1. Mr. Hamachandra Aiyar on behalf of the 7th defendant, the appellant before us, contends that the plaintiff is net entitled to the possession of the properties which she claims under an alienation by the 2nd defendant, the appellant's father. He argues that the plaintiff is only entitled to bring a suit for partition of all the properties which belong to the family of the 2nd defendant, and if the properties in suit are allotted to the 2nd defendant, she might be entitled to get them or she might be entitled to properties equal in value to the plaint properties out of the properties which might be allotted to the 2nd defendant. In reply it is contended on behalf of the respondent, the plaintiff, that as the 7th defendant, the appellant before us, was made a party only as the representative of the 2nd defendant, it is not open to the 7th defendant to raise any defence which is not appropriate to his representative character under Order XXII, Rule 4, Civil Procedure Code, and as the 2nd defendant did not and could not raise this plea, it is not open to the 7th defendant to raise this contention. But we are of opinion that it was open to the 2nd defendant himself to raise the plea in this case that the sale, though binding on him to the extent of his share, is not binding upon his son, the 7th defendant, and it was, therefore, open to the 7th defendant to raise the same plea, though it is true that the 2nd defendant omitted to raise it specifically.
2. The next contention is that the alienation by the 2nd defendant was for family purposes. It is said that the money from the disputed sale was taken to defend a criminal case against the 2nd defendant. The Judge holds that there is good evidence that the 2nd defendant came into good property when he came of age and he squandered practically the whole within a few years and that this, therefore, negatives the plea of justifying necessity. This finding', in our opinion, is insufficient. The Judge does not find that at the time the 2nd defendant had to defend himself, if he had to do so, in the criminal case brought against him, there was family property out of which he could have defended himself. We must, therefore, ask for a finding on this point.
3. The Judge also finds that at the time the alienation was made there was other ancestral family property in the hands of the 2nd defendant, and it is quite possible that the plaint property might have been allotted to the share of the 2nd defendant if a partition had been asked for. The question is, whether, at the time the suit was brought, if a partition of the family properties had been made between the members of the family, the plaint properties might have been allotted to the 2nd defendant without injustice to the other coparceners; or whether there was other sufficient property to be allotted to the 2nd defendant, equal in value to the properties now in suit and which might, therefore, be allotted to the plaintiff. On this question also there is no finding by the District Judge.
4. We, therefore, direct the District Judge to return findings on the following questions:
1. Whether there was a criminal case against the 2nd defendant and whether he received the money from the evendce to defend himself in that criminal case;
2. whether it was necessary for him to raise this amount at that time;
3. if it was not necessary for him, whether the alienee acted bona fide and in good faith after making due inquiry;
4. at the time the suit was brought if a partition had been made between the members of the family, whether (a) the plaint properties or (b) properties of the same value might have been allotted to the share of the 2nd defendant.
5. The findings should be submitted within six weeks from this date, and seven days will be allowed for filing objections. Further evidence may be received.
6. In compliance with the order of this Court contained in the above judgment, the District Judge, Chingle put, submitted the following.
Finding: The High Court has called for findings on the following four issues:
(1) Whether there was a criminal case against the 2nd defendant and whether he received the money from the vendee to defend himself in that criminal case?
(2) Whether it was necessary for him to raise this amount at that time?
(3) If it was not necessary for him, whether the alienee acted bona fide and in good faith after making due inquiry?
(4) At the time the suit was brought if a partition had been made between the members of the family, whether (a) the plaint properties or (a) properties of the same value might have been allotted to the share of the 2nd defendant?
2. Issues (1) and (2).--The allegation that the 2nd defendant spent a portion of the consideration under Exhibit B was not started by the plaintiff in the first instance. It was made fur the first time during the remanded trial before the District Munsif by D. Ws. Nos. 2 and 3, apparently under the impression that such expenditure is illegal or immoral, and that the son of a Hindu father is not liable to pay a debt incurred for such a purpose. This suggestion appears to have been adopted in the course of argument by the plaintiff's Pleader, first in the District Munsif's Court and then on his behalf in the High Court, to show that the expenditure in connection with a criminal case is a perfectly legal purpose and that, therefore, the sale is valid and binding on the 7th defendant.
3. The evidence as to whether there was a criminal case against the 2nd defendant is most flimsy. D.Ws. Nos. 2 and 3 in the District Munsif's Court deposed that the 2nd defendant told them he had received money from the 1st defendant for expenses in connection with a criminal complaint against him and for such other purposes. Both these witnesses gave no details regarding the criminal case. When the case came up for trial on remand in this Court, both sides disclaimed the suggestion that there was a criminal case against the 2nd defendant and the only witness who refers to that point is D.W. No. 3 (already examined as D.W. No. 2 in the Munsif's Court). He says: There was a case of assault in the name of Kanniah Naidu in the Poonamallee Magistrate's Court. I do not know how much he spent for it. It was a trivial case.' Then he says that the 2nd defendant told him that it was thrown out. He adds that the case was such that it did not require the raising of money by selling property. In my opinion this story of a criminal case is a pure myth. I find, therefore, issues Nos. I and 2 in the negative.
4. Issue 3.--There is no evidence that the 1st defendant made any inquiries when he purchased the suit property from the 2nd defendant. I, therefore, find issue (3) in the negative.
5. Issue 4.--The 2nd defendant, as the adopted son of one Abbi Naidu, inherited lands in Nemum and Kuttambakkam villages to the extent of about 50 acres. The evidence adduced on behalf of the 7th defendant shows that the 2nd defendant sold from time to time lands in both these villages. For the 7th defendant it is contended that the sales were not for the benefit of the family. The 2nd defendant's father-in-law (D.W. No. 1 in this Court) says that the money was squander-ed away as the 2nd defendant was leading a life of dissipation, but he admits that he has no personal knowledge in the matter. The Vakil for the 7th defendant urges that, if a partition was effected on the date of suit, the lands sold away by the 2nd defendant prior to it, should be regarded as having fallen to his share; but in the absence of any specific evidence this contention cannot be upheld. The evidence on both sides tends to show that the 2nd defendant was in possession of about 20 acres besides a house worth about Rs. 1,500 on the date of suit. The witnesses do not agree as to the value of the lands, but I think the general effect of their evidence is that excluding the suit property, the lands and the house would be worth about Rs. 9,000 on the date of the suit.
6. It is next alleged on behalf of the 7th defendant that the 2nd defendant incurred debts which v ere not for the benefit of the family and that they should be debited against him in the partition. There can be no doubt that the 2nd defendant left a large amount of debt on the date of his death. Some of the debts have been partially discharged by his widow with the assistance of her father. Under Exhibit III, all the family properties have been mortgaged to raise a loan of Rs. 4,000 from D.W. No. 2 in this Court. Resides the debts recited in Exhibit III several promissory notes purporting to have been executed by the 2nd defendant have been produced on behalf of the 7th defendant, and it is said that they have been discharged either by cash payment or by execution of fresh promissory notes. It is contended on behalf of the 7th defendant that if the amount of these debts is deducted from Rs. 9,000, the total value of the family properties exclusive of the suit property, a very small margin would be left for division between the father and the son and that, therefore, the suit property could not have been allotted to the 2nd defendant, 7. Exhibit III is as recent as 23rd September 1914, subsequent to the remand, and there is nothing to show that the debts recited in it are not binding on the 7th defendant. The first item of debt in Exhibit III is Rs. 1,464-2-0 to one Kondal Naidu and this is. admitted by the plaintiff.
Item (2) is Rs. 800 to Chengama Naidu, the 2nd defendant's father-in-law. There is no document for it.
Item (3) This is long after date of suit and, therefore, cannot be taken into consideration.
Item (4). This is also long after date of suit.
Item (5) was incurred by the 7th defendant's mother, but a portion of it, Rs. 400, which was raised to discharge the debt due to one Kondal Naidu. must be taken into account.
Item (6) There is no document for it.
Item (7) consists of cash received by the 7th defendant. This, of course, is not a debt of the father. The valid items, therefore, are:
Item (1) Rs. 1,404-2-0 and Rs. 400 out of item (5)--say roughly Rs. 2,000.
8. Regarding the promissory notes produced, only one witness gives evidence. They were produced at a late stage. They are Exhibits VI, VII, VIII and IX. It cannot be said that these have been proved. These debts are said to have been discharged, either by payment or by execution of fresh promissory notes. Some of these debts were time-barred, when fresh notes were executed, As to this, the 7th defendant's Vakil argues that on the date of suit, these promissory notes were not time-barred and, therefore, were enforceable against the 2nd defendant. Even allowing for these, I consider that this total indebtedness of the 2nd defendant was not more than Rs. 2,500 on the date of suit. If this is deducted from Rs. 9,000, the balance is Rs. 6,500, The suit property was worth on the date of suit, according to the evidence, about a thousand rupees. Therefore, if a partition was effected on the dates of suit, the suit property might have been allotted to the 2nd defendant. I accordingly find issue (4) in the affirmative.
7. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following.