Kandaswami Udayan vs Velayutha Udayan by next friend and guardian Sengamalai Udayan

Devadoss, J.—The plaintiff sued for a declaration that a certain alienation made by his father was not binding on him and prayed for

possession of the property alienated and in the alternative that if the sale was good to the extent of his father''s share, his share of the property

should be delivered to him. The District Munsif held that the sale was a nominal transaction and that it was not binding upon the plaintiff and

decreed the suit. On appeal the District Judge held that the sale was good to the extent of the father''s share and decreed the plaintiff''s share to

him.

In Second Appeal it was contended that the alienee should be allotted the property alienated to him as there was other property belonging to the

family which could satisfy the claim of the plaintiff. Mr. Justice, Odgers who heard the Second Appeal declined to uphold the contention and

dismissed the Second Appeal. The alienee''s representatives have preferred this Letters Patent Appeal.

It is contended before us by Mr. T.M. Krishnaswami Aiyar for the appellant that the family property is more than sufficient to meet the claim of

the plaintiff and that the alienee should not be deprived of the plaint property which is a house. It is urged that the appellants have an equity in their

favour and that they should not be driven to a separate suit when the equities could be worked out in this case. The District Judge found that it

would be unfair to allow the alienee to retain the property as the rest of the property which would devolve on the son consists entirely of

outstanding debts which might or might not be good. The alienee, neither in his written statement nor in his evidence before the Lower Court

placed before the Court sufficient materials which would enable it to ascertain whether the plaintiff''s share could be met out of the other properties

belonging to him and his father. In the written statement he did not care to put forward an alternative case that, in case the plaintiff was able to

succeed to the extent of his share he should be allowed to retain the property sold to him as the family property was sufficient to meet the plaintiff''s

claim and the plaintiff would not be prejudiced by his being allowed to retain the property sold to him. Without an opportunity for the plaintiff to

show that the property of the family is not sufficient to meet his claim and in the absence of evidence as to whether the plaintiff has got another

house which is fit for his occupation, and that he would not be prejudiced by allowing the alienee to retain the house sold to him the Court would

not be justified in granting relief to the alienee in the manner asked for by him even if such relief could be granted in this suit.

Is it competent for the Court in a suit by a coparcener for setting aside an alienation of a certain item of family property to grant relief which it

could grant on a general partition? Mr. Krishnaswami Aiyar relies strongly upon Ramaswami Aiyar v. Venkatarama Aiyar ILR (1923) M. 815 : 45

M.L.J. 203 as supporting his contention. In that case Mr. Justice Phillips and Mr. Justice Venkata-subba Rao held ""that the alienee need not be

directed to institute a separate suit to work out his rights by a partition. He was entitled in the coparcener''s suit as a defendant to get a decree for

partition and claim to be allotted the item purchased by him in respect of his vendor''s share if that was consistent with the rights of the other

coparceners.

It was held in Subba Goundan, v. Krishnamachari ILR (1921) M. 449 : 43 M.L.J. 372 by Mr. justice Kumaraswami Sastri and one of us that

in a suit instituted by the coparceners of a joint Hindu family to set aside a sale of ancestral Immovable property by their father or manager of the

family on the ground that the sale was not for family necessity and to recover possession of the property from the vendees that ""the latter were not

entitled as defendants to insist in this suit on the plaintiffs submitting to a partition either of the items sold or of the entire family property but that

they were entitled in this suit to a decree declaring that they are entitled to the share of the alienor but that they should be left to work out their

rights by a separate suit for partition.

A careful perusal of the judgment in Ramaswami Aiyar v. Venkatarama Aiyar ILR (1923) M. 815 : 45 M.L.J. 203 would show that there is no

real conflict between it and the decision in Subba Goundan v. Krishnamachari ILR (1921) M. 449 : 43 M.L.J. 372 though the observation of Mr.

Justice Phillips at page 821 may appear to be so. ""If any equity exists in the alienee and it can be enforced without a separate suit there seems to

me to be no reason for restricting that equity to a mere right to sue, a limitation which cannot be supported on equitable principles."" He also

observes: ""No doubt in many cases it would not be easy to enforce the alienee''s equitable right in a suit by one of the coparceners to recover the

property because it would be necessary to add all the coparceners to the suit and ascertain the amount of family property available for division,

etc."" If the Court is prepared to convert a suit for a declaration that certain alienation by a member of a joint Hindu family is not binding on the

plaintiff into a suit for general partition at the instance of the alienee-defendant then the suit becomes a suit for a general partition. The decision in

Ramaswami Aiyar v. Venkatarama Aiyar ILR (1923) M. 815 : 45 M.L.J. 203 applies to cases where all the facts are before the Court which

would enable it to allow an alienee to retain the property and such a suit is practically a suit for partition. What was held in Subba Goundan v.

Krishnamachari ILR (1921) M. 449 : 43 M.L.J. 372 was that there must be a separate suit for partition for in a suit where one item of property is

sought to be recovered on the ground that the alienation of it is not binding on the plaintiff, the whole family should not be driven to be parties to a

suit for partition. The proper course for the alienee would be to sue for partition and ask the Court to allot to his alienor the specific property

conveyed to him and if the Court finds that the interests of the other coparceners would not be prejudiced by allotting to the alienating coparcener

the specific property alienated by him, the Court may allow the alienee to retain the property. We adhere to the view expressed in Subba Goun-

dan v. Krishnamachari ILR (1921) M. 449 : 43 M.L.J. 372 and as pointed out in that case at page 464 ""having regard to the provisions of the

CPC which do not allow any wide rights of counter-claim it is difficult to see how a suit by the plaintiffs for possession and mesne profits can be

converted at the instance of the defendants into one for a general partition which would involve the presence of other parties and an enquiry into

the debts and liabilities of the family. If the claim of the defendants is to be treated as a cross-suit, and if the written statement is to be stamped as a

plaint in such cross-suit claiming a general partition, there is no reason why the defendants should not file their own suit for a general partition and

work out any decree which they may obtain in the decree in the suit by the coparceners. There is no special advantage in the defendants doing in

their written statement what they could easily do in a plaint filed by them. It is open to them as soon as a coparcener files a suit for possession, to

file a suit for partition, and where proper grounds exist the Court would try the suits together so as to afford relief to all parties. On the point of

view of hardship we think that the hardship would be greater if a simple suit for possession which the coparcener is in law entitled to file in cases of

invalid alienations is converted into an elaborate enquiry as to a general partition of the family.

In Davud Beevi Ammal v. Radhakrishna Aiyar (1922) 44 M.L.J. 309, it was held ""that a purchaser from a member of a joint Hindu family of

property which that member has no right to sell, it being the joint property, can enforce the sale only by a partition of the entire family property; and

if in such partition the properties sold can with due regard to the interests of the other sharers, to the debts due by the family, and to an equitable

allocation of the various items of the family property, to shares of the several coparceners, be wholly allotted to the vendor''s share, the purchaser

will be entitled to the whole property which the vendor professed to convey to him.

It is urged by Mr.Krishnaswami Aiyar that a separate suit would be barred by the principle of res judicata and therefore the Court should

consider in this suit whether the alienee could be allowed to retain the property sold to him. In Sourimuthu and Others Vs. Pavadai Pachia Pillai

and Another, Mr. Justice Phillips and Mr. Justice Ramesam held that if a decree is obtained by a member of a joint Hindu family against an alienee

for his share of the property alienated on the ground that the alienation was not binding on him, in a subsequent suit by the alienee for a general

partition and for the allotment of the alienated property to the share of the alienating coparcener the property allotted to the plaintiff in the previous

suit could not be allotted again to the alienating coparcener''s share and therefore the second suit is barred by res judicata. With very great respect

to the learned Judges we are unable to agree with the view taken by them in that case. When a coparcener brings a suit for declaration that an

alienation by another coparcener is not binding on him and for his share of the property alienated the Court gives him a decree for his share, if it

finds that the alienation is not binding on the plaintiff. But his share does not become absolute-ly his for, the alienating coparcener still continues a

member of the joint family, and on a suit for partition by him the property alienated may fall to his share in which case the alienee would be entitled

to get it. The matter is not different when the alienee himself brings a suit for a general partition and prays to be allowed to retain the property

which was sold to him. When a member of a joint Hindu family sues to set aside an alienation made by another coparcener that suit is not for

partition and does not involve necessarily the status of division between him and the other members of the joint family. All that is objected to is the

alienation of the particular item and if that alienation is not binding on the family it is not binding on the alienor''s share as well and the property is

recovered for the benefit of the family. The alienor so long as he is a member of the joint family, his right to partition subsists and in a suit by him he

can ask that the property alienated by him may be allotted to his share and if the Court on a consideration of all the circumstances in the case thinks

that it would be equitable to allot to him that property it might do so, for the plaintiff in that suit for setting aside an alienation cannot set up the plea

of res judicata against any relief. If the principle of res judicata would not avail against the alienating coparcener it is difficult to see how it could

avail against the alienee who stands only in the shoes of the alienating coparcener. To hold that a suit by an alienee for partition is barred by res

judicata by reason of a previous suit in which the alienation was held binding only to the extent of the alienor''s share, would be to leave no option

to the Court but to convert every suit for setting aside an alienation into a suit for general partition. Would it be equitable to enforce a general

partition in a suit to set aside an alienation when the property alienated bears an insignificant proportion to the property owned by the family? It is

neither reasonable nor expedient that a suit to set aside an alienation of a certain item of property should be converted into a suit for general

partition at the instance of a vendee who bought the property knowing perfectly well his vendor was not exclusively entitled to the property and

that even in a general partition, that property might not be allotted to his share.

We therefore hold that a suit by the vendee would not be barred by the decree in the suit of a coparcener to have his share of the alienated

property partitioned between him and the alienee.

The proper course for the alienee would be as pointed out by us in Subba Goundan v. Krishnamachari ILR (1921) M. 449 : 43 M.L.J. 372

when the alienation of a particular item of property is challenged by a member of the joint Hindu family to bring a suit for general partition so that

the suit might be tried along with the suit for setting aside the alienation and if the alienee is able to show that the alienation is binding on the whole

family then he succeeds in both the suits and if the alienation is not binding on the plaintiff''s share but is only binding on the alienor''s share, then in

the suit for general partition brought by him the Court would be in a position to consider whether the property alienated to him should be allotted to

the alienor''s share or not. If both the suits are tried together there would not be any difficulty at all and in this case in order to obviate any possible

plea of res judicata which might be raised on the strength of the decision in Sourimuthu and Others Vs. Pavadai Pachia Pillai and Another, we

would pass a decree as was done in Hanmandas Ramdayal v. Valabhdas ILR (1918) B. 17. In that case a minor brought a suit against his father

and decree-holders as well as auction purchasers for a declaration that the plaintiff''s half-share in the two properties sold did not pass to the

auction purchasers and for possession of his half-share on equitable partition. He obtained a declaration that his share was not bound. It was held

that his interests did not pass to the purchasers at the Court-sale. The learned Judges upheld the decree of the Lower Court and stayed the

execution of the decree for three months directing ""that if during that period of three months the present appellant filed a suit for partition against the

plaintiff the stay of the present decree should last until the disposal of the appellant''s suit for partition but if such a suit for partition be not brought

within three months allowed then this appeal to be dismissed with costs."" We think such a direction should be given in this case.

We therefore dismiss the Letters Patent Appeal with costs and direct that the execution of the decree in plaintiff''s favour be stayed for three

months and if before the expiry of that period the appellant brings a general suit for partition then the stay would continue till the disposal of the suit

for partition but if no such suit for partition is brought then the stay of execution will stand cancelled.