DAVUD BEEVI AMMAL Vs. RRRADHAKRISHNA AIYAR

JUDGEMENT

(1.) By a deed of absolute sale one Rarnachandra Ayyar sold certain lands to the 3rd defendant purporting to act for himself and as the guardian, protector and father of his minor son, the 2nd defendant. The rights of the 3 defendant are now vested in the plaintiff. The 1 and 2nd defendants are members of a joint Hindu family and the lands in question were their joint property. At the time of the sale the 3 defendant obtained from the 1 defendant a security bond by which the 1 defendant gave him an indemnity against the loss that might arise by any claim of the minor 2nd defendant. That bond took the form of a charge to the extent of Rs. 8,000 on certain other lands which it appears also formed part of the joint family property. This suit is brought for a general partition of the joint family property and it is prayed that, in that partition, the suit lands shall be allotted to the 1 defendant, so that, whether he was entitled to alienate them or not, the plaintiff may get them as standing in the shoes of the 1 defendant.

(2.) The District Munsif of Ncgapatam, Mr. R. V. Krishna Ayyar held that the sale was not binding on the 2nd defendant. He decreed a general partition and directed that all the joint properties should be divided into two equal shares between the 1 and 2nd defendants and that, in effecting such partition, the lands sold to the 3 defendant should be allotted to the 1 defendant, and adjourned the suit to appoint a commissioner to effect the partition. Without the appointment of a Commissioner the 1 and 2nd defendants divided the property filing lists of properties which they had agreed to take in those lists allotting to the 1st defendant the properties sold to the 3 defendant. It was not contended that this division of property would work any injustice to the and defendant and, indeed, by the agreement between the 1 and 2nd defendants as to the division, it is clear that it was admitted that this was not the case. The District Munsif in his Judgment has stated quite clearly the principle to be applied. On the case coming before the Subordinate Judge, Tanjore, he reversed the decree stating that the 2nd defendant had a prhna facie right to a half share in the specific properties alienated and that there was no reason for depriving him of that natural right in giving effect to the equity in favour of the third defendant and he saw no paramount equity to be enforced in favour of the 3 defendant or his vendee so as to over-ride the natural rights of the plaintiff operating to his prejudice.

(3.) The principle of equity to be applied in such cases is well established and will be found clearly stated in the judgment of Bashyam Aiyangar, J. in his very learned judgment in Ayyagiri Venkataramayya V/s. Ayyagiri Ramayya (1902) I.L.R. 25 M. 690 at 715 and 716 and in Manjayya Mudali V/s. Shamnuga Mudali .(1913) I.L.R. 38 M, 684;26.M.L.J. 576, and it is that a purchaser from one member of a joint family which that member has no right to sell, it being the joint property, can enforce the sale only by a partition of the entire family property; and if, in such partition, the property sold, can, with due regard to the interests of the other sharers, to the debts due by the family and to an equitable allocation of the various items of family property to the shares of the several co-parceners, be wholly allotted to the vendor's share, the purchaser will be entitled to the whole property which the vendor professed to convey to him. In my judgment, the learned District Munsif puts this case from the right point of view and I should content myself with saying that I have nothing to add to his excellent judgment, which is a clear and well-reasoned judgment, and that I do not agree with the judgment of the Subordinate Judge, because I do not appreciate what natural rights of the plaintiff operating to his prejudice are over-ridden by the District Munsif's decree. But Mr. Venkatrama Sastri has contended that it is now established as far as Madras is concerned that, where family property has been alienated by one co-parcener, the others may without any general partition either claim the whole property from the alienee or may claim back their share of that property, such share being the proportion to which they would have been entitled on a partition of that specific property and for this proposition we are referred to the judgment of a Full Bench of this Court in Iburamsa Rowthan V/s. Thiru-venkatasami Naick (1910) I.L.R. 34 M, 269:2o M.L.J. 743. That case is, of course, binding on us sitting in Second Appeal, but I do not think that it was intended by that Court in any way to dissent from the principle of equity stated above and so well established. Nor do I think that it was meant that whether the alienee in such cases could get the property was to depend on whether a suit was first brought by him for a partition of the whole joint property or by the other co-parceners, for a partition of a part. We are informed that there was pending, at the time of the hearing of this suit, another suit by the son claiming partition of the particular property and award to him of a half; so that, if by chance that suit had been heard first and the principle in Iburamsa Row than V/s. Thirnvenkatasami Naick (1910) I.L.R. 34 M, 269:2o M.L.J. 743 had been applied, assuming it to be consistent with the equitable principle that would otherwise apply, the son would have got half of the property in question and the plaintiff one half whereas by applying the equitable principle, he would have got the whole of what had been sold. That there is no such conflict, I think, is clear from the decision of the Privy Council in Ramakish or e Kedarnath V/s. Jainarayan Ramrachpal (1913) I.L.R.40 C. 966:25 M.L.J. 512 (PC). There the suit was brought by members of a joint Hindu family to set aside an alienation by their father to an adopted son whose adoption was alleged to be invalid. Their Lordships in sending back the case pointed out that the adopted son might be entitled to insist that he stood in the shoes of the adoptive father and be entitled in that suit to obtain a partition in which he could get the share which would come to the father so as to give effect to any rights which the adopted son might be entitled claiming through the father. In my view, this is authority for the proposition that, if this suit had been a suit by the son for a share of the alienated property, it would be open to the Court on the application of the alienee to decree a general partition in which the principle of equity should be applied.