1. These three appeals are all from the same decree (No. 7 being by the 5th Defendant, No. 50 by Defendants 2 to 4 and No. 51 by 1st Defendant) in a suit brought by plaintiff for partition of family property and recovery of a moiety as the share to which he is entitled.
2. The relationship of the parties will be seen from the following genealogical table.
(died 1883) | (died 1858)
Dorsisami | Varadiayyangar |Rangasami |Periasami Chinnasami
(died 1856-7) | (died 1880-1) | |
Sreenivasa Iyengar |-------------------------------| Krishnasami 5th Deft.
(died 1883) |
| 1 st Deft. Sindh alias deceased hus-
| Srinivasan band of 7th Deft.
Plaintiff Defts. 2 & 3 and 4
3. Plaintiff's case is that his grand-father Varadayyangar, the second son of Kristniengar, was adopted by the latter's brother Amnfal Iyengar, and that plaintiff is consequently entitled to a moiety of the property as representative of Ammal Iyengar, the other moiety going- to defendants 1 to 5 representing Kristnayyangar's branch to which also belonged the late husband of 7th Defendant.
4. The adoption of plaintiff's grand-father by Ammal Iyengar was denied by all the present appellants as Defendants in the Lower Court and the denial is persisted in by them all as appellants in this Court.
5. The first question for determination now is therefore, 'whether or not Varadayyangar was adopted by his uncle Ammal Iyengar.
6. This was the first issue recorded in the Court below; and the finding of the sub-judge is in the affirmative--see Paragraph 32 of his judgment in which he expresses his finding to the above effect after discussing the evidence at length in paragraphs 14 to 31. We do not think it necessary to do more than notice the documents which afford unambiguous evidence of the adoption. These are Exhibits L. Series, O. Series, A and 14, C and E.
7. Prom exhibits L, L1, L2, L3 and L6, it is seen that the adoption of Varadayyangar by Ammalayyangar was stated by the latter's brother, Kristnayyangar, in suits brought by him in 1838, 1841; and 1843 to recover moneys due to Ammalayyangar (then deceased). He explained that the suits were brought by him as Varadayyangar, the adopted son of Ammalayyangar, was under his protection. It has been objected on behalf of appellants that these copies of judgments are inadmissible as evidence and in support of this objection we were referred to I. L. R. 11 M 116 Copies of judgments and decrees were there held to be inadmissible with reference to the decision of the majority of Judges of the Calcutta High Court in Gujju Lall v. Fatteh Lall I. L. R 6 C 171 As pointed out by the court in Byathamma v. Avulla I. L. R 15 M 19 at page 23, the sole object for which it was sought to use the former judgment in Gujju Lall v. Fatteh Lall was to show that in another suit against another defendant the plaintiff had obtained an adjudication in his favour on the same right; and it was held that the opinion expressed in the former judgment was not a relevant fact within the meaning of the Evidence Act. The case is clearly different where the previous judgment is produced not in order to prove an adjudication between third parties, but in order to prove a statement made by a predecessor in title of the party against whom the document is sought to be used; cf. Parbutty Dassi v. Puma Ghunder Singh I. L. R 9 C 586 and Thama v. Kondan I. L. R 15 M 378 Such is the case here and we have no doubt that the judgments in question are relevant under Section 35 of the Evidence Act. But even were it otherwise, a copy of the plaint in the suit of which L3 is the judgment is filed as 5th defendant's Exhibit LXVIII and affords the same evidence as Exhibits L. Series. See also 5th Defendant's Exhibit LXVIII a; also the N. Series of Exhibits.
8. [Their Lordships then discussed the evidence and continued as follows]
9. We see no reason, therefore, to doubt the correctness of the Lower Courts finding either as to the factum or validity of the adoption of Varadayyangar by Animal Iyenger and the adoption being found to be a fact and valid, plaintiff is clearly entitled to a moiety of the property as representative of Ammalayangar's Branch.
10. The next point for consideration merely affects the shares to which defendants 1 to 5 are entitled inter se out of the moiety belonging to their branch as representatives of Kristna Iyengar. On reference to the genealogical table given at the beginning of this judgment, it is seen that Kistnayyangar had five sons, the second of whom Varadyyangar (the grand-father of the plaintiff) was as found above, adopted by Ammalayyangar, the 4th son Periasami had a son Kistnasami who died in 1889, leaving a widow (7th Defendant) and no male issue (his father predeceased him), 5th Defendant is the son of Kristnayyangar's youngest son Chinnasami, Rangasami the 3rd son of Kristnayyangar (died in 1880-1) had two sons, 1st defendant and one Sindu alias Srinivasan and Defendants 2-3 and 4 are the sons of 1st Defendant.
11. The eldest son Dorasami had no issue. The case of Defendants 1 to 4 is that Dorasami adopted 1st Defendant's younger brother Sindu, and that this latter adopted 3rd Defendant. If such be the fact, Kistna Iyengar's moiety of the property is divisible into three shares, one of which belongs to 3rd Defendant, another to Defendants 1, 2, and 4 and the third to 5th Defendant. 5th Defendant however denies the alleged adoption (1) of Sindu by Dorasami and (2) of third Defendant by Sindu, and claims that he, as representing Chinnasami's branch is entitled to a share equal to that of Defendants 1 to 4 jointly as' representatives of Rangasamy's branch. The questions for decision with reference to this contention are consequently two, namely, (1) was Sindu adopted by Dorasami? and (2) was 3rd Defendant adopted by Sindu? The Sub Judge has found in the affirmative with regard to both these adoptions. The evidence is considered in paragraphs 33 to 35 of his judgment.
12. The evidence of witnesses who speak to the adoption of Sindu by Dorasami is supported by Exhibit IV, an Inam statement prepared in 1862, in which Sreenivasa Iyengar is entered as the adopted son of Komalavalli the widow of Dorasami Iyengar. 3rd defendant's 2nd witness by whom the statement was prepared swears that it was prepared on information given by the father of 1st and 5th defendants and their brother Periasami, the father of 7th defendant's husband. Exhibits II and III are decrees in two suits of 1869 in which Sindu Iyengar was defendant and described as adopted son of Dorasami. There are also a number of other documents produced in which Sindu is described as Dorasami's son--Cf. Exhibits XIII, XVII, XX, XXIX, &c.; It is true that 5th defendant was not a party to these last mentioned documents but, nevertheless, they are admissible as corroborating the oral evidence of both Plaintiff's and 3rd defendant's witnesses.
13. As to 3rd defendant's adoption by Sindu Ayyangar, there is the evidence of defendant's 6th and 7th witnesses and also of plaintiff's 8th witness all of whom say they were present when the adoption took place, while other witnesses speak to the performance by 3rd defendant of the exequial rites and Sraddhas of Sindu and of Dorasami's widow Komalavalli.
14. The finding of the Sub-Judge as to these two adoptions is thus supported by evidence which we see no reason for holding to have been misappreciated, nor do we see reason to differ from the finding of the Sub-Judge on the 4th, 5th, and 6th issues. We also agree with him in finding that the 7th defendant's late husband was an undivided coparcener at the date of his death.
15. The next question is as to the validity of the transfer evidenced by Exhibit LVIII executed by 7th defendant's late husband to the 6th defendant. It was the subject of the 8th issue recorded by the Subordinate Judge. The Sub-Judge has found that though 7th defendant's late husband could not convey any definite portions of the undivided family property, he could convey his undefined interest and share in the same and that to this extent the conveyance under LVIII is valid, and 6th defendant stated his readiness to accept his vendor's share whatever it comes to. As pointed out by the Sub-Judge the consideration for the conveyance is Rupees 40,000, of which Rupees 8,000 odd were paid to one Sadagopachary under Exhibit XXXIII, Rupees 11,000 odd to N. Saminatha Iyer by whom were granted the receipts XXXII series (which are admitted by him as a witness examined on commission) and the remaining Rupees 21,000 were to be paid to 8th defendant, the father of 7th defendant, for the purpose of liquidating other debts of the executant of LVIII. The evidence on the point is stated in paragraph 40 of the Sub-Judge's judgment. There is no reason for holding that this sale to 6th defendant was not for valuable consideration or that 6th defendant purchased benamee for the plaintiff. According to the Law administered in this presidency, a sale by a coparcener of his undivided interest in family property is clearly valid and gives the vendee a right to claim the share of his vendor, though not any specific property. It is clear however from Exhibit LVIII that what was sold there by to 6th defendant is 7th defendant's late husbands' share in immoveable property only of the joint family excluding therefrom the 'old, tiled, full-built dwelling house' situate in the southern row of Mela Valuttur. The decree of the Lower Court must be amended accordingly by excluding from the portion to be awarded to the 6th defendant the above house and Kristnasamy Iyengar's share in the moveable property.
16. The next question is as to the properties specified in Schedule H, which consist of 34 items. It is contended for the 7th defendant that items 4 to 28 were acquired by her deceased husband, that she had yet realized nothing from the policy of insurance on his life, that item 32 which was also her husband's self-acquisition was conveyed by him for the purpose of conducting a charity to one Tata Desikachariyar of Triplicane who was not made a party to this suit, and that under Hindu Law she was entitled to take her husband's self-acquisition in preference to his co-parceners and that no other items of Schedule H, were in her possession. As regards items 29, 30 and 31, it was urged on behalf of the 8th defendant, father of the 7th defendant, that he acquired the first two items by purchase and that they did not belong to the joint family and that item 31 was bought by him on the 19th July 1888 at a court sale. As for items 29, 30, 31, 33 and 34 he alleged that even supposing that they all belonged to his son-in-law, Kristnasamy Iyengar, the latter ceased to be a co-parcener in consequence of the sale of his undivided share to the 6th defendant, and that the 7th defendant was the lawful heir entitled to succeed to it upon her husband's death. With reference to items 1 to 3 in Schedule H, the 9th defendant's case was that they belonged exclusively to the 7th defendant's husband, and he purchased them at a revenue sale for arrears of revenue due to the Government by Kristnasamy Iyengar. As regards all the above items, the plaintiff averred in paragraphs 5 and 6 of his plaint, that out of the sale amount, viz Rs. 40,000 due by the 6th defendant to 7th defendant's husband, the latter paid his father-in-law, the 8th defendant, Rs. 21,500 which was the surplus that remained after payment of his debt, in order that the father-in-law might purchase land for him, that the items in dispute were so purchased, and that the coparceners of the 7th defendant's husband were entitled to recover them from defendants 6 to 8. As to this sum of Rs. 21,500, 8th defendant contended that it was paid to him out of the purchase money, not to be invested as alleged in the purchase of land for the benefit of 7th defendant's husband, but in payment of debts due by him to the 8th defendant, of monies lent at his intercession and of debts which he was requested to liquidate. The 8th defendant stated also that the 6th defendant executed a promissory note in his favour for Rs. 21,150 at the date of the sale to him, and that he obtained a decree upon the promissory note against the purchaser and recovered from him after decree Rs. 7,410. He alleged further that the plaintiff's case that Rs. 9,000 remained with him as unexpended balance of the sale, amount viz., Rs. 40,000 was false.
17. These contentions formed the subject of the 9th, 10th, and 16th issues and the Subordinate Judge decided them all against the plaintiff on the ground mentioned in paragraph 41 of his judgment viz., that the plaintiff's Vakil who argued the case said that the properties in Schedule H were claimed very unwarrantably. The contention in appeal is that this is not a proper or sufficient disposal and we think that it is entitled to weight. The opinion expressed by a Vakil in the course of argument adversely to a claim which he undertook to advocate is not binding on his client, when it is not in accordance with the law applicable to the case and it is clearly not binding on the other contending defendants.
18. The question arising on these contentions is, whether when a co-parcener sells his undivided share and when a surplus is left after paying his debts from the sale proceeds, that surplus is co-parcenary property subject to the right of survivorship vesting in other co-parceners, or his self-acquired property devolving upon his demise on his childless widow. The Subordinate Judge apparently considers it to be the deceased co-parcener's separate estate, but we are unable to concur in this opinion. It has been held by this Court that a co-parcener can only alienate his undivided share for value and that he cannot alienate it by will or gift.
19. The law on this subject, as administered in this Presidency was explained by the Privy Council in Suraj Bunsi Koer v. Sheo Proshad Singh L.R, 6 I. A, 88 pp. 101 and 102. Their Lordships say that 'since the decision of the cases reported in Virasami Gramini v. Ayyaswami Gramini 1 M. H. C. R 471 Peddamuthulaty v. N. Thimma Reddy 2 M. H. G. R, 270 and Palanivelappa Goundan v. Mannaru Naikan 4 M. H. C. R, 60 it has been settled law in the Presidency of Madras that one co-parcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution of his separate debt.' It is also pointed out that the law obtaining in the Presidency of Bombay differs from that administered in this Presidency to this extent viz., that in the former the alienation must be for value, whilst in the latter, an alienation by gift was recognised. The judicial committee proceeded to observe that 'there can be little doubt that all such alienations are inconsistent with the strict theory of a joint and undivided family and the law as established in Madras and Bombay has been one of gradual growth founded on 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.'
20. In paragraphs 331 to 334 of Mayne's Hindu Law the learned writer gives the history of Hindu Law on the alienability of an undivided share by a co-parcener as administered in this Presidency. The decisions passed subsequent to the date of the decision of the Privy Council and reported in Baba v. Timna I. L. R 7 M 357 and Ponnuswami v. Thatha I. L. R 9 M 273 show that a coparcener is not at liberty to alienate his undivided interest by gift, except when he is expressly authorized to do so by a text of Hindu Law, because the equity which exists in favour of a purchaser for value does not arise in favour of a donee who is a mere volunteer. In the former case the question was fully discussed by a Full Bench of this Court and the conclusion arrived at is that a co-parcener has no power to alienate his undivided interest by gift, unless such gift is sanctioned by an express text of Hindu Law. As regards devises by will, it was held that at the moment of death the right by survivorship arises and as it is in conflict with the right by devise, the former prevails as the prior right against the latter. The law applicable to the alienation of an undivided share may thus be summarized. It may be alienated for value, but not otherwise, except where a gift is expressly sanctioned by Hindu Law and the equity of the creditor or the purchaser is the foundation on which the power to alienate for value rests.
21. If a coparcener then sells his undivided interest for Rs. 40,000 of which a part is only applied to payment of his debts and the rest is either retained by him, or by some one else in trust for him, or laid out in the acquisition of other property, the right of survivorship attaches to the surplus so retained or to the property in which it has been invested. For the sale, so far as it produces the surplus, was in excess of the requirements of the creditor's equity and amounts to a mere conversion of the co-parcenary interest into money or other property which, when warranted neither by Hindu Law nor by the equity engrafted upon it, cannot operate to remove it from the domain of survivorship or to divest the surplus of its character of co-parcenary property. Suppose that a co-parcener alienates his undivided share only in part of the joint property and that it is sufficient to satisfy the equity of the creditor, it cannot be pretended that his share in the rest of the joint property is hereby changed into his separate property and we consider that the same principle ought to govern the unexpended surplus which it is not necessary to raise or the property on which it happens to be invested. Although the sale may be upheld because the purchaser has the equity to stand in the place of the vendor and to work out his sights by partition, as he has paid value for his purchase, the purchase-money, except so far as it is applied to payment of debts continues to be co-parcenary property. There are no doubt decisions to the effect that when a co-parcener's share is alienated, the alienor ceases to be a co-parcener quo ad the property so alienated and the co-parcenary is thereby determined pro tanto, inasmuch as the purchaser who is a stranger to the joint family cannot be a coparcener. But they do not establish the proposition that the sale-proceeds, when they are not paid to a creditor in whole or part but retained by the co-parcener, cease likewise to be co-parcenary property. The Subordinate Judge must be requested to come to fresh findings on the contention of the plaintiff and the other co-parceners and 7th, 8th and 9th defendants in regard to the several items of property mentioned in Schedule H including Es. 9,000 and pass a final decree with reference to those findings and the foregoing observations on the law applicable to the case.
22. There are several minor points as to which the Subordinate Judge has come to no finding though it was desirable to do so be-fore passing a provisional decree.
23. It is first urged that the Subordinate Judge has recorded no finding on issues 21 to 24. As to issues 23 and 24 the Sub-Judge has expressed, as his opinion, in paragraph 40 of his judgment that the sale to the 6th defendant was not benami for the plaintiff as alleged by him and in this opinion we concur. The question of fraud suggested by the 23rd issue must also be negatived, for we are referred to no evidence in its support, while it is clear that the 6th defendant paid full value for his purchase. No distinct findings are however recorded on the 20th and 22nd issues and we think they must be included among those which remain to be adjudicated upon before a final decree is passed.
24. Another matter urged upon is that the 6th defendant acknowledged in exhibit 62 that he collected monies due on some of the bonds belonging to the joint family and that the Subordinate Judge has not expressed his opinion as to the amounts collected by him and as to whether he has duly accounted for them. The Subordinate Judge must be requested to come to a distinct finding on the matters mentioned above as he probably intended to do whilst deciding the 11th and 1-th issues which he has reserved for adjudication before final decree. As regards the sum of Rs. 8,000 claimed under the deed of management, the Subordinate Judge observes, and we think correctly, that plaintiff who was not a party to exhibit 78 is not bound by it. In the absence of a valid special agreement, the managing coparcener of a joint Hindu family is clearly entitled to no special remuneration as the property which he manages is one of which he is a joint owner.
25. Another contention argued in Appeal is that 89 documents which admittedly relate to family properties were handed over to the 6th defendant under Exhibit 75 by way of guarantee and that the Subordinate Judge has not noticed the objection raised by the guarantee. As an individual co-parcener the 7th defendant's husband was not entitled to charge joint property (as he did) by way of indemnity without the consent of the other co-parceners. The 6th defendant admits as the 17th witness for the defence that those documents are with him and we think that the indemnity should be set aside and that provision should be made in the final decree for the return of those documents. As regards the 19th issue the Subordinate Judge states that there is no evidence in regard to it and we adopt his finding so far as it relates to Plaintiff and we leave it, so for as it relates to 7th defendant, to abide the result of the further enquiry which we have ordered.
26. It only remains for us to notice the preliminary objection taken on behalf of the 8th defendant that the decree passed by the Subordinate Judge is incomplete and that no appeal lies until there is a complete and final decree. 'We are of opinion that this objection cannot be supported. A decree is defined by-Section 2 of the Code of Civil Procedure, and it implies that an order directing accounts to be taken is separable from the rest of the decree adjudicating on the rights claimed or the defences set up in the suit. A provisional decree is clearly appealable, and the decree before us appears to us to be in the nature of a provisional decree. The decision of the Privy Council reported in I. L. R 11 M 83 and Section 540 of the Civil Procedure which allows an appeal from part of a decree support that view. A provisional decree is permitted to be passed by Section 215 in a suit for dissolution of partnership, and a partition suit which has for its object the determination of the co-parcenary is similar to it. The decree before us is however somewhat defective in form. A provisional decree ought to declare the several rights and liabilities which have been adjudicated on and embody an order similar to the one contemplated by Section 215 and Section 215 A. The decree passed by the Subordinate Judge will be so amended as to declare all the rights and liabilities which have already been adjudicated on and contain directions as to what remains to be done viz., that an account be taken in respect of the matters mentioned in issues 11, 12, 13, 15, 20 and 22, and that further enquiry be made as to the properties mentioned in schedule H as herein directed, and that the result of such enquiry be embodied in the final decree.
27. The costs in the Original Court will be reserved for adjudication when the final decree is passed. The costs of this appeal will follow the result and be provided for in the decree to by passed by the Subordinate Judge.