Alfred Henry Lionel Leach, C.J.
1. This appeal raises the question whether a Hindu mother has the right to remain in the family house after it has been sold at an auction held in pursuance of an order passed in a partition suit and has been purchased by another branch of the family. One Thavasamuthu Nadar had three sons, Rathnaswami, Vallathambi and Guruswami. Rathnaswami married Amanthammal, the sixth defendant in the suit out of which this appeal arises, and by her had two sons and one daughter (the first and second plaintiffs and the ninth defendant). Vallathambi married Janaki Animal, the appellant, who was the eighth defendant and by her had five sons and one daughter (the first, second, third, fourth, fifth and eleventh defendants). Guruswami married Raja Rajeswari Ammal, the seventh defendant, who bore him three sons and a daughter (the third, fourth and fifth plaintiffs and the tenth defendant). Thavasamuthu lived with his three sons and their families in the family house at Porayar, Tanjore District. He was a man of considerable wealth and died leaving a large number of immovable properties. According to the plaint, Thavasamuthu died in or about the year 1885. Guruswami, the youngest son, died in 1920. Rathnaswami and Vallathambi survived their father, but predeceased Guruswami. In the year 1921, a partition suit (C.S. No. 655 of 1921) was filed by the sons of Rathnaswami and Guruswami. On the 18th January, 1924, a preliminary decree for partition was passed by Devadoss, J., who directed that the questions relating to the maintenance of the widows of Rathnaswami, Vallathambi and Guruswami and their rights to reside in family ' properties ' should be decided after the receipt of the report from the Official Referee.
2. On the 10th November, 1936, the case came before Wadsworth, J., who passed what has been described as an interim final decree. Wadsworth, J., directed that the suit should be remanded to the Official Referee for the preparation of a final account on the basis of his order and for the framing of a scheme of partition. On the 30th July, 1937, the Court directed that the immovable properties comprising the estate should be sold at an auction at which the members of the three branches of Thavasamuthu's family alone should have the right to bid. In other words there should be a private, not a public auction. This private auction took place in September, 1937. The family house was bought by the third, fourth and fifth plaintiffs. Their branch altogether bought nine properties, of a total value of Rs. 53,000. The appellant's sons bought 23 houses with land attached for which they paid about Rs. 2,00,000. Lakshmana Rao, J., dealt with the question of the confirmation of these sales. The appellant objected to the sale of the family house being confirmed and asked the learned Judge to cancel it or to declare that the sale was subject to her right to reside therein. The learned Judge rejected her contentions and confirmed the sale without any restriction. The appellant, however, refused to vacate when called upon to do so by the receivers and they had to apply to the Court for an order directing her to vacate. This application was heard by Gentle, J. The third, fourth and fifth plaintiffs offered to allow the appellant, although she was not their mother, but the mother of the first, second, third, fourth, fifth and eleventh defendants, to reside in another house which they had purchased, until the partition had been completed. The learned Judge considered that this was a very reasonable suggestion and passed an order directing the appellant to vacate the family house on this condition. The present appeal lies from this order. It has not been suggested that the respondents are unwilling to comply with the condition, but it is said that the learned Judge was wrong in directing the appellant to vacate at all. It is said that under Hindu Law she has an absolute right to remain in the house until her death. While recognising that as a general rule a Hindu mother has a right to reside in the family house the respondents contend that in the special circumstances of this case the appellant is bound to vacate. They also contend that partition of the family properties puts an end to the right of a mother to remain in the family house,, and in such circumstances she must accept a suitable residence elsewhere.
3. Mr. Rajah Aiyar, on behalf of the appellant, relies on the Full Bench decision of this Court in Ramanadhan v. Rangammah and particularly on the following passage which appears at page 270 of the report:
The right of residence of Hindu females is ordinarily referable to the mily house and a purchaser may be presumed to have notice of that fact. It is reasonable to hold that he is not a bona fide purchaser entitled to eject her, unless it is proved that the sale is valid as against her, either because, as in this case, it is made in liquidation of a debt binding on her or an ancestral debt, or with her consent or in circumstances which would sustain a plea of equitable estoppel against her.
4. Mr. Doraiswamy Aiyar on behalf of the respondents does not challenge the correctness of this statement of the law, but he says that the appellant is bound to vacate in the circumstances of this case.
5. In her written statement the appellant laid no claim to a right to reside in this particular house, but set up the plea that a house for her residence had to be set apart. The judgment of Devadoss, J., in postponing the consideration of the question as to the houses in which the widows were to live made no special reference to the family house. No issue was raised as to the right of the appellant to remain in the family house and the present plea was not advanced until the sale had taken place. The suit proceeded on the basis that the appellant had the right to live in one of the family properties, not in a particular house, and the contention which she raised when the matter came before Lakshmana Rao, J., was clearly an afterthought. Moreover the auction of the estate properties took place on this basis. Therefore, it seems to me that the appellant should not be allowed to say that the sale is not binding on her.
6. This is sufficient to dispose of the appeal, but I will deal with Mr. Doraiswami Aiyar's second point which is based on the judgments of this Court in the Official Assignee of Madras v. Rajabadhar Pillai (1923) 46 M.L.J. 145 and Surydnarayana Rao Naidu v. Balasubramania Mudali : (1920)38MLJ433 . In the former case Schwabe, C. J., expressed that it was quite wrpng today that the members of a joint Hindu family have rights in rem to residence in a particular house. He thought that it was true that while it was being used as a family house the family members had a right to reside there, but he expressed serious doubts as to whether they had a right to any particular room, and went on to say that on partition it was clearly a matter for the tribunal arranging the partition to say whether it was in the general interest of the coparceners that residence should be given in a particular house or not. In Surydnarayana Rao Naidu v. Balasubramania Mudali : (1920)38MLJ433 , Sadasiva Aiyar, J., quoted with approval the dictum of Peacock, C.J., in Mangala Debi v. Dinanath Bose (1869) 12 W.R. (O.J.) 35 : 4 Beng. L.R. 72 (O.J.) where he said that the father's widow and the other females of the family could not be turned out of the dwelling selected by the father for his residence and in which he left the females of his family at his death until some other place had been provided for them. In this judgment of Sadasiva Aiyar, J., Wallis, C. J., concurred. It seems to me that there is considerable force in the contention that oh a partition, the Court can direct a mother to vacate the family house if the circumstances demand it. She has a right to a suitable residence and if one can be found among the family properties it is going very far to say that the Court cannot compel her to accept it when a fair partition demands it. The coparceners have a right to separate and a right to have the estate partitioned and the Court must do justice to all parties.
7. In the circumstances of this case we have no hesitation in holding that the drder of Gentle, J., is correct. Consequently the appeal will be dismissed With costs in favour of the 3rd, 4th and 5th plaintiffs.