Veeri Chettiar and Others vs Karion Chettiar and Others

Chandra Reddi, J.—Defendants 1 to 4 are the appellants. The plaintiff filed the suit for partition of the joint family properties of himself and

defendants 1 to 6, defendants 1, 5 and 6 being his brothers and defendants 2 to 4 being the sons of a deceased brother of his, who died even

during the lifetime of their father, Peddi Chetti. The joint family properties consisted of 76 acres of land, two houses and vacant sites. In 1329, a

creditor of the plaintiff filed a small cause suit, obtained a decree and brought his share of the joint family properties to sale in execution of the

decree. The decree-holder himself purchased the share and obtained symbolical delivery of the same. Shortly thereafter, Peddi Chetti, as manager

of the joint family, obtained a release of it from the auction purchaser on payment of Rs. 300 as seen from Ex. B. 1 dated 13-9-1933. Peddi Chetti

seems to have died in or about 1937 and the members of the family seem to have continued as a joint family. Later on, the defendants denied a

share to the plaintiff in the joint family properties on the ground that, by reason of the sale of his share in execution of the small cause decree, he

ceased to have any interest therein. This led the plaintiff to bring the present suit.

The defence to the suit was that there was a partition in 1934 at which the family properties were divided between Peddi Chetti and his other

sons excluding the plaintiff and that the plaintiff was not given any share in the family properties owing to his having lost all interest therein by virtue

of the sale of his share in execution of the small cause decree.

The trial court decreed the plaintiff''s claim only for a 1/25th share in the joint family properties on the ground that the release of the plaintiff''s

share by the auction-purchaser was only for the benefit of Peddi Cetti and, therefore, the plaintiff was entitled only to a l/5th share in that property

after the death of Peddi Chetti. On appeal, the District Judge reversed the decree of the trial court in the view that the release under Ex. B. 1 was

for the benefit of the whole joint family. The defendants, who are aggrieved by that decision, have preferred this second appeal.

In support of this appeal, various contentions wore raised by Mr. Ramachandra Aiyar, the chief of which is that the repurchase or release of the

plaintiff''s share under Ex. B. 1 was only for the benefit of the non-alienating members and, therefore, the plaintiff would not be entitled to a 1/5th

share in the whole joint family properties but only to a l/5th share in the share of the father. I do not think that there is much substance in this

contention. It cannot be disputed that despite the sale of the undivided share of the plaintiff In the joint family properties, the plaintiff continued to

be a member thereof, because the alienation of the undivided share of a member of a joint family does not bring about a disruption in the family.

The result is that the sale does not make any difference so far as the status of the plaintiff as a member of the joint family is concerned. That being

so, the repurchase of the plaintiff''s undivided share by the family cannot be said to be only for the benefit of the non-alienating members, unless it is

proved to be so with reference to the terms of the document. Ex. B. 1 read in the light or the recitals in the other relevant documents, shows that

the acquisition was for the benefit of the whole family and not for the benefit of non-alienating members or only for the benefit of the father. Hence,

there is no reason why the plaintiff should be excluded from a share in the joint family properties. In this view, I must say that the judgment of the

lower appellate court that the plaintiff is entitled to a 1/5th share in the joint family properties is correct and cannot be successfully challenged.

But in allotting l/5th share in the joint family properties to the plaintiff, the lower appellate court should have debited the plaintiff with the sum of

Rs. 300 paid by the joint family for the purpose of getting back the share of the plaintiff.

Mr. Viraswami strenuously argued that the other members of the family are not entitled to ask that this sum of Rs. 300 should be debited to the

share of the plaintiff. This objection can be answered by referring to a passage in Mayne''s Hindu Law and Usage (11th Edn.) page 516 :

Where advances are made to any member for his separate and exclusive purpose for which he would have no right whatever to call upon the

family purse, or to discharge his own personal debts, contracted for his own exclusive benefit without the authority of the other members and there

is no intention of making a present of them to him, the moneys advanced might be treated as joint family funds in his hands which are to be brought

into the hotchpot at the division.

There is no suggestion that the debt incurred was not for the separate and exclusive purpose of the plaintiff for which he could not legitimately have

a charge upon the joint family purse. In these circumstances, the plaintiff is certainly liable to be debited with the money spent on his behalf for the

purpose of getting back his share in the joint family property. It follows that the plaintiff will be entitled to 1/5th share in the family properties

subject to this liability.

With this modification, the second appeal is dismissed. The plaintiff will get 2/3rds of his costs throughout.