RAMASWAMI IYER Vs. ASVENKATARAMA IYER

JUDGEMENT

(1.) In this case the plaintiff is the son of one Sambasiva Ayyar, the adopted son of one Sivaramma Ayyar, and he sues to recover possession of certain properties, sold by his grandfather, Sivaramma Ayyar on the 29 of June 1901 to the 1 defendant who is the father of defedants Nos. 2 to 4 on the ground that the sale was not effected for any necessity and is not binding on him. The plaintiff's father and grandfather are now both dead and, therefore, the plaintiff claims to recover the whole of the suit properties.

(2.) The Subordinate Judge has found that there was no necessity for the sale and that it is, therefore, not binding on the plaintiff's share and he has given a decree to the plaintiff for a division of the property into two parts and for recovery of possession by the plaintiff of one- half with mesne profits from the date of the sale. The defendants now appeal and state that the decree is wrong and that the plaintiff's suit should have been dismissed on the ground that the first defendant acquired a right by the sale in his alienor's share of the family property and that he is in equity entitled to recover property not greater in value than his alienor's share, and that he is also entitled to ask for partition of the family property, and to have the specific item assigned to his alienor's share, if that is consistent with the rights of other coparceners.

(3.) It is not disputed that an alienee from an undivided co-parcener has alright to sue for a partition of the family property and to recover his alienor's share, in the case of a sale of an undivided share, that share itself, and in the case of tale of a specific item of property an equitable right to have that property assigned, if possible, to his alienor's share. This principle was laid down in Aiyyagari Venkataramayya V/s. Aiyyagari Ramayya 25 M. 690 (F.B.) and was followed in Chinnu Pillai V/s. Kalimuthu Chetti 9 Ind. Cas. 5961 : 35 M. 47 (1911) 1 M.W.N. 238 : 9 M.L.T. 389 : 21 M.L.J. 246 where it was further held that the share of the alienor which passes to the alienee is the share to which the former was entitled at the date of alienation. This latter ruling disposes of the respondent's contention that the 1 defendant has lost all right to the property on the death of Sivaramma Ayyar. It is thus quite clear on all the authorities that the 1 defendant is entitled to a partition of the family property and to have the plaint property assigned to Sivarama Ayyar's share, if that can equitably be done, and can bring a suit for that purpose.