KATURI DHARMARAO Vs. MANEPALLI BAPANAYYA

JUDGEMENT

(1.) The appellant was the plaintiff in a suit filed in the Court of the Subordinate Judge of Bezwada in which he asked for partition of the family properties and for possession of his share. He also asked the Court to set aside an alienation made by his father on the 10 September, 1921. The family estate then consisted of two house sites in the town of Bezwada, one site measuring 290 sq. yards and the other 720 sq. yards. On each site was a house built of mud and stone. The property alienated by the father was the first of these properties. At that time the joint family consisted of the father (the sixth respondent in this appeal) and his two sons (the appellant and his younger brother, the second respondent). Both the sons were then minors. Three other sons were born to the father between the years 1921 and 1931. They are the third, fourth and fifth respondents. The plaint contained the usual allegation that the father had lived a debauched life and that the property had been sold in order that he might indulge in his depraved habits. The Subordinate Judge rejected this plea and in a judgment in which he considered the evidence in detail he held that the alienation was binding on the sons. The appellant filed an appeal to the District Judge of Kistna. The District Judge disagreed with the finding of the Subordinate Judge that the alienation was binding on the sons. He considered that it had been proved that the father had lived an immoral life. He rejected the appeal, however, on the ground that the property alienated represented less than one-third of the estate and as the father was at the time of alienation entitled to a third share in the joint estate the alienation should not be set aside.

(2.) The appellant has now appealed to this Court. He contends that the District Judge should have held that the father was not entitled to more than one-sixth of the family property as three sons were born subsequent to the alienation. In support of this contention the appellant relies on the decision of the Full Bench of this Court in Rangasami V/s. Krishnayyan (1891) 1 M.L.J. 603 : I.L.R. 14 Mad. 408 (F.B.), ignoring entirely the subsequent Full Bench decision in Chinnu Pillai v. Kalimuthu Chetti and the numerous decisions which regarded this case as settling the law. For the alienee, the first respondent, it has been contended that there was no justification for the finding of the District Judge that the father had lived an immoral life. The Court is asked to reverse the judgment of the District Judge on this point and restore that of the Subordinate Judge; but it is not open to the first respondent to raise this contention, because he has not printed the evidence. In these circumstances it does not lie in his mouth to say that there was no justification for the District Judge's conclusion. The Court is not in a position to investigate the question. The finding of the first appellate Court on a question of fact is binding here unless it can be shown that the finding is without foundation and without the evidence that cannot be shown.

(3.) The only real point in this appeal is whether the case is governed by Rangasami V/s. Krishnayyan (1891) 1 M.L.J. 603 : I.L.R. 14 Mad. 408 (F.B.) and a glance through the cases which have been decided by this Court since then shows that this Court has repudiated that decision and has held that the decision in Chinnu Pillai V/s. Kalimuthu Chetti is to be regarded as settled law. In Rattgasami v. Krishnayyan (1902) I.L.R. 25 Mad. 690 (F.B.), a Full Bench, consisting of Collins, C.J., and Muthuswami Aiyar, Parker and Shephard, JJ., held that when a member of a joint family sells his share in the family property that share must be computed with reference to the state of the joint family at the date of the suit, not at the date of the alienation. If that decision were to be followed it is clear that it would mean that in this case the respondent would only be entitled to a one-sixth share in the estate, because at the date of the suit the family consisted of six members. The wisdom of the decision in Rangasami V/s. Krishnayyan (1902) I.L.R. 25 Mad. 690 (F.B.) was doubted by Bashyam Aiyangar, J., in Aiyyagari Venkataramayya v. Aiyyagari Ramayya (1902) I.L.R. 25 Mad. 690 (F.B.). Bashyam Aiyangar, J., who relied on the decisions of the Privy Council in Deen-dyal Lal V/s. Jugdeep Narain Singh (1877) L.R. 4 I.A. 247 : I.L.R. 3 Cal : 198 (P.C.), Suraj Bunsi Koer V/s. Sheo Proshad Singh (1879) L.R. 6 I.A. 88 : I.L.R. 5 Cal. 148 (P.C) and Hurdey Narain Sahu V/s. Rooder Perkash Misser (1883) L.R. 11 I.A. 26 : I.L.R. 10 Cal. 626 (P.C), was of the opinion that the share should be computed from the date of the alienation and not from the date of the suit--This judgment led to the question being by a Full Bench of five Judges in Chinnu Pillai Kalimuthu Chetty . The Bench consisted of White, C.J. and Benson, Munro, Sankaran Nair and Krishnaswami Aiyar, JJ. After the arguments had been closed Krishnaswami Aiyar, J., was appointed the Law Member of the Governor's Council. This appointment was made before judgment was delivered and the question was raised whether the Court, being then composed of only four members, was competent to deliver judgment. With a view to solving the difficulty the learned Chief Justice reconstituted the Bench, the only difference being the Hon ble Mr. Krishnaswami Aiyar was not included. Counsel had nothing to add to the arguments which had previously been addressed to the Court and the four members who composed it thereupon proceeded to deliver judgment. They were of the opinion that under Hindu Law an alienee of the interest of a coparcener is entitled to enforce his claim against the family estate on the basis of the vendor's right at the time of the alienation. This meant that the decision in Rangasami V/s. Krishnayyan (1891) l M.L.J. 603 : I.L.R. 14 Mad. 408 (F.B.) was repudiated.