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iburamsa Rowthan and anr. Vs. Thirdmalai Muthuveera theruvenkatasami Naick and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1911)ILR34Mad269
Appellantiburamsa Rowthan and anr.
RespondentThirdmalai Muthuveera theruvenkatasami Naick and ors.
Cases Referred and Suraj Bunsikoer v. Sheo Persad Singh
Excerpt:
hindu law - partition--alienee from co parcener may sue for partition of that co-parcener's share only. - - we should feel disinclined to depart from a long-eatabliahed rule as to the proper method of working out the rights of members of an undivided family against strangers who have acquired the interests of other members even if we were not satisfied as to its soundness. 247 which was a suit of a similar character, but where the father too was alive and a party to the suit, the same decree for possession was made with a like declaration in favour of the purchaser......that a stranger purchasing the interest of one or more members of the family in certain items of family property cannot enforce a partition of those items only against the will of the other members without suing for a general partition of the entire family property. the principle of this rule is that there may be equities which those other members have against the vendor of the plaintiff which can only be worked out in a general suit for partition and in working out those equities the plaintiff's vendor and hence the plaintiff may be assigned a different item from the items he purported to buy or even a smaller share than those items represented. we come next to the suit by a member of the family against the purchaser of part of the family property for the recovery of his share in the.....
Judgment:

1. The facts are sufficiently set out in the order of reference. It is unnecessary to recapitulate them here. We may begin with the proposition that a member of an undivided Hindu family cannot enforce a partial partition against the other members of the family. That is not disputed. The next proposition which is also beyond question is that a stranger purchasing the interest of one or more members of the family in certain items of family property cannot enforce a partition of those items only against the will of the other members without suing for a general partition of the entire family property. The principle of this rule is that there may be equities which those other members have against the vendor of the plaintiff which can only be worked out in a general suit for partition and in working out those equities the plaintiff's vendor and hence the plaintiff may be assigned a different item from the items he purported to buy or even a smaller share than those items represented. We come next to the suit by a member of the family against the purchaser of part of the family property for the recovery of his share in the part alienated without claiming a division of the entirety of the family property.! Such a suit has been held to lie in a aeries of cases as pointed out in the referring order. We may add two farther cases in support of the same view [ Venkatrayudu v. Sri Batchu Venkatrayudu Appeal No. 39 of 1906 (unreported) and Bunwari Lal v. Daya Sunker Misser 13 C.W.N. 815. If this view be correct the learned Advocate-General does not impugn, what is almost a corollary from it, that the purchaser from a member of his share of property alienated by others, can sue the alienees of those others for the share of his vendor in that property unless the alienation bound the entire family interest. The reasoning in Subbarazu v. Yenkataratnam I.L.R. (1892) Mad. 234 and Kadegan v. Periya Munusami : (1903)13MLJ477 ]) fully supports this inference. But the learned Advocate-Ganeral disputed the correctness of the rule that a member of an undivided family could sue for his share in the item alienated to a stranger-purchaser of that item without asking at the same time for a general partition of the entire family property. The authorities laying it down he challenged as unsound and as opposed to the view, expressed in Udaram Sitaram v. Ranu Panduji and Venku Panduji 11 R.H.C.R. 76 and in Aiyyagari Venkata Ramayya v. Aiyyagari Ramayya I.L.R. (1902) Mad. 690, 716 that the equities of the purchaser might entitle him to the whole property purchased by him and not merely to the share of his vendor, and that ho could therefore insist on a general partition of the. whole property of the family as the only means of working out those equities. Those cases however do not lay down that the member of the family suing for his share could be driven by the purchaser from another sharer to institute a suit for general partition. They are only authority for the position that in a suit for general partition the purchaser could claim to have the equities so adjusted that the entire item bought by him might be assigned to him as for his vendor's share, The decision in Kristayya v. Narasimham I.L.R. (1900) I.L.R. 23 Mad. 608 does not question the correctness of the chain of authorities laying down the rule that it is competent to a member to sue the purchaser from another member for his share in the items sold. In that judgment there is only reference to one of the cases establishing the rule, namely, Subramanya Chettyar v. Padmanabha Chettyar I.L.R. (1906) Mad. 267 and that also not as bearing on the rule mentioned. There was no intention to depart from the principle on which Subbarazu v. Venkataratnam I.L.R. 19 (1892) Mad. 234 had been decided for that case is evidently referred to with approval, It was apparently assumed that the equities between the members of the family, who were all parties would have to be gone into in that case, having regard to the pleadings, We cannot therefore treat that case as any authority in support of the learned Advocate-General. Indeed he made no attempt to rely on it. It may also be pointed out that in view of the final result of that case on the finding that the family had no property besides that in suit the observations as to the form of the suit became unnecessary. We should feel disinclined to depart from a long-eatabliahed rule as to the proper method of working out the rights of members of an undivided family against strangers who have acquired the interests of other members even if we were not satisfied as to its soundness. But our attention has been drawn by the learned vakil for the appellant to the form of decree in two decisions of the Privy Council [Suraj Bunsikoer v. Sheo Persad Singh I.L.R. 19 (1880) Calc. 148 and Hardi Narain Sahu v. Ruder Perhash Misser I.L.R. 19 (1884) Cal 626]. In those two cases the suits were instituted by the sons against a purchaser in execution of a decree against the father. It was held that the proper decree was to confirm the plaintiffs' possession of the property or to decree to them possession of it against the purchaser, 'leaving it to the purchaser to work out the rights which he has acquired by means of a partition' [Suraj Bunsikoer v. Sheo Persad Singh I.L.R. 19 (1880) Calc. 148]. Their Lordships added a declaration in each case that the pur-chaser had acquired the interest of the judgment-debtor and 'was entitled to take proceedings to have it ascertained in partition.' [Hardi Narain Sahu v. Ruder Perkash Misser I.L.R. 1884) Cal. 326 and Suraj Bunsikoer v. Sheo Persad Singh (1880) I.L.R. 5 Cal. 148]. In Deen Dyal's case (1877) 4 I.A. 247 which was a suit of a similar character, but where the father too was alive and a party to the suit, the same decree for possession was made with a like declaration in favour of the purchaser. These decisions are clear authority for the position that the existence of any equities in favour of the purchaser does not entitle him to resist the claim of the members not bound by the alienation to possession. In Madras where the share of the members not affected by the alienation has been allowed to be recovered there is no reason for refusing the more limited prayer for possession of that share, We must answer the question referred to us in the affirmative.


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