1. This is an appeal preferred against the judgment of our learned brother, Srinivasachari J. in A. S. No. 505 or 1956 affirming the judgment of Subordinate Judge, Vijayawada, in O. S. No. 197 of 1954 and dismissing the appeal.
2. The facts of the case, which are not in controversy before us, are these : One Rattayya for himself and as guardian of his then only undivided minor son, respondent 7, had executed a mortgage of his family properties in favour of respondent 1 and one Chintalapudi Pullayya, the predecessor-in-title of respondents 2 to 6, for Rs. 3695/-by and under a registered mortgage deed dated 20-9-1929 for the discharge of debts due by himself partly and by his deceased undivided brother Krishnayya. The mortgagees filed a suit O.S. No. 62 of 1941 on the file of the sub-Ordinate Judge, Vijayawada, to enforce the mortgage against Rattayya and his undivided minor son. His minor son was represented by his mother as guardian. It would appear that after the execution of the mortgage, two sons were born to Rattayya on 21-4-1938 and 26-4-1941; but they were not impleaded in that suit. It was explained as due to the mortgagees being unaware of their birth. The sun was contested by Rattayya and his undivided minor son (respondent 7 herein) who raised the plea that the fleet was not binding on him. There was a preliminary decree on 29-8-1942 exonerating the undivided minor son and decreeing the suit against Rattayya's share of the hypotheca. The said decree was confirmed in appeal with a modification as regards the amount recoverable on the mortgage. A second appeal preferred against the decree was not successful. The mortgagees later on obtained a final decree for the sale of Rattayya's share of hypotheca on 17-2-1948. Rattayya died on 12-12-1945 and his widow was impleaded as his legal representative in the final decree proceedings.
3. The mortgagees thereafter brought Rattayya's undivided half share in items 1 and 2 of the mortgage schedule to sale which consisted of certain lands in Duggiralapadu village, Nandigama Taluk, Krishna District, and one of the mortgagees (respondent 1 herein) purchased the properties in execution. Ex. A-15 is the sale certificate dated 28-6-1952 issued in favour of respondent 1, Somu Lakshminarayana, declaring hint as the purchaser. Delivery of possession of an undivided half share of the lands was effected by the Amin on 29-S-1952. The after-born sons of Rattayya were not made parties to the said execution proceedings.
4. The present suit, O. S. No. 197 of 1954, was instituted by the decree-holders-purchasers of the hypotheca seeking mainly a general partition of the family properties and an allotment to them of a half share of items 1 and 2 of the hypotheca purchased by them and for mesne profits. The plaint schedule and the mortgage schedule were the same.
5. Defendants 1 and 3 are the sons of late Rattayya and defendant 4 is his widow. Defendants 2 and 3 are the sons born to Rattayya after the execution of the mortgage in question. The present appellants, viz., defendants 2, 3 and 4 raised various pleas in defence; that they were not bound by the decree in O. S. No. 62 of 1941 and the proceedings in execution thereof, as they were not impleaded in the suit and in the execution proceedings, that the sale proceedings were vitiated by fraud and material irregularity, that there was a partition among the sons on 22-12-1948 under which the properties sold and purchased by the mortgagees-purchasers were allotted to the after-born sons and that the present suit by the alienees for a partition of items 1 and 2 of the hypothecs was therefore net maintainable.
6. Respondent 7 who was defendant 1 in the suit, adopted these contentions in a separate written statement filed by him. It was the case of the defendants that the widow was not entitled to a share and she was not a necessary party to the suit.
7. The learned Subordinate Judge did not accept the contentions raised in defence. He passed a preliminary decree for partition of items 1 and 2 of the plaint schedule lands (same as the mortgage schedule lands] in two equal shares, for possession of one such share to the plaintiffs and for the partition of the other moiety of items 1 and 2 and remaining items of property among defendants 1 to 3. The widow, defendant 4 was given a share in item 4 which is a house site in Duggiralapadu village. The learned Subordinate Judge decreed the claim for mesne profits in respect of the half share of the lands allotted to the plaintiffs from the date of the suit till the date of delivery of possession.
8. Defendants 2, 3 and 4 carried the matter in appeal to this Court in A. S. No. 505 of 1956. The pleas taken by way of defence to the suit were urged before our learned brother. He elaborately dealt with those pleas with reference to the case law on the matter, rejected them and affirmed the decree of the learned Subordinate Judge.
9. In this Letters Patent appeal Sri B.V. Subrahmanyam for the appellants-defendants 2 to 4 has raised the question of the share of the hypothecated properties which passed to the mortgagees-purchasers.
10. It may be noted that this is a case where the mortgagees obtained a decree against Rattayya's share of the hypotheca. Rattayya was the father and at the time of the mortgage, his family consisted of himself, and his then minor undivided son, Narasimha Rao, respondent 7. Rattayya purported to execute the mortgage for the discharge of debts, for himself and as guardian of his then undivided minor son, respondent 7. By the date of the suit to enforce the mortgage, two more sons were born to Rattayya, so that the family at that time consisted of him-self and his three minor sons. The suit was contested by Rattayya and by his undivided minor son, respondent 7, represented by his mother. The undivided minor son was exonerated and the suit was decreed against Rattayya's share of the property. The mortgage decree was exonerated and the mortgagees became purchasers of a half share or items 1 and 2 of the hypotheca.
11. Sri Subrahmanyam's contention is that Rattayya's share is ascertainable with reference to the date of the suit for enforcing the hypotheca and not with reference to his share as on the date of alienation. For this position he relies on Ranagasami v. Krishnayyan, ILR 14 Mad 408 (FB). That was a suit by a purchaser of an undivided share of a Hindu family property and the question referred to the Full Bench was the quantum of share he would be entitled to. The Full Bench took the view that the share to be awarded to the purchaser is to be computed with reference to the state of the joint family at the date or the suit.
12. He has also cited a passage in Mayne's Hindu Law, Edn. 11, at p. 500 to this effect:
'If a previous alienation of any portion of the family property was validated by consent or failure to set it aside in time on the part of the other members of the family then in existence, the property in which he acquires a snare at birth is diminished to the extent of the portion thus alienated. If the alienation was invalid, he acquires a share in the whole property including the portion purported to be alienated because it was bad even at its inception and did not in law diminish the corpus of the joint family property.'
He has also sought to rely for his contention on Udasi Nirwani v. Surajpal Singh, 1944-2 Mad LJ 395 - (AIR 1945 PC 1) and Seshamma v. Venkayya, 1956 Andh WR 1067 : ((S) AIR 1957 Andh Pra 386).
13. We would presently consider the ruling cited. We have, however, to say that it is settled law in this part of the country governed by the Mitakshara School that an alienee is entitled to enforce his claim against the share to which his vendor was entitled to at the time of the alienation and that the said right would be available to the alienee even if the coparcener who had made the alienation, had died before the alienee enforced his right ILR 14 Mad 408 (FB) relied on by Sri Subrahmanyam has been dissented from by a subsequent Full Bench in Chinnu Pillai v. Kalimuthu Chetti, ILR 35 Mad 47 (FB). The decision in ILR 35 Mad 47 (FB) has been consistently adopted as the correct law on the question.
14. The right of alienation by a coparcener of his share in the coparcenary property has been evolved by judicial pronouncements taking us back to nearly one hundred and fifty years ago. The right of alienation by way of sale or mortgage was first recognised by Sri Thomas Strange in 1813 in Ramassami v. Seshachala (Notes of Cases, Vol. II, 234 (74), 1827 Edn). In Vol. I of Strange's Hindu Law, 1830 edition, the rule is stated at page 202:
'In favour of a bona fide alienee of undivided property, where the sale or mortgage could not be sustained as against the family, such amends as it could afford would be due, out of the share of him, with whom he had dean (i.e., the alinee); and for this purpose, a Court would be warranted in enforcing a partition.'
15. The opinion of Colebrooke in support of the view of Sir Thomas Strange is to be found at p. 344, Vol. II of Strange's Hindu Law where it is stated that
'the consent of the sharers, express or implied is indispensable to a valid alienation of joint property beyond the share of the actual alienor; and that an unauthorised alienation by one of the sharers is invalid, 'beyond the alienor's share' as against the alienee.'
16. Viraswami Gramani v. Ayyaswami Gramani, 1 Mad. HCR 471 is a case which accepted that one of several coparceners may bind his own share by alienation and mat is it is liable for his individual debt. That decision was followed in Peddamuthulaty v. Timma Reddy, 2 Mad HCR 270 and Rayacharlu v. Venkataramaniah, 4 Mad HCR 60.
17. We may new refer to the decision of the Judicial Committee in Deendyal Lal v. Jugdeep Narain Singh, ILR 3 Cal 198 (PC), which stated the law thus:
'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 coparceners 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.'
This decision is, therefore, important in two respects, in that it has recognised the right of a creditor to seize the share of an undivided member of the family in execution for the satisfaction of the debt due by the member and further that in the parts of the country where the Mitakshara law governs a coparcener could alienate his snare. The right of the alienee is to work out his rights under the alienation by a suit for partition.
18. The next important pronouncement of the Judicial Committee is in Suraj Bunsi Koer v. Sheo Hersad Singh, ILR 5 Cal 148 (PC). It was a decision under the Mitakshara law and arose out of a suit by the sons, members of a joint family, against an execution purchaser of properly sold in execution of a decree against the lather. Sir James Colvile, who delivered the judgment, observed that it had been the settled law in the Presidency of Madras that cue coparcener might dispose of ancestral undivided estate, even by private contract and conveyance, to the extent or his own share; and a fortiori that such share might be seized and sold in execution of his separate debt, it was further observed that the law as established in Madras and Bombay had been one of gradual growth, founded upon the equity which a purchaser far value had, to be allowed to stand in his vendor's shoes, and to work out his rights by means of a partition. Referring to the earlier pronouncements of the Judicial Committee in ILR 3 Cal 198 (re) it was observed that
'the purchaser of undivided properly at an execution sale during the life of the debtor for his separate debt, does acquire his share in such property with the power of ascertaining and realising it by a partition.'
This pronouncement is significant in that it has ruled that the alienee had an equity in his favour and was permitted to stand in his vendor's shoes to work out his rights by means of a partition. The matter would not stop there. Supposing after the alienation another coparcener was born in the family what then would be the positron of the alienee? Is the alienee entitled to the share of his vendor as on the date of the alienation or is it liable to fluctuation by reason of the subsequent birth of a coparcener/ The interest of a coparcener in the family properties is undoubtedly a fluctuating interest and this aspect found favour with the judges who presided in ILR 14 Mad 408 (FB), If was expressed in that decision that the alienee was not entitled to take advantage of the increase in the share by the diminution in the number of coparceners on the footing that what the alienee had taken was a specific Share or a quantum of interest and not the vendor's coparcenary interest. The question as to what would happen it the alienor should die by the date of the suit, was answered by saying that the interest carved out by the sale vested In the purchaser at once and that the subsequent death of the alienor had not the effect of divesting what once vested.
19. Obviously, the observation as to the vesting of a specific interest, which could not be divested, did not fit in with the ruling that the share should be computed with reference to the date of the suit for partition instituted by the alienee.
20. This question receives an exhaustive scrutiny in Aiyyagari Venkataramayya v. Aiyyagari Kamayya, ILR 25 Mad 690 (FB). That was a suit by a purchaser of an undivided half share in two plots of land from a member or an undivided Hindu family consisting of himself and his two brother's sons. The suit was instituted after the death of the alienor-coparcener of the family against the brother's sons for a general partition of the family properly and for an allotment of the alienor-member's half share in the two plots conveyed i.e., half the interest in the property. An objection was raised that the alienor was dead and the plaintiff's right based on equity lapsed. Bhashyam Ayyangar J., who delivered the leading judgment, held that a coparcener's estate and interest to the extent of his snare in joint family property was not one for his fife only and that the purchaser therefore acquired an estate not limited to the life time of the vendor and that the death of me vendor before or after the purchaser worked out the transfer and reduced the estate into possession, could not affect his right, title and interest in such estate, it was also held that the purchaser was entitled to a moiety of the plots of land in question if such moiety could have Seen equitably allotted to his vendor's share in case a partition of all the family property between him and his nephews had been effected immediately before the sale to the plaintiff. In arriving at that conclusion, the Full Bench had also doubted the correctness of the decision in ILR 14 Mad 408 (FB).
21. The question of the alienor's share was again fully considered by a Full Bench in ILR 35 Mad 47 (FB) which ruled that the alienee was entitled to enforce his claim against the share to which the vendor was entitled at the time of the alienation and that in the case before them the mortgagee was therefore entitled to proceed against the share of the son subsequently born, the view expressed in ILR 14 Mad 408 (FB) was dissented from as not in conformity with the pronouncements of the Judicial Committee referred to by us in this judgment supra.
22. The ruling has been adopted as settled law in the subsequent cases and a Division Bench in Dharma Rao v. Bapanayya, 1941-1 Mad LJ 15 refused to entertain a contention that the question merited reconsideration. That was a case of an alienation of certain family property by the father when the joint family consisted of himself and his two-sons. Both his sons were minors at the time. Subsequently three more sons were born to him. The question had to be decided as to what share the alienee was entitled to. After referring to ILR 14 Mad 408 (FB) and ILR 35 Mad 47 (FB), Sir Lionel Leach, the Hon'ble the Chief Justice, stated thus at page 19 of the reported judgment:
'Other cases in which the same view (i.e., the view in ILR 35 Mad 47 (FB) has Been taken are Sivagnanam Servaigar v. Ramaswami Chettiar, 22 Mad LJ 85 Ganesh Row v. Tulja Ram Row, 26 Mad LJ 460: (AIR 1914 Mad 91), Seetharam Naidu v. Balakrishna Naidu, 26 Mad LJ 604 (AIR 1914 Mad 388), Doraisami Sirumadan v. Nondisami Saluvan, 25 Mad LJ 405: (AIR 1915 Mad 1201), Soundararajan v. Saravana Pillai, 30 Mad LJ 592: (AIR 1917 Mad 700), Subba Goundan v. Krishnamachari, 42 Mad LJ 372: (AIR 1922 Mad 112), Ramaswamy Aiyar v. Venkatarama Aiyar, 45 Mad LJ 203: (AIR 1924 Mad 81) and Balachandrasekhara v. Lakshminarasimham, 1940-1 Mad LJ 320: (AIR 1940 Mad 691).
....Inasmuch as ILR 35 Mad 47 (FB) had innumerous judgments extending over a period of twenty years been accepted as settling the law, it is with great respect, difficult to understand the need for this further discussion. In view of what has gone before ILR 35 Man 47 (FB) must be followed and therefore the appellant's main contention must be rejected.'
The rulings which followed ILR 35 Mad 47 (FB) have been set out in 1941-1 Mad LJ 15 and we do not consider it necessary to run through the subsequent rulings whichadopted the law.
23. We could now pass on to the later Full Bench ruling Peramanayakam Pillai v. Sivaraman, : AIR1952Mad419 ) (FB) which covered the entire ground exhaustively and adopted the ruling enunciated in ILR 35 Mad 47 (FB) as settled law. Satyanarayana Rao J., who gave the leading judgment, stated also that the principle of stare decisis' must be applied. The question at reopening the matter did not therefore arise.
24. Mayne on Hindu Law has stated thus in 5. 38b at page 487 of the 11th edition:
'A coparcener may alienate either his undivided share in the whole of the family property or his undivided snare in certain specific family property or the whole of a specific item of the family property. In all these cases, the alienee does not acquire an interest in the property so as to become a tenant-in-common with the members of the family entitled to possession, but only an equity to stand in his vendor's shoes and to work out his rights by means of partition.'
25. We would, therefore hold that the contention pressed upon us on the basis of ILR 14 Mad 408 (FB) cannot be acceded to.
26. The Privy Council decision cited by Sri Subrahmanyam, 1944-2 Mad LJ 395: (AIR 1945 PC 1) does not deal with the question under consideration either directly or indirectly. What all the Privy Council stated therein was that if the child (the minor coparcener) who objected to the alienation of the property, came into existence or was conceived after the alienation but during the life of a child born or conceived before the alienation then that overlapping of the two lives enabled the later-born child to contest the validity of the father's act.
27. The passage in Mayne relied on by Sri Subrahmanyam, cited supra, does not unsettle the law which is settled by a consensus of judicial pronouncements appliable to this part of the country governed by Mitakshara law.
28. 1956 Andh WR 1067: ((S) AIR 1957 Andh Fra 385) is a judgment of a single Judge of this Court, the facts of the case were that a father had sold certain ancestral lands in 1925. At the time of the sale one of his sons was conceived but not born. Later three more sons were born to him. On attaining majority, the son, who was conceived but not born at the time of the alienation, brought a suit for recovery of a 1/5th share of the lands alienated by his father impleading his father and his 3 minor brothers and successors-in-interest of the alienee. He obtained a decree for partition of a 1/5th share, the Court having found that the alienation of his father was not binding on him. No relief was given to his minor brothers, mere was also no division of lands by metes and Bounds. Later, the father and his sons purported to convey their entire extent of the lands under different sale deeds for Rs. 500/-.
A suit was then brought by the later alienees as plaintiffs for the recovery of possession of the lands sold to them by the father and sons. The trial Court decreed the suit in respect of a 1/5th share of the lands and directed a refund of Rs. 400/- in respect of the remaining 4/Dtos share not decreed to them. On appeal, the appellate court granted a 4/5ths share of the lands and Rs. 100/- by way of refund in respect of l/5th share denied to the plaintiffs. In the second appeal, the learned Judge reversed the decree of the lower appellate Court and restored that of the trial Court. In the course of the judgment, the learned Judge observed thus (at p. 1069 of the reported judgment (Andh WR) : (at pp. 387-88 of AIR):
'It is open to coparceners to recover possession or ancestral or joint family property wrongfully alienated by the father or manager on the footing that they were entitled to the estate as a joint undivided one. It, however, the non-alienating coparcener challenges a sale made by the father or manager of joint family property and institutes a suit to recover only his share of the property alienated, thereby impliedly admitting the right of the alienee to the other shares in that property, there is no reason why the other coparceners should be prejudiced thereby or lose their right to a similar share. If the alienation is venerable, the other coparceners who have a right of suit could attack it alone. Though the after-born son's right to suo is dependent upon the existence of a coparcener at the time of the alienation, he acquires an interest in me family property by reason of his birth in the family. Where the father or manager makes an improper alienation, the family property is not effectively carried away from the family except as regards his share and the other coparceners are interested in the family property not validly alienated. Though the right of the after-born coparcener to sue to set aside an improper alienation of the father or manager depends on the existence of a coparcener at the time of the alienation, still the after-born coparcener does not derive his right to sue through or from the coparcener in existence but by the factum of his birth in the family. Therefore, the fact that defendant 2 had sued for and obtained a decree for his one-fifth share in the properties improperly alienated by his father does not bar a suit by the after-born sons for recovery of their shares of the property on the footing that the alienation is invalid.' Sri Subrahmanyam relies on the above observations of the learned Judge for the proposition that he has contended.
29. We do not consider that the aforesaid observations could be accepted as unsettling the law with regard to the quantum of share taken by the alienee from a coparcener as computable with reference to the date of the suit for partition.
30. The matter need not be discussed further as we are inclined to adopt, in agreement with the general consensus of judicial pronouncements, the law as laid down in ILR 35 Mad 47 (FB).
31. So the contention of Sri Subrahmanyam fails, we would, therefore, affirm that the alienees are entitled to the share of Rattayya in items 1 and 2 of the plaint schedule lands with reference to the joint family as on the date of the alienation namely, a half share in those items, as decreed by the trial Court and affirmed by our learned brother, Srinivasachari J.
32. Sri Subrahmanyam next contended that the sale In execution of the mortgage decree is vitiated because the right of redemption so far as the after-born sons were concerned was not put in Issue and that was so because they were not Impleaded as parties.
33. This aspect of the case is equally settled by Ramasamayyan v. Virasami Ayyar, ILR 21 Mad 222, 225 and Sheo Shankar Ram v. Mt. Jaddo Kunwar, ILR 36 All 383; (AIR 1914 PC 136).
34. In the Madras case, a father having three sons executed a mortgage in favour of third parties who subsequently obtained a decree for sale and purchased it themselves. Only two of his sons were impleaded. It was ob-served in that case that a decree against the Hindu tamer, which was passed in the absence of his sons, was a good and valid decree.
35. The Privy Council case emphasised the aspect of effective representation by the father. The sons urged in the suit that they had not been made parties in the original mortgage suit and therefore not properly represented. Thai contention did not find favour with the Judicial Committee and the principle of the decision is expressed inns (at pp. 386 and 387 of the reported judgment (ILR fill) : (at p. 137 of AIR):
'There seems to be no doubt upon the Indian decisions (from which their Lordships sea no reason to dissent) that there arc occasions, including foreclosure actions, when the managers of a joint Hindu family so effectively represent all other members of the family that the family as a whole is bound. It is quite clear from the facts of this case and the findings of the Courts upon them that this is a case where this principle ought to be applied. There is not the sunniest ground for suggesting that the managers of the pint family did not act in every way in the interest of the family itself .....'
36. Here Rattayya, the father, who created the en-cumbrance, must be deemed to have effectively represented the other members as manager of the family.
37. The said contention does not, therefore succeed.
38. In the result, the appeal fails and is dismissed with costs.