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Venkatammal Vs. Sinna Venkatarama Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 48 of 1970
Judge
Reported inAIR1975Mad316
ActsHindu Law
AppellantVenkatammal
RespondentSinna Venkatarama Chettiar and ors.
Appellant AdvocateN. Sivamani and ;N. Krishna Mitra, Advs.
Respondent AdvocateS. Sitarama Iyer, Adv.
DispositionAppeal allowed
Cases ReferredIn Manikayala Rao v. Narasimhaswami
Excerpt:
hindu law-partition-alienee from an alienee of a coparceners' share- whether entitled to enforce original alienees right to claim partition and allotment of his alienors's share-held in affirmative. ; on the question raised an to whether an alienee from an alienee of a corparcener's share is entitled to enforce his right to claim partition and allotment of the coparcener's share to him, ;held, when alienee from an undivided coparcener of a specific item could not get that item allotted on partition to him, he cannot ask for some other property the right of an alienee of a specific item of property. from an undivided coparcener is to file a suit for general partition or get himself impleaded as a party in the partition suit and ask for the allotment of the particular item allotted to him.....1. the plaintiff is the appellant. she filed the suit for redemption of a mortgage and for partition and possession. the suit property s. no. 449 is of an extent of 8.2 acres in kalingiyam village. the property was owned by one raman chetty, who had eight sons. he usufructuarily mortgaged the western half for rs. 150/- in favour of one ranganna gounder under ex. a-7 dated 10-6-1919. the eastern half was subsequently mortgaged usufructuarily by him, to narayana chetty under ex. a-8 dated 1-10-1923. the plaintiff claims title to 15/42 share under three sale deeds of ex. a-14 dated 4-5-1951, ex. a 15 dated 27-11-1950 and ex a-16 dated 27-3-1961.3. peria venkataraman, first son or raman chetty sold his l/7th share to karuppan chetty under ex, a-4 dated 20-5-1924, karuppan, chetty died leaving.....
Judgment:
1. The plaintiff is the appellant. She filed the suit for redemption of a mortgage and for partition and possession. The suit property S. No. 449 is of an extent of 8.2 acres in Kalingiyam village. The property was owned by one Raman Chetty, who had eight sons. He usufructuarily mortgaged the western half for Rs. 150/- in favour of one Ranganna Gounder under Ex. A-7 dated 10-6-1919. The eastern half was subsequently mortgaged usufructuarily by him, to Narayana Chetty under Ex. A-8 dated 1-10-1923. The plaintiff claims title to 15/42 share under three sale deeds of Ex. A-14 dated 4-5-1951, Ex. A 15 dated 27-11-1950 and Ex A-16 dated 27-3-1961.

3. Peria Venkataraman, first son or Raman Chetty sold his l/7th share to Karuppan Chetty under Ex, A-4 dated 20-5-1924, Karuppan, Chetty died leaving his sons Peria Raman and Chinna Raman. Under Ex. A-14 dated 4-8-1961 Peria Raman and Chinna Raman sold their l/7th share to the plaintiff. The first son Peria Venkataraman and another son Narayanan died and Kumban and defendants 1 to 4 constituted the members of the Hindu Family each being entitled to l/5th share out of the remaining 6/7th share that remained. Under Ex A-5 dated 16-10-1940, the fourth defendant sold his l/6th share to Karuppan Chetty. Under Ex A-15 dated 27-11-1950 Karuppan Chetty sold his 1/6th share to the plaintiff. The plaintiff thus became entitled to 13/42 share, that is, l/7th share under Ex. A-14 and 1/6th share under Ex A-15. Subsequent to the death of Kumban, defendants 1 to 4 got the properties by survivorship, each being entitled to 1/4th of 6/7th share, namely 3/14 share each. Out of this, the fourth defendant had already sold his l/6th share under Ex A-5 dated 15-10-1940, thus retaining 3/14 minus 1/6th = 1/21 share. Under Ex A-16 dated 27-3-1961, the fourth defendant sold his 1/21 share to the plaintiff for Rs. 450/-. Thus, the plaintiff became entitled to 15/42 share under Exs. A-14 to A-16.

3. The mortgagee under Ex A-7 that is, Ranganna Gounder died leaving his son Perumal Goundan. Perumal Goundan assigned half of his rights in favour of one Venkatarama Chettiar on 29-6-1932 under Ex. B-23 for Rs. 75/- and his son Venkatarama assigned his rights in favour of the fifth defendant under Ex A-2 dated 11-11-1952. The remaining half of the mortgagee's right was also assigned to one Ramakkal on 8-5-1935. Ramakkal, the assignee of other half assigned her mortgage rights on 12-6-1936 in favour of one Ramaswamy Gounder, who assigned it again in favour of the 6th defendant, Karuppan Chetty and deceased father of defendants 6, 7 and 8. The mortgagee under Ex A-8 dated 1-10-1923 assigned it on 31-5-1967 under Ex B-24 for Rs. 100/- in favour of one Palani. Palani assigned it in favour of the fourth defendant under Ex A-3 dated 19-4-1950. As the fourth defendant is one of the heirs of the mortgagor, there had been a merger of interest in the mortgage so far as the fourth defendant is concerned. Defendants 1 to 4 claim to have discharged the mortgage debt due to defendants 6 to 8. They also pleaded that in any event the mortgage debt had been discharged and completely wiped off by reason of the provisions of Madras Act, IV of 1938.

4. The plaintiff's suit was contested by defendants 2 and 3.

5. Defendants 4 to 8 remained ex parte.

6. The defence is that the plaintiff is not a sharer and has no right to redeem the mortgages. Defendants 2 and 3 claim that they are entitled to one half share in the property absolutely. They contended that Peria Venkatarama Chetty the first son of Raman Chetty got separated from his father and was not given any share in the suit property and his sale to Karuppan Chetty cannot confer any right. They further claimed that the suit property was in their enjoyment for over 20 years and defendants 2 and 3 discharged the mortgage in 1945 according to Madras Act, IV of 1938. They further contended that neither the plaintiff nor the other defendants were in possession and enjoyment of the property. They contended that the suit was barred by limitation and that the earlier suit O. S. No. 279 of 1953 filed by the plaintiff for redemption operated as res judicata.

7. The trial court round that under Exs. A-14 and A-15 the plaintiff purchased 13/42 share in the suit property and she was not entitled to 1/21 share as per Ex A-16. It also held that the plaintiff was not a purchaser directly from the coparcener but was an alienee from the alienee of the coparcener of an undivided interest. In the circumstances, the trial court held that the remedy of the plaintiff was to claim damages for breach of covenant of title and not for redemption and partition. It also found that the plaintiff had not been in possession within 12 years of his suit and that defendants 2 and 3 had acquired title by adverse possession. It further held that the judgment in O. S. No. 279 of 1953 operated as res judicata and that the defendants were not entitled to any claim for improvements. The trial Court also rejected the plea of disclose raised by defendants 2 and 3 and held that there was no proof that the plaintiff or the predecessor-in-interest abandoned the rights to the suit property. Finally, it held that the suit was barred under Order 2, Rule 2 C. P. C.

8. On appeal, the lower appellate Court held that the plaintiff had not proved his title with reference to 1/21 share under Ex A-16. It also found that the second alienee could acquire the right of the first alienee viz., the right to sue for partition. Apart from that right, it also found that an alienee from the alienee cannot get further rights and that the plaintiff's suit was barred under Article 144 of Limitation Act Differing from the trial Court, it held that the suit was not barred by res judicata or under Order 2, Rule 2 C. P. C.

9. In the second appeal, the plaintiffs right to sue for partition was negatived. The suit was held to be not barred under Article 144 of the Limitation Act. The right of the plaintiff to maintain the suit for redemption was upheld and the sui was remanded to the trial Court for ascertainment of the amount due by the plaintiff for redemption.

10. The plaintiff has preferred the Letters Patent Appeal against the decision of the learned single Judge, that she had no right to sue for partition of her share.

11. The important question that arises for consideration is whether an alienee from an alienee of a coparcener's share is entitled to enforce his right to claim partition and allotment of the co-parcener's share to him.

12. The answer to this problem is not free from difficulty, as judicial opinion is not uniform. The right of an alienee from a coparcener to step into the shoes of his alienor and to work out his right by filing a suit for partition is accepted. One school of thought is that this right based on equitable principles should not be extended thereby making further inroads into the joint family system while the other school is of the view that whatever rights the alienee from the undivided coparcener may get should be held to be heritable and transferable, The learned single Judge has followed the decision of the Full Bench of the Andhra High Court in Gurunadham v. Venkata Rao. (FB) which approved the decision two division benches of this Court in Sabapathy Pillay v. Thandavaraya Odayar, ILR 43 Mad 309 = (AIR 1920 Mad 316) and Dhadha Sahib v. Muhammad Sultan Sahib, ILR 44 Mad 167 = (AIR 1921 Mad 384). The question that was referred for determination by the Full Bench of the Andhra High Court was as follows:--

"Whether an alienee of an alienee of a specific item of property from a Hindu coparcener can maintain a suit for general partition and claim the allotment of that specific item?"

13. It may be noted that in the case before us what was. alienated was the share of an undivided co-parcener and not a specific item. The alienee does not get any right to the properly, but acquired an equity to stand in the shoes of his alienor and work out his rights in a suit for general partition but he is not entitled to joint possession along with the non-alienating co-parceners. He cannot also claim mesne profits. He can. in a partition suit, ask for allotment of the share of an alienating coparcener of the specific item alienated to him, if that does not adversely affect the rights of the other coparceners. An alienee of an undivided share of the coparcenary property can get his alicnor's share allotted to him. If it is a specific item of property, he would be entitled to recover the property, if that could be allotted to the share of his alienor, While some Courts have held that the alienee of a specific item can get 'substituted property other courts have held that he cannot get any other property, but can only get a charge over the share of his alienor. In 39 Mad LJ 706 = (AIR 1921 Mad 384) there was a private sale of a specific item of joint family property by the coparcener. The purchaser conveyed it to another person. The property was not allotted in the family partition to the alienating coparcerer. The court held that the plaintiff had not bought the land from a Hindu coparcener who according to Hindu law would have a right to demand partition of the family property and to get the share due to him. The plaintiff had bought certain specific land from the first defendant, who is a Mahomedan and between them there can be no question of working out any such equity. The Court stated the position thus:

"When analysed, the position is simply this. A sells a particular parcel of laud to B. It is found that A has no title to the land. Can it be said that B is entitled to ask A to convey to him some other land in place of what he bought. When stated in these words, the position of the plaintiff would be quite untenable and it is difficult to see why the character of the superior title by which the title of the vendor in the land which he purported to sell is defeated, should make any difference to the Vendee's rights. As the vendor's title to the land in dispute has been superseded by a superior title, the only remedy open to the vendee is damages for breach of warranty of title."

The decision, therefore, is that it the alienee could not sell the specific item, which was conveyed to him by the undivided coparcener, he is not entitled to any other item but can only claim for damages for breach of warranty of title. The Court also expressed certain reservations regarding the decision in Nanjayya v. Shanmuga, ILR 38 Mad 684 = (AIR 1914 Mad 440 (2)) and Sabapathi Pillai v. Thandavaraya Odayar, ILR 43 Mad 309 = (AIR 1920 Mad 316) that the alienee would be entitled to other property allotted to the alienor if he does not get the specific item sold to him allotted in a partition. In conclusion the Court held:

"We are of opinion that if we were to hold that the plaintiff is entitled to whatever land the first defendant might have got in substitution for what he had purchased from his vendor we would be giving him property which he never bargained for."

The decision would be an authority for the preposition that when an alienee from an univided coparcener of a specific item could not get that item allotted on partition to him, he cannot ask for some other property. The Bench has also held that the equity which is available to the alienee from an undivided coparcener is not available to the alienee of an alienee. ILR 43 Mad 309 = (AIR 1920 Mad 316) was a case of a purchaser from a purchaser at Court auction in execution of a money decree passed against a Hindu coparcener. Subsequent to the Court sale, there was a family partition at which only some of the items purchased in Court sale were assigned to the judgment-debtor. The vendee claimed allotment of an extent of land equivalent to that which he had lost, out of the other fends that had fallen to the share of the judgment-debtor. It was decided that the purchaser was only entitled to such of the properties as fell to the hare of the judgment debtor al the partition and as were included in the sale certificate. The court held that there was no privity of contract between the judgment debtor and the auction purchaser and no warranty of title to the lands sold in the court auction. In Subbiah v. Venkateswarlu AIR 1948 Mad 464, Horwill, J. held that the only remedy of the alienee from the alienee arises out of their contract, that is, a right to damages for breach of covenant of title.

14. In ILR 38 Mad 684 = (AIR 1914 Mad 440 (2)) Bakcwell, J. summed up the position regarding the right of an alienee from an undivided coparcener thus:

"Since the transferee only acquires an equity to compel a partition he has only a right in personam and not a right in rem, and the transferor remains a member of the family and retains all the rights which attach to membership, including the right to an increased share upon the death of another coparcener. An alienation, by a coparcener of a particular item of the family property, or of a sepcific share in such an item, differes in some respects from an alienation of the whole or a fraction of the interest of the transferor in the general assets of the family. Since a member "of a joint family has no right to a specific share of any particular property of that family, an assignment by him of such a share to a stranger conveys no interest whatever to the transferee; if, however, the grantor should subsequently become entitled to the property included in the grant, then on a well-settled principle of equity which is embodied in Section 43 of the Transfer of Property Act, 1882, he cannot deny the title or the transferee and is bound to make the grant effectual."

In Baluswami Aiyar v. Lakshmana Aiyar, ILR 44 Mad 605 at p. 624 = (AIR 1921 Mad 172 at p. 175), Kumaraswami Sastri J-, stated that the nature of the equity which is recognised in favour of a purchase for value of a coparcener's share, is purely a personal right and is subject to any superior equities which the co-parcener may have against the alienor. In Raja Sahib of Bobbili v. Venkataramanujulu Naidu, ILR 39 Mad 265 = (AIR 1913 Mad 453) the question arose whether the Court auction purchaser of an Undivided share belonging to the coparcener is entitled to claim mesne profits as against the coparceners in the suit filed by him for partition and delivery of the share purchased by him. The Court accepting the view expressed. In TLR 38 Mad 684 = (AIR 1914 Mad 440 (2)) held:

"The right of the alienee to enforce partition does not rest on any text of the Hindu law but on the equitable doctrine that a purchaser for value should be allowed to stand in his vendor's shoes and work out his rights by a partition and it seems to us that the doctrine need not be extended beyond what is absolutely necessary to enable the vendee to work out his rights. In the suit for partition which may be filed by the alience it may be that the property conveyed to him falls to some other coparcener and it is difficult to see how this tact could be reconciled with the theory that by purchase he becomes entitled to a vested interest in the share of his coparceners in the property alienated as from the date of the alienation."

(Underlining ours) They proceed to state:

"There are also clear authorities that the mere fact that a coparcener makes an alienation does not put an end to status of the coparcenary as between himself and the other members of his family and if this be set it would be unfair that the other members of the family should be required to bear the expenses of the alienating coparcener and the members of his family and also to set apart a portion of the income of the properties for meeting the claim of the alienee."

Viewing from the standpoint of hardship, they held that the balance was in favour of the members of the joint family. It may be seen that the Full Bench was not willing to extend the equitable rights conferred on the alienee beyond what was absolutely necessary.

15. A Full Bench of this Court in Peramanayakam v. Sivaraman, (FB) dealt with the nature of the interest which an

alienee from an undivided coparcener acquired. The Full Bench held that neither an alienation of the entirety of the interest of a coparcener in Mitakshara joint family nor (he adjudication of a coparcener as an insolvent would have the effect disrupting the status of tbe family. It also held that the alienee from an undivided coparcener is not entitled to claim joint possession, Satyanarayana Rao J., expressed the view that tbe vendee's right was a tranferable right and vested present interest. Viswanatha Sastri J., held that a transferee took a present vested interest in property. Four out of five Judges were inclined to take the view that the right was not merely a right in personam but was a legal right.

16. In Aiyyagari Venkataramayya v. Aiyyagari Ramayya, (1902) ILR 25 Mad 690 (FB) it was held:

"that the right of the purchaser is no doubt an equitable claim in the sense that he must be a transferee for value and in cases where the transfer relates to a specific portion of the family property, he has no legal right, and more than the transferor himself, to insist on that specific portion being allotted to the share of the vendor, Being a purchaser for value he will have au equity to have such portion or so much thereof as is practicable, so allotted, it that can be done without prejudice to the interests of the other sharers......

This right of the purchaser could be worked out in a suit filed by him for partition of the entire joint family properties impleading all the coparceners as parties to the suit. If a suit for general partition filed at the instance of the coparceners is pending the purchaser could get himself impleaded as a party to the suit and work put his rights ....If the sale is of the undivided interest of a coparcener in the whole of the joint family property, the purchaser would get whatever is allotted to the share of that coparcener in a suit for partition. In such a case, the purchaser gets all that he bargained for....If however the sale is of a specific portion or a specific item of the family property there is a risk that it might him out that in a partition of the whole property, it might be impracticable or inequitable to allot to the share of the vendor or judgment-debtor as the case might be, the whole or part of the property sold to the purchaser. If the property sold cannot be set apart for the share of the vendor or the judgment-debtor at the partition the question arose whether the purchaser has the right to recover the property of an equivalent value from other properties allotted to the vendor or judgment-debtor at the partition?",

It was further held that when it is found impracticable or inequitable to allot to the transferor's share the whole or any portion of the specific property transferred, the transfer will become inoperative either in whole or in part, as the case may be and in that case the transferee can 'only' have an equitable claim for compensation against the alienor. (undertaking ours) This view was followed by Varadachariar, J. in Ramanna Chettiar v. Manickam Chettiar, AIR 1935 Mad 1011;Dhadha Sahib v. Mahomed Sultan Sahib, AIR 1921 Mad 384, already referred to has also held that the alienee cannot get any Other property in substitution for what he had purchased, as it would result in giving him property for which he never bargained for. A Full Bench of this Court in Koru Issaku v. Seetharamaraju, AIR 1948 Mad 1 (FB), held that the doctrine of substituted security was applicable to a case where a co-sharer mortgagor mortgaged a specific property forming part of the properties held by him jointly with the other co-sharers and at a partition among the co-sharers, some property other than the mortgaged property was allotted to the share of the mortgagor. It was held that it would be inequitable that the mortgagor should be permitted to hold the substituted lands free of the burden of mortgage, which he had purported to create on a part of the joint property though he might not legally have been competent to alienate that part. It was held that the mortgage as such would not bind the substituted property. But the mortgagee would be entitled to an equitable charge for the realisation of the mortgage money, such charge not being enforceable against a bona fide purchaser of the substituted property without notice of charge. This view that the mortgagor would have a charge on the substituted property, was commented upon by a Bench of the Andhra High Court in Subbayya v. Srirangam, AIR 1956 Andhra 188 (FB) which expressed that the decision required further consideration. The Full Bench of the Andhra High Court held that it is not permissible to apply the doctrine of substituted security to the case of a sale of a specific item of joint family property by a coparcener as if he were the owner of that property. The position, therefore, is that when an alienee of a sepcific item of property from an undivided coparcener is unable to obtain that sepcific property, his remedy, if he is a mortgagee, is by way of a charge on the other properties allotted to the alienating coparcener according to the Full Bench of our High Court in ATR 1948 Mad I (FB) and only to an equitable claim for compensation according to the Full Bench of the Andhra High Court in AIR 1956 Andhra 188 (FB). So, the right of an alienee of a specific item of property from an undivided coparcener is to file a suit for general partition or get himself impleaded as a party in the partition suit and ask for the allotment of the particular item allotted to him and if that cannot be done due to equities available to the other coparceners the alienee can only ask for a charge on the other properties allotted to his alienor or claim compensation for his loss. The question is whether this right is heritable and transferable. 17. We have, at some length, referred to the decisions in ILR 43 Mad 309 = (AIR 1920 Mad 316); 39 Mad LJ 706 = (ATR 1921 Mad 384) and AIR 1948 Mad 464. In (FB),

after referring to the aforesaid decisions, the Full Bench of Andhra Pradesh High Court came to the conclusion that the equity, which fixes itself to an alienee from a coparcener, is not transferable, that the equity is peculiar to the first vendee from a coparcener and is not transferable, and that consequently the position of the second alienee cannot be equited to that of the first alienee in that regard. It is noteworthy that all the cases cited above, which held that an alienee of an alienee from a coparcener would not have the equitable right of an alienee from a coparcener, referred to an alienation by coparcener of a specific item of joint family property. In the case of an alienation of a specific item of property, the alienor has no right to the same and as such he is selling the property to which he has no right. The right or an alienee to file a suit for general partition or to get himself impleaded in that suit and ask for allotment of a specific item, is not a right to property which is in existence at the time of alienation. The right, when exercised by joining in a suit for general partition, would crystallise when the property purchased by him is allotted to him on equitable grounds. The alienee may not get that item allotted to him in the partition, iji which case his only right is to sue for damages. The passages underlined by us in (1902) ILR 25 Mad 690 (FB) and ILR 38 Mad 684 = (AIR 1914 Mad 440 (2)) would indicate that no right to property is conveyed.

18. It is clear that, if the alienee of a specific item of property has filed a suit for general partition or has joined in a suit by the members of the joint family for partition and has asked for allotment of a specific item or some other properties to the alienating coparcener, the right of a transferee of the alienee would be governed by the ordinary law, that, is, pending the suit, he could transfer his right and, in the event ot his death, his legal representatives would be entitled to continue the suit. In fact, this situation is referred to by the Full Bench in where the learned Judges

expressed the view that different considerations might arise in a case where the first vendee, after invoking the equity by filing a suit for partition and for allotment to the coparcener of the share allotted to him, assigned his interest to another person. In such a situation, the provisions of Order 22, Rule 10, Civil Procedure Code would come into play and the second alienee may request that a decree might be passed in his favour instead of his assignor. There could be no difficulty if the alienee from an undivided coparcener as well as the subsequent alienee join in a suit for general partition and ask for working out of their rights. Ismail J., had to deal with such a case in Sethu Ramalinga Menattarayar v. Veerasami Chettiar. ,

wherein an alienee from an undivided coparcener as well as an alienee from the alienee joined in a suit. In such a case, there could be no difficulty in working out the rights of both the aliences

19. The question that still remains to be considered is whether an alienee of an alienee from an undivided coparcener of a specific item of property could by himself maintain a suit, when the equitable right by filing a suit had not been exercised by the alienee from the coparcener himself. If the view is taken that the right of the alienee of a specific item of property from the coparcener is a right in personam and that the equitable right need not be extended beyond what is absolutely necessary to enable the vendee to work out his rights or that if it is considered that an alienee of an alienee from an undivided coparcener has no privity of contract between himself and the alienating coparcener in order to claim the right of the alienating coparcener to enforce the partition, the right of an alienee of an alienee from an undivided coparcener by himself to maintain a suit for partition is doubtful. We find it difficult to accept the view of Ismail J. that, in a suit for general partition, an alienee of an alienee of a specific item of property from an undivided, coparcener has all the rights of the alienee of the coparcener himself.

20. We shall now refer to a few decisions of the Supreme Court, where an alienee of an alienee from coparcener was given relief. In Sidheshwar Mukherjee v. Bhubneshwar Prasad Narian Singh, , one of the members of the joint family, Bhubneshwar Prasad, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note. Panchanan instituted a suit against the member of the joint family, Bhubaneshwar Prasad, and obtained a decree against him. In execution of the decree, he brought the right, title and interest of the judgment-debtor in the properties to sale, and purchased the same. Subsequently, Panchanan sold the interest purchased by him in execution of the decree to the plaintiff. On the strength of conveyance of the interest, the plaintiff instituted the suit, claiming a share in the properties. The question as to whether the alienee in such a case could maintain a suit, was not raised. But the Supreme Court held that it is open to the creditor, who has obtained a decree against a member of a joint Hindu family to attach and sell the interest of his debtor in the joint family property and, after purchase, to have the interest separated by a suit for partition. In this case, the question of the right of an alienee of an alienee from a coparcener of a specific item of property did not arise and the transfer of the decree was after the Court sale. Hence this case will not be of any assistance.

21. In Manikayala Rao v. Narasimhaswami, , the

plaintiff, in a money suit, obtained a decree against one Narasimhaswamy and his four sons who were members of a Mitakshara Hindu family. In execution of the decree, the shares of the four sons in the joint family properties were put up to auction and were purchased by one Sivayya, whose successors-in-interest were the appellants before the Supreme Court. The father's share was not put up for sale because an application for his adjudication as insolvent was then pending. The sale to Sivayya was duly confirmed. Thereafter, Sivayya sold the properties purchased by him at the auction to one Prakasalingam. Joint possession of the properties purchased by Prakasalingam along with the other members of the joint family in actual possession was delivered. Thereafter, Prakasalingam retransferred the properties to Sivayya. In that case, the right of Sivayya was not disputed on the ground that he was not the direct alienee from the judgment-debtor. The suit bad already been filed by Sivayya, the alienee and the shares of the four sons were sold and possession was also delivered.

22. It is unnecessary for us to pursue this question any further as, in the present case, the alienation by the coparcener was of his share in the joint family properties. Where a share of an undivided coparcener is alienated, the position is different. Where there is a sale of undivided share of a coparcener, he is alienating property, to which he has good and present title. As observed by Viswanatha Sastri J., in AIR 1956 Andhra 188 (FB) at p. 191, where the undivided share, which is the subject-matter, is inherently and by its very nature mutatable, it is a necessary incident of the sale that it should convey the property into which the undivided share has been transformed. When the sale is of an undivided interest of a coparcener in the whole of the joint family, the purchaser would be entitled to get the share that is allotted to his vendor. What the alienee gets is a right to property, that is, the property that might be allotted to his vendor in the general partition suit, though he would not be entitled to joint possession with the other coparceners and to claim mesne profits till a decree is passed in the partition suit. Such a right to file a suit and demand allotment of the property falling to the share of the vendor is a right to property which could be transferred. The objection to an alienation of a specific item that no right to property had been conveyed, is not available in the case of transfer of a share of an undivided coparcener. The right in the case of an alienee of a share is more than a right in personam and is mutatable. The only objection, which is common to both to an alienee of an alienee of a share and an alienee of an alienee of a specific item of property from an undivided coparcener, is that an alienee of an alienee from the coparcener has no privity of contract with the coparcener, and, as such an alienee of an alienee from the undivided coparcener could not insist on the right of the coparcener to claim a partition. But even here, we feel that, as a right to property has been transferred to the alienee of a share of !he coparcener, it is very difficult to resist the right of an alienee of an alienee of a share from an undivided coparcener to maintain a suit for partition for working out his right. The decisions which we have referred to, as already stated, are all cases of sales of specific items of property and, on that basis held that no right in property has been conveyed. Further, we feel that, in considering the right of an alienee of an alienee of a share from an undivided coparcener, we have to take note of the changed circumstances of society and law. Great inroads had been made into the Hindu joint family system by Legislation, as, for instance, the right of the widow of an undivided coparcener to property and also an undivided coparcener's right to dispose of his undivided interest by a will. Taking all these into consideration, we feel that it is proper to hold that the right of an alienee of an alienee of the share from an undivided coparcener is a right by himself to maintain a suit for working out his equitable right of asking for a partition and allotment of the share of the alienating coparcener. Such a right in our opinion, is heritable and transferable. The Hindu law principle that the equitable right of an alienee from an undivided coparcener should not be extended, could be qualified to this extent by permitting an alienee of an alienee of a share to maintain suit by himself. As we are not concerned with the right of an alienee of an alienee of a specific item of property from an undivided coparcener, we refrain from expressing any final opinion in regard to the same.

23. Before we conclude, we world like to place on record our appreciation of the valuable assistance rendered by counsel on both sides, Mr. Sivarnani and Mr. S.V. Jayaraman. In the result the appeal is allowed with costs.


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