1. The first defendant in O. S. No. 291 of 1964 on the file of the District Munsif Court of Thanjavur is the appellant before this Court. The appellant is the father and the 3rd respondent is the son and they constitute a Hindu undivided family. The 3rd respondent on 18-9-1947 sold a particular item of property belonging to the joint family to the first respondent herein, and that the sale deed has been market as Ex. A. 2 in the case. The first respondent, in turn, sold the property to the second respondent by a document, dated 6-8-1959, market as Ex. A-1, in this case. As a result of these transaction the second respondent came into possession of the property.
Thereafter the appellant filed O. S. 256 of 1959 on the file of the Court of the District Munsif, Thanjavur, for recovery of possession of the property contenting that the sale deed dated 18-9-1947 in favour of the first respondent herein was not binding on him, that he was himself the manager of the family and that the third respondent had no right to alienate the property. The suit itself had a chequered career and ultimately came to be disposed of by the learned District Judge, West Thanjavur on 30-3-1964 in A. S. No. 196 of 1960. The learned District Judge came to the conclusion that the sale was not binding on the appellant herein and, therefore, the appellant was entitled to recover possession of the property from the second respondent herein. At the same time, he was of the view that respondents 1 and 2 herein as alienees from the third respondent herein would be entitled to file a suit for general partition.
Consequently, while declaring that the appellant herein was entitled to possession of the property and that the sale by the third respondent was not binding on him, in terms of the law declared by this Court in Kandasami Udayan v. Velayudha Udayan ILR 50 Mad 320 = AIR 1926 Mad 774, he granted stay of the execution of the decree for a period of two months to enable respondents 1 and 2 herein to file a suit for partition. It is thereafter that respondents 1 and 2 herein instituted O. S. 291 of 1964 on the file of the court of the District Munsif, Thanjavur for a general partition of the properties belonging to the joint family of the appellant and the third respondent herein and allotment of the item purchased by the first and second respondents to the share of the third respondent herein.
The suit was resisted by the appellant as well as the third respondent, the third respondent putting forward a further contention that the sale deed executed by him in favour of the first respondent was not enforceable as he executed the same under the influence of drink. This case put forward by the third respondent was rejected by the learned District Munsif, but the learned District Munsif by his judgment and decree dated 13-8-1965, dismissed the suit. He took the view that the first respondent had alienated the property in favour of the second respondent and that therefore he had no further interest in the property. As far as the second respondent was concerned, he was not an alienee from a coparcener, but an alienee from the alienee of a coparcener and, therefore, he had no right to institute a suit for general partition. For this purpose, he relied on the judgment of a Full Bench of the High Court of Andhra Pradesh in Gurunadham v. Venkata Rao AIR 1956 AP 523.
Against this judgment and decree respondent 1 and 2 herein preferred A. S. 119 of 1965 before the learned Subordinate Judge, Thanjavur, who, by his judgment and decree dated 26-4-1966, reversed the conclusion of the learned District Munsif and decreed the suit of respondents 1 and 2 herein. Before the learned Subordinate Judge reliance was placed on behalf of respondents 1 and 2 on the decision of Veeraswami, J., (as he then was) in S. A. No. 272 of 1959 (Mad) and following that decision alone the learned Subordinate Judge decreed the suit of respondents 1 and 2 herein. Hence the present second appeal by the first defendant in O. S. 291 of 1964.
2. It is easier to dispose of the claim put forward by the defendants in the suit that the sale deed executed by the third respondent in favour of the first respondents was not valid as having been executed while under the influence of liquor. As I pointed out already, this point was found against by the learned, this point was found against by the learned District Munsif, but the learned Subordinate Judge did not go into the question stating that no cross appeal against that finding had been filed before him. In any event, as far as the present second appeal is concerned, no such ground has been taken in the memorandum of grounds of second appeal and, therefore, that question does not arise at this stage.
3. The only question that remains for consideration is whether the suit instituted by respondents 1 and 2 herein for a general partition of the family properties with a prayer to allot a half share to the third respondent herein and to allot Item No. 1, purchased by respondents 1 and 2 to the share of the third respondents 1 and 2 herein is maintainable. As I pointed out already, the argument is that the first respondent had parted with his interest in the property in favour of the second respondent, and the second respondent being an alienee from the alienee, he is not entitled to the equity which the first respondent was entitled to, of filing a suit for general partition and having the properties sold to him allotted to the share of his vendor. In view of the legal position regarding the right of a coparcener to sell his undivided interest in a joint family property for consideration, and the right of the alienee to file a suit for general partition, having been elaborately considered by a Full Bench of his Court, in Peramanayakam Pillar v. Sivaraman : AIR1952Mad419 it is not necessary to deal with the question in any great detail. Summarising the legal position, with regard to this aspect, Satyanarayana Rao, J., observed in that judgment as follows:--
'A coparcener of a joint Hindu family governed by Mitakshara obtaining in the State is entitled to alienate his undivided share either in the whole of the property or in a certain specific item of the property or even the whole of a specific time. In all such cases the only right which the alienee acquires is to stand in the shoes of his vendor and to work out his rights by a suit for partition and in such a suit, if without prejudice to the rights of the other members of the family, it is possible to have the shares alienated to the alienee allotted to the alienor, it may be allotted to the alienee in the right of the alienor.......''
Text books and decision generally refer to this right as a right in equity. The reason for this description is that, as far as the textual Hindu law is concerned, no such right was recognised on the part of a coparcener, to alienate his undivided interest in a coparcenary property and on the part of the alienee to file a suit for partition. To demand a partition of the coparcenary property is a right available only to a coparcener under textual Hindu law and when that right, for equitable considerations, was recognised in an alienee, text books writers and decisions started referring to that right as equity. Reference to that right as equity is merely for the purpose of indicating the origin of the right; that is, that right did not originate from the textual Hindu law, but that right was reconginsed on equitable considerations. But, none of less, that right is as effective and efficacious as any other right known to law.
It is easily understandable why such a right for general partition alone has been recognised in an alienee. According to the textual Hindu law no member of a coparcenary can predicate that he had got and individual right in any specific item of the copercenary property. The coparcenary property belongs to all the coparceners in common and the specification of a fractional share of a coparcener or the specification of a particular item of the coparcener property has belonging to a coparcener cannot arise except in the event of a partition.
From the very nature of the concept of coparcenary the interest which an undivided coparcener had in the coparcenary property is liable to fluctuation either by birth or by death in the family, and in view of this contingency, at no particular point of time it is possible to predicate with any degree of certainty that a coparcener has a specific fractional share in the property. All that can be said is that if at any particular point of time a suit for partition had been instituted or a partition had taken place, a particular coparcener would have been entitled to a particular fractional share.
It is in view of this legal position, an alienee from a coparcener does not acquire any right in a specific item of the property, because the alienor himself does not have that the right. The only right the alienor has is the right to file a suit for partition and obtain his share of the property and that right by means of an alienation is transferred to the alienee and the Courts recognise that right. As I pointed out already, simply because this right was recognised in an alienee, on the basis of equitable consideration, the right is no less efficacious than any other right.
4. There is one other aspect to be considered in this behalf. The right of an alienee under such circumstances can be said to be comprised of two aspects; one is to file a suit for a general partition; the other is, in such a partition, to have the property alienated to him allotted to the share of his alienor, if that can be done without prejudice to the interests of the other coparceners. Therefore, as far as the right to the file a suit for partition itself is concerned, it cannot be denied to the alienee under any circumstances, but the right to have the particular item of the property allotted to the share of his alienor can be defeated, if such allotment cannot be made without prejudicing the interests of the other coparceners. Therefore, whatever may be the contingency with reference to the alienee getting a particular item allotted to the share of the alienor, as far as the right to institute a suit for partition itself is concerned, there is no equity and it cannot be denied under any circumstances. It is only because of this that in the passage extracted by me above from the judgment of Satyanarayana Rao J. what is referred to is not an equity to file a suit for partition. This is how the position is stated in Mayne's Hindu law, 11th Edn, at page 488:--
'In dividing the family properties the Court will, no doubt set apart for the alienating coparcener's share the property alienated if that can be done without any injustice to the other coparceners, and such property, if it is so set apart, may be given to the transferee of the interest of such coparcener. But this is only an equity and the alienee is not, as of right, entitled to have the property so allotted. If such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share, in substitution for the property that was alienated in his favour'.
This being the right of an alienee from a coparcener, can the position be different with regard to the right of an alienee from the alienee of a coparcener? That will depend upon the nature of the interest which the alienee acquired under the alienation from the coparcener, which he transfers to his own alienee. As I pointed out already, the only decision that is relied on in support of the contention that the suit by the second alienee is not maintainable, is the judgment of the High Court of Andhra Pradesh referred to already. That judgment in turn relies on two Bench decision of this court and the judgment of a single Judge of this court and it only on the basis of the said decisions that the Andhra Pradesh High Court has come to the conclusion that the suit by an alienee from an alienee is not maintainable. Let me, now examine the decision, of this court for the purpose of finding out whether those decision lay down any such principle.
5. The first decision is Sabapathi Pillai v. Thandavaraya Odayar, ILR 43 Mad 309 = AIR 1920 Mad 316. In that case the plaintiff's vendor had purchased certain properties in execution of a money decree against a coparcener. At the time of the attachment a partition suit among the coparceners was pending. The decree in the partition suit allotted certain properties to be judgment debtor. On comparing the sale certificate with the list of properties allotted to the judgment-debtor, the plaintiff found that the sale certificate included items which did not correspond to the item in the partition decree. Under these circumstances, he filed a suit for the allotment of the extent of the property which he had purchased under the sale certificate from the items given under the partition decree. The question was whether the suit was maintainable or not. Seshagiri Aiyar and Moore, JJ., came to the conclusion that such a suit was not maintainable. The reasons for that conclusion was that the plaintiff's vendor was as Court auction purchaser. To such purchases the principle of caveat emptor applied, and, since the plaintiff's vendor had chosen to bid for and purchases specific properties, he was not entitled to claim their equivalent from other properties of the judgment-debtor. The learned Judges rested their decision on two considerations: (i) in a court sale there was no warranty of title; (ii) there is no privity of contract between an auction purchaser and a judgment-debtor. The question whether that decision is right or wrong does not arise for consideration. All that I am interested in pointing out is that that case was concerned with a suit by an alienee from a Court auction purchaser of a coparcener's property for recovery of specific times of property allotted at the partition between the coparceners themselves, in the place of the items purchased by him and the decision did not deal with a suit for a general partition instituted by an alienee from the alienee of a coparcener.
6. The next decision is Dhadha Sahib v. Mohammed Sultan Sahib, ILR 1921 Mad 167 = AIR 1921 Mad 384. In that case also the plaintiff bought certain specific lands from a vendee from a coparcener. At the time of the sale by the vendee of the coparcener to the plaintiff, a suit for partition as between the coparceners was pending. By the decree in the suit for partition, the property which was purchased by the plaintiff was not allotted to the alienating coparcener, but some other land was given to him instead. Thereafter the plaintiff instituted the suit for recovery of that property as substituted property. The learned Judges viz., Abdur Rahim and Oldfield, JJ., negatived that contention and pointed out:--
'The plaintiff has not bought the land from a Hindu coparcener who, according to the Hindu law, would have a right to demand partition of the family property and to get the share due to him. The plaintiff has bought certain specific land from the first defendant who is a Muhammadan and between them there can be no question of working out any such equity as is mentioned in Manjayya v. Shanmugha, ILR 38 Mad 684 = AIR 1914 Mad 440. When analysed the position is simply this. A sells a particular parcel of land to B. It is found that A has no title to the land. Can it be said that B is entitled to ask to convey to him some other land in place of what he bough? When stated in those 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. It is brought to our notice that in Sabapathi Pillai v. Thandavaraya Odayar, ILR 43 Mad 309 = AIR 1920 Mad 316 the plaintiff was a purchaser from a purchaser at a Court auction in execution of a money decree against a Hindu coparcener and it was apparently not argued before the learned Judges that a vendee of a purchaser from a Hindu coparcener could not claim against this vendor any such equity as was mentioned in ILR 38 Mad 684 = AIR 1914 Mad 440. The case was argued on the basis that in the case of a purchaser at Court auction there is no warranty of title. We do not see much significance in the fact that the question now raised before us was not raised before the learned Judges who decided ILR 43 Mad 309 = AIR 1920 Mad 316. 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 bar gained for.
7. Here again I do not propose to say anything about the correctness or otherwise of the judgment. All that I am interested in pointing out is that that case also did not deal with a suit for partition filed by an alienee of the alienee from a Hindu coparcener, but that case also was concerned with a suit filed by the alienee of an alienee for recovery of specific items of property allotted to the share of the alienating coparcener which were different from what he had sold. Therefore, these two decisions clearly are not authorities for the proposition that the right which is available to an alienee to file a suit for general partition is not available to the alienee's alienee. There are no observations in those two judgments from which such a conclusion can even be inferred.
8. The next decision is that of Horwill, J., in Petru Subbiah v. Palaparthi Venkateswarlu : AIR1948Mad464 . As recorded by the learned Judge himself, the finding were:--
'The father of a joint family consisting of himself and his minor sons sold the suit item of property to one Katta Subbayya, who subsequently become an insolvent. The rights of Katta Subbayya thereupon passed to the Official Receiver, who sold the land in auction to the present appellant. Later on a collusive partition suit was instituted; and, as on would expect, the suit item fell to the share of the minor in partition. He thereupon through his guardian alienated the property in favour of the first respondent in A. S. No. 1137 of 1946 (hereinafter termed the first respondent). The appellant filed O. S. of 1943 for an injunction restraining the first respondent from interfering with his possession in the alternative, he asked for a general partition. The first respondent and the minor filed O. S. 110 of 1944 for possession. The Courts below found that the appellant had been in possession of the suit lands. The Lower Appellant Court also found--it will perhaps be better to say that it assumed--that the transfer in favour of the appellant was a valid one............. The Subordinate Judge held that since the appellant was entitled to the father's half share and the first respondent was entitled to the minors half share, they were co-owners of the property and that therefore the appellant was not entitled to an injunction. He therefore dismissed his suit. In the suit of the first respondent the learned Subordinate Judge held that although he was not entitled to possession of the whole of the property, he had acquired the interests of the minor and was therefore entitled to a half share. He passed a preliminary decree as if the suit had been one for partition which it was not'.
9. It will be seen that the suit for injunction or, in the alternative, for partition was filed by a person who had purchased the property from the Official Receiver who had taken over the estate of the alienee from a coparcener on insolvency. The other coparcener's interest was sold to another person. It is in this context that the question arose whether the purchaser from the Official Receiver was entitled to an injunction or, in the alternative to partition. The learned Judge took the view that he was not entitled to either of the reliefs. He first came to the conclusion that the stand of the learned Subordinate Judge that they were co-owners of the property was not tenable, as they were really claimants to ownership. For dismissing the suit for injunction or, in the alternative, for partition, the learned Judge relied on the two decision of this Court already referred to. The learned Judge observed--
'It is argued that the particular kind of equity with which we are concerned now is not the equity to have another item of land out of the joint family property in the place of that conveyed, but the equitable right to have that particular item of property allotted to the alienor in partition. The two equities are not however separable. A vendee from a member of a family has a right in the first instance to ask that, if it be possible, the property purchased by him might be allotted to the share of his alienor in partition and failing that to have another item of family property allotted to him in its stead. The same line of reasoning would seem to apply to the cases immediately before me as in the cases under consideration in Dhadha Sahib v. Muhammad Sultan Sahib, ILR 44 Mad 167 = AIR 1921 Mad 384 and ILR 43 Mad 309 = AIR 1920 Mad 316. The decisions proceeded on the basis that the relationship between an alienee from a member of a joint family and his alienee was that of a vendor and purchaser under the Transfer of Property Act and that the only remedy of the alienee from the alienee arises out of their contract, i.e., a right to damages for breach of covenant of title'.
10. I have already referred to the fact that the decision of this Court in ILR 44 Mad 167 = AIR 1921 Mad 384 and ILR 43 Mad 309 = AIR 1920 Mad 316 did not deal with the case of a suit for general partition filed by an alienee from an alienee, and that they were dealing with a situation in which the alienee from an alienee filed a suit against the alienating coparcener for recovery of the property allotted to his share in the partition among the coparceners in the place of the property alienated by him and it was that right which was negatived in those decisions. There is absolutely nothing in those decision from which an inference could be drawn that there is any general principle by which the right of an alienee from an alienee to file a suit for general partition can be negatived. Horwill J. further assumed that those two decisions proceeded on the basis that the relationship between an alienee and his alienee was that of a vendor and purchaser under the Transfer of Property Act and that the equitable right to demand partition recognised in an alienee would be available to his alienee. The learned Judge has not given any reason whatever for coming to this conclusion.
11. Now, I shall take up the Full Bench decision of the Andhra Pradesh High Court referred to already. In that case, as in the present case, the original alienee as well as his alienee jointed in filing a suit for partition. It is in that context that the following two questions were referred for the opinion of the Full Bench:
1. Whether an alienee of an alienee of a specific item of property from a Hindu coparcener can maintain a suit for general partition can claim the allotment to him of that specific item?
2. Whether the first alienee who has divested himself of all interest in the property can claim the equity?
The learned Judges, relying upon the decision of this court referred to already, came to the conclusion that the suit was not maintainable, even when the original alienee had figured as a plaintiff along with his alienee. The learned Judges posed the following question for their consideration--
'The only point is whether this equity could be extended to an alienee of an alienee from a Hindu coparcener?'
Then they referred to the three decisions already dealt with by me.
Then they proceed to observe:--
It is in controvertible that the property purchased in transferable and capable of being inherited, but that is not the same thing as saying that the equity which fixed itself to an alienee from a coparcener is transferable. Such an equity cannot be regarded as a right. It should be emphasised that this is only an equity and not a right as is apparent from Chinnu Pillai v. Kalimuthu Chetty, (1912) ILR 35 Mad 47. See also Peramanayakam v. Sivaraman : AIR1952Mad419 . We think that this equity is peculiar to the first vendee from a coparcener and is not transferable. Consequently, the position of the second alienee cannot be equated to that of the first alienee in that regard. We do not see any reason why the subsequent vendee should be treated differently from ordinary purchasers'.
12. Having made these observation, The learned Judges proceeded to make the same statement as Horwill, J., did, namely, that the rights to the alienee and his alienee would be governed by the provisions of the Transfer of Property Act. With regard to the first alienee himself, joining as a plaintiff in the suit for partition, the learned Judges pointed out:
'When the first alienee has parted with his interest in the property, he could not raise action claiming the equity. The very foundation of a suit is the existence of some interest in the property. When he is not possessed of it, we think he cannot bring a suit to work out equities'.
In this view the learned Judges answered both the questions against the claim of the plaintiffs to file a suit for partition.
13. As I have indicated already, the learned Judges largely relied on the decision of this Court in the three cases referred to, and except the decision of Horwill, J., the other two decisions, as I pointed out already, did not lay down any such proposition that an alienee from an alienee could not file a general suit for partition.
14. Now let me consider the question from the point of view of general principle. Can there be any difference in the statues, position and rights between an alienee from a coparcener and his alienee? Take for instance a case where an alienee from a coparcener has file a suit for general partition and during the pendency of the suit he dies. Can it be said that his legal representatives cannot continue the suit, because the equity was fixed only to the alienee and, therefore, his legal representatives cannot continue the suit and claim partition Take another case, where an alienee has instituted a suit for partition and during the pendency of the suit he transfers his interest to another person. The question is, can the subsequent alienee come on record under Order XXII, Rule 10, Civil Procedure Code and continue the suit? As a matter of facts, the Full Bench of the Andhra Pradesh High Court did contemplate such a situation and expressed their view that under Order XXII, Rule 10, Civil Procedure Code an alienee could come on record and continue the suit, though they guarded themselves against committing to such a conclusion. This is what the learned Judges stated:
Different considerations might, however, arise in a case where the first vendee after invoking the equity be filing a suit for partition and for allotment to the coparcener of the share allotment to him assigns his interest to another person. In such a situation the provisions of Order 22, Rule 10, Civil Procedure Code could come into play and the second alienee any request that a decree might be passed in his favour instead of his assignor. However, we are not required to deal with such a situation here and it is not necessary to express a final opinion on that.'
15. I am of the view that there can be no objection, on principle, either to the alienee coming on records and continuing the suit or the alienee in whose favour the interest was alienated prior to the institution of any suit, himself instituting the suit and seeking to have the property purchased by him allotted to the share of the alienating coparcener. As I pointed out already, the decision of the Andhra Pradesh High Court seems to proceed in the basis that what the alienee has got is only an equity and not a right, that, that equity is something personal to that alienee and that that equity will not be available to his alienee. I am of the opinion that his reasoning of the Andhar Pradesh High Court is not supported by any authority. I have already indicated that the right to demand a partition, though originating from considerations of equity, cannot be any the less efficacious and effective than the right which in its origin was available under common law or textual law.
16. In the Full Bench decision of this Court in : AIR1952Mad419 , already referred to, each one of the learned Judges who constituted the Full Bench had occasion to deal with the nature of the interest which an alienee from a coparcener acquires I have already stated that he does not acquire any right in any specific item of property, because even his alienor does not have that right. In this content, Satyanarayana Rao J. after referring to the judgment of Bashyam Aiyangar J. in Ayyagiri Venkataramayya v. Ayyagari Ramayya, I.L.R. (1902) Mad 690, observed:--
'The vendee's right is a transferable right and a vested present interest'.
Viswanatha Sastri J. observed--
'In I.L.R. (1902) Mad 690 and Ranganathan Chetti v. Ramaswami Chetti, ILR (1904) Mad 162, Bashyam Aiyangar J. held that coparcener had a present vested interest in joint family property transferable in whole or in part for value and that the transferee also took a present vested interest in the property....... He has an interest in property which though it may fluctuate in extent from time to time, is yet definite and ascertained at any given moment, as for instance by a demand for partition or by an alienation, with this different that an alienation per se does not affect a severance of the alienor from the joint family.... The legal theory is that alienee steps into the shoes of the alienating coparceners; that he can have no higher rights than the alienor, that he must take the interest conveyed subject to the same limitations and conditions as the alienor and that except through and in the right of the alienor, he cannot have any claim against the joint family.... When a coparcener alienated an item of family property, the bargain between the parties determines the interest intended to be conveyed to the vendee. In the case of a court sale of the interest of a coparcener, the purchaser obtains what was intended to be sold. What the alienee gets is the a totality of what he bargained for and not a mere fractional share. The alienee, however, cannot trench upon the rights of the non-alienating coparcener. In accordance with the maxim sic utene fuo ut alienum non leads his rights must be enjoyed in such a way as not to interfere with the rights of others. The right of the alienee though fixed as between himself and the alienor and in that sense unchanging, has to be enclosed wholly or partially within the circumstances of the alienor's right, that is to say, within the share which on a general partition would have been allotted to him...... It is argued that all that an alienee gets in a right to sue for partition standing in the shoes of the alienor and no other rights, legal or equitable, as against family properties or the non-alienating coparceners. It is not correct to regard an alienee as a transferee of a mere right to sue. Such a transfer would indeed be opposed to law. There is a transfer of property to the alienee with an incidental right of suit, if necessary, for perfecting his title. It may be granted that an alienation per se does not convey an unimpeachable or indefeasible title to the alienee. He gets a right or an equity if you like, to stand in the vendor's shoes and work out his rights at a partition of the family estate.
At such a partition, an alienee has the right to ask that 'ceteris paribus' the share of the alienor should be made up as to embrace wholly or so far as is possible the property purchased by him. The Court is bound to grant such a relief to the alienee and if it can, be done without injustice to the other coparceners, it will so marshall the properties as to allot the property alienated or as much thereof as possible to the share of the alienor. This right of the alienee can be worked out in any suit to which he is a party and which is of sufficient amplitude to allow a general stock taking of the family assets as a whole and an adjustment of the rights of the coparceners'.
17. In the same judgment, Raghava Rao, J., observed--
'When such an alienee is described as a person who has acquired only an equity, what is meant, however, is, not that he has no legal interest whatsoever in the property alienated such as entitles him to equities on the setting aside of the alienation with reference to the binding part of consideration, but that for materialisation of such interest in the property which he can properly call exclusively his own, he is bound still to take steps whether in a suit of his own or in a suit for general partition instituted by the non-alienating coparcener or coparceners......... The title may be inchoate in the sense that in the allotment at a general partition he cannot claim the item as his own or mesne profits thereon as from the date of the alienation. The title may be defensible or even turn out illusory in the sense that on allotment at the general partition he may get other item or items or nothing he at all in substitution. But subject to such infirmities he does certainly derive from the alienation a legal right not a bare right in personam to use the language of Bakewell, J., in ILR 38 Mad 684 = AIR 1914 Mad 440), but a right to something much nearer to real property than a mere claim to partition, to use the language of Wallace, J., in Narayana Sah v. Shankar Sah, 53 Mad 1, something 'specific, existing and definite' in the language of Lord Justice James in the Privy Council in Tuffuzool Hossain Khan v. Raghoonath Pershad, (1872) 14 Moo Ind App 40.' Panchapakesa Ayyar, J., observed:-- 'There is no doubt whatever in my mind that a private purchaser from an undivided Hindu coparcener in Madras, Bombay and Madhya Pradesh (Old Central Provinces and Berar) gets not merely a right in personam or a right to sue, as urged by Mr. Venkatasubramania Iyer, but a tangible property rights, which whether in law or equity, it does not very much matter, aright which according to settled decisions which it is too late to question or disturb, does not disappear at the death of the alienating coparcener, and which gets fixed at the alienating coparcener's estimated fractional share in the joint family properties at the time of the alienation as it were crystallising it as on that date'.
These observations of four out of the learned Judges of this Court, who constituted the Full Bench, clearly show that the right which an alienee acquires from Hindu coparcener is a tangible vested right in property and it is also a transferable right. If that right is transferable, I am unable to find anything in law or logic to hold that the transferee will not be able to exercise the right which he transferor could have exercised. To say that a particular right is transferable and at the same time to deny the transferee the remedy available to the transferor is merely to negatived the transferable character of the right itself, as a matter of fact, such a position will be ever self-contradictory. I am of the opinion that that is no the position in law and this is the view that has been taken by Veeraswami, J., (as he then was) in S. A. No. 272 of 1959 (Mad), on which reliance was placed by the learned Subordinate Judge in the present case.
In that case an alienee from an alienee of a coparcener was impleaded as a party in a suit for partition as between the corparceners. In that suit the second alienee prayed that the particular property sold by the alienating coparcener might be allotted to the share of that coparcener in that partition. Though the trial Court directed such an allotment, the lower appellant court reversed the conclusion holding that the second alienee could not invoke the equity in his favour. The learned Judge, after referring to the decisions in ILR 44 Mad 167 = AIR 1921 Mad 384 and : AIR1948Mad464 pointed out--
'The present suit was one for general partition in which the second alienee, the appellant, was impleaded as a party defendant. He was not seeking to recover any specific property in the present suit. All that he wanted was that, while allotting properties to the sharers, item 15 might, if possible, without prejudice to respondent 1 and 2, be allotted to the third respondent. The equity so invoked is really as between the shares, viz., respondents 1 and 3. If in the final decree proceedings the Court finds that it is just and equitable to allot Item 15 to the share of the third respondent, I can not se how respondents 1 and 2 can have any legitimate grievance. I consider, therefore, that the said direction given by the trial Court in regard to the allotment of Item 15 is reasonable and proper and that the view of the lower appellate court to the contrary cannot be maintained'.
18. In my opinion, if I may say so with respect, this decision bring out the distinction between the two types of cases to which I have already referred. The real distinction lies in the fact that in one case the alienee from an alienee standing in the shoes of his alienor, files a suit for general partition and in such a suit prays for the allotment of the specific item of the property to the share of the alienating coparcener, if that were possible, taking into consideration the interests of the other coparceners, and in the other case, dealt with by ILR 43 Mad 309 = AIR 1920 Mad 316 and ILR 44 Mad 167 = AIR 1921 Mad 384 the suit is instituted by the second alienee against the alienating coparcener for recovery of a specific item of property which he did not bargain for, but which was allotted to the share of the alienating coparcener, in the place of the particular item of property which the second alienee had purchased. There is a vital difference not only in the procedure, but also, in substance between these two types of cases. The ratio behind the decision in ILR 43 Mad 309 = AIR 1921 Mad 384, will apply only to the latter category of cases and will have no application what ever to the former category of cases. Therefore, both on authority and on principle, I an unable to agree with the conclusion arrived at by the learned Judges of the Andhra Pradesh High Court in the Full Bench decision referred to above, and I hold that an alienee from the aliened of a Hindu coparcener standing in the shoes of his alienor is entitled to file a suit for general partition impleading all the coparceners in the partition suit and praying for the allotment of the specific item of the property purchased by him to the share of the alienating coparcener, if that were possible, taking into consideration the interest of other coparceners.
19. Even assuming that I am not right in this conclusion, in this particular case the first alienee also figures as a party (as first plaintiff) in the suit. The question is whether it will make any difference. The argument that was advanced, and which found favour with the learned Judges of the Andhra Pradesh High Court, was that the first alienee having parted with his interest in the property cannot any longer institute the suit. In my opinion, the very basis of this reasoning is fallacious. Even the alienee does not acquire any 'interest in the property' and' therefore' the question of his parting with that interest in favour of his alienee does not arise. In any event, the learned Judges themselves concede that the right of the second alienee would be to file a suit for damages against his alienee is not absolutely disinterested in the sense that he has noting whatever to do in the matter. At least for the sake of safeguarding himself against the possibility of his being made liable to pay damages to the second alienee, he has got sufficient interest to institute the suit for partition, so that the property purchased buy him for the coparcener and subsequently sold by him to his alienee, might be allotted to the share of the alienating coparcener and made available to his own alienee with the result that he would have discharged his obligation under the sale by which the sold the property to his alienee and he will not be held liable in damages. The only reason given by the learned Judges of the Andhra Pradesh High Court in this behalf is that once the first alienee has parted with his interest in the property he could not raise any claim in equity and that the very foundation of a suit is the existence of some interest in the property he could not raise any claim inequity and that the very foundation of a suit is the existence of some interest in the property. Here again the learned Judges were proceeding only on the basis that the first alienee has only an equity, that it was something far inferior to a right, to file a suit for partition to recover the property, and that that equity was more or less personal to the alienee, since the ;learned Judges say 'The equity fixed itself to the alienee'.
20. For the reasons I have already indicated, with great respect to the learned Judges, I am of the opinion, that this reasoning is not sound. In view of this I hold that the conclusion of the learned Subordinate Judge in hid behalf, that the suit for general partition instituted by respondents 1 and 2 herein is maintainable, is correct. Hence, the second appeal fails and is dismissed. There will be no order as to costs. No leave.
21. Appeal dismissed.