EDE CHINA GURUNADHAM Vs. PALAKURTI VENKATA RAO

JUDGEMENT

(1.) Before we finally dispose of these appeals, it is necessary to get the authoritative decision of a Full Bench on a question on which there is divergence of judicial opinion.

(2.) In Dakshinamurthi v. Sitharamayya, 1958-1 Andh WR 85, a Division Bench of this Court, consisting of Umamaheswaram and Mohd. Ahmed Ansari, JJ., held that an alienee from an alienee of a specific item of property from an undivided member of a joint Hindu family, is entitled to work out the equity in a suit for partition and have the property allotted to the share of the alienating coparcener. The basis of this decision is that the right of an alienee to the equity is a right in personam and is heritable and transferable.

(3.) A contrary view was taken in two Bench decisions of the Madras High Court, viz., Dhadha Sahib v. Muhammad Sultan Sahib, ILR 44 Mad 167: (AIR 1921 Mad 384) and Sabapathi Piliai v. Thandavaroya Odayar, ILR 43 Mad 309 : (AIR 1920 Mad 316). In ILR 44 Mad 167: (AIR 1921 Mad 384), which deals with very much the same question as in ILR 43 Mad 309 : (AIR 1920 Mad 316), the learned Judges Abdur Rahim and Oldfield, JJ., observed that even though a vendee of specific lands from a coparcener of a Hindu family, may be entitled to recover lands of equal value out of the lands allotted to his vendor in a subsequent partition in the family, a vendee from the first vendee has no such right, his only remedy being to get damages from his vendor. At page 168 (of ILR Mad) : (at p. 385 of AIR). the learned Judges observed :