1. In this case the plaintiff is the son of one Sambasiva Ayyar, the adopted son of one Sivarama Ayyar, and he sues to recover possession of certain properties, sold by his grandfather Sivarama Ayyar on the 29th of June 1901 to the first 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.
2. 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 first 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 coparceners.
3. 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. Aiyyagari Venkata Ramayya v Aiyyagari Ramayya I.L.R. (1902) Mad., 690 and was followed in Chinnu Pillai v. Kalimuthu Chetti I.L.R (1912) . 35 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 the alienation. This latter ruling disposes of the respondent's contention that the first defendant has lost all right to the property on the death of Sivarama Ayyar. It is thus quite clear on all the authorities that the first defendant is entitled to a partition of the family property and to have the plaint property assigned to Sivarama Ayyar's share if that can equitably be done, and can bring a suit for that purpose.
4. 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 I.L.R. (1878) Cale., 198. 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 acquired merely the right to compel a partition as against the other co-sharers which the judgment-debtor possessed.
5. In a subsequent case, Hardi Narain Sahu v. Ruder Perkash Misser I.L.R. (1884) Cal. 626, 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 coparcener with a declaration of the rights of the purchaser. In neither of these oases 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 v. Khetra Boss : (1916)31MLJ275 to which one of us was a party; Manjaya v. Shanmuga I.L.R. (1915) Mad, 684 and Maharaja of Bobbili v. Venhataramanjulu Naidu I.L.R. (1916) Mad., 285 and also a very recent case Subba Goundan v. Krishnamachari I.L.R. (1922) Mad., 449. 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 coparcener. In this case the Privy Council ruling in Ramkiskore Kedarnath v. Jainarayan Ramrachhpal I.L.R. (1913) Cal 968 was interpreted as meaning that the Privy Council, while raising the point, expressed themselves unwilling to decide it. In Ramkishore Kedarnath v. Jainarayan Ramrachhpal I.L.R. (1913) Cal. 968 the suit was instituted by members of a Hindu joint family to set aside an alienation in favour of the first 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.
6. 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.
7. 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 fact' refers merely to the question of how much of his case Jaiyanarayan 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 Beevi Ammal v. Badhakrishna Ayyar : AIR1923Mad467 . 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 coparceners 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 as suit brought 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., 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 Deendyal Lal v. Jugdeep Narain Singh I.L.R. (1878) Cal 198 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 I.L.R. (1913) Calc., 966 that case is authority for the proposition that, in a suit by a coparcener 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 first 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 first defendant, for by that sale about two velis were Bold at a time when the family properties amounted to something like 13 velia 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 Ayyar 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 first defendant.
8. 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 I.L.R., 19 (1892) Cal 123 also Subba Goundan v. Krishnamachari I.L.R. (1922) Mad. 449. 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 memorandum of objections is also dismissed.
Venkatasubba Rao, J.
9. I agree.