1. The Subordinate Judge in paragraph 10 of his judgment finds that the alienation was made in pursuance of a previous promise made by the 2nd defendant's father, not in pursuance of the contract made by the 2nd defendant with the 1st defendant. There does not appear to be any evidence to support that finding. The only evidence to which the Subordinate Judge refers is a statement of a witness Sambasiva Aiyar to the effect that the 2nd defendant's father at the time of his death said that some land should be given to the 1st defendant and a recital in Exhibit I which supports this statement. That is not evidence that the 2nd defendant's father requested the 1st defendant to remain in his son's service.
2. It was contended for the respondent, that the alienation can be supported as made by the 2nd defendant in consideration of services rendered at his request. The Subordinate Judge does not seem anywhere to have recorded any distinct finding that, that is the case though he says that the 2nd defendant admitted that the 1st defendant attended to the family affairs at his bidding. There is thus no finding that there was as a fact consideration to support the alienation.
3. It is impossible to hold that the alienation is binding as having been made for family necessity or for family benefit.
4. The Subordinate Judge conjectures that the family must have benefited 'in a measure by the services of the 1st defendant but he does not find to which extent or how much is to set against those services on account of the maintenance of the 1st defendant by the 2nd defendant's family for the last 25 years.
5. There is, therefore, no finding of fact on the evidence that the transaction was for necessity or for the benefit of the family.
6. There remains the question whether the alienation can be up held to the extent of the 2nd defendant's share as made on account of past services.
7. Having regard to the observations of the Judicial Committee in Lakshman Dada Naik v. Ramachandra Dada Naik 5 B. 48 ;7 I.A. 181; 7 C.L.R. 320 that the doctrine of alienability by a co-parcener of his undivided share is not to be extended beyond the decided cases, the question resolves itself into this 'is the position of the 1st defendant equivalent to that of a purchaser for value.'
8. The Advocate General pressed upon us the view that past services voluntarily rendered are not considerations to support a promise. That may be so but it does not follow that they are not value when set against an alienation. They are certainly capable of valuation and the 2nd defendant has valued them and paid for them by the transfer. It may be that because the services were not given expressly or immediately in exchange for the land the 1st defendant is not strictly purchaser for value, but he has paid for that which he has obtained, and but for the payment he would not have obtained it. His position is entirely different from that of a donee on account of natural love and affection who has given nothing for the gift and loses nothing if he does not get it.
9. We do not think we shall be extending the doctrine beyond the decided cases if in the circumstances of the present case we hold that the 1st defendant is entitled to the 2nd defendant's share in the property transferred to him.
10. The suit to recover the land given was, therefore, rightly dismissed but the District Munsif has found and the Subordinate Judge has accepted that finding that the land in Schedule D was the property of the 2nd defendant's family and not included in the gift. The decree will have to be modified by decreeing possession of this land to the plaintiff. Each party will bear his own costs through out.