SIVANARAYANA PILLAI Vs. MUTHUKUMARA STHAPATHIAR

JUDGEMENT

(1.) The plaintiff has brought this suit for possession of the suit property on the ground that the alienation in favour of the defendant by his deceased brother Kanakasabapathi Asari, is not binding on him. The District Munsif dismissed the plaintiff's suit. On appeal the Subordinate Judge gave a decree for the moiety of the plaint property. The defendant has preferred this second appeal. The contention of Mr. T. M. Ramaswami Aiyar is that the defendant is entitled to the whole of the property inasmuch as on the date of the alienation the value of the alienor's share was considerably more than the value of the property conveyed to the defendant. The admitted facts are: The plaintiff had a brother Kanakasabapathi Asari. The defendant obtained a decree against Kanakasabapathi Asari in 1915 and purchased the property in execution of the decree. Then not being able to obtain possession of the property he brought a suit O. S. No. 228 of 1918, against Kankasabapathi Asari, and obtained a decree for possession. Kanakasabapathi Asari is dead and the plaintiff the surviving brother has brought this suit for possession of this property. The question is whether the Court should take into consideration the state of the family at the time when the alienation was made or as contended by Mr. V. Ramaswami Aiyar for the respondent, the state of the family at the time when the plaintiff's suit was brought. The family property was worth about Rs. 7,000 and the share of Kanakasabapathi Asari was at least Rs. 3,500, and the value of the property that was sold in execution of the decree was worth Rs. 1,500, and the share, therefore, of Kanakasabapathi Asari was much more than the value of the property sold to the defendant. The Subordinate Judge has decreed half the property to the plaintiff on the ground that his share was not conveyed to the respondent. But the question is, in a case of this kind, should the Court take into, consideration the state of the family on the date of the sale or on the date of the suit. When a member of a joint Hindu family alienates a particular item of property in favour of a stranger and a suit for partition is afterwards brought, the Court, when circumstances are favourable, may allot the property alienated, to the member who alienated it and thereby allow the vendee to retain that property. It is not in all cases necessary that the vendee should be driven to a suit for the purpose of enforcing his right under the purchase from the member of the joint Hindu family. In this case the defendant bought the property from Kanakasabapathi Asari. But Kanakasabapathi Asari being dead the plaintiff asks for a share of the family property in defendant's hands. There were other family properties to satisfy the claim of the plaintiff if he had brought the suit on the date of the sale to defendant and the latter would have pleaded that the property alienated should be allotted to the alienor's share. We must not take into consideration the state of the things now. As found by the learned Subordinate Judge all the family property was sold by both the brothers on account of their debts. If the contention of the respondent is to hold good it will amount to this.

(2.) Supposing for argument's sake the family property is worth a lakh of rupees when the alienation is made and the share of the alienating member is about Rs. 50,000, and the value of the property actually alienated is only Rs. 5,000 and if after the alienation the family contracts debts recklessly or sells the rest of the family property or invests the proceeds upon some security and that such security is lost, the alienee cannot retain the whole of the property if any one of the members of the joint family brings a suit for partition and asks for his share of the property alienated, as that is the only property that is left. I think it would be opposed to all principles of equity, to give a decree against the alienee in such a case, for the alienee has got his own equity as much as the joint family member. I think it is well settled that the time at which the share of the alienating brother should be determined is the date of the alienation: vide Chinnu Pillai V/s. Kalimuthu Chetti [1912] 35 Mad. 47.

(3.) It is unnecessary to discuss the objections raised by Mr. V. Ramaswami Iyar at great length as the present case is covered by a clear authority of this Court in Ramaswami Aiyar v. Venkatarama Aiyar A. I. R. 1924 Mad. 81 In that case the share of the alienor at the time when the alienation was made was comparatively more than the value of the property alienated. Justices Phillips and Venkatasubba Rao upheld the alienation on the ground that at the time of the alienation the share of the alienor was considerably more than the value of the property and they held that the alienee need not be directed to institute a separate suit to work out his rights by a partition but was entitled in the co-parcener's suit as a defendant to get a decree for partition and claim to allot the item in respect of his vendor's share. In this case there is no other co-parcener, Kanakasabapathi Asari being dead and the circumstances are such as would not justify the Court in decreeing partition of the suit property in favour of the plaintiff. That being so, I do not think that the plaintiff is entitled to a decree for partition and the decree of the Subordinate Judge is set aside and the plaintiff's suit is dismissed with costs throughout.