Nanjaya Mudali and Another vs Shanmuga Mudali and Others

Sankaran Nair, J.—The 3rd defendant, a member of a Hindu family, conveyed his one-fifth share in certain joint family properties in 1891

by Fxhibit I. That interest has now vested in the 1st defendant, his father. Two of his brothers died, and in 1904 the 3rd defendant again

transferred all his interest by Exhibit A. At that time, on the footing that he was a co-parcener, his interest amounted to one-third. The plaintiff has

acquired the rights conveyed by Exhibit A and he now seeks to recover possession.

The Subordinate Judge has held that the plaintiff is entitled to a two-fifteenths share of the properties, that is the difference between one-third

and one-fifth and this is an appeal against that decision.

The first question that is argued before us is that by the transfer in 1894 the joint tenancy was put an end to and the 3rd defendant''s first alienee

became a tenant in common with the other co-parceners so far as the property was concerned and that therefore by the death of the other co-

parceners no interest accrued to him by survivorship; and for this the decisions of Benson and Miller JJ. in Srinivasa Sundara Thathachariar v.

Krishnaswami Aiyangar (1912) 11 M.L.T. 312 : 15 I.C. 351 and of Benson and Sundara Aiyar, JJ, in V. Subba Row Vs. Annathanarayana Aiyar

and Others, are relied upon. These Judgments follow the opinion of Krishnaswami Aiyar J. in Chinnu Pillai v. Kalimuthu Chetti ILR (1910) M. 47.

It is argued before us that these decisions are not sound and that the alienation of a co-parcener''s interest in a portion of a joint family property

does not make the alienee a tenant in common with the other co-parceners in the property so alienated. On principle it is difficult to support the

proposition.

When a co-parcener alienates his share in certain specific family property, the alienee does not acquire any interest in that property. He can only

enforce his rights in a suit for partition. In dividing the family properties the court will, no doubt, set apart for the alienating co-parcener''s share the

property alienated if that can be done without any injustice to the other co-parceners, and such property, if it is so set apart, may be given to the

alienee as the transferee of such co-parcener. But this is only an equity and the alienee is not, as of right, entitled to have the property so allotted. If

such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share, though

it may not be the property that was alienated to him so far as he is concerned. This law has been and repeatedly laid down in various cases by the

other High Courts also. (See Hetn Chander Ghose v. Thako Moni Debi ILR (1893) C. 533. Amulak Ram v. Chandan Singh ILR (1902) A. 483

Narayan Bin Babaji v. Nathaji Durgaji ILR (1903) B. 201 Pandurang Anandrav v. Bhasker Shadashiv (1871) 11. Bom. H.C.R.72. Udaram

Situram v. RanuPanduji and Venku Panduji (1875) 11. Bom. H.C.R. 76.

This, of course, is inconsistent with the view that the alienee acquires any interest in any specific property. The co-parcener who alienated has

himself no such interest. It is difficult to see therefore, how the alienee could acquire such an interest.

For the same reasons, it has been held by this Court that an alienee cannot sue for partition and allotment to him of his share of the property

alienated, (See Venkatarama v. Meera Labbai ILR (1889) M 275 and Palani Konan v. Masakonan ILR (1896) M. 243 This again is inconsistent

with the view that a purchaser becomes a tenant in common with the orders in the specific property alienated. They have not been overruled or

dissented from and are inconsistent with the cases above cited relied upon by the appellants.

In (1877) L.R. 4 I.A. 247 (Privy Council) a suit was brought by a son to recover the property sold in execution of a decree against his father.

The Subordinate Judge passed a decree for a moiety of the family property claimed. That decree was reversed by the Appellate Court which

dismissed the suit. The High Court, however, gave the plaintiff possession of the whole of the property, not merely the plaintiff''s share. In appeal

before the Privy Council, their Lordships laid down the position of a purchaser in the following words: ""It seems to their Lordships that the same

principle may and ought to be applied to shares in a joint and undivided Hindu Estate; and that it may be so applied without unduly interfering with

the peculiar status and rights of the co-parceners in such an estate, if the right of the purchaser at the execution sale be limited to that of compelling

the partition, which his debtor might have compelled, had he been so minded, before the alienation of his share took place."" In accordance with

such declaration, they held that the decree which awarded possession of the joint family property wag right, but they added a declaration that the

purchaser was entitled to take proceedings to have his alienor''s share and interest ascertained by partition; this was the principle which was

subsequently acted upon by their Lordships.

In Suraj Bunsi Koer''s case ILR (1879) C. 148 their Lordships passed a decree confirming co-parceners in their possession of the joint family

property including the share of the alienor subject to such proceedings as the alienee might take to ascertain the share that he obtained by means of

partition. The decree assumed that till such partition the alienee did not acquire any; right to possession. (Suraj Bunsi Kozr v. Sheo Prasad Singh

ILR (1879) C. 148. In the judgment of the Privy Council reported in Hardi Narainsahu v. Ruder Perkash Misser ILR (1888) C. 626 their

Lordships decided that in similar cases where the alienee has got possession of the property he should be turned out of, possession of the whole of

the property and that the other co-parceners should recover posssession of the same subject to a declaration that the alienee is entitled to demand

a partition of the share of the alienor.

The decisions negative any right of the alienee to possession and his status as a tenant in common although he might have obtained possession

of the property in execution of a decree against one of the co-parceners.

So far as Madras is concerned, there is no distinction in this respect between the rights of a purchaser in execution of a decree and by private

alienation; and in Ramhishore Kedarnath v. Ramrachhpal (1913) 14 M.L.T. 163 which is a recent case of private alienation, the Judicial

Committee pointed out that the members of a family who were not bound by the alienation were entitled to recover possession of the entire

property as they were entitled to it as joint, family property and desired to enjoy it as such. They also pointed out that in a suit for such possession

it may be open to the Court to make the whole or any part of the relief granted to them conditional on their assenting to a partition, so far as

regards the alienor''s interest in the estate, so as to give effect to any right which the alienee may be entitled to, claiming through the alienor. The

two Madras cases above referred to as well as these Privy Council decisions do not seem to have been considered by the learned Judges in

arriving at the conclusion that the alienee becomes a tenant-in-common of the portion of the joint family property aliented. The decisions of the

other High Courts cited by Krishna swam y Aiyar J. if opposed to these decisions, cannot be followed nor has the decision of the Full Bench in

ILR 35 M. 47 anything to do with the case. It only determined the time for ascertaining the alienating co-parcener''s share which passed to the

purchaser. I am accordingly unable to follow the decisions relied upon by the appellants.

The other question is whether the interest of the 3rd defendant has been lost by prescription. It is found that he became an outcaste in 1891. It

is also found that he was driven out of the family and that he did not enjoy the family properties. This is clearly exclusion, and as twelve years have

elapsed since the date of exclusion, it appears to me that he had lost all his interest in the joint family property and that therefore the plaintiff did not

acquire any interest under Exhibit A. The decree of the Subordinate Judge must for this reason be reversed and that of the District Munsif restored

with costs in this and the Lower Appellate Court.

Bakewell, J.

I have had the advantage of reading the judgment which my learned brother has just delivered and I entirely concur therein; since, however, we

are differing from learned Judges of this Court for whose opinion I have the highest respect I think that I should also state my reasons.

The historical development of the law relating to the property of the joint Hindu family whereby a member of the family has obtained a power

of disposing of his interest in the joint property, is. well described by Mr. Mayne in his book on Hindu Law (paragraphs 353 to 360) and he shows

that this power is contrary to the theory of the ancient Mitakshara law and is due to modern ideas and is the creature of judicial decisions.

It is clear that an ordinary member of a family cannot convey to his alienee a larger interest in the joint property than he himself possesses, and

it is desirable to consider shortly the nature of that interest. It is not strictly comparable to any interest under any other branch of the law of

property or of contract, still less can it be compared to joint tenancy or tenancy-in-common under the law of England. In Appovier v. Rama Subba

Aiyar (1866) 11 M. I.A. 75. Lord Westbury states that "" according to the true notion of an undivided family in Hindu law, no individual member of

that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular individual, has a certain ""definite

share""; and, when he speaks of the severance of a joint tenancy and its conversion into a tenancy in common, he is careful to point out that he uses

the language of the English law merely by way of illustration. With all respect, I think that the learned Judges from whom we are differing by using

these terms, have imported from the English law some of the ideas which they connote.

If, in order to describe the development of this branch of law, it be permissible to compare it with another branch of law, I would prefer to use

the law of partnership rather than the English law of property, in the same manner in which it was used by their Lordships of the Privy Council in

Deendyal''s case (1377) L.R. 4 IndAp 247 . A member of a joint family cannot any more than a partner, introduce a stranger into the community,

he cannot for his own benefit alienate or deliver to a stranger a particular portion of the common property, and he cannot obtain his share of that

property without winding up the concern; and his interest is, therefore, a right to a share of the general assets after the common liabilities have been

discharged, and not a right to a share of any specific property of the family. It has accordingly been frequently held that his remedy is a suit for the

partition of the whole of the property, and not of specific property as is pointed out by Sundara Aiyar J. in Narayanaswami Naidu Garu v.

Tirumalasetti Subbayya (1912) 24 M.L.J. 80.

I must respectfully dissent from the dicta of the same learned Judge in Subba Row v. Anantanarayana Aiyar (1912) 23 M.L.J. 70 and of

Krishnaswami Aiyar J in Iburamasa Rowthen v. Theruvenkatasami Naik (1910) 34 M. 269 that the question whether a suit for general or for

partial partition will lie, is "" one relating to processual law and must be decided not according to any rule of Hindu law but according to the

principles of civil Procedure."" A suit for an account of the property of an undivided family and an enquiry as to its liabilities, that is for general

partition, is necessitated by the nature of the interests of the plaintiff and his co-parceners; the circumstances of a particular case may enable this

procedure to be dispensed with, but the general rule remains that each co-parcener may ask that it should be followed. It has been clearly laid

down by their Lordships of the Privy Council that the purchaser of the interest of a co-sharer in a joint family estate under a sale in execution of a

decree, or under a voluntary sale in the Madras Presidency, stands in the shoes of the co-sharer, and acquires the right as against the other co-

sharers to compel a partition (Deendyal''s case); the interest which is purchased is not the share at that time in the property, but is the right which

the alienor would have to a partition, and what would come to him upon the partition being made (Hardi Narain v. Ruder Perkash ILR (1888) Cal.

626 "" The law as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has to

be allowed to stand in his vendor''s shoes, and to work out his rights by means of a partition."" (Suraj Bunsi Koer v. Sheo Persad Singh ILR (1879)

Cal. 148 It has been held that this right is not determined by the death of the alienor before partition, (ibid), and that the quantum of interest

transferred must be taken as that of the alienor at the date of the assignment (Chinnu Pillai v. Kalimuthu Chetti (1910) ILR 35 M. 47 but there

appears to be no reason why the transferor should not by appropriate words convey all such rights as he may possess, whether vested or

contingent upon the death of another coparcener in the transferor''s lifetime; and the transferor obviously cannot prevent his share from being

diminished by reason of the birth of a collateral co-sharer or by legitimate payments or alienations by the manager of the family. In accordance with

these authorities it has been held that a purchaser of the interest, of a co-parcener must sue for a general partition of the entire family property

Iburamsa Rowthan v. Theruvenkatasami Naick ILR (1910) M. 274.

Since the transferee only acquires an equity to compel a partition he has only a right in personam and not a right in rem and the transferor

remains a member of the family and retains all the rights which attach to membership, including the right to an increased share upon the death of

another co-parcener. An alienation by a co-parcener of a particular item of the family property or of a specific share in such an item, differs in

some respects from an alienation of the whole or a fraction of the interest of the transferor in the general assets of the family. Since a member of a

joint family has no right to a specific share of any particular property of that family, an assignment by him of such a share to a stranger conveys no

interest whatever to the transferee; if, however, the grantor should subsequently become entitled to the property included in the grant, then on a

well settled principle of equity which is embodied in Section 43 of the Transfer of Property Act, 1882, he cannot deny the title of the transferee

and is bound to make the grant effectual. The Courts have in this case also recognised the right of transferee to stand in the shoes of the transferor

and to enforce his equity by means of a suit for the general partition of the entire family property, and in order to do equity as between the

transferor and the transferee will endeavour to marshall the property in such a way as, if possible, to give effect to the alienation, but this is in order

to avoid a fraud upon the transferee, and this procedure will not be adopted to the prejudice of the other co-parceners.

In the present case the 1st defendant and his four sons in 1891 formed a joint family, and as such owned ancestral in-moveable property. By a

sale-deed, dated 10-12-91 (Exhibit I) the 3rd defendant, one of the sons, conveyed one-fifth share of specified ancestral Immovable property

situate in Appayampatti village to one Govindan Chetty; and by a sale-deed, dated 9-12-94 (Ex. III) the latter conveyed the same parcels to the

1st defendant. In paragraph 5 of his written statement the 1st defendant stated that he made this purchase in order to avoid unnecessary litigation,

and since there is no allegation that the purchase monies were his self-acquisition, it may be presumed that the purchase was for the benefit of the

family, and the effect of the conveyance Exhibit III was to extinguish the claim of Govindan Chetty under Exhibit I, Even if Exhibit III, could be

construed as an assignment to the 1st defendant of Govindan Chetty''s right in personam against the 3rd defendant, it would merely give to the 1st

defendant an equity against the latter which he could enforce upon a partition of the family property. In either view and in accordance with the

principle above enunciated the 3rd defendant remained a member of the family. About the year 1900, the 1st defendant succeeded by inheritance

to ancestral property which had been taken by his brother upon a partition made sometime prior to 1891; and two of his sons died between the

year 1891 and 1904. The 3rd defendant then, as a member of the family, became entitled to an increased share both in the properties situate in

Ayyampattai village and in property situate in Poojaripattai village.

By a sale-deed dated 31-8-04 (Exhibit A), the 3rd defendant conveyed a half share of specified Immovable properties in both these villages to

4th and 5th defendants, who, by a sale-deed dated 3-12-05 (Exhibit B), conveyed the same parcels to the plaintiff, who is a divided brother of the

1st defendant. By a sale-deed, dated 12-11-04 (Exhibit C), the 2nd defendant conveyed certain shares in specified Immovable property in the

same villages to one Muthusami Chetty.

By his plaint, the plaintiff claimed as assignee from the 3rd defendant, under the deeds Exhibits A and B, that these properties should be

divided and one-third share should be allotted to him. By their written statement the 1st and 2nd defendants pleaded, inter alia, that the 3rd

defendant had been outcasted and excluded from the family for more than 12 years prior to the suit and that his right to a share became

extinguished by the sale under Exhibit I; and also that certain liabilities of the family should be provided for before any partition could be made.

I think that the plaintiff might have maintained a suit for partition, as assignee of the interest of the 3rd defendant in the properties comprised in

the sale-deeds Exhibits A and B but that his proper remedy was by a suit for general partition of the family properties and that when an issue was

raised by the District Munsif as to the frame of the suit, he should have applied for amendment of his plaint accordingly, and that the suit might have

been dismissed upon this ground (See Subba Row v. Anantnarayana Aiyar (1912) 23 M.L.J. 70.

I agree with my learned brother that the plaintiff''s suit also fails on the ground that the 3rd defendant''s rights had been lost by prescription and

with the decree proposed by him.