RAMASAMI AIYAR Vs. ASVENKATARAMA AYYAR

JUDGEMENT

(1.) In this case the plaintiff is the son of one Sambasiva Ayyar, the adopted son of one Sivarama Ayyar, and he sues to recover possession of certain properties, sold by his grandfather Sivarama Ayyar on the 29 of June 1901 to the first defendant who is the father of defendants 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 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 coparcener has a right to sue for 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 sale 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 Venkata Ramayya v Aiyyagari Ramayya (1902) I.L.R., 25 Mad., 690 (F.B.) and was followed in Chinnu Pillai V/s. Kalimuthu Chetti (1912) I.L.R., 35 Mad., 47 (F.B.) 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 the alienation. This latter ruling disposes of the respondent's contention that the first defendant has lost all right to the property on the death of Sivarama Ayyar. It is thus quite clear on all the authorities that the first 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.