Ramaswami Aiyar and Others vs A.S. Venkatarama Aiyar

Phillips, J.—In this case the plaintiff is the son of one Sambasiva Aiyar, the adopted son of one Sivarama Aiyar and he sues to recover

possession of certain properties, sold by his grandfather Sivarama Aivar on the 29th of June, 1901 to the 1st ""defendant, who is the father of

defendants 2 to 4, on the ground that the sale was not effected for any necessity and is not binding on him. The plaintiff''s father and grandfather are

now both dead and, therefore, the plaintiff claims to recover the whole of the suit properties.

The Subordinate Judge has found that there was no necessity for the sale and that it is, therefore, not binding on the plaintiff''s share and he has

given a decree to the plaintiff for a division of the property into two parts and for recovery of possession by the plaintiff of one half with mesne

profits from the date of sale. The defendants now appeal and state that the decree is wrong and that the plaintiff''s suit should have been dismissed

on the ground that the 1st defendant acquired a right by the sale in his alienor''s share of the family property and that he is in equity entitled to

recover property not greater in value than his alienor''s share, and that he is also entitled to ask for partition of the family property, and to have the

specific item assigned to his alienor''s share, if that is consistent with the rights of other co-parceners.

It is not disputed that an alienee from an undivided coparcener has a right to sue for partition of the family property and, to recover his alienor''s

share, in the case of a sale of an undivided share that share itself, and in the case of sale of a specific item of property an equitable right to have that

property assigned, if possible, to his alienor''s share. This principle was laid down in Ayyagari Venkataramayya v. Ayyagari Ramayya ILR (1901)

M. 690 and it was followed in Chinnu Pillai v. Kaltmuthu Chetti (1911) ILR 35 M. 37 (F.B.) where it was further held that the share of the alienor

which passes to the alienee is the share to which the former was entitled at the date of alienation. This latter ruling disposes of the respondent''s

contention that the 1st defendant has lost all right to the property on the death of Sivarama Aiyar. It is thus quite clear on all the authorities that the

1st defendant is entitled to a partition of the family property and to have the plaint property assigned to Sivarama Aiyar''s share, if that can

equitably be done, and can bring a suit for that purpose.

It is then argued for the respondent that relief cannot be given to the defendants in this suit and that they must be left to work out their rights in a

subsequent suit, and reliance is placed on several cases cited beginning with Deendyal Lal v. Jugdeep Narain Singh ILR 3 198 (P.C.) . In that case

it was held by the Privy Council that the purchaser of the right, title and interest of one co-sharer in joint ancestral estate at a sale in execution

acquires merely the right to compel a partition as against the other co-sharers which the judgment debtor possessed. In a subsequent case Hardi

Narain Sahu v. Ruder Perkash Misser ILR 10 C 626 (P.C.) the same proposition was enunciated, but the Privy Council refused to interfere with

the decree of the High Court ordering a partition and allotting a share to the purchaser; but observed that the decree ought to have been for the

recovery of the whole property by the other co-parcener with a declaration of the rights of the purchaser. In neither of these cases was the equity

of the purchaser to stand in his vendor''s shoes with which we are now concerned fully discussed. There have also been observations in several

Madras cases that the right of the purchaser is only a right to obtain, by a suit for partition, the share to which his alienor was entitled, vide Kota

Balabadra Patro Vs. Khetra Doss and Others, to which one of us was a party; Manjaya v. Shanmuga ILR (1914) M. 684 : 26 M.L.J. 576 and

Maharajah of Bobbili v. Venkataramanjulu Naidu ILR (1914) M. 265 : 27 M.L.J. 409 and also a very recent case Subba Goundan v.

Krishnamachari ILR (1922) M. 449 : 42 M.L.J. 372. It is only in the last case, however, that the question really arose as to whether the purchaser

was to be driven to a suit for partition, or whether relief could be given to him when defending a suit by another co-parcener. In this case the Privy

Council ruling Ramkishore Kedernath v. Jainarayan Ramrachhpal 25 M.L.J. 512 was interpreted as meaning that the Privy Council, while raising

the point, expressed themselves unwilling to decide it. In Ramkishore Kedernath v. Jainarayan Ramrachhpal ILR (1913) C. 966 : 25 M.L.J. 512 ,

the suit was instituted by members of a Hindu joint family to set-aside an alienation in favour of the 1st respondent who claimed to be adopted into

the family, and it was held that, as between the father Kedarnath and the alienee Jainarayan ""the latter may be entitled to insist that he stands in the

shoes of the former, as to the share, which would come to the former upon a partition; and that the Court, if that position were established, would

itself, at Jainarayan''s instance, decree a partition as between the plaintiffs on the one hand and Kedarnath on the other. Their Lordships think that

on the present pleadings it is open to Jainarayan to set up such a case, but express no opinion as to its validity either in law or fact."" That this

pronouncement does relate to the competency of a Court to give a decree for partition in such a suit is, I think, clear from the succeeding passage,

according to which the suit is remanded for trial, with a declaration that it is competent for the Court, in the event of the respondent Jainarayan

failing in his other defences, to make the whole or any part of the relief granted to the plaintiffs conditional on their assenting to a partition so far as

regards Kedarnath''s interests in the estate, so as to give effect to any right to which the respondent may be entitled claiming through Kedarnath.

This latter statement, seems to me to lay down quite clearly that the Court to which the suit was remanded was competent to order partition and

to give decree accordingly and that the statement in the previous paragraph that their Lordships ""express no opinion as to its validity either in law or

in fact"" refers merely to the question of how much of his case Jainarayan would be able to establish when it formed the subject-matter of inquiry,

and this is the view taken by the learned Chief Justice in Davud Beevi Ammal v. Radhakrishna Aiyar (1922) 44 M.L.J. 309 : 17 L.W. 332. In this

latter case the suit was by a member of a family for general partition, and it was held that the alienee from one of the co-parceners was entitled, if

otherwise equitable, to retain property alienated to him as the share of his alienor. No doubt in many cases it would not be easy to enforce the

alienee''s equitable right in a suit brought by one of the co-parcenters to recover the property, because it would be necessary to add all the co-

parceners to the suit and ascertain the amount of family property available for division, etc., and consequently it would often be simpler to refer the

alienee to a separate suit; but that is not to say that, when the circumstances are favourable, the alienee must of necessity be driven to another suit.

The principle originally laid down in Deendayal Lal v. Jugdeef Narain Singh ILR 3 C. 198 (P.C.) is that the purchaser has the right to compel

partition and it was held that he was entitled to take proceedings to have his alienor''s share ascertained by partition. This being the principle, where

such share can be ascertained without driving the parties to a separate suit, it should be done in order to avoid multiplicity of litigation. The

observations referred to above that the alienee has only a right to sue must be read with reference to the facts of the cases concerned, for, if an

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. As I read Ramkishore Kedarnath v. Jainarayan Ramrachhpal ILR 40

C. 966 (P.C.), that case is authority for the proposition that, in a suit by a co-parcener for recovery of the property or for partition, the alienee is

entitled to claim partition, if it can conveniently be done. In the present case the plaintiff is the only surviving member of his family and at the time of

the alienation to the 1st defendant the plaintiff''s grandfather was entitled to one half share in the family property, he having only one son. The family

property at that time was a great deal more than double the amount sold to the 1st defendant, for by that sale about two velis were sold at a time

when the family properties amounted to something like 13 velis of land. There is no necessity in the present case to implead any other coparceners,

for they do not exist, and the partition, so far as the plaint property is concerned, can be effected without any trouble at all. Sivarama Aiyar was

entitled to property at least equal in value to the property alienated and there is no reason why it should not be allotted to his share, and

consequently to the 1st defendant.

The plaintiff has also claimed mesne profits, but he would not be entitled to such except from the date of the plaint. The sale was by a manager

of the family and, as such is not prima facie void, but only voidable at the instance of other members of the family. Vide Hanuman Kamat v.

Hanuman Mandur ILR 19 C. 123 also Subba Goundan v. Krishnamachari M.L.J. 372. The plaintiff is, therefore, not entitled to any mesne profits

until the date of plaint and, as it has been held that the defendants are entitled to retain possession of the property, it follows that he is not entitled to

any mesne profits.

The appeal is allowed and plaintiff''s suit dismissed with costs throughout. The memo of objections is also dismissed.

Venkalasubba Rao, J.

I agree.