Satyanarayana Raju, J.
1. Before we finally dispose of these appeals, it is necessary to get the authoritative decision of a Full Bench on a question on which there is divergence of judicial opinion.
2. In Dakshinamurthi v. Sitharamayya, 1958-1 Andh WR 85, a Division Bench of this Court, consisting of Umamaheswaram and Mohd. Ahmed Ansari, JJ., held that an alienee from an alienee of a specific item of property from an undivided member of a joint Hindu family, is entitled to work out the equity in a suit for partition and have the property allotted to the share of the alienating coparcener. The basis of this decision is that the right of an alienee to the equity is a right in personam and is heritable and transferable.
3. A contrary view was taken in two Bench decisions of the Madras High Court, viz., Dhadha Sahib v. Muhammad Sultan Sahib, ILR 44 Mad 167: (AIR 1921 Mad 384) and Sabapathi Piliai v. Thandavaroya Odayar, ILR 43 Mad 309 : (AIR 1920 Mad 316). In ILR 44 Mad 167: (AIR 1921 Mad 384), which deals with very much the same question as in ILR 43 Mad 309 : (AIR 1920 Mad 316), the learned Judges Abdur Rahim and Oldfield, JJ., observed that even though a vendee of specific lands from a coparcener of a Hindu family, may be entitled to recover lands of equal value out of the lands allotted to his vendor in a subsequent partition in the family, a vendee from the first vendee has no such right, his only remedy being to get damages from his vendor. At page 168 (of ILR Mad) : (at p. 385 of AIR). the learned Judges observed :
'When analysed, the position is simply this. A sells a particular parcel of land to B. It is found that A has no title to the land. Can it be said that B is entitled to ask A to convey to him some other land in place of what he bought? When stated in these words, the position of the plaintiff would be quite untenable and it is difficult to see why the character of the superior title by which the title of the vendor in the land which he purported to sell is defeated, should make any difference to the vendee's rights ......
We are of opinion that if we were to hold that the plaintiff is entitled to whatever land the first defendant might have got in substitution for what he had purchased from his vendor we would be giving him property which he never bargained for.'
4. In Subbiah v. Venkateswarlu, AIR 1948 Mad 464, Horwill, J., after referring to a passage in Mulla's Hindu Law. where the learned author discusses the rights of an alienee from an alienee of an item of joint family property, and disagrees with the conclusions arrived at on this point in the above two decisions of the Madras High Court, observed that since they were Bench decisions, he was bound to follow them.
5. In Chinnu Piliai v. Kalimuthu Chetty, ILR 85 Mad 47, the right of the alienee is defined as a right to institute a suit and to get allotted the share of the alienating coparcener if it is possible to do it without injustice and prejudice to the other coparceners. This, it is emphasised, is only an equity and not a right.
6. The decision in ILR 44 Mad 167: (AIR 19211 Mad 384), was cited with approval in the Full Bench decision in Venkata Subbaiah v. Kondayya, 1956; Andh LT 322: ((S) AIR 1956 Andh 188) (FB). In Sitamahalakshmi v. Ramachandra Rao. 1957-1 Andh WR 87: ((S) AIR 1957 Andh Pra 572), Chandra Reddy, T., (as he then was), referred to ILR 44 Mad 167: (AIR 1921 Mad 384), as authority for the position that a vendee from the first vendee has no right to work out the equity, his only remedy being to claim damages from his vendor.
7. In 1958-1 Andh WR 85, the learned Judges referred to ILR 44 Mad 167: (AIR 1921 Mad 384), but distinguished that decision on the ground that in the case before them the partition action was pending and the alienating coparcener, the aliened and the subsequent alienee were parties to the suit. In the present case also the alienee and the subsequent alienee are both parties to the action and the question is whether that would make any difference to the application of the rule laid down in ILR 44 Mad 167: (AIR 1921 Mad 384).
8. It is contended for the respondents that the alienee having parted with the interest purchased by him, he is no longer entitled to work out his equity and that an alienee from an alienee cannot be on a better fooling because the alienee is a party to the action.
9. As we find that there is an apparent conflict between the two Bench decisions in ILR 44 Mad 167: (AIR 1921 Mad 384) and ILR 43 Mad 309: (AIR 1920 Mad 316). which were followed by Horwill, J., in AIR 1948 Mad 464, and the decision in 1958-1 Andh WR 85, we consider that the conflict should be resolved by a Full Bench.
10. We propose the following questions for the determination of the Full Bench :
1. Whether an alienee of an alienee of a specific item of property from a Hindu coparcener can maintain a suit for general partition and claim the allotment to him of that specific item?
2. Whether the first alienee who has divested himself of all interest in the property can claim the equity?
(Judgment of the Full Bench consisting of Chandra Reddy C. J., Satyanarayana Raju and Syed Qamar Hasan JJ. dated 4-11-1958).
Chandra Reddy, C.J.
11. The questions are referred to the Full Bench :
'1. Whether an alienee of an alienee of a specific item of property from a Hindu coparcener can maintain a suit for general partition and claim the allotment to him of that specific item?
2. Whether the first alienee who has divested himself of all interest in the property can claim the equity?'
12. This reference arises out of two suits, O.S. 38 of 1949 and 39 of 1951 on the file of the Subordinate Judge of Masulipatam. (The ranks of the parties will be referred to as in the 1st suit). The first of them was instituted for partition of the properties in dispute, viz., an extent of Ac. 11-85 cents after avoiding an exchange entered into between the 10th and 1st defendants under Ex. A-1 dated 25-5-1936. The second one was filed by the 1st defendant and his vendees for a general partition and for allotment of the lands in question to the share of the Ist defendant in case the exchange transaction fell through.
It is needless to set out further facts as we are not called upon to give a decision on the merits. Both the suits were tried together us common questions of law and fact were involved in them. One of the issues raised was whether the alienees were entitled to have the equitable right of allotment of A scheduled properties to the share of the 1st defendant. This was answered in the negative by the trial Court which decided the other issue also in favour of plaintiff. The aggrieved defendants preferred two appeals against that judgment.
13. When it came up for hearing before a Division Bench consisting of Satyanarayana Raju and Seshachalapathi, JJ., they made this reference since it was felt that there was divergence of judicial opinion on this matter and an authoritative decision should be obtained.
14. The authorities bearing on this problem, though few, lend us considerable assistance in answering it and we will advert to them presently. A member of a Hindu united family could alienate either his undivided share in the family property or in a specific immovable property or the whole of a specific item therein. In either of these cases, the alienee does not got an interest in the property but acquires an equity to stand in the shoes of his alienor and work out his rights in a partition suit. He could either institute a suit for partition or could get himself impleaded in a general suit for partition filed by any of the coparceners and ask for allotment of that share to the alienating coparcener if that does not prejudice the rights of the others.
If that could not be so set apart, he would be entitled to recover the other property falling to the share of his vendor in substitution of the property that was alienated to him. This is not a right which is founded on any of the texts of Hindu Law but is the result of a doctrine developed by judicial policy. These propositions are beyond controversy and no citation is necessary in order to support them.
15. The equitable doctrine seems to have been conceded having regard to the incidence of the rights of a coparcener in a joint Hindu family. So long as the family is united, a member's share does not attach itself to any particular part of the estate but to the estate as a whole and could be determined only by 'taking a general account and making a distribution in accordance with the result.' It is therefore only equitable that every thing being equal the alienating coparcener's share should be so made up as to embrace wholly or so far as practicable the lands which were sold by him, so that the vendee might not be prejudiced.
16. The only point is whether this equity could be extended to an alienee of an alienee from a Hindu coparcener.
17. The question presented itself in a similarForm, in JLR 44 Mad 167: (AIR 1921 Mad 384).In that case, there was a private sale of a specificitem of joint family property by a coparcener. Thepurchaser in his turn conveyed it to another person.This property was not allotted in a family partitionto the alienating coparcener. It was held by theDivision Bench that though a vendee of specificlands from an undivided member of a Hindu familymay be entitled to items of equal value out of thelands allotted to his vendor in a subsequent partition of the family properties, a vendee from thefirst vendee could not put forward any such right,his only remedy being to claim damages from hisalienor. The ratio decidendi underlying this decision could be culled out from the following passage:'When analysed, the position is simply this. Asells a particular parcel of land to B. It is foundthat A has no title to the land. Can it be said thatB is entitled to ask A to convey to him some otherland in place of what he bought? When stated inthese words, the position of the plaintiff would hequite untenable and it is difficult to see why thecharacter of the superior title by which the title ofthe vendor in the land which he purported to sellis defeated, should make any difference to the vendee's rights. xx xx We are ofopinion that if we were to hold that the plaintiffis entitled to whatever land the first defendantmight have got in substitution for what he hadpurchased from his vendor we would be giving himproperty which he never bargained for.'
18. To the same effect is a judgment of another Division Bench of the same Court in ILR 43 Mad 309: (AIR 1920 Mad 316). This was a case of a purchaser from a purchaser at Court auction in execution of a money decree passed against a Hindu coparcener. Subsequent to the Court-sale, there was a family partition at which only some of the items purchased in Court-sale were assigned to the judgment-debtor. The vendee claimed allotment of an extent of land equivalent to that which he had lost, out of the other lands that had fallen to the share of the judgment-debtor. It was decided that the purchaser was only entitled to such of the properties as fell to the share of the judgment-debtor at the partition and as were included in the sale certificate.
The learned Judges were of the view that there being no privity of contract between the judgment-debtor and the auction-purchaser and no warranty of title to the lands sold in the Court auction, the rule of Caveat Emptor applied. In ILR 44 Mad 167: (AIR 1921 Mad 384), this ruling was referred to and the Bench thought that it was equally applicable to a case of private sale and the fact that the question raised before them was not argued in ILR 43 Mad 309: (AIR 1920 Mad 316) was not of much significance. Evidently, the learned Judges thought that the basic principle is the absence of privity of contract between the first vendor and the second vendee.
19. In AIR 1948 Mad 464, Horwill, J., after discussing a passage in Mulla's Hindu Law (10th Edition) in like circumstances disagreed with the rule stated therein in view of the two Bench decisions cited above and remarked:--
'The decisions proceeded on the basis that the relationship between an alienee from a member of a joint family and his alienee was that of a vendor and purchaser under the Transfer of Property Act, and that the only remedy of the alienee from the alienee arises out of their contract, i.e., a right to damages for breach of covenant of title.'
20. In Mulla's Hindu Law (10th Edition) ILR 44 Mad 167; (AIR 1921 Mad 384) was adversely commented upon. eferring to the argument, negativing the right of the subsequent vendee in ILR 44 Mad 167: (AIR 1921 Mad 384) it was stated:
'But this argument, it is submitted, applies equally as between the alienor and the immediate purchaser from him.'
We do not think we can subscribe to this view. We have already shown as to why the alienee from a coparcener was given this equity. It is pertinent to note that in the subsequent edition edited by B. K. Mukherjea, Judge, Supreme Court of India, this has been omitted. It must be noted that ILR 44 Mad 167: (AIR 1921 Mad 384) has stood the test of time for nearly 35 years. Our attention was not drawn to any case in which its correctness was doubted. On the other hand, it was referred to with approval by the Full Bench of this Court in 1956-2 Andh WR 251: ((S) AIR 1956 Andh 188), and 1957-1 Andh WR 87: ((S) AIR 1957 Andh Pra 572).
21. In the later edition, reference was made only to ILR 43 Mad 309: (AIR 1920 Mad 316) with disapproval. The editor thought that the correct view in that behalf was the one taken by a Division Bench of Bombay High Court in Vasudeo v. Kankoochand, : AIR1951Bom226 . We cannot agree with this view having regard to the fact that the decision was accepted as correct by a Full Bench of this Court in 1956-2 Andh WR 251: ((S) AIR 1956 Andh 188).
22. A divergent note was struck by a Division Bench of this Court consisting of Umamaheswaram and Ansari, JJ., in 1958-1 Andh WR 83. There, a specific item of a joint Hindu family property was purchased from a person who bought it from a member of a joint Hindu family. The second sale was pending an action by the other coparceners against the first purchaser. Thereupon, the subsequent vendee was impleaded as one of the defendants. A question arose whether the subsequent alienee was entitled to have the equity worked out in the suit.
The learned Judges expressed the opinion that since the second sale was effected during the pendency of the suit it was hit by Section 52 of the Transfer of Property Act and if the second alienation was not valid and binding on the plaintiffs for that reason, the rights which inhered in defendants 2 and 3 could be properly worked out in that suit. The learned Judges, proceeded further and observed that even if by reason of the second sale, the first vendees bad lost interest in the property in dispute, the second alienee was entitled to work out the right which belonged to the first alienee. The basis of this conclusion is the opinion of the learned Judges that such a right was heritable and transferable. They said:--
'If defendants 2 and 3 are entitled to have the equity worked out in the suit, there is nothing on principle to prevent the 5th defendant, the alienee, from requesting the Court to allot the property to the share of the alienating coparcener and equitably work out his right.'
The learned Judges distinguished ILR 44 Mad 167: (AIR 1921 Mad 384) on the ground that the position in the case before them was different from that in ILR 44 Mad 167: (AIR 1921 Mad 381).
23. It is incontrovertible that the property purchased is transferable and capable of being inherited, but that is not the same thing as saying that the equity which fixed itself to an alienee from a coparcener is transferable. Such an equity cannot be regarded as a right. It should be emphasised that this is only an equity and not a right as is apparent from ILR 35 Mad 47. See also Peramanayakam Pillai v. Sivaraman, : AIR1952Mad419 (FB). We think that this equity is peculiar to the first vendee from a coparcener and is not transferable. Consequently, the position of the second alienee cannot be equated to that of the first alienee in that regard. We do not see any reason why the subsequent vendee should be treated differently from ordinary purchasers.
The rights of such purchasers are regulated by the provisions of the Transfer of Property Act. The relationship between an alienee from a member of the joint family and his alienee is that of a vendor and purchaser under the Transfer of Property Act, and their right should he determined with reference to their contract i.e., a right to damages for breach of covenant of title. There is no privity of contract between the first alienor and the second alienee and therefore the second alienee cannot be relegated to the position of the first alienee who stands in regard to his alienor in the relation of promisee, while the alienating coparcener and the subsequent alienee are strangers to each other.
24. As pointed out by a Bench of the Madras High Court in Maharaja of Bobbili v. Venkataramanujulu Naidu, ILR 39 Mad 265: (AIR 1915 Mad 453) the equitable doctrine referred to above need not be extended beyond what is absolutely necessary i.e., to persons other than the purchaser from a Hindu coparcener.
25. Different considerations might, however, arise in a case where the first vendee after invoking the equity by filing a suit for partition and for allotment to the coparcener of the share allotted to him. assigns his interest to another person. In such a situation the provisions of Order 22 Rule 10 C.P.C. would come into play and the second alienee may request that a decree might be passed in his favour instead of his assignor. However, we are not required to deal with such a situation here and it is not necessary to express a final opinion on that. For these reasons, our answer to the first question is that the equity which arises in the case of a first alienee is not available to the alienee from an alienee of a specific item of property from a Hindu coparcener and the latter could not maintain a suit for general partition claiming the allotment to him of that specific item.
26. Our answer to the second question is in the negatives when the first alienee has parted with his interest in the property, he could not raise an action claiming the equity. The very foundation of a suit is the existence of some interest in the property. When he is not possessed of it, we think he cannot bring a suit to work out equities. The case will go back to the Bench for consideration of other issues in, the matter and for final disposal.