(1.) The plaintiff in the suit, out of which this Second Appeal arose, purchased the right of the 3rd defendant, a member of an undivided family consisting of defendants Nos. 1 to 8, in certain lands in court-auction in execution of a decree obtained by him against the 3rd defendent. This suit was instituted in the District Munsif s Court of Namakal, Salem District and was to recover the 3rd defendant s one-fourth share in those lands. The contesting defendants pleaded that there were other properties belonging to the family in the District of Coimbatore and in the Native State of Cochin and that the suit for the division of part only of the properties belonging to the family was not maintainable. They pleaded also that there were debts belonging to the family and that no partition could be allowed without making provision for the discharge of those debts. There were also other pleas, viz, that the plaintiff s claim was barred by the rule of res judicata and that the 3rd defendant had relinquished his right in the family property before the plaintiff s purchase. We disallowed these pleas at the hearing and we do not consider it necessary to deal with them further.
(2.) After the issues in suit had been framed, the 1st defendant asked that certain further issues should be raised, viz., (1) whether this suit is beyond the jurisdiction of this Court? (2) whether there are other properties, debts and incomes connected with the family as alleged by the 1st defendant? and (3) whether all those should be included in this suit and whether they should be got by all? The District Munsif disallowed this application on the ground that they did not arise out of anything contained in the original written statement. Complaint was made in the grounds of the appeal preferred by the defendants in the District Court against the Munsif s judgment that the Munsif "ought not to have disallowed the application for further issues necessary for the proper determination of all the contentions of the parties in the case." But the vakils who appeared for the appellants intimated at the hearing "that they did not press the grounds of appeal regarding the adequacy of issues or of the necessity for framing additional issues." The defendants insisted both in the Munsif s Court and in appeal that the suit should be dismissed on the ground that it did not ask for a partition of all the properties belonging to the family, for awarding to the plaintiff the 3rd defendant s share in the lands purchased by the plaintiff. Both the lower courts disallowed this application on the ground that the rule that a suit for partial partition will not lie, does not apply where the properties not included do not lie within the jurisdiction of the court in which the suit is instituted and that such was the fact in this case as the other properties were within the jurisdiction of the courts in Coimbatore and Native Cochin. The learned District Judge relied in support of his view chiefly on Subba Raw v. Rama Row (1867) 3 M.H.C.R. 376. It is argued that that ruling is not applicable to suits instituted after the Civil Procedure Code, Act VIII of 1859, was repealed, according to which, a suit for recovery or partition of immoveable properties situated within the jurisdiction of more courts than one could be instituted in any one of the courts within whose jurisdiction part of the property was situate only with the permission of the court, while under the Procedure Code of 1877 (Act No. X of 1877) and the subsequent Codes such a suit could be instituted without any permission of court in any court within the local limits of whose jurisdiction any portion of the property is situate. The argument is that it was because the plaintiff could not be bound to ask for parmission to include in his suit properties, situated within the jurisdiction of another court, that it was held that he was not bound to include in a suit for partition properties which were not within the jurisdiction of the court in which the suit was instituted. We are of opinion that there is force in this contention and we would be inclined to consider this question further if we did not come to the conclusion that we were not bound in this case for other reasons to give effect to the contention that the suit must fail on the ground that it was one for partial partition.
(3.) The suit in this case is not by a member of an undivided family but by a purchaser of a portion of the rights of one *** the members of such a family. It has been fully established in this Court that such a purchaser acquires the share of the member whese right he has purchased as it stood at the time of his purchase. See the decision of the Full Bench in Iburamsa Rowthan v. Venkatasami Naick (1910) I.L.R. 34 M. 269. As pointed out by Krishnasami Aiyar, J. in that case, the joint family ownership of the members of the family in the property alienated by one of them becomes severed to the extent of the chare of the member whose right has passed to a stranger. It; does not affect the joint tenancy (to use a convenient, though, somewhat inaccurate expression) with respect to it, so far as the other members of the family are concerned. It is hardly necessary to one that the joint tenancy of all thus or ****bers, including the one whose right in the particular property is transferred to a third person, with respect to the other properties in the family, is not affected by the alienation. The position briefly is this. The members of the family preserve their undivided status and they also continue to be all of them joint tenants with respect to all properties except that with respect to which the right of one of them has passed to a stranger. With regard to the property affected by the transfer the alienee is a tenant in common with the members of the family other than the alienor, those other members being still joint tenants amongst themselves with respect to their own shares. In earlier decisions of this Court a different position had been taken up. It was held that the transfer of the right of an undivided member, in the whole or part of the family property, gave the transferee only an equity and not what strictly could be termed a right in property, the equity being right to enforce partition and to ask the court, out of what may be given on division to the member whose right has been transferred, some property that would be sufficient to give effect to what the transferree purported to acquire under the transfer. This equity, it was held was liable to fluctuation so as to diminish but not to increase and so as also not to be destroyed though liable to diminution. See the judgment of the learned Chief Justice in the case above referred to. This position must be taken to have been now definitely abandoned after an examination of the decisions of the Privy Council and of the various High Courts bearing on the point and we must now proceed on the footing that the transferree acquires the share of the transferrer at the time of the transfer, but subject to this important qualification that the right obtained on transfer is subject to all the equities available to the other members of the family against the transferrer. Thus they might shew that the transferrer was under obligations to the family which he would be bound to satisfy before getting any share in the property transferred; and, if these obligations would completely destroy his right in that property and disentitle him to get any share thereof, the transferree would also be subject to the same equity. But barring the liability to have such equities set up against a transfer, the transferree is entitled to the transferrer s share as it stood at the time of the tranfer. See the judgment of Sir V. Bhashyam Ayyangar, J. in Ayyjgari Venkatramayya v. Ayyagari Ramayya (1902) I.L.R. 25 M. 690.