Varadaraja Iyengar, J.
1. This appeal is by the 2nd plaintiff, legal representative of the 1st plaintiff, against the judgment and decree of the court below, dismissing his suit for partition herein.
2. The 1st plaintiff is the elder brother of the 1st defendant. Themselves and their father belonged to the Chetty Community and constituted a joint Hindu family governed by the Mitakshara. The plaint A schedule immovable properties in Cochin and the B schedule movables appertained to that joint family. On 18-10-1113, the 1st plaintiff executed Ex. I release deed in favour of the father and younger brother, of all his one-third share in the A schedule properties, for a sum of Rs. 200.
A like release, it is said, was executed with reference to the family properties in Malabar. The father died in Karkadagam 1120. The first defendant thereafter assumed to be the full owner of the A schedule properties and created various encumbrances over them which finally culminated in Ex. IX usufructuary mortgage dated 18-1-1123 in favour of one Subramonia Vadhyar for a sum of Rs. 3,000 and a lease back Ext. X. Ext II is the assignment, in favour of the 2nd defendant, of Exts. IX and X rights.
The 2nd defendant took from the 1st defendant two karars also on 5-10-1125 and 5-10-1126 and basing himself on these and Ex. X, he filed suit and obtained decree against the 1st defendant, in O. S. 713 of 1951 and O. S. 714 of 1951 of Wadak-kancherry Munsiff's Court. On foot of some other encumbrances in his favour, the 3rd defendant obtained decree in O. S. 771 of 1950 against the 1st defendant.
According to the plaintiff, Ex. I was not intended to be nor really, acted upon and had been executed merely to stave off trouble from the family of an unmarried girl, Ammini of the Naidu community with whom he had developed intimacy. The plaintiff had indeed taken up management of the family affairs on the death of the father and on such footing, and along with his mother and the 1st defendant, executed Ex. A sale deed on 10'8-1121 of the family properties in Malabar to pay off the family debts.
The plaint averred that the 2nd defendant was the brother of the father of Ammini above referred to and the 3rd defendant was the 2nd defendant's adherent and they had collusively prevailed uponthe 1st defendant to execute the encumbrances. The suit was therefore laid on 21-1-1952 for partition and recovery of the plaintiff's one-half share in A and B schedule properties subject to the payment only of the family debt represented by the C schedule.
Subsequent to the institution of the suit, the 1st plaintiff died and his universal legatee under Ex. C was impleaded as the 2nd plaintiff.
3. The 1st defendant supported the plaintiff. His only complaint was that the 1st plaintiff had been misappropriating the family income and was, on that basis, liable to account. The main contest was raised by the defendants 2 and 3. They contended that Ext. 1 was genuine and valid and had been acted upon by the parties at all relevant times, The 1st plaintiff had accordingly no locus standi toquestion the encumbrances created by the 1st defendant on basis of his sole ownership of the properties.
They asserted that the debts contracted by the first defendant in their favour were real and unimpeachable both by the 1st defendant and 1st plaintiff. They suggested that the suit was taken with a view only to forestall the execution proceedingson foot of the decrees obtained by them.
4. Evidence oral and documentary was led, oneither side, in support of the respective cases. The 1st plaintiff died without going into the box. The 2nd plaintiff was examined as PW. 1 while the 2nddefendant gave evidence as Dw. 1. Pw. 2 thoughonly an attestor to Ext. C, claimed to have advised the 1st plaintiff to execute Ext. 1. Pw. 3 spoke about the father confiding to him about the circumstances under which Ext. I came into being. Pw. 4 was the scribe of Ext. I,
The learned Judge, Trichur, before whom thecase came on for trial, in fairly detailed judgment, refused to accept the testimony of the witnesses on the plaintiff's side and held in favour of the genuineness and validity of Ext. I and further that the 1st plaintiff was estopped from contending as he did. The suit was, in the event, dismissed and hence this appeal by the 2nd plaintiff.
5. Mr. K. Rama lyer, learned counsel for the appellant, made a valiant attempt before us toshow that the learned District Judge below had notcorrectly appreciated the circumstances, when he upheld Ext. I as against the 1st plaintiff. We may say at once that we are not impressed that it is so. In our opinion, the 1st plaintiff's case was practi-cally given up when it was admitted, that no litigation civil or criminal was started on the side of Ammini's relatives either against the 1st plaintiff or his father in or about 1113 when Ext. I was executed, and that on the other hand the 1st plaintiff continued even afterwards to live away from the family and with the girl at Nilambur, so as to return only on the death of his father in 1120.
There was also Ext. XVII mortgage deed jointly executed by the father and 1st defendant, reciting their exclusive title by virtue of Ext. I and pledg-ing the A schedule properties for purpose of dis-1958 Kerala D.F./22charging a prior mortgage thereon of 1108, for a sum of Rs. 1000, under Ext. XVI. Learned counsel referred to the junction of the 1st plaintiff in Ext. A sale of the Malabar properties on 10-8-1121 after the death of the father but this document can stand, however, we conclude on Ext. 1 and so is immaterial.
Nor can anything turn, on the amount of Rs. 200 alone fixed as the consideration for Ext. I, when it is remembered that the properties were already encumbered under Ext. XVI and the period 1113 was one of great depression. We therefore confirm the finding of the court below that Ext, I was real and also operative.
6. Learned counsel then said that assuming Ext. I was genuine and did not come into effect, the 1st plaintiff was still entitled to succeed in his claim for partition of the A schedule properties, though possibly to lesser extent. According to him, Ext. I might operate as an alienation for consideration of the undivided one-third share of the 1st plaintiff in the joint family properties but it still left him unaffected in respect of his membership of the co-parcenary constituted of his father, himself and 1st defendant.
So when the father died his one-half share in the joint family properties survived in favour of the 1st plaintiff and the 1st defendant in equal halves, so as to leave the 1st plaintiff entitled to a one-fourth share. The suit for partition could therefore be allowed to that extent. We think this contention is well-founded and should succeed.
7. The question really is, how far an alienation by a coparcener of his undivided interest in the entire family property, brings about a disruption of the coparcenary and a severance by conduct. On this subject Mayne on Hindu Law, 11th Edu. paragraph 389 says :
'An alienation by a co-parcener does not put an end to the co-parcenary; whether he alienates the whole or part of his interest in family property he will continue to be an undivided member with rights of survivorship between himself and the others in respect of all the family property. This view receives support from the decision of the Privy Council in Ramkishore v. Jainarayan, 40 Ind App 213 (A), where it was held that it was open to the co-parceners to recover possession of the property wrongfully alienated on the footing that they were entitled to the estate as a joint undivided estate.'
Similarly it is observed in Mulla's Hindu Law, 9th Edn. p. 305 paragraph 262 :
'Where an undivided interest of a co-parcener has been sold, but there has been no partition either at the instance of the purchaser or of the other coparceners, the sale does not affect the status of such coparceners in the family, nor does it extinguish his right to take by survivorship the interest of other coparceners on their death.'
8. In Gurlingappa v. Nandapa, ILR 21 Bom 797 at p. 803 (B), Farran, C. J., quoted the view of the Privy Council in Deendyal Lal v. Jugdeep Narain, 4 Ind App 247 (C):
'There can be little doubt that all such alienations whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family; and the law as administered in Madras and Bombay has been one of gradual growthfounded upon the equity which a purchaser for value has to be allowed to stand in his vendor's shoes and to work out his rights by means of a partition.'
and went on to say.
'It seems to follow from it that the sale of a coparcener's interest in joint family properly cannot affect the position of such coparcener in the joint family or alter the rights of the several coparceners inter se, though it confers upon the purchaser the equity by means of a partition to obtain the benefit of his purchase and thus wholly or in part to break up the family union and joint estate.
Basappa's rights to succeed to his brother's shares by survivorship were not, therefore, we think, affected by the sale of his interest in the last item of joint family property to Gnrapadapa so long as the purchaser did not proceed to work out his rights by partition'.
That is to say an alienating coparcener is undivided, even in respect of the share of the other members in the property alienated, so that on the death of any member he will succeed to his share by survivorship along with the other members.
9. This decision was referred with approval by Bhashyam Ayyangar, J., in Venkataramayya v. Ra-mayya, ILR 25 Mad 690 (FB) (D), and the learned Judges observed :
'An undivided member of a family, though he may alienate either the whole or any part of his undivided share will continue to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the joint family property other than what he has transferred.'
Commenting on these passages Venkataramana Rao, J., in Ramasubbaraya v. Appalanarasimharaju, AIR 1940 Mad 217 (E), observed :
'This is in accord with the strict theory of Hindu Law which does not recognise alienation as a mode of severance of a joint family. The notion that it would operate as a severance was based on the analogy of English law where a joint tenancy would be disrupted by an alienation of his share by the joint tenant. But the concept of a joint tenancy and the legal incidents attaching thereto are not the same as in the case of a joint Hindu family. It is wrong therefore to infer the same legal consequences from an act which operates differently under different systems of law.'
10. Learned counsel for the respondent referred to the observations of Ramesam J., in Lakshmi Achi v. Narayanaswami Naicker, ILR 53 Mad 188: at p. 195: (AIR 1930 Mad 51 at p. 53) (F), following Balkrishna v. Savitri Bai, ILR 3 Bom 54 (G), that where a coparcener competently sells his interest in all or some of the properties to the other coparceners in the family he becomes divided from them in respect to such properties. In our opinion, however, there can be no such division resulting from a sale and that will be so whether the sale is to a coparcener or as in this case to all the other coparceners or to a stranger. Indeed the observations of Ramesam, J., were, as remarked by Venkitaramana Rao, J., in AIR 1940 Mad 217 (E), just referred to, based on a wrong interpretation of the observations of Bhasyam Ayyangar, J., in JLR 25 Madras 690 (FB) (D).
11. Learned counsel for the respondent then sought to urge that Ext. I was in fact a renunciation by the 1st plaintiff of his interest in the joint estate in favour of the other coparceners and so there was no alienation by him but only an extinguishment of his interest so as to reduce the number of the persons to whom shares would be allotted if and when a division of the estate took place vide Venkitapathi Raju v. Venkitasubba Raju, AIR 193d PC 264 (H).
This statement of the law that renunciation brings about a separation is in general, true though the question is largely one of intention to be gather-ed upon an interpretation of the documents affecting the relationship between the parties and no-hard and fasl rule can be laid down. See Mahalin-gayya v. Sangayya, AIR 1943 Bom 397 (I). Per Wassoodew, J. But anyhow this aspect need not detain us because the definite case of the 2nd defendant was that Ext. I was an alienation supported by adequate consideration and that case we have already upheld.
12. The result is that the suit for partition-herein must stand allowed in respect of a one-fourth share in the joint family properties comprised in the A and B schedules, subject of course to the G schedule debts. The 2nd plaintiff would take that share, free of all the debts created by or the decrees obtained against the 1st defendant.
We accordingly set aside the decree of thecourt below and grant a preliminary decree in favourof the 2nd plaintiff to the above extent. In thecircumstances of the case, the parties will bear their.respective costs incurred so far.K.S.B.