Nalluri Subbarayudu vs Ranpati Ramanaiah and Others

Yahya Ali, J.—The suit out of which this appeal arises was filed by the first respondent for a permanent injunction, but subsequently the

plaint was amended so as to convert it into one for possession and in the alternative for partition and separate possession of the suit property. The

facts that have been found by the Courts below are these. The second and third defendants are brothers who owned, among other properties, land

measuring 8 acres and 96 cents. The second defendant is the elder of the two and he was residing in the village. The third defendant was employed

in Government service and at the material time he was the Head Accountant in the Revenue Department at Guntur. They constituted an undivided

family, although at one time an attempt was made to set up a case that they were divided. The senior brother, the second defendant, was the

manager, although, here again, an attempt was made to claim that the younger brother, the third defendant, was managing the properties. In 1936,

the entire plot of 8 acres and 96 cents, referred to above was leased to the first defendant, who is the appellant here, for a period of seven years

and the lease was to expire at the end of the year Chitrabanu, corresponding to 1942-43. Before the expiry of that lease, the appellant obtained a

further extension of the period of lease for ten years under letter, Ex. D-1, dated 21st March, 1942. This lease purports to have been given by

both the brothers, but the letter, Ex. D-1, was actually executed by the third defendant alone and, as a matter of fact, the second defendant has

disowned any connection with it. The third defendant came forward with the version that he was approached by Burra Venkayya, D.W. 2 on

behalf of the first defendant for the extension of the term of the lease and that the third defendant agreed on payment of the arrears of rent and of a

further sum of Rs. 500 by way of advance for the extended lease. But he says that he stipulated that the lease was subject to the consent of the

second defendant to comprise his share in the land also therein. His case was that subsequently the second defendant did not agree, and

consequently he stated in his reply to the notice sent by the appellant that he was prepared to confine the lease to his half share. This version was

not countenanced by the trial Court. On 22nd June, 1942, the second defendant in turn executed a registered lease for half the extent of the suit

land in favour of the plaintiff, the first respondent, for a period of ten years. Both the Courts have found that the third defendant was also behind

this lease and that both the brothers combined to bring about this transaction as there was an attractive offer of advance rent of Rs. 1,000 from the

plaintiff. The finding of fact is that the third defendant was aware of this transaction, having regard particularly to the fact that the document was

executed and registered at Guntur, where the third defendant was employed, instead of at Ongole. The further case was adumbrated by the

plaintiff-first respondent to the effect that possession of 4� acres, which was the subject-matter of the registered lease, Ex. P-1 was actually

delivered to him and it is on that footing that the present suit was filed for a permanent injunction. Both the Courts have concurrently found the case

of delivery of possession to the plaintiff to be in time and held that as a matter of fact, possession continued with the appellant. The present suit was

filed on 7th September, 1943, and along with it an application was made for temporary injunction. The application was dismissed and promptly the

plaintiff applied for the amendment of the plaint, seeking possession of the B Schedule property and, in the alternative, partition of the entire plot of

8 acres and 96 cents and delivery to him of one half thereof, subject to the terms of the lease, Ex. P-1. As a result of this amendment, the third

defendant who was until then not a party to this suit was impleaded as a party-defendant. The trial Court decreed the suit for partition of the entire

holding into two shares for separate possession of one share to the plaintiff, holding that the lease from the second defendant gave the plaintiff

sufficient title to demand partition from the other lessee who must be held to be entitled to only the interest of the third defendant. An appeal

brought by the first defendant-appellant was dismissed by the Subordinate Judge of Bapatla. The learned appellate Judge agreed with the

conclusion of the trial Court that Ex. D-1 was not binding on the second defendant and held that the second defendant was competent to lease his

own share of the property under Ex. P-1. He also agreed with the view taken by the learned District Munsiff that the alternative relief of partition

alone could be granted in favour of the plaintiff and that the suit was not bad for partial partition as it was a dispute between alienees from different

coparceners.

Mr. D. Munikanniah, the learned advocate for the appellant, has raised two contentions before me. The first is that the amendment of the plaint

which was ordered by the trial Court had the effect of altering the nature and complexion of the suit, and that hence the amendment should not

have been granted. The second argument is that the suit is virtually one for partial partition and that according: to well-settled principles such a suit

is not maintainable in the absence of a prayer for general partition. It is curious that the objection relating to the effect of the amendment of the

plaint was not raised in the lower appellate Court. The order of amendment indicated that the amendment would be permitted to be made only on

payment of the costs specially awarded. From the fact that the amendment was carried out, it is clear that those costs were paid and received by

the appellant and it does not appear that the costs were received under protest. Attention was drawn to the plea taken in the additional written

statement that was filed after the amendment of the plaint; but apparently this objection was not pressed either at the trial as I find no discussion

with regard to it in the judgment of the trial Court or at the appellate stage in the lower appellate Court.

The second is the more important point as it involves the consideration of the question whether when a suit is brought by an alienee from a

coparcener of a Hindu family it must be one for complete partition or whether it is open to him to limit it to his share in the particular parcel of the

family property which has been sold to him. Whatever the position might have been at one time, it seems to be well settled now, so far, at any rate,

as this High Court is concerned, that such a suit is maintainable when it is brought against another alienee similarly situated. The principle applicable

to such cases was laid down by this Court as early as in Chinna Sanyasi v. Suriya I.L.R.(1882) Mad. 196 and it has been followed subsequently in

a number of decisions : Subramania Chettiar v. Padmanabha Chetti ILR (1896) Mad. 267 Palani Konan v. Masakonan I.L.R.(1896) Mad. 243

and Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, . That view has also been adopted by the Allahabad and

Bombay High Courts, but dissented from in the Calcutta High Court. Where the dispute is wholly between strangers to the family, each of whom

claims against the other an interest in the family property, it has been held that they can sue to obtain possession of their own interest without

claiming a general partition Kandaswami Goundan (deceased) and Others Vs. Venkatarama Goundan and Others, Iburamsa Rowthan and Others

Vs. Thiruvenkatasami Naick (died) and Others, and Kandaswami Goundan (deceased) and Others Vs. Venkatarama Goundan and Others, .

Broadly speaking, the matter has been considered in the authorities in four different categories. The first class of cases arises between members of

a family inter se. With regard to such suits, the consensus of judicial opinion is that one coparcener cannot sue another for partial partition of the

family property held in co-parcenership. This rule is not actually supported by any textual authority, but is in the nature of judge-made law, which

as Kamesam, J., pointed out in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, has been acted upon for a

considerably long time and it is too late to examine whether the foundation of that rule is sound or unsound. The second group of cases is between

a member of the family and a stranger. The same principle applies to that class also, and a transferee from a coparcener is in the same position as

the coparcener from whom he purchased the parcel of family properties, namely, that he cannot sue a member of the, joint family for partition of a

portion only of the coparcenership property. The third class of cases arises between a coparcener and a stranger, who has purchased a portion of

the family property from one of the coparceners. It has been held with regard to such actions that it is competent for any coparcener to sue for

partition of his own share in the alienated property, the principle being that the connection of the stranger with any property belonging to the family

may be severed. There is a volume of authority in support of this position. In addition to the cases already cited, there are two other decisions

referred to by the Full Bench in its judgment in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, . The fourth and the

last category relates to suits between strangers who have purchased different parcels of family property from respective coparceners. That such

suits are maintainable has been held to flow as a corollary from the position that a coparcener may maintain a suit against a stranger alienee, the

position that was considered in connection with the third group of cases. In Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and

Others, the then Advocate-General, the Honourable Mr. P. S. Sivaswami Iyer (as he then was) conceded that if a coparcener could file a suit for

partition against a stranger-alienee, an alienee from that coparcener could also maintain a suit against the alienee from other coparceners, unless the

alienation bound the entire family interest. The reasoning in Subbarazu v. Venkataratnam I.L.R.(1892) Mad. 234 and Kadegan alias Swami Chetti

Vs. Periya Munusami and Others, fully supports the concession made by the then Advocate-General. It is not necessary to discuss all the old

cases; it would be sufficient to refer to the two leading cases on the subject, and they are the Full Bench decision in Iburamsa Rowthan and Others

Vs. Thiruvenkatasami Naick (died) and Others, and the Bench decision in Kandaswami Goundan (deceased) and Others Vs. Venkatarama

Goundan and Others, . The facts of the Full Bench case are very similar to the facts of the present case. The first and second defendants therein

were the only members of the joint family. Some items were sold by the first defendant to a stranger, the third defendant, and the second

defendant''s interest in the same items were sold by him to the plaintiff. The trial Court dismissed the suit as one for partial partition. The case came

up on appeal before Benson and Krishnaswami Iyer, JJ., who referred to the Full Bench, and upon those facts it was held, by the Full Bench after

reviewing all the decisions bearing upon the point that the suit by an alienee against another alienee is maintainable. It was observed that the

existence of any equities in favour of the purchaser did not entitle him to resist the claim of the members not bound by the alienation to possession.

And the judgment ended with the following observation:

In Madras where the share of the members not affected by the alienation has been allowed to be recovered there is no reason for refusing the

more limited prayer for possession of that share.

If, in such circumstances, a coparcener is entitled to maintain a suit against an alienee to recover a portion of the property alienated to him, an

alienee from that coparcener can also maintain a similar suit. In Kandaswami Goundan (deceased) and Others Vs. Venkatarama Goundan and

Others, an attempt was made to explain away the decision in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, on

the ground that both alienations in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, were of the same property and

that that was a case between the first alienee and the second alienee. The learned Judges found no merit in that distinction and as Ramesam, J.,

pointed out, that was only an accident, and the principle applicable would, in any event, be the same when two different parcels of property were

sold by two coparceners to different strangers. The facts in Kandaswami Goundan (deceased) and Others Vs. Venkatarama Goundan and

Others, are also very similar to those of the present case. After setting out all the facts, Ramesam, J., said this:

Mr. Padmanabha Aiyangar contended that the suit for a share of the Alasandapuram lands is not maintainable because it is a suit for partial

partition. Now, cases establish two or three well recognised principle''s. Firstly, as between members of a joint family, no suit for partial partition

lies. Secondly, a member or members of a joint family may sue an alienee from a member or members of the joint family for his or their share of the

property alienated without suing for a general partition. In so doing, they affirm the sale by the other member or members but the real basis of the

rule is that as the rule against partial partition is a rule for the protection of the joint family against being harassed by multiplicity of suits at the

instance of alienees from recalcitrant members, they can waive the benefit of it and they can bring a suit to separate themselves from the

undesirable stranger. The remarks in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, show that the rule is

recognised on the ground that it has been acted upon in a series of cases, and it is too late to examine whether the foundation of the rule is sound or

unsound. So it is unnecessary to analyse the reasons for the rule. It is enough to say that the rule exists as between members of a joint family and an

alienee from a member or members. We have got the actual decision in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and

Others, where the plaintiff is an alienee from one member and the defendant is an alienee from another member of the joint family. The suit was

held to be maintainable.

Mr. D. Munikanniah endeavoured to distinguish this decision on three grounds : that most of the observations are in the nature of obiter dicta, that

the decision proceeded on the ground that there was waiver of the right to general partition by the coparceners and, that in actual fact there was no

coparcenary in existence but the defendants were in the position of tenants-in-common. If this case had stood by itself, possibly on these grounds,

of distinction something could have been said but, as I have endeavoured to show, this case was only following the Full Bench decision in Iburamsa

Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, which itself was a decision based upon a series of cases that preceded it,

laying down the same proposition. All that Ramesam, J., did was to distinguish a number of cases that were cited before him and to reiterate the

principle.

Finally, one other ground of distinction was put forward by the learned advocate for the appellant that in the present case, far from there being a

waiver by the coparceners, the third defendant specifically objected to the suit on the ground that, being one for partial partition, it was not

maintainable. The objection is not found in the written statement filed by him in the suit, but it was raised only in the memorandum of cross-

objections that was filed in the appeal in the lower appellate Court which was directed exclusively against the order of costs made against him. No

plea or argument on that ground appears, however, to have been actually advanced at the hearing of the appeal before the lower appellate Court.

As it was strenuously contended as a special point of distinction that in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and

Others, no such objection as to partial partition was raised by any of the coparceners, I sent for the records in that case and examined the

pleadings. Although no specific objection was taken in that form by either the first defendant or the second defendant in that case, the second

defendant filed a written statement in which he expressly stated that the family was joint and owned properties other than those conveyed to the

plaintiff and the third defendant. Those averments must have been made, only for the purpose of bringing to the notice of the Court the fact that it

was a suit for partial partition. As a matter of fact, the trial Court dismissed the suit on that ground alone. It is therefore futile to contend that the

plea of partial partition was not prominently brought forward in Iburamsa Rowthan and Others Vs. Thiruvenkatasami Naick (died) and Others, .

Despite the objection of the contesting coparcener and the absence of a waiver, the rule was none the less affirmed and enforced in that case by

the Full Bench.

The appeal fails and is dismissed with costs of the first respondent.

In the circumstances of the case, I do not consider that respondents 2 and 3 are entitled to any costs. No leave.