KADEGAN ALIAS SWAMI CHETTI Vs. PERIYA MUNUSAMI

JUDGEMENT

(1.) The joint family consisted of the 2nd defendant's father, the 2nd defendant, and the plaintiffs who are the sons of the 2nd defendant. In execution of a decree obtained on a mortgage bond executed by the 2nd defendant alone, which admittedly did not bind the family, the right, title and interest of the 2nd defendant in a specific portion of the family property, was sold and was purchased, by the 1 defendant who was the decree-holder, and it may be assumed that right title and interest of the 2nd defendant's sons also.

(2.) On the principle of the decision reported in Chinna Sanyasi V/s. Suriya I.L.R. 5 M. 196 it was open to the remaining co-parcener viz., the father of the 2nd defendant, if he so chose to affirm the court sale in respect of the moiety of the specific land, and thus become divided in respect of such portion only of the family land, in which case the purchaser need not be driven to enforce his purchase by bringing a suit for a general partition of the whole of the family property.

(3.) In the present case, the 2nd defendant's father, by subsequently making a gift of his moiety in such portion has, in effect, ratified the court sale as effecting a partition of the property to which the sale related between himself and his son under whom the purchaser claims in this view, the gift is really one made by a member of an undivided family who had become divided in respect of a portion of the family property, a moiety of which was the subject of the gift. The gift, moreover, was not of an undivided moiety but of a specific moiety, purporting to be equal in quality and extent to the remaining moiety.