Walter Salis Schwabe, K.C., C.J.
1. By a deed of absolute sale one Rarnachandra Ayyar sold certain lands to the 3rd defendant purporting to act for himself and as the guardian, protector and father of his minor son, the 2nd defendant. The rights of the 3rd defendant are now vested in the plaintiff. The 1st and 2nd defendants are members of a joint Hindu family and the lands in question were their joint property. At the time of the sale the 3rd defendant obtained from the 1st defendant a security bond by which the 1st defendant gave him an indemnity against the loss that might arise by any claim of the minor 2nd defendant. That bond took the form of a charge to the extent of Rs. 8,000 on certain other lands which it appears also formed part of the joint family property. This suit is brought for a general partition of the joint family property and it is prayed that, in that partition, the suit lands shall be allotted to the 1st defendant, so that, whether he was entitled to alienate them or not, the plaintiff may get them as standing in the shoes of the 1st defendant.
2. The District Munsif of Ncgapatam, Mr. R. V. Krishna Ayyar held that the sale was not binding on the 2nd defendant. He decreed a general partition and directed that all the joint properties should be divided into two equal shares between the 1st and 2nd defendants and that, in effecting such partition, the lands sold to the 3rd defendant should be allotted to the 1st defendant, and adjourned the suit to appoint a commissioner to effect the partition. Without the appointment of a Commissioner the 1st and 2nd defendants divided the property filing lists of properties which they had agreed to take in those lists allotting to the 1st defendant the properties sold to the 3rd defendant. It was not contended that this division of property would work any injustice to the and defendant and, indeed, by the agreement between the 1st and 2nd defendants as to the division, it is clear that it was admitted that this was not the case. The District Munsif in his Judgment has stated quite clearly the principle to be applied. On the case coming before the Subordinate Judge, Tanjore, he reversed the decree stating that the 2nd defendant had a prhna facie right to a half share in the specific properties alienated and that there was no reason for depriving him of that natural right in giving effect to the equity in favour of the third defendant and he saw no paramount equity to be enforced in favour of the 3rd defendant or his vendee so as to over-ride the natural rights of the plaintiff operating to his prejudice.
3. The principle of equity to be applied in such cases is well established and will be found clearly stated in the judgment of Bashyam Aiyangar, J. in his very learned judgment in 'Ayyagiri Venkataramayya v. Ayyagiri Ramayya I.L.R.(1902) M. 690 and in Manjayya Mudali v. Shamnuga Mudali .26.M.L.J. 576, and it is that a purchaser from one member of a joint family which that member has no right to sell, it being the joint property, can enforce the sale only by a partition of the entire family property; and if, in such partition, the property sold, can, with due regard to the interests of the other sharers, to the debts due by the family and to an equitable allocation of the various items of family property to the shares of the several co-parceners, be wholly allotted to the vendor's share, the purchaser will be entitled to the whole property which the vendor professed to convey to him. In my judgment, the learned District Munsif puts this case from the right point of view and I should content myself with saying that I have nothing to add to his excellent judgment, which is a clear and well-reasoned judgment, and that I do not agree with the judgment of the Subordinate Judge, because I do not appreciate what natural rights of the plaintiff operating to his prejudice are over-ridden by the District Munsif's decree. But Mr. Venkatrama Sastri has contended that it is now established as far as Madras is concerned that, where family property has been alienated by one co-parcener, the others may without any general partition either claim the whole property from the alienee or may claim back their share of that property, such share being the proportion to which they would have been entitled on a partition of that specific property and for this proposition we are referred to the judgment of a Full Bench of this Court in Iburamsa Rowthan v. Thiru-venkatasami Naick 2o M.L.J. 743. That case is, of course, binding on us sitting in Second Appeal, but I do not think that it was intended by that Court in any way to dissent from the principle of equity stated above and so well established. Nor do I think that it was meant that whether the alienee in such cases could get the property was to depend on whether a suit was first brought by him for a partition of the whole joint property or by the other co-parceners, for a partition of a part. We are informed that there was pending, at the time of the hearing of this suit, another suit by the son claiming partition of the particular property and award to him of a half; so that, if by chance that suit had been heard first and the principle in Iburamsa Row than v. Thirnvenkatasami Naick I.L.R.(1910) M, 269 had been applied, assuming it to be consistent with the equitable principle that would otherwise apply, the son would have got half of the property in question and the plaintiff one half whereas by applying the equitable principle, he would have got the whole of what had been sold. That there is no such conflict, I think, is clear from the decision of the Privy Council in Ramakish'or'e Kedarnath v. Jainarayan Ramrachpal 25 M.L.J. 512 (PC). There the suit was brought by members of a joint Hindu family to set aside an alienation by their father to an adopted son whose adoption was alleged to be invalid. Their Lordships in sending back the case pointed out that the adopted son might be entitled to insist that he stood in the shoes of the adoptive father and be entitled in that suit to obtain a partition in which he could get the share which would come to the father so as to give effect to any rights which the adopted son might be entitled claiming through the father. In my view, this is authority for the proposition that, if this suit had been a suit by the son for a share of the alienated property, it would be open to the Court on the application of the alienee to decree a general partition in which the principle of equity should be applied.
4. It is further contended 'that this principle has no application where the alienor purports not to sell the property as his own but purports to sell it on behalf of himself and on behalf of the other co-parcener, his infant son. I am unable to appreciate this distinction, for it is clear that, if he had sold in his own name, then the principle would apply, and I do not appreciate how the fact that he purported to sell both for himself and for his infant son in any way reduces the interest purchased by the alienee.
5. It was further contended that the purchaser must have known from the statement of the consideration that the 1st defendant had no right to sell the property as managing member because the consideration showed that the sale could not have been for necessities. The Subordinate Judge states that there was no necessity for the alienation so as to bind the minor's interest in the property. On an examination of the consideration, a considerable amount was paid in cash, but a large balance was secured by a hypothecation bond of some property of the purchaser. I am not satisfied that this fact must-necessarily have shown to the purchaser that the sale could not be a proper alienation in the interests of the joint family; nor do I see, even if it were so, why I should deprive the purchaser of his rights against the alienor to obtain the alienor's interests by partition on the equitable principle which has been applied here.
6. It was also argued that the taking of the security bond was evidence that the purchaser knew that the 1st defendant had no right to alienate, and also that its existence prevented the application of the equitable principle. It is a wise precaution when purchasing from a managing member to take security against possible claims of other co-parceners and I do not think that any such significance is to be attached to the taking of this bond. If, however, the security, if resorted to by the purchaser, would result in the son being in a better position, it may be that the Court, in applying the equitable principle, might take that into consideration. But that is not the case here as the property given as security is also joint property; and there is no evidence, nor has it been suggested that the son would in any way benefit by that security property being allotted to the father and given to the plaintiff.
7. For these reasons, this appeal must be allowed and the 'decree of the District Munsif must be restored so far as A schedule property is concerned. The plaintiff must have costs of the appeal in the Court of the Subordinate Judge and of this appeal.
8. I agree. On the important question of law raised in this appeal, I should like to say a few words.
9. The point for decision in this case is: Can a coparcener whose share in one item of joint family property has been wrongly alienated by another co-parcener, who nevertheless had the power of alienating it, resist the delivery by the Court of that share to a bona fide purchaser of it from the alienating co-parcener, in the practical working out of the equity of that purchaser to have decreed to him, in his general partition suit brought for that purpose, the property purchased by him bona fide for value, apart from any consideration of the question whether any real unfairness or injustice would be done to the nonalienating co-parceners by granting the alienee the decree he seeks for.
10. The main and well settled principles of law necessary for consideration here as laid down In this Presidency are (a) that ordinarily no co-parcener can sue for partial partition of his share in any single item of joint family property, (b) that when a specific item of joint family property has been alienated by another co-parcener, a non-alienating co-parcener can sue for recovery of his share, in the item alienated. See China Sanyasi v. Suriya I.L.R. (1882) M. 196, Subramanya Chettiar v. Padmanabha Chettyar I.L.R. (1896) M. 267, or (c) where the alienee has been given possession of such a specific item, the whole joint family may sue to recover possession. See Ramkishore Kedarnath v. Jainarayan (25 M.L.J. 512 (PC). As against these rights of Co-parceners against the alienee from a co-parcener has to be set the right of such alienee to enforce by general partition suit his rights of purchase in and possession of the specific item purchased, if that can be done without prejudice to the co-parceners who were not parties to, the alienation Manjaya v. Shanmuga 26 M.L.J. 576, 'Ayyagari Venkalramayya v. Aiyyagari Ramayya 0I.L.R. (1902) M. 690 . This right will prevail against right (c) set out above, vide the Privy Council decision in I.L.R. 40 Cal. 966 . The present question is whether it also prevails against right (b). Now while it is not necessary for the non-alienating co-parcener to institute a suit for general partition in order to recover his. share in the item alienated by another co-parcener, and while he may sue for partial partition of his share in that item only, I do not find any authority for holding that, when he has so recovered specific property, or that the effect of his suit is to cause that recovered share to cease to be the joint family property which it was before the suit. No more after the suit, than before it, can the recovering co-parcener predicate that he has himself a particular share in that item of the joint family property. He has in my view, merely recovered that share for the joint family or rather, prevented it passing as a specific item out of the joint family pool, prevented that hitherto undivided share of his crysallising into a specific divided item, and so separating itself from the general pool. His decree does not have the effect of dividing the alienated item by metes and bounds between himself and other non-alienating co-parceners. But of course the alienor co-parcener has lost his claim to share in that item at a general family partition. In my view the decree obtained in such a suit by a non-alienating co-parcener, while it is an exception to the general rule that no co-parcener can sue for partial partition, does not go further and form any exception to the rule that no co-parcener can, as against his co-parceners, predicate that he is entitled to hold and retain against them a particular share in any particular joint family property. By the very frame of the suit the decree in it is a decree for partial partition as against the alienee, but not as against his co-parceners and its object is to ascertain by partition the particular property which the purchaser may retain and to separate that from the joint family property. The decree in it will no doubt bind the alienee to this extent that he cannot contend that the non-alienating co-parcener's share must be available for recovery by him. It does not preclude him from claiming that in working out his equity, it may be available, though no doubt the existence of the decree may be in certain cases raise a strong equity in favour of the non-alienating co-parcener retaining the share he had taken so much trouble to recover.
11. It follows then that, when an alienee from a co-parcener files his suit for general partition in order to work out the equity in his favour as purchaser a non-alienating co-parcener who has obtained a decree for his share of that item, is not ordinarily in any superior position to retain that share against the alienee than a non-alienating co-parcener who has not obtained such a decree, and cannot without proof of specific prejudice to himself, set up against the alienee a claim to a particular share in the item alienated, since that share has fallen back into the general family pool or rather, has really never left it. In working out the equities, it follows that the ordinary rule will apply, viz., that the alienee will be decreed the possession of the specific property purchased by him, if that can be done, without substantial injustice to the co-parceners and no co-parcener has a right to insist, in the absence of proof of such injustice, on his being given on division a share in the alienated item.
12. None of the rulings quoted in support of respondent seem to me to affect this result. That in Iburamsa Rowthan v. Theruvenkatasami Naick 120 M.L.J. 743 deals with the equities between two alienees, each from a separate co-parcener in which case it was held that equity could not insist on the 2nd alienee suing for general partition but would permit him to sue for the partition of his share, corresponding to his alienor's share, in the property conveyed to the 1st alienee. This was merely an extension of the principle that the alienee shall so far as possible be decreed what he purchased. This ruling did not consider the question what the effect of a suit by one of the alienees for general partition for the purpose of working out his equity would be, and it is certainly no authority for the proposition that such an equity cannot be enforced against a non-alienating co-parcener who has recovered by suit his share in the property alienated, when no substantial injustice would be done to him.
13. So long as the alienee refrains from filing his suit for general partition, i.e., from insisting on the working out of his own equity, the claims of the non-alienating co-parceners, will be enforced against him on equitable terms (See Vadivelam Pillai v. Natesam 123 M.L.J. 256. The principle, as 1 understand it, is that until he so sues, his interest in the property is only vested and not separate, 'a legal estate 'not yet reduced into possession and which may never be reduced into possession. But when he has sued to carve out and reduce to possession that vested interest and has obtained a decree, then his equity to get for himself the specific property in which he purchased an interest will prevail, if no substantial injustice will be thereby caused to the co-parceners, and can be resisted by any co-parcener on no other ground than that it will do him a substantial injustice. I agree with the learned Chief Justice that in this case no substantial injustice has been proved to be likely to follow the allotment to the purchaser of the property purchased by him.
14. I have nothing to add on the other parts of the case and agree that the appeal must be allowed on the terms proposed by the learned Chief Justice.