1. In this case the Privy Council have given the plaintiff a declaration that the compromise entered into by his father in C. S. No. 266 of 1886 was not binding on him for want of sanction under Section 462 C.P.C. and that he ought to be remitted to his original rights under that decree. They have also remitted the suit under appeal 194 of 1906 to this Court in order, in the words of the Orders in Council, ' that the other questions arising between the parties and covered by the issues Nos. 6 and 7 may be disposed of.' The 6th issue is ' Is the plaintiff in any event entitled to recover more than a moiety of the amount sued for?' It is not seriously contended that the compromise entered into by the plaintiff's father did not bind his own share in the property of the joint family which consisted at the time of the plaintiff and his father, or that the compromise must not in this suit be considered an alienation made by the father for consideration. It is consequently binding on the father's share. The fact that since the institution of C.S. No. 194 of 1906 two sons have been born to the plaintiff's father cannot under the recent Full Bench decision in Chinnu Pillai v. Kalimuthu Chetti (1911) I.L.E. 35 M. 47 : S.C. 21 M.L.J. 246 have the effect of diminishing the alienation made by the compromise in favor of the 1st Defendant, and the issue therefore be answered in the negative.
2. The 7th issue is 'Is the plaintiff entitled to charge interest and if so at what rate The rate of interest given by final decree in C. S. No. 266 of 1886 is six per cent. At the date of the final decree there was an appeal pending against the interim decree and the final decree was made subject to the result of the appeal. On the appeal which was heard shortly before the compromise an additional amount was made payable to the plaintiff's father as representing his branch of the family. In the ordinary course the final decree would have been amended as provided therein and the additional sums would have been made payable with the same rate of interest and from the same date. As it was, the plaintiff's father entered up satisfaction pursuant to the compromise which has now been declared to be not binding under the decree. Their Lordships have declared the plaintiff to be entitled to be remitted to his original rights under that decree, and they include in my opinion a right to receive interest at 6 p. c. not only one half the sum mentioned in the final decree but also half the additional sum which was found payable on appeal against the interim decree. This disposes of the second issue.
3. These are the only issues remitted by their Lordships but some further questions have been raised on behalf of the 1st defendant. In the first place it is contended that as this Court decided at the hearing an objection taken by the 1st defendant that the plaintiff ought not to have instituted a separate suit but to have proceeded under Section 244, C.P.C. in the original suit 266 of 1886 and decided to treat this suit as an application under that section, and as under the decree in O.S. 266 of 1886 no relief is awarded to the 6th defendant the present plaintiff, the plaintiff is not entitled to recover anything in this proceeding but must be referred to another suit. There are several answers to this objection. In the first place it appears from a perusal of their Lordship's reason and of the Orders in Council that this Court is required to dispose of the case finally in obedience to the order. Their Lordships were clearly of opinion that this Court was right in disposing of the case on the merits and were not called upon to consider whether the present proceedings might be described more correctly as a suit or as an application under Section 244 C.P.C. Secondly the 1st Defendant who persuaded the court at the hearing that the plaintiff's remedy was under Section 244 can scarcely be bound now to say that no remedy is available to him under that section. Lastly I hold that on the merits there is no foundation for the objection. Section 244 requires that questions of the nature specified in the section arising between the parties to the suit shall be determined by the court executing the decree, and not by a separate suit. The word ' determined ' shows that these questions are to be finally disposed of, and the effect of the section is to give the court executing the decree jurisdiction to dispose finally of such questions by granting appropriate relief. In C. Section 266 of 1886 certain monies were made payable to the 3rd Defendant as representing his branch of the family which then consisted of himself and the minor 6th Defendant the present plaintiff. The 3rd Defendant having alienated his own share and effected to release the plaintiff's share of such monies in favour of the judgment-debtor it seems to me that it is open to the Court under Section 244 to declare the release not binding on the 6th Defendant the present plaintiff and to make his share payable to him directly by the judgment-debtor.
4. The 1st Defendant then raises another objection based on the fact which was not before their Lordships that subsequent to the institution of O.S. No. 194 of 1906 two more sons have been born to the plaintiff's father and are it is suggested entitled to equal shares in the fund with their brother the present plaintiff. As they have not been made parties to the suit and as the plaintiff has no title to represent them, it is contended that the utmost he can recover is one-third of one-half or one-sixth of the whole fund in dispute. For the plaintiff on the other hand it is contended that the effect of the release by his father of his own share in the fund was that the residue ceased to be joint family property and became the separate property of the plaintiff in which sons subsequently born to his father acquired no right by birth. Chinna Sanyasi v. Suriya I.L.R. (1882) M. 196 , Aiyyagiri Venkatramayya v. Aiyyagiri Ramayya I.L.R. (1902) M. 690 S.C 12 M.L.J, Kadegan v. Periya Munisami : (1903)13MLJ477 Iburamsa Rowthan v. Thiruvenk itasami Naiker I.L.R. (1910) M. 269 S.C. 20 M.L.J. 743, Chinnu Pillai v. Kalimuthu Chetty I.L.R. (1911) M. 47 S. C. 21 M.L.J. 246, Srinivasa Sundara Thatha Chariar v. Krishnasami Aiyangar (1912) 11 M.L.T., 312 , were cited in support of this proposition as to which see also Shivaji Row v. Vasanta Row I.L.R. (1908) B. 267. On the other hand it was argued that this contention was opposed to the settled practice of the Courts in partition suits in which it is sought to declare that alienations made by some of the coparceners are not binding on the others.
5. I cannot give judgment for the Plaintiff for the whole half share without deciding this question in his favor, and I think I ought not to decide it in the absence of the Plaintiffs minor brothers who it is suggested are interested in the fund. I accordingly direct the Plaintiff's brothers Ramachandra Row and Krishna Row minors to be made parties defendants with liberty to come in and prefer a claim to share in the fund.
6. Adjourned to 7th January 1914.
7. [The plaintiffs brothers were made parties and the Court delivered the following Judgment on the 24th March 1914. Ed.]
8. I have considered the cases referred to in the argument and also the recent decisions of Sankaran Nair and Bakewell JJ. in Nanjaya Mudali v. Shanmuga Mudali (1913) 15 M.L.T. 186 . The question for decision is, where a father and son constitute a joint family, and the father alienates to a third party his share in a certain portion of the joint family property, and subsequently to the alienation but before partition of the joint family property another son is born to the father, is such son entitled by birth to share to any and what extent with his brother in the unalienated moiety which did not pass to the alienee by virtue of the alienation, or is the elder son entitled to the whole of the unalienated moiety to the exclusion of his younger brother. The question is one of considerable difficulty and does not appear to have arisen directly for decision. In Hardi Narain Sahu v. Ruder Perkash Misser I.L.R. (1883) C. 626 however the facts were very like those of the present case. A creditor of the father acquired his share by purchase at a Court auction and obtained possession of the joint family property. The father then purported to convey his share to his son the remaining co-parcener, and the latter sued to recover possession from the auction purchaser on the ground that at utmost he had acquired the father's share, and that as he had not enforced his rights by partition he was not entitled to possession of any of the property. The High Court held that the defendant had only acquired the father's share, and that though he ought strictly to have brought a suit for partition, this proceeding might be treated as such a suit and partition effected. They accordingly joined the plaintiff's mother who under the law then prevailing was entitled to a share. In their judgment they say that another son had been born since the institution of the suit, and that it was contended, apparently by the appellant his elder brother with a view of reducing the share of the defendant the alienee, that the subsequently born son was entitled to a share against the alienee. This they negative holding that the alienee was entitled to the share he would have had if partition had taken place at the date of the alienation, and allotting the other two shares to the minor plaintiff and his mother. The new born son was not a party and the court apparently thought he was not entitled to a share or they would have brought him on the record. The point therefore cannot be said to have been decided.
9. When the case was under appeal to the Privy Council the mother died and her two surviving sons were brought on as legal representatives. As the younger of them is described in the judgment of the Privy Council as the second son, he must be the son who was born while the appeal to the High Court was pending, and the statement in the body of the report that this son was born while the appeal to the Privy Council was pending must be a slip. No question appears to have been raised before their Lordships as to his claim if any to share in the unalienated portion of the joint family property, and the decision of their Lordships does not seem to touch the point.
10. The result of the case would appear to be that the High Court did not consider the after born son of the co-parcener who had alienated his share entitled to share with the remaining members as if they had considered him so entitled, they would have protected his interest in passing the decree. In that case he was not a party and the other co-parceners were asserting his right to share so that the case does not seem to be of much authority on this point. All that it decided was that the alienee was entitled to the share which the alienor would have got if there had been a partition at the time of the alienation, a point since expressly settled by this Court in Chinna Pillai v. Kalimuthu Chetti I.L.R. (1911) M. 47, S.C. 21 M.L. 246 Krishnaswami Aiyar J in the judgment which he prepared but did not deliver in this case, held on the analogy of a rule of English law as to joint-tenancy that an alienation by one of the co-parceners of a portion of the joint family property puts an end to the joint tenancy and converts the co-parceners into tenants in common. And Benson and Miller JJ, in Srinivasa Thatha Chariar v. Krishnaswami Aiyangar (1912) 11 M.L.T. 312 subsequently held that where a co-parcener parts with his share in a portion of the joint family property the effect is to put an end to the joint tenancy altogether as to this particular property and make the other co-parceners tenants in common as between themselves along with the alienee. In Subba Rao v. Anantha Narayana Aiyar : (1912)23MLJ64 Benson and Sundara Aiyar JJ, held that the effect is to make the alienee a tenant in common with the other co-parceners in respect of his property but to leave the other co-parceners joint tenants as between themselves. In the latest case of all Nanjaya Mudali v. Shunmuga Mudali (1913) 15 M.L.T, 186 Sankaran Nair and Bakewell JJ. dissented from these decisions based on the judgment of Krishnaswami Aiyar J. and held that, where a co-parcener alienates his share in a specific portion of the joint family property, the alienee does not become a tenant-in-common of the alienated property, but is only entitled to an equity to stand in the shoes of the alienor, and at partition to have the share allotted to him which he would have had if partition had taken place at the time of alienation and further have a portion of the specific property alienated alloted to him if it can be done without inconvenience. In view of the latest decision, which I ought, I think, to follow, no arguments can be based upon the existence of a supposed tenancy in common after alienation and before partition. How then does the case stand on the footing that the alienee only acquires an equity of the nature indicated above The son born to the alienor after the alienation but before partition succeeds by birth to a share in the joint family property, and the shares of the other members of his branch are reduced proportionately to make up his share. In the present case the joint family before the birth consisted of the father and elder son. On the birth of the second son to give him his one third share the share of his father and brother would each be reduced by one-third, and he would get from each a one sixth share of the whole to make up his one-third share. The fact of the father having alienated his share appears to me to be no reason why the elder brother's share should not be diminished by a 1/6 share of the whole, as it would have been if no alienation had taken place.
11. But in order to give the newborn son a share equal to his brother, it would be necessary to reduce the elder brother's share by an additional 1/6 of the whole, as according to the decision the father's share in the hands of the alienee is not liable to any diminution for this purpose. If we allow the elder brother's share to be further reduced in this way, he is prejudiced as a result of the father's alienation. If we refuse to do so the new born son is prevented from participating in what was still joint family property at the time of his birth. The question really comes to this. Is the equity in favour of the alienee of the father's share is to be enforced at the expense of both the other co-parceners the son born before and the son born after alienation or only at the expense of the latter. In theory, something may be said for the second solution but the settled practice of this Court, and as far as I can ascertain of mofussil courts also, is the other way. It frequently happens that in partition suits alienees from individual co-parceners are made parties, and the alienations made by individual co-parceners are found not to be binding on the other members of the joint family. In such cases it has never been the practice to make any distinction between sons of the alienor born before the alienation and sons born after alienation but before partition. To do so would add greatly to the complexity of the task of working out a partition. In the absence of direct authority, and in the somewhat conflicting state of the decisions I do not think that, sitting here, I should be justified in departing from what appears to be the settled practice of the Courts more especially as I consider that the existence of such a practice is in a question of this kind a very strong argument against any alteration based on purely theoretical considerations.
12. There will be a joint decree in favour of the plaintiff and defendants 3 & 4. Plaintiff to recover the costs of the suit from the 1st defendant and to pay the costs of defendants 3 & 4.