APPASAMY MUDALIAR Vs. SUNDARAM PILLAI

JUDGEMENT

(1.) The suit out of which this Second Appeal arises was instituted by the plaintiffs for recovery of a half share in the suit properties under a deed of gift dated 16 September, 1926, executed in their favour for and on behalf of a trust by the sixth defendant. Defendants 4 and 5 claimed title to item 2 of the suit property under a deed of sale Ex. XV dated 7 May, 1920, executed by one Ayyasami in their favour. Defendants 2 and 3 are mortgagees from defendants 4 and 5 of the said property. The first defendant claims items 1 and 3 under a sale deed Ex. XIV dated 17 June, 1921, from the said Ayyasami. Ever since that date of the sales the alienees have been in possession of the property. The case for the plaintiffs is that Ayyasami and sixth defendant Muruga pillai were members of a joint family who became divided in status and each was entitled to a several half share in the property, that the deeds of sale executed by Ayyasami are not binding on the sixth defendant's half share, that by virtue of the gift deed in their favour they are entitled to recover possession of the half share from the defendants. The defendants allege that the sales by Ayyasami were made under circumstances which will bind the sixth defendant and his subsequent conduct also estops him from impeaching their validity. It is admitted that the patta for the entire lands stands in the name of the said Ayyasmi.

(2.) The learned District Munsif found that Ayyasami and the sixth defendant were divided in status and the sales would not ordinarily be binding on the sixth defendant. But by his conduct as evidenced by Exs. I and II in the case he must be deemed to have ratified the sales. The learned Subordinate Judge came to a different conclusion.

(3.) Two questions fall to be decided, viz., (i) was Ayyasami competent to sell the entire property so as to bind the sixth defendant? and (ii) assuming he was not authorised is the sixth defendant precluded from impeaching the validity of the sales? No doubt one tenant-in- common cannot sell more than his share of the common property and any conveyance in excess thereof will not be binding on his co-tenants. But it is open to a tenant-in-common to authorise his co-tenant to sell his share of the property. The authority may be expressed or implied. The patta stands in the sole name of Ayyasami and a sale by him with the consent or authority of sixth defendant will be operative to pass the entire interest in the property including that of the sixth defendant.