1. The facts are set forth in the judgment under appeal and need not be re-stated in detail.
2. The defendant is alienee from a brother in a Hindu joint family and by virtue of the alienation defendant got into possession of a certain parcel of land. The rest of the joint family property was dissipated, and then plaintiff, the other brother, sued for partition of this parcel. The District Munsif dismissed his suit. The Subordinate Judge decreed him a moiety. A single Judge of this Court again dismissed the suit, and plaintiff appeals under the Letters Patent.
3. The parties agree that at the time of the alienation the defendant purchased the right to compel partition of the brother's share as it then stood. The plaintiff reads this as meaning that one-half was purchased, and from the property existing at the time of the partition suit defendant can take that half. The defendant would read into it something more, that he purchased not only the right to the fractional share, but the right to divide the family property as it stood on the date of alienation. Put mathematically, it may be said that plaintiff concedes that defendant has 1/2, and defendant claims x/2
4. It is a question which, as the authorities abundantly show, cannot be decided by pure law or logic.
5. That alienations of a coparcener's share are inconsistent with Hindu Law is laid down by the Privy Council in Suraj Bunsi Koer v. Sheo Persad Singh , referred to by Arnold White, C. J., in Chinnu Pillai v. Kalimuthu Chetti I.L.R. (1911) 35 Mad. 47 : 21 M.L.J. 246 and Sankaran Nair, J., on page 56.
6. But it was held that in equity a person who had parted with his money should receive something in exchange, and therefore in Deendyal Lal v. Jugdeep Narain Singh the alienee was given a right limited to compelling the partition which his debtor might have compelled had he been so minded before the alienation of his share took place.
7. In Hardi Narain Sahu v. Ruder Perkash Misser the Privy Council interprets this in the sense that 'only that passed which the father, the person against whom the decree was obtained, had'. A very natural proposition, if one may say so, that a man cannot sell more than he has got, 'not the share in the property, but the right which the father would have to a partition '.
8. Of course this right to a partition terminates upon death; and a coparcener always holds the right subject to this contingency. So, if the decree-holder literally bought only what his vendor had, he bought the right of partition subject to this contingency; and when his vendor died, he would have no right at all.
9. That seems to be hard logic, and in Suraj Bunsi Koer v. Sheo Persad Singh the alienee was allowed the right even after the death of the alienor. 'In Madras,' the Privy Council observes on p. 173, 'the mortgage executed by the alienor in his 'lifetime' might operate after his death as a valid charge,' and in the Bengal case under consideration it holds that the execution proceedings had gone so far as to constitute a valid charge which could not be defeated by death before the actual sale.
10. If this is so, it is a clear departure from the dictum that an alienor could only sell what he had. He had a right subject to the contingency of death, and he sold a right not subject to the contingency of his death.
11. This difficulty was pressed upon the referring Judges in Rangasami v. Krishnayyan I.L.R. (1891) 14 Mad. 408 : 1 M.L.J. 603 and they thought that in logic the alienee would be subject to all contingencies, such as births diminishing his alienor's share and his alienor's death obliterating that share. They referred to a Full Bench the question 'to what share in the property is the plaintiff entitled '. The Full Bench held that the purchaser takes an uncertain and fluctuating interest. It did not decide what would be the effect of death, but observed obiter that because the interests carved out at the sale vest in the purchaser at once, the subsequent death of the vendee cannot divest the interest which has once vested. On this line of reasoning the other subsequent contingencies, such as births into the coparcenary might, it may be thought, have been treated as not affecting the vested interest; however the Full Bench held that the alienated share is affected by subsequent births, and is to be reckoned with reference to the joint family as it stands at the time of the suit for partition and not as it stood at the time of alienation.
12. In Hardi Narain Sahu v. Ruder Perkash Misser the family consisted of father, mother, and minor son. The father alienated his share and then made over his interest to his son who sued the alienee for possession.
13. The Calcutta High Court treating it as a suit for partition decreed that the minor, the mother, and the father's alienee should each have one-third. The alienee appealed claiming a half. It is not quite clear upon what he based this plea but apparently (p. 633) Mr. Doyne on his behalf while conceding that the mother would in Bengal be entitled to one-third on partition, argued that before partition she only had a maintenance right, and probably claimed that the alienee had carved out interests at the sale which would vest in him at once, the language of the obiter upon death in the Madras Full Bench case. The Privy Council quoted (pp. 635-6) the passage already cited from Deendyal Lal v. Jugdeep Narain Singh , 'only that passed which the father had' and also quoted 'so long as Bhagwa lived the alienee had an interest in the property which entitled him to demand a partition,' and it then proceeds, 'the interest which is purchased is not, as Mr. Doyne argued', the share at that time in the property, but it is the right which the father, the debtor, would have to a partition, and what would come to him upon the partition being made. That is the answer to Mr. Doyne's argument that the father was entitled to a half '.
14. Then it seems to have been suggested that in any case the Calcutta High Court did wrong to decree partition, and the rights of a second son who had been born into the family should be considered. The Privy Council agreed that the decree was not proper; but the person appealing was the alienee, not the minor, and as the decree for partition gave him a more favourable decree than he may have been entitled to, and as no one was urging that he should have less than what the decree gave him (there was no cross-appeal) there was no ground for altering it.
15. The question whether the alienee's suit was maintainable after the alienor's death came directly before our Court in Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) 25 Mad. 690: Davies, J., was inclined to follow Rangasami v. Krishnayyan I.L.R. (1891) 14 Mad. 408: 1 M.L.J. 603 to its logical conclusion, holding that death was a contingency operating on the purchaser's fluctuating interest; Benson, J., thought that the point was decided by authority. They referred the question whether the suit was maintainable to a Full Bench. Arnold White, C. J., and Moore, J., agreed with Benson, J., that there was authority for an affirmative answer, and preferred simply stare decisis. Bhashyam Aiyangar, J., took the opportunity to traverse the whole question, and expressed the opinion that Rangasami v. Krishnayyan I.L.R. (1891) 14 Mad. 408 : 1 M.L.J. 603 was wrongly decided.
16. He quotes (p. 705) the definition of the alienee's right in Deendyal Lal v. Jugdeep Narain Singh , which has also been quoted above, and puts into his own italics the words 'before the alienation of his share takes place'. There does not seem to be any warrant for this special emphasis. In this case there was no question of fluctuating interest, and the sentence might have stopped with 'compelling the partition which his debtor might have compelled ' without injury to its sense. Even if' before the alienation of his share' has special significance, which I doubt, at most it is a mere obiter on a question not discussed in the case, and upon which it would be most dangerous to build.
17. Bhashyam Aiyangar, J., next discusses Suraj Bunsi Koer v. Sheo Persad Singh , and then Hardi Narain Sahu v. Ruder Perkash Misser , which he summarises in this manner (p. 709):
During the pendency of the suit another son was born to the judgment-debtor and it was contended before the High Court that a share should be allotted to such son also. The High Court overruled this contention . . . The case was carried in appeal to the Privy Council by the purchaser . . . the decision of the Privy Council proceeds on the footing that neither the birth of the second son nor the death of the mother affected the share to which the purchaser became entitled.
18. As I have shown above the Privy Council so far from making this the footing or basis of its decision, absolutely declined to go into the matter.
19. Lastly, Bhashyam Aiyangar, J., notices Madho Parshad v. Mehrban Singh , where the Judicial Committee ruled in unequivocal terms that the death of the alienor Zalim renders it impossible to order partition and charge his divided share with the money paid him by the alienee. But this was distinguished by the Full Bench as referring only to the Mitakshara Law obtaining in Oudh.
20. Then on p. 713 Bhashyam Aiyangar, J., gives it as his opinion that the actual decision in Rangasami v. Krishnayyan I.L.R. (1891) 14 Mad. 408 : 1 M.L.J. 603' is opposed to the principle on which the above decisions of the Privy Council proceed'.
21. But, as pointed out above, Deendyal Lal v. Jugdeep Narain Singh is only applicable if emphasis is given to special words, and Hardi Narain Sahu v. Ruder Perkash Misser is not applicable at all. If Suraj Dunsi Koer v. Sheo Persad Singh is authority for the proposition that death does not affect the alienee's right, that proposition is not founded there on any principle, but emphasis rather is laid on the peculiar circumstances of that case where execution had proceeded almost up to sale.
22. However, when the question of fluctuation came directly before the referring Judges in Chinnu Pillai v. Kalimuthu Chetti I.L.R. (1911) 35 Mad. 47 : 21 M.L.J. 246 they declined to accept the authority of Rangasami v. Krishnayyant, and, thinking that the doubts entertained by Bhashyam Aiyangar, J., were well founded, they referred to a Full Bench the question, whether the mortgagee of a Hindu is entitled to proceed against the share of a son subsequently born, in family property mortgaged by him. A Bench of five Judges was constituted so that, if necessary, it might overrule the Bench of four which decided Rangasami v. Krishnayyan I.L.R. (1891) 14 Mad. 408 : 1 M.L.J. 603. But unfortunately one of these five dropped out and the Bench as finally constituted only contained four.
23. Sir Arnold White, C.J., quotes (p. 52) with approval the view of the referring Judges in Rangasami v. Krishnayyan I.L.R. (1891) 14 Mad. 408 : 1 M.L.J. 603 but says that it is a position which the Full Bench declined to accept. But as he shows immediately afterwards the Full Bench did accept the position so far as to rule that the purchaser takes an uncertain and fluctuating interest. What they did was to modify this rule by suggesting obiter two exceptions: where the fluctuation has worked out to the benefit of the alienee by his alienor's share increasing on the death of other members of the coparcenary, and where the share might seem to be obliterated by the alienor's death.
24. The learned Chief Justice then points out, as I have observed above, that the argument for excepting death might serve to except any fluctuation. He next refers to Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) 25 Mad. 690 which settled, for this presidency, that death is an exception, and concludes:
It seems to me that when once it is held that the death of the alienor does not create any right of survivorship to the other coparceners, it follows almost as a necessary corollary that the quantum of interest which vests in the alienee is not affected by subsequent changes in the number of coparceners.
25. This is good logic; but it is equally good logic to say that if the alienor only sells what he has got and no more, it follows as a necessary corollary that the interest of the alienee fluctuates. We start with the principle 'only that passed which the alienor had'. We recognize an arbitrary exception that death does not diminish the alienee's right; then we make the exception itself the principle, and turning round at that point, conclude that something passed which the alienor had not got. A vicious circle. Either view is rational, but it is impossible to pick out one of them as exclusively based either on law or on logic.
26. Benson, J., accepted and treated as the principal part of his judgment the description of Hardi Narain Sahu v. Ruder Perkash Misser given by Bhashyam Aiyangar, J., in Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) 25 Mad. 690.
27. Munro, J., confined himself to a simple affirmative. Sankaran Nair, J., pointed out that in sheer logic if one fluctuation such as death could not affect the alienee's right, then no fluctuation would affect it. The question was not dependent on Hindu Law. In equity Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) 25 Mad. 690 should be approved, and in equity the alienee should not be given more than he had at the time of the alienation. It is more consistent with equitable principles to hold that the purchaser gets the share which his vendor was entitled to at the time of alienation rather than that he gets a fluctuating share and he reaches the same conclusion as I have reached, that there is no final decision on the point to be found in the Privy Council cases. So it is held by this Bench that the alienee's share does not fluctuate, but is to be reckoned as from the date of the alienation. Four Judges therefore have held that the share does, and four have held that it does not fluctuate.
28. In this state of the law the respondent contends that Chinnu Pillai v. Kalimuthu Chetti I.L.R. (1911) 35 Mad. 47 : 21 M.L.J. 246 and Ramasami Aiyar v. Venkatarama Aiyar I.L.R. (1923) 46 Mad. 815 : 45 M.L.J. 203 authorize him to work out a partition as on the date of the alienation. Ramasami Aiyar v. Venkatarama Aiyar I.L.R. (1923) 46 Mad. 815 : 45 M.L.J. 203 merely makes what was condoned in Hardi Narain Sahu v. Ruder Perkash Misser a rule of practice, allowing Courts to decree partition in a suit for recovery of possession; and has no bearing upon the theoretical problem.
29. The appellant relies upon Manjaya Mudali v. Shanmuga Mudali I.L.R. (1913) 38 Mad. 684 : 26 M.L.J. 576 where the recognized law is clearly stated, and Bakewell, J., points out that the right of the alienee is in personam and not in rem. This judgment would have afforded useful material for answering Mr. Doyne in Suraj Bunsi Koer v. Sheo Persad Singh and meets the theory that the share is something more material than a mere fraction.
30. In Subba Goundan v. Krishnamachari I.L.R. (1921) 45 Mad. 449 : 42 M.L.J. 372 it is held that a purchaser has only an equity as against the other members of the coparcenary to work out his interests by a suit for general partition. It is not suggested that his equity extends to working out a partition as from the date of the alienation; nor indeed do I find this suggested anywhere except in the judgment under appeal. Mr. Justice Devadoss thinks it well settled by Chinnu Pillai v. Kalimuthu Chetti I.L.R. (1911) 35 M. 47 : 21 M.L.J. 246 that the time at which the share of the alienating brother should be determined is the date of the alienation. I agree so far as the bare amount of the share, the fraction, is concerned. But in that case it was never considered that the hotchpot should be taken as that which existed on the date of alienation. That question was never raised. Then his Lordship cites Ramasami Aiyar v. Venkatarama Aiyar I.L.R. (1923) 46 Mad. 815 : 45 M.L.J. 203 without showing it to have greater import than I have found it to have. So that in effect this judgment is simply based upon what the learned Judge thinks would be equitable, and considering the state of the law, no other basis is possible.
31. It remains for us to see if we agree with this view of equity.
32. In my opinion the most equitable and logical view of this vexed question is that the alienor cannot part with more than he has got; that is a basic principle which I can understand, and I should have been quite prepared to hold that as the right of the alienor becomes extinct upon his death, the right of the alienee becomes extinct also. However the contrary opinion is founded upon a long series of cases and I agree with the Full Bench in Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) 25 Mad. 690 that even at that date it was too late to think of upsetting it.
33. So the contingency of death stands as an arbitrary exception to the rule that the right is fluctuating.
34. But I see no reason to import other exceptions, and prefer the decision of the four Judges in Rangaswami v. Krishnayyan I.L.R. (1891) 14 Mad. 408 : 1 M.L.J. 603 to the decision of the four Judges in Chinnu Pillai v. Kalimuthu Chetti I.L.R. (1911) 35 Mad. 47 : 21 M.L.J. 246. The former decision is logical, and quite equitable, for the alienee has only himself to thank if by delaying his right to compel partition he finds his security diminished.
35. Holding this view I find no basis for the proposition that when he does compel partition the alienee's right to the property must be worked out as from the date of the alienation. And even if I agreed with Chinnu Pillai v. Kalimuthu Chetti I.L.R. (1911) 35 Mad. 47 : 21 M.L.J. 246 that the share ceases to fluctuate from the date of alienation, I should not be prepared to go further and say that there must be a hotchpot hooked to the same date. Such a theory would be very cumbersome to work out in practice, for the Court might have to take into account transactions which had long passed beyond the memory of the parties. It is troublesome enough dealing with the present day actualities of a partition suit. I therefore hold that the appellant is entitled to take the family property as existing on the date of his suit.
36. This restores the decree of the Subordinate Judge and the appeal is allowed with costs of both appeals in this Court.
37. I entirely agree.
38. I would only add that on a close examination of the cases cited there does not appear to be an exact authority covering the point which we have had to consider.
39. I concur with the view of my learned brother that equity is best served by taking the property of the family as it stands at the date of the partition suit.