1. The facts out of which this appeal arises may be briefly stated. Defendants 1, 2 and 3 are brothers. Defendants 4 to 7 are the sons of one or other of these three brothers and their rights follow that of their fathers, and it is unnecessary to make any further reference to them. The father of defendants 1 to 3 died in May, 1912. It is the 1st defendant's case that, soon after, the brothers entered into an agreement to refer the disputes relating to their family properties to certain arbitrators. The arbitrators passed an award dated the 30th November, 1912, Ex. 1. Defendants 2 and 3 would not recognise the validity of this award or submit to it on the ground that two of the arbitrators did not act. The 1st defendant thereupon filed an award in Court seeking to make it a rule of Court. This petition was filed as O.S. No. 112 of 1913 on the file of the Court of the District Munsif of Tirupattur. The plaint is Ex. O. The District Munsif dismissed the plaintiff's suit or, in other words, refused to make the award a rule of Court. Vide Ex. O. (1), dated the 29th January, 1914. Thereupon defendants 2 and 3 executed a sale deed of their two-thirds share of the family lands in Alasandapuram to the present plaintiff under Ex. A, dated the 27th November, 1915. In this sale deed they alleged that certain specific shares of the lands fell to their share, namely, the southern and western two-thirds, conceding the remaining one-third to the 1st defendant. The consideration for this sale deed is that the plaintiff should discharge the whole of the debt due on a mortgage deed executed by the father of defendants 1 to 3. Thereupon the plaintiff offered the mortgage amount to the mortgagee but the mortgagee refused to take it and he filed a suit on the mortgage deed to recover the mortgage amount by sale of the property.
2. That suit was O.S. No. 579 of 1915 on the file of the District Munsif's Court of Tirupattur. Ex. B, dated the 8th December, 1915, is the plaint. The present plaintiff by reason of his purchase under Ex. A was made the 8th defendant in that case, defendants 1 to 7 in that case being the same as defendants 1 to 7 in this suit. Ultimately the 8th defendant in that suit, the present plaintiff, paid off the mortgage amount. The present suit was filed by the plaintiff to recover the specific 2/3rds share of the Alasandapuram lands sold to him under Ex. A but in the plaint he also prayed that in case the Court should find that there is no partition allotting the specific 2/3rds to defendants 2 and 3, a general partition may be effected and 2/3rds share of the suit lands be allotted to him. Meanwhile on the 11th December, 1916, the 1st defendant sold the whole of the family lands in Alasandapuram to the 8th defendant by a sale deed, Ex. VI, on the footing that all the lands belonged to him. By reason of this sale deed the purchaser under Ex. VI is made the 8th defendant in this case.
3. It is now necessary to notice the pleas of the various defendants. The 1st defendant pleaded that though the award was not filed by the Court it was 'acted upon' by the parties. He adds, 'This defendant continued to enjoy the Alasandapuram properties in pursuance of the award and defendants 2 and 3 have been in possession of the properties attached to them in the award. That on account of misunderstandings 2 and 3 defendants raised objections to the award but they never disturbed this defendant's possession.' This plea really amounts to this: It is true that defendants 2 and 3 originally objected to the award and did not recognise its validity but they afterwards accepted it. Or if this interpretation is not possible it can only mean this, that as a matter of fact defendants 2 and 3 never disturbed the 1st defendant's possession of the Alasandapuram lands. There is no plea in paragraph 3 of the written statement that apart from the refusal of the Court to file it, the award as a matter of fact is binding upon the parties and remains valid. Defendants 2 and 3 pleaded in paragraph 2 that the plaint sale deed was executed in order to compel the 1st defendant their brother to consent to give a share to these defendants in Alasandapuram village. They raised a similar plea in their written statement in O.S. No. 579 of 1915 showing that throughout they never accepted the right of the 1st defendant wholly to the Alasandapuram lands. The 8th defendant also pleaded in paragraph 10 of his written statement that the award was 'acted upon' by the parties and defendants 1 to 3 continued to be in possession of the properties as per terms of the award. The first issue in the case is whether a subsisting title was created in any and if so in what portion of the suit items by the conveyance, dated 27th November, 1915, and whether the purchase money for the aforesaid sale moved from plaintiff. We do not see the particular significance of the word 'subsisting' in this issue. The Subordinate Judge has not found that there was any fresh arrangement between the parties by which they agreed to accept the allotments made under the award in spite of the refusal of the Court to file it. There is a good deal of evidence on record to show that there could not be any such thing. Up to January, 1915, we see that the 2nd and 3rd defendants were resisting it. Afterwards they executed the sale deed Ex. A in November, 1915 and they make no secret of their purpose in executing the sale deed both in the written statement in O.S. No. 579 of 1915 and here. All this shows that there is no consensus between the brothers and the statement 'acted upon' is merely an idle statement. It may be that the 1st defendant managed to continue in possession of the whole of the Alasandapuram lands and was paying kist. But this is an irrelevant circumstance. The plaintiff was as a matter of fact suing some of the tenants of the lands and getting decrees for his share of rent. That circumstance would not help him if as a matter of fact there was an arrangement prior to the plaintiff's sale deed by which the suit lands were wholly allotted to the 1st defendant. However there is no such evidence. The Subordinate Judge dismissed the suit on a reasoning which strikes us as very curious and which the learned advocate for the respondents expressly stated before us that he is unable to support. He says that it is the common case between the parties that they were divided in status; the dispute is only as to the details of the division. This is true. He also found that the specific division pleaded by the plaintiff is not true and his finding is not questioned before us by the learned advocate for the appellants. Then he says at the end of paragraph 15 'If it is not that they are divided on the lines of the award it may be asked what else there is to show in what manner the division has taken place'. In our opinion this, sentence shows entirely a fallacious, reasoning. It may be that the particular division set up by the plaintiff was found to be false by the Subordinate Judge. And it is also true that the plaintiff-appellant does not argue in favour of that case before us. But it does not, follow that that the arrangement in the terms.of the award is the only possible arrangement. It may be that there was really no arrangement between the parties, in which case the plaintiff is entitled to a partition and allotment of the 2/3rds share of the suit lands and the 1st defendant is entitled to If3rd share. The Subordinate Judge's question 'what else there is to show in what manner the division has taken place' is beside the point. What is necessary for the defendants to show before they can get the plaintiff's suit dismissed is that there was a division in some other manner. If any such division is not forthcoming, the only conclusion is that there is no binding division between the parties. The Subordinate Judge is unable to see the possibility of this third alternative. We can only express our surprise that he is not able to see this alternative. In paragraph 18 he says:
My finding accordingly on the first issue is there was no title created in plaintiff by the execution of Ex. A for the reason that in all probability the property did not belong to the defendants 2 and 3 on its date.
4. The Subordinate Judge is simply speculating here. He does not refer to a single item of evidence which would show that the title of defendants 2 and 3 to 2/3rds of the suit property, which prima facie they have got as members of the joint family, has been lost. The award not having been recognised by the Court in 1914 and it not being pleaded in the case that the award is nevertheless binding on the parties and no other arrangement being found by the Court, the title of defendants 2 and 3 to an undivided 2f3rds share has not been displaced though their title to a specific 2/3rds share is not established. In the face of such facts it surprises us to see that the learned Subordinate Judge states that the properties did not belong to defendants 2 and 3 on the date of the sale deed. He does not make any reference to the documentary evidence between 1914 and 1916 which shows that defendants 2 and 3 continued their original adverse attitude towards their brother. It may be that in this case the brothers have combined for the purpose of defeating the plaintiff, a feature which is not uncommon in suits concerning properties of joint families.
5. However, the result is that we find that the plaintiff has not succeeded in showing his title to the specific portions of the suit lands but his title to an undivided 2/3rds share in the suit lands remains.
6. The real contending defendant is riot the 1st defendant but the 8th defendant, a purchaser from him. In these circumstances the question arises, because it has been argued by the learned advocate for the respondent, whether the suit merely for a share of the Alasandapuram lands is maintainable. In view of the fact that the plaintiff has claimed an alternative relief for a general partition, the question is academic apart from the question of proper court-fees payable by the plaintiff. But the point has been argued, and we are of opinion that the suit for partition of merely Alasandapuram lands apart from a general partition is sustainable. We proceed to give reasons for this conclusion. Mr. Padmanabha Aiyangar contended that the suit for a share of the Alasandapuram lands is not' maintainable because it is a suit for partial partition. Now cases establish two or three well-recognised principles. Firstly, as between members of a joint family no suit for partial partition lies. Secondly, a member or members of a joint family may sue an alienee from a member or members of the joint family for his or their share of the property alienated without suing for a general partition. In so doing they affirm the sale by the other member or members but the real basis of the rule is that as the rule against partial partition is a rule for the protection of the joint family against being harassed by multiplicity of suits at the instance of alienees from recalcitrant members, they can waive the benefit of it and they can bring a suit to separate themselves from the undesirable stranger. The remarks in Iburamsa Rowthan v. Thiruvenkatasami Naick I.L.R. (1920) 34 Mad. 269 : 20 M.L.J. 743 show that the rule is recognised on the ground that it has been acted upon in a series of cases, and it is too late to examine whether the foundation of the rule is sound or unsound. So it is unnecessary to analyse the reasons for the rule. It is enough to say that the rule exists as between members of a' joint family and an alienee from a member ot members. We have'got the actual decision in Iburamsa Rowthan v. Thiruvenkatasami Naick I.L.R. (1920) 34 Mad. 269 : 20 M.L.J. 743 where the plaintiff is an alienee from one member and the defendant is an alienee from another member of the joint family. The suit was held to be maintainable. Mr. Padmanabha Aiyangar contends that that decision should be confined to cases where the plaintiff is the second alienee from a member and the defendant is the first alienee from a member of the family and that it cannot be utilised to hold that a suit by a first alienee against the second alienee is maintainable. We do not see any reason for upholding this distinction. In the facts of Ibwramsa Rowthan v. Thiruvenkatasami Naick I.L.R. (1910) 34 Mad. 269 : 20 M.L.J. 743 it happens that the plaintiff is the second alienee from a member. That is merely an accident. The principle is that where people who are fighting are merely two alienees, it is unnecessary to apply the main rule. The position of the respondent can easily be tested. If there are two simultaneous sale deeds on the same date, one by one member and another by another member, in favour of strangers, the question arises which is the person that can sue according to the rule as contended for by the respondent. The respondent concedes that in such a case both can sue, which only shows that there is no meaning in the rule as contended for by him. Again in a case where there are two alienees, suppose the first alienor himself chooses to bring the suit either associating the alienee with him or by himself, it cannot be contended that the suit is not maintainable. The truth is that once you recognise the right of a member of a coparcenary to bring a suit against an alienee, the right of an alienee from a coparcener to sue another alienee immediately follows as a corollary and the distinction between first alienee and second alienee is entirely irrelevant. Another decision sought to be relied on by the learned advocate for the respondent is Davud Beevi Animal v. Radhakrishna Aiyar (1922) 44 M.L.J. 399. That case does not bear upon the point in question as it discusses the question of equities in favour of the alienee in that case and proceeds so far as to say that the defendant alienee can insist on a general partition in a suit by the member. The third case relied on is Sundara Aiyar v. Krishnamurthi Aiyar : (1916)31MLJ317 . In that case a stranger who purchased a share of the properties of a joint family had several properties allotted to him in a suit for a general partition but the defendant in the suit who was himself a purchaser had not been made a party to the earlier suit for general partition. The plaintiff had to sue him again in a second suit. The suit was confined to only one item and he reserved his right in respect of the other properties. It was held that he must bring a general suit including all the items and cannot confine himself to one item. In our opinion that case has nothing to do with the matter under consideration. None of these cases supports the distinction sought to be drawn that the rule in Iburamsa Rowthan v. Thiruvenkatasami Naick I.L.R. (1910) 34 Mad. 269 : 20 M.L.J. 743 should be confined to a second alienee and cannot be followed with reference to a first alienee from a member of the family. Apart from all this, in this particular case there is no more joint family, it being conceded by all the parties that there is a division in status. Though in such a case, as between members of the family there ought to be one suit in respect of all the items as held by Kumaraswami Sastri, J. in Yerukola v. Yerukola I.L.R. (1922) 45 Mad. 648 : 42 M.L.J. 507 , still as between two strangers who are alienees from members of the family we do not see any reason why there could not be a suit for partition of those items in respect of which the contending parties to the suit are tenants-in-common. We think that the suit even in respect of the Alasandapuram lands is therefore maintainable.
7. In modification of the Subordinate Judge's decree we award a decree for partition of the two-thirds share in' the plaint lands. The plaintiff will be entitled to full costs in appeal and three-fourths costs in the Lower Court. The plaintiff is entitled to profits for three years prior to suit and up to delivery of possession from defendants 8 to 11. These profits will be ascertained by the Lower Court before passing a final decree.