VADIVELAM PILLAI Vs. NATESAM PILLAI

JUDGEMENT

(1.) A question of Hindu Law of some importance has been raised for decision in this Second Appeal. The necessary facts may be very briefly stated. One Manickam and Chinnappa were two Hindu brothers. They were living separately for a considerable time. The plaintiff is the son of Manickam. He sues to recover one-half of oertain lands which were sold by Chinnappa in 1899. Evidently the lands in question as well as other property belonging to the brothers were managed by Chinnappa. The plaintiff s case was that he and Chinnappa were undivided members and that the sale made by Chinnappa was not binding on him. He therefore claimed to recover one-half of the properties sold treating the sale of the other half as valid, as Chinnappa was entitled to alienate his own share for consideration.

(2.) Several questions of fact were raised by the defendant which it is unnecessary to refer to for the purpose of this judgment. The Lower Courts found that the family was undivided. The Appellate Court also overruled the contention of the defendant that the plaintiff s right to a share of the family properties was extinguished by the statute of limitations; no good reason has been shown for interfering in Second Appeal with the finding on (his latter question.

(3.) Mr. Seshagiri Ayyar argued that the plaintiff Was estopped by his conduct from disputing the alienation made by Chinnappa but the finding of the Munsif on the question of estoppel was against him and no facts have been brought to our notice which would show that the plaintiff was estopped. The Lower Appellate Court held that out of Rs. 500, the consideration for the sale deed, (Exhibit VIII) executed by Chinnappa, Rs. 250 was borrowed by him for purposes binding on the family consisting of himself and his nephew, the plaintiff, but that the remaining Rs. 250 was not binding on the plaintiff. On these facts he had to decide what decree the plaintiff was entitled to. He came to the conclusion, that the plaintiff was entitled to a decree for the half share claimed by him without making any payments to the defendant. In doing so he considered himself supported by the authority of the decision in Marappa Gaundan v. Rangasami Gaundan (1900) I.L.R. 23 Mad. 89. In Second Appeal it is contended by the learned vakil for the appellant that the view taken by the Judge is wrong. Mr. Seshagiri Ayyar asks us to proceed on the basis that the amount Rs 250 which is found to have been borrowed for family purposes must be regarded as a charge on the plaintiff s share of the property; he argues that the family having benefited to the extent of Rs. 250 by the sale the plaintiff cannot recover his share without paying that amount. In effect, he asks us to treat Chinnappa as having sold his own half share for the portion of the consideration which has been held to be not binding on the family and the other half share for the portion held to be binding. Mr. Natesa Ayyar for the respondent asks us to do just the contrary, that is to hold that Chinnappa must be taken to have sold his own half share for the portion of the consideration held binding on the family and the remaining half share for the portion held not to bind the family. We can find no legal principles on which we can adopt either of these courses. According to accepted equitable principles, in the absence of anything appearing to the contrary the consideration for the sale must be distributed over the whole of the property sold in proportion to the value of each part. On this principle the whole of the Rs. 500 must be distributed over the shares belonging to the plaintiff and Chinnappa respectively. There is no ground for supposing that one portion of the consideration was allocated to a particular half share and the other portion to the other half share. The valid portion of the consideration as well as the invalid portion must be distributed over each of the half shares of the plaintiff and Chinnappa respectively.