AMIRTHALINGA THEVAN Vs. ARUMUGA AMBALAGARAM

JUDGEMENT

(1.) The plaintiff in the suit has preferred this second appeal. He brought the suit for partition of certain immoveable properties in which he claimed two-thirds share. Both the lower Courts have held that he is entitled only to one-third share and have given him a decree for partition to the extent of that share. The plaintiff has preferred this second appeal in respect of the one-third share disallowed. The material facts of the case as found by both the Courts are as follows:

(2.) The suit properties in which the plaint-tiff claims two thirds share belonged to an undivided Hindu family consisting of one Mari Amabalagaran and his two sons. Kuppuswami, the elder son (by his first wife) was a major. Paraman the other son (by his second wife) was a minor. The plaintiff's claim is based on a sale-deed, Ex. A dated the 3 May, 1914, purporting to be executed in his favour by Mari Ambalagaran and Kuppuswami, the former executing the sale deed not only on his own behalf, but also on behalf of his minor son Paraman. Kuppuswami, however, repudiated the sale-deed and it was not registered so far as he was concerned and the plaintiff's suit to enforce registration of the document against Kuppuswami failed. The sale-deed, therefore, operated only as a conveyance to the plaintiff by the father Mari Ambalagaran on his own behalf and on behalf of his minor son Paraman. Within a few days from the sale-deed, Ex. A. Kuppuswami purported to sell to the 1st defendant a portion of the lands comprised in Ex. A and gave him also possession of that land. The plaintiff, however, did not get possession of any portion of the lands conveyed to him under Ex. A. Sometime after the sale-deed to the plaintiff, another son named Krishnan, the 6 defendant in the suit, was born to Mari Ambalagaran by his second wife Thailammal, who has been impleaded as the 5 defendant. Both Mari Ambalagaran and Paraman died before the institution of the present suit. Paraman died in 1921 while still a minor. It does not appear when Mari Ambalagaran died. On behalf of the minor son, the 6 defendant, the following pleas were raised viz: 1. That at the date of the sale-deed he had also an interest in the suit property, as he was then in his mother's womb. 2. That the sale-deed Ex. A was not binding on his brother Paraman or him self and cannot affect their rights in the property as it was not made for any justifying necessity or purpose, and

(3.) That there was no partition between Kuppuswami and the other members of the family as pleaded by the 1 defendant. 3. The Courts below have held against on the first plea and have found that he was not in existence at the date of the sale as alleged on his behalf; but his other two pleas have been upheld. Both the Courts have found that the sale by Mari Ambalagaran was not made under circumstances which would render it binding on his minor son Paraman whose interests also he purported to convey. They have also found against the alleged partition between Kuppuswami and Mari Ambalagaran. Upon those findings the plaintiff has been awarded a decree for one- third share only in the plaint properties, being the share of Mari Ambalagaran, which alone upon the findings had validly passed by the sale-deed to the plaintiff. It is contended on plaintiff's behalf that even upon the said findings the Courts should have awarded the plaintiff two-thirds share as claimed by him. I should have thought that it was too plain a case for such a contention to be put forward successfully, but the plaintiff's Vakil strenuously argued in support of it. His contention so far as I have been able to follow him is this. The sale to the plaintiff by the father and guardian, Mari Ambalagaran, was so far as the minor son Paraman was concerned voidable and not void. It was prima facie effectual to convey Paraman's interest also in the property and unless and until he avoided the sale so far as he was concerned, the plaintiff will be entitled to his (Paraman s) interest also in virtue of the sale-deed by his father and guardian Mari Ambalagaran. It was further contended that the right of Paraman to avoid the sale so far as his interests in the property were purported to be affected by the sale was one personal to him and was, therefore, enforceable by him alone and as he died without avoiding the sale, it is no longer open to any other person to avoid the sale of his share to the plaintiff. As regards Krishnan, the after born son, it is contended that he acquired no interest in the property by birth and cannot, therefore, impeach the alienation made by his father; nor can he have any right to question the alienation even to the extent of Paraman's share as the personal right of Paraman already referred to ceased with Paraman's death. In support of the contention that the sale was prima facie good to the extant of Paraman's share also until avoided, the appellant's Vakil relied on the following passage in the judgment of Kumaraswami Sastri and Davadoss, JJ, in Subba Goundan V/s. Krishnamachari 68 Ind. Cas. 869 : 45 M. 449 : 30 M.L.T. 217 : 42 M.L.J. 372 : 15 L.W. 537 : (1922) M.W.N. 269 : A.I.R. 1922 Mad. 112: The alienation by the father to the extent of his share will be good. In the case of sales by a father or managing member of the joint family for alleged necessity, we think the sale will be good till avoided, as it is open to the other coparceners to affirm the transaction. The position of such a purchaser cannot be worse than that of a purchaser from a widow without legal necessity, in whose case it has been held that the sale is good till repudiated by the reversioners. We respectfully dissent from the view taken by Kriahnaswami Aiyar, J; in Kandasami Asari V/s. Somaskanta Ria Nidhi 5 Ind. Cas. 922 : 35 M. 177 : 7 M.L.T. 165 : 20 M.L.J. 371 : (1910) M.W.N. 580, that a sale without necessity is incapable of ratification by the other coparceners." The appellant's Vakil also relies upon the following observation of Odgers, J., in Alagar Iyengar V/s. Srinivasa Iyengar : These alienations were made by the father of the plaintiff not only as the manager of a joint Hindu family but also as their guardian. In my opinion, therefore, the minora appear as parties to these alienations which are prima facie binding on them. The power of a Hindu father may be more or may be less than the power of a guardian to bind his minor sons, but unless it can be established that the alienations were for unnecessary or illegal purposes (for which the onus is on the minors) the alienations are prima facie good. See Subba Goundan V/s. Krishnamachari 68 Ind. Cas. 869 : 45 M. 449 : 30 M.L.T. 217 : 42 M.L.J. 372 : 15 L.W. 537 : (1922) M.W.N. 269 : A.I.R. 1922 Mad. 112.