1. The facts of the case so far as they need be stated for the purposes of this second appeal are as follows:
The 1st and 2nd defendants are the only co-parceners in an undivided Hindu family governed by the Mitakshara law. Sometime ago the 2nd defendant sold to the 3rd defendant the, whole of a house, the property of the joint family, alleging the existence of family necessity to justify the sale. Subsequently 1st defendant sold to the plaintiffs his undivided half share in the same house.
2. Plaintiffs brought the present suit to compel the defendants to divide off and deliver to him one-half of the house.
3. The 2nd and 3rd defendants pleaded, inter alia, that the family owned another house and that, therefore, a suit for partition of the plaint house alone could not be sustained.
4. The 3rd and 4th issues were framed on these allegations and are as follows:
Whether the 2nd defendant has another family house in his possession?
If so, whether the suit for partition of the house in question alone is sustainable?
The District Munsif found that the family did own another house, but that it had for many years been mortgaged with possession to a third party. As to the 4th issue, the plaintiffs contended that as the house was out of possession of the family and was not then available for partition, its existence formed no bar to the suit. The District Munsif disallowed this plea saying that 'the equity of redemption or other rights of the mortgagor would form the subject of consideration in allotting shares.' He, however, quoted no authority for the decision, but went on to remark that as the 1st and 2nd defendants are undivided, 'there is no saying that they have not got family moveables worth even a cash. The whole property must be brought into hotchpot.
5. He, therefore, dismissed the plaintiff's suit, and the District Judge observing that it was not denied before him that there was other family property' besides the plaint house, confirmed the decree. Against that decree the plaintiffs appeal.
6. It Seems to us that the Courts below have not kept clearly in view the principles that govern a suit of this kind and have failed. to ascertain the facts on which the rights of the parties depend.
7. If there was, as the District Munsif assumes there was., other joint, family property besides the plaint house and the house mortgaged with possession to a third party, then there is clear authority that the plaintiffs could not maintain the suit for a partition of a part only of the family property (Venkatarama v. Meera Labai, followed in Palani Konan v. Masa Konan I.L.R. (1895) M. 10, in both of which cases there was other joint family property available for immediate division, though in the latter case the reporter has not made this clear). We cannot admit the contention of the appellant's Vakil that the real contention was only between the plaintiffs and the 3rd defendant, who were both strangers to the family and that, therefore, the rules relating to partition of family property have no application as explained in Subbaraya v. Veukatratnam I.L.R. (1891) M. 234. On the pleadings there was a contest between the plaintiffs and 1st defendant on the one hand and the 2nd and 3rd defendants on the other hand, as to whether the 2nd defendant's sale of the whole of the plaint house was justified by family necessity. 1st and 2nd defendants were, therefore, necessary parties. The equities between 1st and 2nd defendants would have to be inquired into, and plaintiffs could only recover a half share in the house subject to the equities to which their vendor, the 1st defendant, was liable. In the case in Subbarazu v. Venkatratnam I.L.R.(1891) M. 234. the plaintiff was the purchaser of the whole of the rights of the joint family and the defendants were also strangers to the family. That case, therefore, has no application to the facts of the present case.
8. If, on the other hand, there was no joint family property save the plaint house and the house mortgaged with possession to a third party and, therefore, no longer available for immediate partition, then there is authority for holding that the suit for partition of the plaint house would be maintainable, for the suit is then one for partition of the whole of the family property liable to partition, at the time Narayan v. Pandurang (1875) 12 Bom H.C.R. 148 referred to with approval in the recent case of Shivmurtappa v. Virappa BLR 620 where all the authorities are reviewed. The 2nd and 3rd defendants did not allege the existence of any joint family property liable to partition except 'the house which the District Munsif found was mortgaged with possession to a third party, but the District Munsif assumed (without any justification so far as we can see) that there must be other family property liable to partition. The District Judge appears to have made the same assumption, and the assumption has not been specifically objected to in the grounds of second appeal, though in arguing the appeal it is contended that there is no ground for the assumption. In this state of things, we think the best course is to call on the District Judge for a finding, on further evidence if either party desires it, as to whether there is any joint family property apart from the plaint house and the house outstanding on mortgage. The finding should be returned within two months from the date of the receipt of this order and seven days will be allowed for filing objections after the finding has been posted up in this Court.
9. In accordance with this order the District Judge returned the finding that there was no other family property except the plaint house and the house mortgaged with possession. The Court accepted the finding, reversed the decree and remanded the case to the Court of First intance for disposal according to law.