded on the footing that the first purchaser can have recourse against the substituted property. At any rate, they have not dissented from it or said anything which would have that effect. Maharajah of Bobbili v. Venkata Ramanajulu Naidu also throws some light on this point. The question posed there was whether a buyer of an undivided share of a joint Hindu family would become entitled to mense profits from the date of sale or only from the date of suit. It was held by Wallis, C. J. and Kumaraswamy Sastriar J. that he had not become a tenant-in-common with other members and that he was therefore not entitled to profits for the period betweea the date of purchase and the date ot suit for partition in respect of his share. In the discussion of this question, the following passage occurs at page 268 : In the suit for partition which my be filed by the alienee it may be that the property conveyed to him falls to some other coparcener and it is difficult to see how this fact would be reconciled with the theroy that by purchase he becomes entitled to a vested interest in the share of Ms coparcner in the property alienated as from the date of the alienation " These remarks could only be on the theory that the alienee could have recourse to some other properties that were assigned to the share of the alienating coparcener. The position of law is summed up thus in Mayne's Hindu law (11th edition} at page 487 : " A coparcener may alienate either his undivided share in the whole of the family property or his undivided share in certain specific family property or the whole of a specific item of the family property. In all these cases, the alienee does not acquire an interest in the property so as to become a tenant-in-common with the members of the family entitled to possession but only an equity to stand in bis vendor's shoes and to work out his rights by means of a partition. x x x x In dividing the family properties the court will no doubt, set apart tor the alienating coparcener's share the property alienated if that can be done without any injustice to the other coparceners and such property if it is so set apart may be given to the transferee of the interest of such coparcener. But this is only an equity and the alienee is not. as of right entitled to have the property so allotted If such property is not so set apart then the alienee would be entitled to recover that property which was allotted to his vendor for his share in substitution for the property that was alienated in his favour." This passage was quoted with approval by Rajamannar, J. (as he then was) in Issaku v. Seetharamoroju which will be referred to in another context. To the same effect is the statement of law Mulla's Hindu Law (11th edition) 321: " The alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition an equitable right to have that property or his alienor's share in that property as the case may be, assigned to him if it could be done without injustice to the other coparceners. But there may be equities between the coparceners or liabilities attaching to the alienor's share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated. " It may be pointed out here that both the authors have relied in support of this proposition on Manjaya Mudali v Shanwiuga Mudali. They also discussed the rights of an auction-purchaser to have this equitable relief and followed Vasudeo v. Kankoehand in preference to Sabapathi Pillai v. Thandavaraya Odayar and Chidambara Gouda v. Chennoppa which followed Sabapathi Pillai v. Thandavaraya Odayar as it was thought that the view taken in these cases seemed to be rather narrow. We are not here concerned with the right of a purchaser at a Court sale. Further, the controversy in that regard has been set at rest by the ruling of the Full Bench in Venkatasubbcyya v. Kondayya so far as this Court is concerned. I may now refer to Peramanayakam Pillai v. Sivaretnan.T he vitw of two of the five Judges on this subject is in accord with ours. The observations of Justice Satyanarayana Rao at page 847 are apposite. " If it is not possible to set apart property in the aforesaid manner, the only right ot the alienee is to recover that property allotted to the vendor for his share though it may not be indentical property alienated in his favour. This is on the principle of substitution and the earlier decisions. " The opinion of Justice Viswanatha Sastry on this aspect of the matter is brought out in the following passage at page 873 : " It does not, however, follow that an alienee from a coparcener has no light in or to any property but only a personal remedy against the alienor. liven when the alienee does not get an allotment of the property alienated to him at a general partition, lie would be entitled to the property allotted to the vendor for his share in substitution for the property alienated to him. " In support of this conclusion, the learned Judge relies on Issaku v. Seetharamraju Both the learned Judges concede the equitable right mentioned supra to the alienee of specific items of property. The decisions of the two Full Benches of the Madras High Court in Issaku v. Seetharamaraju and Peramanayakam Pillai v. Sivaraman which were rendered prior to the formation of this High Court are binding on us in view of the Full Bench ruling of this Court. A different note was struck by Viswanatha Sastry, J. in Venkatasubbayya v. Kondayya." The learned Chief Justice and Bhimasankaram J. before whom the matter came first referred to the Full Bench for an authoritative ruling, the questions : (1) whether a purchaser in court-sale of specific property belonging to the joint family held in execution of a decrte obtained against one of the members of the joint family is entitled to ask for equitable relief in a suit for general partition that the property purchased by him should, if possible, be allotted to the share of his judgment-debtor; and (2) if it be not possible to allot to the share of his judgment-debtor, the entire property purchased by him or even a part of it, could he compel the judgment-debtor to give him other properties that fell to his share in substitution for the properties purchased by him. Justice Viswanatha Sastry who delivered the judgment on behalf of the Full Bench answered the first question in the affirmative and the second in the negative. Jn the opinion of the Full Bench the law on the subject was correctly laid down by Sabapathi Pillai v. Thandavaraya Odayar and the vitw of Bhagavati, J concurred in by Dixit.J. in Vasudeo v. Kankochand which dissented from Sabapathi Pillai v. Thandavaraya Odayar' was not acceptable. It is seen that the question of the rights of a purchaser of specific item of property from a coparcener by a private treaty was not in issue and was not referred to the Full Bench. I may mention in passing that the referring cider of My Lord the Chief Justice shows that the right of a purchase in a private sale to be entitled to the equity to proceed against the substituted propeny was not questioned and a distinction was drawn between a purchaser in a private sale and a purchaser in a court sale in that respect. Therefore, any expression of opinion on their part not covered by the reference in only obiter. Bur, even as an obiter dictum, it is entitled to a great weight and we would have followed it but for the various reasons mentioned herein. The view of Viswanatha Sastry, J. in the Full Bench in regard to this question is founded upon the observations of Bashyam lyengar, J in Aiyyagri Venkataratnayya v. Aiyyagan Ramayya that the remedy of the purchaser in such a case is only to claim compensation, and the judgment of Varadachariar, J. in Ramanna Chettiar v. Manickam Chettiar.'' So far as Bashyam lyengar, J's remarks in Aiyyagari Venkata Haniyya v. Aiyyagari Ramyya are concerned, they could not be construed as excluding the tights of a purchaser to proceed against substituted security. ' In my opinion, that is one of the remedies indicated by the learned Judge. He was not considering all the courses open to such a purchaser and this problem was not present to his mind. Therefore, that cannot furnish any basis for the view against the theoty of substituted property. I will now advert to Raminna Chettiar v. Manickam Chettiar. Two of co-sharers purported to mortgage a specific item of property. In a family partition the mortgagor was allotted only a part of that item and some other properties. These properties were subsequently purchased by third parties without notice of the mortgage and in good faith. The mortgagee sought to enforce his mortgage not only against the fraction of the originally mortgaged properties but also the substituted lands. Varadachariar, J. rejectfd the claim of the mortgagee in regard to the properties not subjected to his mortgage holding that the principle of substituted security enunciated in Byinath Lal v. Ramodeen Chowdry had no application to a mortgage of a definite plot of land. The propostition as stated by the learned Judge does not find support in any of the reported cases. On the other hand, there are a number of decisions of that court and of other High Courts which justify the extension of the theory, of substituted security to mortgages of particular items of property. Nowhere has it been postulated that it should be confined only to mortgages of undivided shares. Adverting to Muthiaraja v. Appalaraju the learned Judge said that the distinction between a mortgagee of an undivided share and a mortgagee of a special portion of property was not material for that case. He merely purported to state the effect of the authorities and therefore the statement of law " That the mortgagee of an undivided share in common property, or of one of the joint properties before partition from one of the sharers is only entittled to proceed against the substituted property which falls to the share of the mortgagor at the partition unless the partition has been unfair or is in fraud of the mortgagee." did not warrant the extension of the doctrine of substituted security. But it appears from the order of reference that the case related to a mortgage of one of the joint family properties. The reasoning of Varadachariar, J. was not accepted by a Full Bench of the Madras High Court in IssaKu v. Sitharamaraju though it was said that his decision could be justified on the facts of the case. The Full Bench ruled that the equitable rule adumbrated in Byjnath Lall v. Ramodeen Chowdry was applicable to a case of a mortgagee of a definite plot of property by one of the co-sharers. This case contains an exhaustive review of the case-law relating to the doctrine of substituted security and refers to decisions of various High Courts beginning from Hemchunder Ghose v. Thokomani Devi which have extended the principle of substituted security enunciated in Byjnath Lall v. Ramodeen Chowdry to mortgages of specific items of property by a co-sharer. See Amolakram v. Chandan Singh and Lilladhar Uttamchand v. Shiwaji. I need not, therefore, refer to all the cases which are much to the same effect. It is now too late^ to contend in view of the long catena of decisions and of the Full Bench decision that the doctrine of substituted security cannot come into play in the case of mortgage of specific items of property by a member of an undivided Hindu family. Dealing with the statement in Ramanna Chettiar v. Manickam Chettiar that the hardship caused by the unlimited extension of the rule stated in Byjnath Lal's case would be seen when considering the rights of a bonafide purchaser of properties allotted to the mortgagor at the partition Rajamannar, J. (as he then was) who delivered the judgment of the Court remarked at page 476: " But, with great respect, I am unable to see how these considerations can apply to the mortgagor himself or his legal representatives. On the other hand, it appears to be inequitable that it should be open to the mortgagor to hold the substituted lands free of the burden of the mortgage which he had purported to create on a part of the joint property, though he might not legally have been competent to alienate that part. In my opinion, the consideration of the hardship to a bona fide purchase is not relevant in determining the rights inter se between the mortgagee and the mortgagor. With great respect, I do not think it would be correct to say that, when a cosharer purports to alienate a specific item of joint property, he is dealing with property to which he had no title at the time. He certainly had some title, viz., the interest of an undivided co-sharer. The learned judge refers to the analogy of an alienation by a member of joint family of an item of joint family property, but we find that the law applicable to such cases is also the same." and then referred to the passage from Mayne's Hindu Law already extracted. This is a definite pronouncement of the Full Bench that the principle of substituted security extends to a mortgage of definite plots of land and the law is the same in regard to an alienee of specific items of property After this the propositions stated in Ramanna Chettiar's case could not be regarded as sound. Adverting to Issaku v. Sitharamaroju Justice Viswanatha Sastry in Venkatasubbayya v. Kondayya remarked at page 335 : "At the same time, the learned Judge recognised that the mortgage as such would not bind the substituted property and that the mortgagee was only entitled to an equitable charge thereon for realisation of the mortgage money, such charge not being enforceable against a bona fide purchaser of the substituted property without notice of the charge." But it cannot be overlooked that Justice Rajamannar has definitely stated that the considerations of hardship to a bonafide purchaser are not relevant in determining the rights inter se between the mortgagee and the mortgagor. The considerations that apply to the case of a bonafide purchaser for value are totally different from those applying to the alienor himself. It has to be remembered that this is only an equity and not a legal right and therefore cannot prevail against subsequent bonafide purchasers for value Further, no distinction can be drawn between a mortgage and a sale in this behalf because the principle is the same. If a mortgagee of specified lands could have benefit of substituted land there is no valid ground for denying it to a vendee in similar circumstances. The judgment of the Full Bench has clearly indicated that the rights of a purchaser of specific items of land are the same as those of mortgagee similarly situated. It may be mentioned here that Viswanatha Sastry J. himself has opined in Peramnayakam Pillay v. Sivaraman that a purchaser of specific items of property would fall within the scope of Issaku v. Seetharamaraju. At page 335, the learned Judge seeks to make a distinction between mortgage and sale and invokes in support of it Sec. 68 (1) (b) of the Transfer of Property Act. Though a mortgagor can be called upon by virtue of S. 68 (1) (b) of the Transfer of Property Act bv the mortgagee to furnish further security, the mortgagee has no remedy except to sue for the mortgage money if the mortgagor commits default in that regard. Therefore, Sec. 68 (1) (b) does not afford any help in that regard. That does not confer any right on the mortgagee to insist upon any substitution of property. In ftct, Varadachati J. whose view was relied upon by Viswanatha Sastry, J. thought there was no distinction between the two and the observations of Bhashyam Iyengar, J. in Aiyyagari Venkataramayya v. Aiyyagari Ramayya need not be confined to sale of specified properties and would apply to mortgages also. If it could be argued that the contract between the vendor and the vendee was only to sell a particular item of property, the same thing could be said of the mortgagor and the mortgagee also. I shall now consider the difficulty envisaged on thp basis of Sec. 55 (2) of the Transfer of Property Act. Under Sec. 55, the transferor seeks to sell some property to which he purports to have legal title. Bur, that is not the case in regard to a sale of definite items of property by a member of a joint undivided Hindu family. While the family is undivided, no member can predicate that the has a right to any particular item of the joint family property. So, a coparcener cannot convey any definite item of property as his and the purchaser does not prescribe a right to the specific items. If an undivided member sells any definite property, it is only on the assumption that it will be allotted to him and the alienee does not acquire as of right any interest therein. Unlike the sale of property coming within the purview of S. 55 where the vendor asserts his title to the property and the vendee aquires title thereto, the alienee or purchaser of a specific item of property does not get any such right. It is an incident of a purchase of undivided share in the joint family property that he cannot follow it into the hands of the co-sharer. His is only a right to ask that the particular property may be allotted to the share of his vendor and the court while making the partition as far as possible and ceteris paribus so marshal the family property amongst the coparceners as to allot that special portion of the property or so much of it as may be just to the mortgagee or the purchaser. Thus, the reasoning based on S. 55 of the Transfer of Property Act, is not decisive of the matter. The same result could be reached even on a consideration of the first principles. In my judgment, there is no scope for the application of caveat emptor in the case of a purchaser of specific items by private treaty. If as stated, the alienee could request that the definite property could be allocated to the share of the alienor and this could be done without detriment or injustice to the other coparceners or prejudice to prior encumbrancers, there can be no formidable objection or resistance to the alternative prayer in a suit by him that if the special portion could not be equitably allotted to the share of the vendor some other extent equal in value could be alotted to him. Surely, in a suit for a general partition by the members of a joint family this could be done. If that were the position, there can be no answer to the claim of the alienee to ask for such a relief because he takes the place of the alienor. If this position is accepted, it should not make any difference if the alienee himself does not file the suit for general partition and in a subsequent partition to which he was not a party some other property was substituted to the share of the alienor. It follows as a necessary corollary that the transferee of specific items of joint family property from an undivided member of a joint Hindu family has a remedy against the substituted property. This is the principle expounded in several of the rulings and we are not propounding any fresh proposition of law. We are not considering a case of a competition between the alienee and a subsequent bonafide purchaser for value of the substituted property. The view" of Viswanatha Sastry J. is opposed to the preponderance of judicial opinion including his own as already noticed. In the circumstances, with great respect, I regret my inability to follow the obiter dieta of the learned Judge in Venkata Subbayya v. Kondayya. It may be remembered that the very case of Sabapathy v. Thandavaraya v Olayar has accepted the correctness of the proposition stated by Sankar Nair, J. in Manjaya Mudali v. Shanmuga Mudali . In my opinion, the law as stated by Sankar Nayar, J. in Manjaya Mudali v. Shanmuga Mudali and accepted as correct in several decided cases and approved by well-recognised authors like Mayne and Mulla is good. It follows that the plaintiff has got a right to demand that an extent of property equal in value of ac. 11-0 settled on her should be carved out of the properties now belonging to the 4th and 6th defendants. In this view of the matter, it is not necessary for us to enter upon a discussion of the right of the plaintiff to enforce against the properties orginally demised to her. It was suggested by Mr. Chandrasekhara Sastry counsel for the 4th defendant that if the plaintiff was entitled to proceed against the properties of his client and the 6th defendant on the doctrine of substituted property, a decree may be granted to her on that basis to avoid another litigation. This leads me to the question whether the suit is barred by limitation. The trial Court thought that it was Art. 116 of the Limitation Act, which prescribes a period of six years for compensation for breach of contract that applies. Obviously, the suit does not fall within the operation of this Article in the view we have taken, namely, that the right of the alienee is not merely to claim compensation for breach of contract. This is a suit for recovering substituted property by a transferee from a coparcener, and as such essentially a suit for possession of immovable property within the meaning of Art. 144. This is analogous to the suit by the vendee from a member of the joint undivided Hindu family for a general partition. There is no Article of Limitation Act which specifically provides for such a suit by an alienee. That being so, the only appropriate Article is Art. 144 of the Limitation Act which is a residuary one. It was laid down by a Bench consisting of Rajamannar C. J., and Raja Gopala Ayyangar, J. in Thani Ghetiiar v. Dakshinamurthy that there was no specific Article of the Limitation Act applicable to suits by a vendee from a member of a joint tamily for general partition or for working out his equities and that as the main relief in such a suit was for delivery of possession after effecting partition, the suit should be treated as one for possession of immovable property and as such attracted Art. 144 of the Limitation Act. The doctrine of this ruling governs the present case and I express my respectful accord with the tatio of this decision -and hold that the suit having been filed within 12 years of the accrual of her tights, the plaintiff's suit is in time. The fact that possession of immovable property is sought in lieu of some other property settled upon her does not make any difference to the applicability of Art. 144, the primary relief claimed being recovery of possession. In the result, I agree that the appeal should be allowed on the lines indicated by my learned brother in his judgment. Umamaheswaram, J. This is an appeal directed against the judgment and decree of the Subordinate Judge of Narasapur in O. S. No. 29 of 1948 dismissing the plaintiff's suit for recovery of possession of the A scheduled propetty, or, in the alternative, for recovery of "possession of sufficient property partitioned from the plaint B scheduled property equally from the shares of 4th defendant and 6th defendant and equal in the aggregate to the plaint A scheduled properties in all respects," and for profits. As the court below dismissed the suit, the plaintiff has preferred the appeal. In order to appreciate the contentions of the appellant, it is necessary to set out a few relevant facts. The 4th defendant, the brother's son of the 6th defendant, was adopted by the plaintiff and her husband, the 6th defendant, on 9-5-1940. As the plaintiff was not at first willing to the adoption of her husband's brother's son, there was a mediation at the instance of P. W. 1, an advocate practising at Amalapore, and a friend of the family and an agreement was entered into between all the family members including the 4th defendant who was a major, that Ac. 11-0 of land should be given to the plaintiff with life interest and that the 4th defendant should be adopted by the 6th defendant and his wife, the plaintiff. Subsequent to the adoption, an adoption deed marked, as Ex. A-3, was executed by the 4th defendant. On the same day, a deed of settlement was executed by the 6th defendant. The property set out in the schedule was settled upon the plaintiff for life. It was recited in the document that those specified properties should come out of the share of the 6th defendant's branch and the two undivided brothers of the 6th defendant, Kopparti Ramachandra Rao and Kopparti Bhaskaranarayana attested the document. In spite of having adopted the 4th defendant, the adoptive father filed O. S. No. 69 of 1942 on the file of the Sub Court, Narasapur for a declaration that the adoption deed dated 15-1-1941 was null and void and that he did not take the 4th defendant as his adopted son. The 4th defendant filed O. S. No. 10 of 1943 on the file of the same court for partition and separate possession of his l/6th share in the family properties. In the partition suit, the 4th defendant herein impleaded his adoptive father, his adoptive mother, his natural father, Kopparti Ramchandra Rao and his natural brothers and his uncle, Bhaskaranarayana and his son, as parties. In paragraph 5 of his plaint, he set out the terms of the anteadoption agreement entered into between him and his adoptive parents. In paragraph 9, he stated that the adoptive mother's Ac. 11-0 should be partitioned so that the same might revert to him and his father after her death. The adoptive parents took up the stand that the adoption was not true and valid and that the plaintiff was not entitled to a share in the properties. They alleged that there was a final partition of the entire joint family properties between the adoptive father and his brothers and that the properties set out in the settlement deed were allotted to the natural father under the said partition. The Subordinate Judge of Narasapur held that the adoption was true and valid, that the settlement deed was accepted by the appellant herein, and that she was a necessary party as her rights under the settlement deed had to be adjusted in the partition between the adopted son and the adoptive father. He also held that the partition entered into between the adoptive father and his brothers was a final and complete partition and that it was not open to the plaintiff to re-open it. The Subordinate Judge who held that the appellant had accepted the settlement deed and was a necessary party to the partition suit, curiously did not set apart any property equivalent ot corresponding to Ac. 11-0 but reserved her right to pursue her remedies by a separate suit. In, view of the attitude taken up by the appellant herein that there was no valid adoption, she did not prefer an appeal and agitate that her rights under the settlement deed should be secured in the partition suit itself. The appeals that were preferred by the adoptive father, A. S. Nos. 279 and 280 of 1944 were dismissed by the High Court of Madras on 12-12-1945. The plaintiff, the adoptive mother, instituted the present suit on 12-1-1948 for the enforcement of her rights under the settlement deed. Her case is that she is entitled to recover the specific properties from the 1st defendant and his sons, defendants 2, 3 and 5. The alternative case is that, if for any reason, she is not entitled to recover those specific properties from them, she is entitled to recover from her husband the 6th defendant and the adopted son, the 4th defendant, i. e. from and out of the B scheduled properties allotted to them in the partition between the 6th defendant and his brothers, in equal shares, and equal in value to the properties settled upon her and described in the A schedule. Defendants 1 to 3 and 5 pleaded that in as much as there was a final and complete partition between the three branches and the partition was upheld in the prior suit, it was not open to the plaintiff to claim the A scheduled properties from them. The 6th defendant who was colluding with his wife originally remained exparte ; but later on got the exparte order against him set aside and filed his written statement. He contended chat the plaintiff was not entitled to any rights as against him. The adopted son also denied the plaintiff's right to recover any properties from him. The Subordinate Judge of Narasapur who tried the suit held that the deed dated 15-1-1941 was a gift deed and was not valid and binding inasmuch as the plaintiff did not accept it and that the gift deed was also not acted upon. He however found that the gift deed was true and that the 6th defendant had a right to execute it even though he was a member of a joint Hindu family. He further found that the plaintiff was not entitled to recover the A scheduled properties from defendants 1 to 3 and 5 as there was a final and complete partition between the three branches and the A scheduled properties fell to their share. In paragraph 19, he held that if the plaintiff was entitled to any substituted property, she was entitled to recovery only from and out of the properties that were allotted to her husband. On the question of limitation, he found that the suit was barred. In the result, he dismissed the plaintiff's suit and she preferred the above appeal. The questions that fall to be decided in the appeal are: 1. Whether the deed dated 15-1 1941 marked as Ex. A-1 is a deed of gift or a family settlement deed and whether the plaintiff accepted the deed or not ?

(2.) Whether the plaintiff is entitled to recover the A scheduled properties from defendants 1 to 3 and 5 ?

(3.) Whether the plaintiff is entitled to recover in equity, equally from defendants and 6 from and out of B scheduled properties properties equivalent in value to A Scheduled properties ? and