AIYYAGARI VENKATARAMAYYA Vs. AIYYAGARI RAMAYYA

JUDGEMENT

(1.) In the case of Rangasami V/s. Krishnayyan I.L.R. 14 Mad. 408 the point which was before the Full Bench for consideration was whether, where the purchaser from a member of an undivided family of his share of the family property sues for partition, the share to be awarded to the plaintiff is to be computed with reference to the state of the joint family at the date of the purchase or at the date of the suit. The Full Bench held that the share was to be computed with reference to the state of the family at the date of the suit. In the course of the judgment the question now before us was considered. In discussing the contention which had been put forward (though the question did not arise on the facts of the case then before the Court) that if the vendor died before the purchaser effected a partition, the purchaser would take nothing, the Judges point out that the purchaser acquires a vested interest by the sale and that the vendor being competent to sell, his subsequent death is an event which cannot divest the interest which has once vested. Although these observations are merely obiter they seem to me to lay down the rule of law which, under the Mitakshara law as administered in this Presidency, is applicable to the facts of the present case. The same rule is laid down in an earlier Madras case Alamelu V/s. Rangasami I.L.R. 7 Mad. 588 at p. 590 where Sir Charles Turner puts it thus: "If a purchaser for value purchases the interest of an undiveded co- parcener who dies before partition is effected, the contract nevertheless takes effect and the purchaser may apply for partition."

(2.) As regards the point now under consideration the same rule of law has been applied in Bombay. In the judgment in the case of Gurulingapna V/s. Nandappa I.L.R. 21 Bom. 797 the following proposition is laid down (Page 806): "As the purchaser does not by the death of his vendor lose his right to partition so his position is not improved by the death of other co- parceners before partition." It is now well settled that under the Mitakshara law as it is administered in Madras and Bombay one co-parcener may dispose of ancestral undivided estate by private contract to the extent of his own share. Under the Mitikshara law as administered in Bengal the law which prevails in the other Presidencies as regards alienation by private deed has not been adopted. See the judgment of the Privy Council in the case of Suraj Bunsi Koer V/s. Sheo Persad I.L.R. 5 Calc. 148 at pp. 166, 167 In the Privy Council case of Madho Pershad V/s. Mehrban Singh I.L.R. 18 Calc. 157, the appeal was from Oudh where the law as administered in Bengal prevails and the decision is based on the Mitakshara law as administered in Bengal. The authorities cited and discussed are Bengal cases, and I think the decision only applies and was only intended to apply to a case governed by the Mitakshara law as it prevails in Bengal. The question of the soundness of the decision in the case of Rangasami V/s. Krishnayyan I.L.R. 14 Mad. 408 on the point which was then actually before the Court, viz., whether the time with reference to which the share is to be ascertained is the date of purchase or the date of suit, was discussed at some length in the course of the argument of the present case. In the present case the result would be the same whether the time is taken to be the date of purchase or the date of suit. The point therefore does not arise and I dot think that a determination of the question is necessary for the decision of the question which has been referred to us. In these circumstances I do not propose to discuss it. So far as this High Court is concerned there is express authority that a suit, such as the present, is maintainable, and the decisions of the Privy Council do not appear to me to be in conflict with the Madras decisions to which I have referred.

(3.) I am of opinion that our answer to the reference should be that the suit is maintainable. As regards the remedy to which plaintiff is entitled, I think this is a matter which should be dealt with at the trial of the suit under the order of remand, which I think was rightly made. Moore, J.