1. The District Judge has based his decision largely on Court Exhibits I and II, which he admitted as evidence produced on the Court's own motion. He states that these documents are conclusive on the point of fact.
2. Order XL, Rule 27, of the Code of Civil Procedure makes it imperative that an Appellate Court should record its reasons for admitting additional evidence whenever additional evidence is allowed to be produced.
3. Apart from the irregularity arising from the omission to comply with this rule, we think that in fairness these documents should not have been relied on for the purpose of proving that the properties attached by the 3rd defendant (plaintiff in Original Suit No. 133 of 1909) were treated as the joint properties of defendants Nos. 1 and 2 in this case (defendants Nos. 1 and 2 in Original Suit No. 138 of 1909) without giving the 3rd defendant, Who was examined as 1st defence witness at the original trial, an opportunity of explaining the circumstances under which he made the application to attach those properties 'and his admission in the application. In considering the other evidence of joint dealing with' the property, the District Judge has not considered and met the possibility of the explanation suggested by the District Munsif for the joint execution of the mortgage deed to Abboy Chetti by plaintiff and defendants Nos. 1 and 2 being true; and he also appears to have overlooked the point, which the District Munsif noticed, that the plaintiff's evidence as to the purchase of the plaint properties by sale of ancestral properties must be hearsay, when he spoke to what occurred when he was only 2 years old.
4. We think that it is necessary to call for a fresh finding from the District-Judge on the question whether the plaintiff has any interest in the properties.
5. If he finds this question in the affirmative, he will also return a finding on issue No. 3 which he has left undetermined.
6. Findings should be returned within two months from this date. Ten days will be allowed for filing objections.
7. In compliance with the order contained in the above Judgement, the District Judge of South Arcot submitted the following
8. This is a case which has been remanded to me for findings on the question, 'Whether the plaintiff has any interest in the properties?' ' and secondly, if the above issue is found in the affirmative, 'If the sale is to be set aside, to what equities, if any, is the 3rd defendant entitled?'
9. It has been pointed out by the High Court that I have fallen into an irregularity in not complying with Order XLI, Rule 27, of the Civil Procedure Code in relying on Court Exhibits I and II which I admitted as evidence produced on my own motion, in that I did not record the reasons for admitting this further evidence. It is also observed that there was great hardship on the 3rd defendant in admitting this in evidence, because he was not given an opportunity of meeting this document which contradicted his evidence. It is brought to nay notice by the learned Vakil for the appellant that as a matter of fact the subject of these two Exhibits I and II was brought to the notice of the 3rd defendant when he gave his evidence in the Court and that he then had an opportunity of explaining the fact, which must have been present to his memory, that he attached the property as being the property of the defendants. However, the man is since dead and in view of the High Court's observation I do not think it advisable that I, should rely on these documents nor record a reason at this stage why I should admit them, because in any case one obvious explanation and observation attaches to them, that the general conduct of the parties might have led the 3rd defendant, who would not be intimately acquainted with family affairs, to believe the property to be joint family property and it is not the conduct or the admissions of a third party, as the 3rd defendant was, which can affect the nature of the owner-ship of any given bit of property. The learned Vakil for the appellant brings it to my notice that the decisions in Indar Sahai v. Shaim Bahadur 17 Ind. Cas. 760 : 17 C.L.J. 299 : 17 C.W.N. 509and Madhavaiya Chetty v. Damodaram Chetty 17 Ind. Cas. 347 are a clear basis for holding that, although there may be no nucleus of family property, where the family work together and live together and eat together and treat the property as joint property, they make a joint family even if there has been no original nucleus of family property.
10. As regards the observations of the District Munsif with reference to the joint execution of the mortgage deed to Abboy Chetti by the plaintiff and the defendants Nos. 1 and 2, I have had my attention directed to it in argument and I have given my attention to it as directed by the order of reference of their Lordships of the High Court; and I think it is right to observe that this explanation by the District Munsif, that it was possible, that the sons were also joined in the execution of this document as/they were naturally required to do as a matter of safety by the mortgagee, is an explanation which was open to the parties and yet was not made by, the, 3rd defendant But as regards the' explanation that the execution of the mortgage deads Exhibits I and X to Shroff Abboy Chetti might show that the plaint properties were thrown into the common stock and enjoyed by the family jointly though acquired by a single member, that does in fact appall to me and that is in fact my final view The decision in Thyalambeal v. Krishna Pattar 32 Ind Cas. 955 is an exact decision in point. As regards the Full Bench case in Ethirajulu Naidu v. Govindarajulu Naidu 32 Ind. Cas. 12 I have to observe with great respect that it seems to me that a good deal would turn on the date of the Will in question. If after treating the property in every way as joint property, the acquirer at his very last gasp makes a Will disposing of it as if it was still his sole self-acquired property, I think it-would be open to the other members of the joint family to show that by his action in treating the property as joint property and thus keeping the family together they were prevented from going out in the world and setting up on their own account, and, therefore, it was not open to him, just before his, death, to execute a Will which reversed the tacit agreement among them. If, on the other hand, in such a series of circumstances, as are detailed in Ethirajulu Naidu v. Govindarajulu Naidu 32 Ind. Cas. 12 the acquirer of the property made and registered a Will 3 or 4 years before his death, that would be a very different matter. However, though I venture to express this proviso, my present finding is not given in opposition to the decision in Ethirajulu Naidu v. Govindarajulu Naidu 32 Ind. Cas. 12 but because it seems to me, having regard to the provisions of Exhibit X, dated 1904, and Exhibit I, dated 1903, that after setting forth most clearly that it was self-acquired property it is stated with equal clearness and precision that the property is in the joint possession of all the members of the family. And this is exactly the course and conduct which, according to the ruling in Madhavaiya. Chetty v. Damodaram chetty 17 Ind. Cas. 347, where the family all live together, is enough, to finally invest the property with the charac-tar of joint family property. The learned Vakil for the 4th respondent, would wish to argue from Raw Kishen Das v. Tanda Mal 10 Ind. Cas. 543 that there can be no joint family unless there is a nucleus of joint family property. But the decision in 1912 Madras Weekly Notes [ Madhavaiya Chetty v. Damodaram Chetty 17 Ind. Cas. 347 is exactly opposed to such a view. It is perfectly true that the evidence as to the property having been acquired with the grandfather's own money is mere hearsay, as the High Court has been pleased to point out to me, and it is true that in certain cases, as set out in the decision in Jangi Nath v. Janki Nath 2 A.L.J. 225, a single owner of a property may for certain reasons, and to avoid family quarrels, associate with himself persons who in reality have no joint title and may afterwards insist on his own full separate rights, Personally I incline to the view that this is not a line of conduct which should be encouraged or which in the end conduces to the peace and welfare of families [to quote the Privy Council in Lala Muddun Gopal Lal v. Khikhinda Koer 18 I.A. 9 because it seems to me that it is substituting for a temporary disagreement an inevitable, bitterly-contested law suit, which will certainly go as far as the Privy Council if the family funds or credit permit. However that may be, the present is not such a case. Here there has been a living together in one house ever since the family migrated to Sandaipettai on acaount of the great famine of '1876-77. A. house was bought and eventually land; and this land is the subject of the present litigation. The oral evidence on the side of the plaintiff is indeed meagre and a great part of the evidence he gives as his own witness is false. But the learned District Munsif found as a fact that the plaintiff and the defendants Nos. 1 and 2 have been living all along and messing together and the plaintiff's present statement to the contrary is a deliberate falsehood. This fact, while lending great weight to the theory of collusion in the present suit, is also a very important ore in deciding whether the family have been throwing all their income such as it 'is into one joint stock. Taken with the contents of Exhibits I and X, I am satisfied that the property was altered into joint family property with the full final consent of the father who acquired it and for this reason I find the issue in the affirmative that the plaintiff has an interest in the properties.
11. As regards the 3rd issue the learned Vakil for the respondent wishes me to go once more over the whole question of fraud and to show that on account of the fraud being non-existent and the pro-notes being executed with legitimate par poses, his client is entitled to repayment of the following suing of money, Rs. 600 for Exhibit I Rs. 224 under Exhibit C and Rs. 300 to wards the discharge of Exhibit VI. He argues from the decision in Palamalai Mudaliyar v. South Indian Export Co. Ltd. 5 Ind. Cas. 33: (1910) M.W.N. 239 that the 3rd defendant is entitled in equity to have these sums made a charge on the property as there is no evidence to rebut the fact' of payment; for, as he points out, P. W. No. 1 (the 2nd defendant) admits in evidence that Rs. 40 is due from him on the pro-notes for which Exhibit C was substituted. On the other hand my attention has been drawn to the Privy Council decision in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280: 31 C.W.N. 698 : 6 L.W. 213 by which it is said that the sale of joint family property by only one or two members excluding a person who is a common go sharer with them has no effect whatsoever and cannot bind the property, at all. Thus there is no equity for the 3rd defendant retaining his two thirds of the suit property nor for his getting his-money back. It seems to me that this is the decision which I must apply in the present case and that my finding on the 3rd issue is the same as the lower Court's via., that the 3rd defendant (who is now represented by the 4th respondent) is not entitled to any equities in this case. Although I base my decision on the ruling in the Privy Council cases noted above and not on the finding as regards fraud-because it seems to me that I am not bound or justified in reviewing my -finding on that point that there was' fraud in the matter-if I take that finding as holding good, I will also day that on account of the fraud practised in the matter to which the 3rd defendant was necessarily a party he is not entitled to any equities in the case. But my finding as given above is in dependent of the finding on the question of fraud, which ' as it seems to me has been excluded, from the scope of the reference. I am corrected by the learned Vakil for the respondent as regards his arguments based on 33 Allahabad [Ram Kishen Das v. Tanda Mal 10 Ind. Cas. 543. He points out that his argument was that there is no presumption as to the existence of joint family, property and any one who alleges it must prove it. This, of course, I concede, but he proceeded to argue as stated above that there must necessarily be a nucleus of joint family property before anything can be added to it, and this is not a correct statement of the law. Allowing, as I do, that all the burden of proof rests entirely on the plaintiff in such a case as this, it seems to me that he has discharged that burden and proved that he has an interest in the plaint properties.
12. This second appeal came on for final hearing on the 17th April 1918, after the return of the findings of the lower Appellate Court upon the issues referred by the High Court for trial.
13. Messrs. T.R. Vencatrama Sastri and M. S. Vencatrama Aiyar, for the Appellants.- The District Judge erred in passing a decree in favour of the plaintiff for the whole of the joint properties. Even on the finding of fraud such a decree is not warranted. Here is a case of a Court sale and not of a private alienation. The decree in Original Suit No. 133 of 1909 by the appellant (3rd defendant) against defendants Nos. 1 and 2 was found to be a sham and a collusive decree and was in respect of a fictitious and non-existent debt. Defendants Nos. 1 and 2 were, participes criminis' in the fraud and their suit to set aside the sale was dismissed. They have no equities to ask instance and they cannot be permitted to obtain an indirect benefit by setting up the plaintiff to claim the whole property on their behalf. The plaintiff can only lay claim to his share in the joint family pro party. Kama Bow v. Nukamma 13 M.L.J. 576.
14. Whatever may be the rights of a private alienee the claim of the 3rd defendant-appellant rests upon his sale certificate and it passes at least the 2/3rds shares of defendants Nos. 1 and 2.
15. The 3rd defendant's rights can be worked out in this suit alone and he. need not be driven to bring a general suit for partition. It is settled law that the alienation by a coparcener is binding on him to the extent ' of his share. In this case, the plaintiff will not be prejudiced by the shares being determined and assigned.
16. Lastly, Rs. 280 of the, purchase amount paid by the 3rd defendant-appellant was used to pay 2 decrees which were equally binding on plaintiff. He also redeemed an order by paying Rs. 600. Plaintiff is bound to pay to the appellant 1/3rd of these amounts. The appellant is entitled to relief in the nature of subrogation. Palamlai Mudaliyar v. South Indian Export Co. Ltd. 5 Ind. Cas. 33 : (1910) M.W.N. 239 and Chama Swami v. Padala Anandu 3 M.L.T. 395 : 18 M.L.J. 306.
17. Mr. C. Padmanabaiyar, for Respondent No. 1.-The appellant, who obtained the decree in Original Suit No. 133 of 1909, was an active abettor of the fraud practised on the plaintiff and on the Court. The decree was fraudulent and collusive and the debt or claim in respect of which the decree was obtained was found to be fictitious. The decree-holder should be treated as having acquired nothing by the decree. His position is no better than that of a trespasser. His purchase at Court auction should be traced back to the earlier proceedings and the decree and when these latter were tainted with fraud' the auction sale and the certificate which purports to convey title to the appellant should be treated as a nullity. Plaintiff was, therefore, entitled to eject the appellant as a trespasser and he could sue on behalf of his co-sharers also.
18. Assuming that appellant acquired the rights of defendants Nos. 1 and 2 by his purchase, he can get no relief in this suit against the plaintiff. At the best the right secured by the appellant is only an inchoate right, to enforce partition of his alienor's' share. He cannot claim to be entitled to any specific items of property by reason of his purchase. In Deendyal Lal v. Jugdeep Narain Singh 1 C.L.R. 49 the Privy Council gave the, son possession of the entire property as against the holder of the decree against the father. See also Suraj Bunsi Koer v. Sheo Persad Singh 6 I.A. 88 : 2 S L.R. 242, Ramanna v. Venkata 12 Ind. Jur. 177 and Nanjaya Mudali v. Shanmuga Mudali 29 Ind. Cas. 583.
19. The appellant is not entitled to any equities in the nature of subrogation as against plaintiff. There can be no such relief where the very foundation of the claim is tainted with fraud. The equity does not arise by the mere fact that plaintiff was benefited by the payments. The oases cited by the appellant's. Vakil do not apply. In Palamalai Mudaliyar v. South Indian Export Co. Ltd. 5 Ind. Cas. 33 : (1910) M.W.N. 239 and Ummachakutti v. Ummerkutti Haji 29 Ind. Cas. 583 the payments were 'made by persons to whom real sales were effected by persons who owned the properties, but they were held to be in fraud of creditors, and, therefore, set aside. In this case no consideration was paid by him for the notes on which he sued.
20. Mr. T.R. Vencatrama Sastri, in reply. There is no analogy in the position of the appellant with that of a trespasser. It is only plaintiff that is left unaffected by the decree in the prior suit, Original Suit No. 133 of 1909. The rights of the other coparceners are subservient to that decree, which is binding on them until it is vacated by proper proceedings instituted by them for the purpose. The certificate of sale passes to the appellant the title of defendants Nos. 1 and 2 in the properties.
21. It is not necessary to drive the appellant to a suit for a general partition. Where there are also properties not comprised in the decree, such a course may be necessary. Here, however, the decree in Original Suit No. 133 of 1909 comprises all the properties in the family. The rights and equities of the parties, may be worked out in this suit itself without the plaintiff being in any way prejudiced by it. In the Privy Council case, Deendyal Lal v. Jugdeep Narain Singh 1 C.L.R. 49 the Privy Council stated that the purchaser was entitled to have the rights acquired, by him by purchase ascertained by partition. In Deendyal Lal v. Jugdeep Narain Singh 3 Suth. P.C.J. 468 and Suraj Bunsi Koer v. Sheo Persad Singh 6 I.A. 88 their Lordships were not dealing with the question of likely prejudice to the parties if a partition were worked out in the co-parcener's suit itself. In Ramkishore Kedarnath v. Jainarayan Ramrachpal 20 Ind. Cas. 958: (1913) M.W.N. 631: 18 C. L. J. 237 such a right is recognised. In none of the oases was the point expressly considered as to how the alienor's equity was to be worked out. In any event, the observations in those oases are beside the point as they do not relate to purchases at Court auction.