(NAGUR) PICHAI ROWTHER Vs. RAKKAPPA

JUDGEMENT

(1.) In this second appeal 4 defendant is the appellant. It arises out of a suit for partition. Plaintiff's father, 1 defendant, and the 3 defendant's father were brothers. The 2nd defendant is the son of the 1 defendant. The 4 defendant is an alienee of two of the items in the plaint schedule, he having purchased the property under Ex. I, dated 28 February 1908, for Rs. 1,900. The Munsif dismissed the suit as one for partial partition. On appeal the Subordinate Judge decreed the plaintiff's suit. The 4 defendant, therefore, appeals.

(2.) The first point argued before me is whether the suit is bad for partial partition. The Subordinate Judge held that it is not open to an alienee to raise such a point. It is true that where a member of the family sues for partition and recovery of his share of an alienated item alone, such a point is not open to the alienee. But, I doubt if there is any general rule that an objection on the ground that the suit is one for partial partition can never be taken by a stranger. However this may be, I do not think this case is one in which such an objection ought to be allowed to be taken as a bar to the maintainability of the suit. Though the 4th defendant raised the point in his written statement he never took an issue specifically raising the point. The third issue "What are the joint family properties," is too general to cover a plea as to the maintainability of the suit. It seems to me, therefore, that this point should not be allowed to be raised for the purpose of getting plaintiff's suit dismissed. It may be that it may have to be inquired into for the purpose of the point to be next discussed.

(3.) The next question is whether the alienation in favour of 4 defendant should be upheld as binding on the family and whether in any event, as a matter of equity the alienated item should not be allotted to Defendants Nos. 1 to 3 so as to uphold the alienation in favour of 4th defendant if possible. The sale itself was effected by 1 defendant and 3 defendant's father who alleged in the deed that plaintiff was adopted into another family. The consideration of Rs. 1,900 was made up among others of three items: (1) Rs. 43-3-0 for kist for Fasli 1317. (2) An othi (Ex. II) dated 10 October 1891, for Rs. 200. (3) Another othi (Ex. II-D), dated 28 April 1907, also for Rs. 200.