1. The fifth defendant in O. S. No. 299 of 1967 on the file of the Subordinate Judge of Coimbatore is the appellant. One Thangamuthu Gounder died possessed of the suit properties, he having secured the same under a partition in his family in or about July 1932 as seen from Ex. A-3 dated 22-7-1932. He left behind, him his mother (the first plaintiff), his eldest daughter (the second plaintiff) his widow (the first defendant) and his minor daughter (the second defendant) as his surviving heirs. He died in 1966 and, therefore, succession to his estate has to be determined with reference to the provisions of Hindu Succession Act. It is not in dispute, therefore, that the two plaintiffs on the one hand and defendants 1 and 2 on the other would each be entitled to a moiety in the properties of Thangamuthu Gounder. In those circumstances the plaintiffs instituted the present action for partition of the suit properties which admittedly belonged to Thangamuthu Gounder, into two equal shares and for allotment of one such share to them and for the usual rendition of accounts by the first defendant after the death of Thangamuthu Gounder and for costs.
2. While Thangamuthu Gounder was alive, he borrowed monies under a deed of mortgage Ex. B-5 dated 7-8-1952 executed in favour of the third defendant. Again, he borrowed monies on a promissory note from the fourth defendant, which ended in a decree as against him, when he was alive in O. S. No. 38 of 1963 on the file of the District Munsif's Court, Udumalpet. The widow of Thangamuthu Gounder viz., the first defendant after having been apprised of an attachment of the properties in execution of the money decree as above obtained by the fourth defendant and in order to discharge the said decree debt as also the mortgage debt which was subsisting on the date of her husband's death, she sold 4 acres of the suit properties for a sum of Rs. 8,000/-. This sale was under Ex. B-4 dated 26-5-1967. This consideration of this sale deed as per the recitals therein consists of the following: A sum of about Rs. 3270/- paid by the fifth defendant, who purchased the properties under Ex. B-4 to the third defendant, who was the mortgagee as per Ex. B-5, as also a sum of about Rs. 1312-21 which was paid in discharge of the decree debt obtained by the fourth defendant against Thangamuthu Gounder and further sums of Rs. 2,120/- and Rs. 1,100/- to discharge debts contracted by the first defendant herself after her husband's death under promissory notes Exs. B-1 and B-2 respectively dated 15-5-1966 and 20-6-1966 in all, and after discharging the aforesaid debts as recited in the instrument of sale Ex. B-4, the first defendant received a sum of Rs. 187/- as cash consideration for the sale of 4 acres of the family properties under Ex. B-4. When the plaintiffs came to Court the above alienation was already effected. They questioned the above alienation as not binding on them. Their case is that the sale itself was a fraudulent one and that they were prepared to pay the admitted debts left by Thangamuthu Gounder and could not be made responsible for any other borrowings made by the first defendant.
3. In the written statement filed by defendants 1 and 2 their case is that the first defendant sold 4 acres of the family properties not only to discharge her husband's debt, but also to incur the necessary expenses in connection with the marriage of the second plaintiff and, therefore, the debts contracted by her in such a situation is binding on the other family members of the family. She would also urge that she had taken the precaution of selling only such portion of the family properties so as to discharge the antecedent debts and to borrow monies for necessity and, therefore, the plaintiffs are bound by the said alienation and that the remaining land only could be susceptible to partition.
4. The fifth defendant supports the first defendant's case and says that as the wife of Thangamuthu Gounder and as the manager of the family, she was in possession of the family properties and the sale effected by her so as to pay off earlier debts and to borrow for necessity is binding on the other members as well. He would claim to be a bona fide purchaser for value and requested the Court to sustain the sale in his favour. We may at once state that it is not in dispute that the fifth defendant as alienee has paid off the mortgage debt under Ex. B-5 and also the decree debt in O. S. No. 38 of 1963 on the file of the District Munsif's Court, Udumalpet which, as already stated, were debts contracted by Thangamuthu Gounder when he was alive. On the above pleadings the following issues were framed:
1. Whether the sale deed and lease deed dated 26-5-1967 are true and binding on the plaintiffs?
2. Whether the 5th defendant is bona fide purchaser for value?
3. Whether the 5th defendant has acquired any right or equity in respect of the suit properties?
4. Whether the 5th defendant is entitled to a charge for the sums paid by him on account of the earlier mortgages?
5. Whether item No. 3 house is the property of the late Thangamuthu and is available for partition?
6. Whether item No. 2 house cannot be partitioned?
5. The learned Judge found that the first defendant had not the requisite authority under the provisions of the Hindu Succession Act of 1956 to effect a sale of a portion of the family properties and that that could not be done under the guise of necessity as well, since she could not claim the status of a Manager of a Hindu undivided family, who could only effect such alienation in case of necessity in case of necessity and for the benefit of the family. In those circumstances, the learned Judge would not agree with defendants 1, 2 and 5 that the alienation under Ex. B-4 was a binding one. He gave a preliminary decree for partition of the suit properties excepting item No. 3 in the plaint schedule and directed the first defendant to render an account of the income from the family properties in her possession after the death of Thangamuthu Gounden. The fifth defendant, who is mainly affected, has filed this appeal as against the judgment and decree of the Court below.
6. There is no dispute before us about the disallowance of item No. 3 of the scheduled properties. Mr. T.R. Ramachandran, the learned counsel for the appellant lays great stress on the fact that the lower Court did not bear in mind the fact that a major portion of the consideration in the sale effected by the first defendant under Ex. B-4 went for the discharge of debts contracted by Thangamuthu Gounder himself and did not even make a provision for the payment of such debts from the estate. As we said already, the discharge of such debts from and out of such consideration which flows from Ex. B-4 is not disputed before us.
7. The second contention of Mr. T. R. Ramachandran is based on a well-known rule of adjustment of equities as between the members of a joint family in case where the alienee comes into the picture by purchase of an undivided share of the properties belonging to the family from one or the other members of such a family. He would, therefore, contend that as the lower Court did not find that the alienation was fraudulent as contended by the plaintiffs, he ought to have suggested or made certain observations regarding the adjustment of equities as between the alienee of the family properties and the rest of the members of the family and also seeks for a binding finding about the major portion of the consideration that passed under Ex. B-4 that being for discharge of the debts contracted by the ancestor of the family himself. The learned counsel for the respondents is not in a position to contend to the contrary for the simple reason that the propositions for which Mr. T. R. Ramachandran was arguing are so very laid and well founded. But the respondents' counsel contends that at this stage this Court need not make any observation regarding the adjustment of equities and that can be left over for the lower Court to equalise or equitably adjust the shares at or about the time when the final decree is passed.
All the four members, who could succeed to the properties of Thangamuthu Gounder, are female members. In such a situation the position is clear that such female members, who succeed to the ancestor, take, no doubt, definite shares in the estate under the Hindu Succession Act; but the interest of each in it is as a tenant in common. This concept of tenancy in common has a peculiar significance. Though it entitles a sharer to claim an independent share in the joint family properties, yet she cannot act for other members of the family and assume that garb of joint family manager or an eldest member of the family so as to alienate or part with such properties for the benefit of one or such other members. The principle is that a male member, in such circumstances even though a younger member, can act for others in times of emergency, necessity and benefit, and alienate a portion of the property and plead, when it is contested, that such an alienation was for the benefit of the family or for necessity, this defence is available to such a male member. But, in a case where the ancestor leaves only female members and such female members share the properties only as tenants in common, each cannot project a right in herself and deal with the other's share, even on the foot of necessity. This was the well accepted canon even before the passing of the Hindu Succession Act. This principle was so recognised in C.M.N. Radha Ammal Kancheepuram v. The Commissioner of Income-tax, Madras . This decision has been approved by the Supreme Court in Commissioner of Income-tax, Madhya Pradesh, Nagpur and Bhandara, Nagpur v. Seth Govindram Sugar Mills . The Supreme
Court has held that under Hindu Law coparcenership is a necessary qualification for the managership of a joint Hindu family, that a widow is not a coparcener, she has no legal qualifications to become the manager of a joint Hindu family and that a widow of a coparcener cannot, therefore, be a karta of the joint Hindu family consisting of three widows and two minors. After the passing of the Hindu Succession Act, the position has become more clear, since the family members, who are the sole surviving members of the joint family, take their respective interests in the joint family properties as tenants in common. Section 19(b) of the Hindu Succession Act, 1956, says that if two or more heirs succeed together to the property of an intestate, they shall take the property as tenants in common and not as joint tenants. Section 19(a) of the Act is not necessary for the purpose of our discussion. Therefore, the first defendant in the instant case did not acquire the status of a manager, which status alone would entitle her to deal with joint family properties and in particular deal with not only her share in it, but also the shares of her daughters. Prima facie, therefore, the first defendant did not have the requisite authority to sell the 4 acres of joint family properties under Ex.B-4 to the fifth defendant.
8. But the additional circumstances in this case outweighs the general principles referred to above and compels us to adopt the equitable rule that the interest of an alienee in joint family properties should, as far as possible, be safeguarded and the equities inter se as between him and the members of the family adjusted when a partition takes place in such a family. Bearing this essential principle which also concurrently applies and which in the instant case is necessarily invocable, the equities of the parties have to be adjusted.
9. We have already referred to the undisputed fact that out of the consideration of Rs. 8,000/- paid under Ex. B-4 by the appellant, a sum of about Rs. 4582.21 went to the discharge of the debts contracted by Thangamuthu Gounder himself when he was alive. The other portion of the consideration viz., a sum of Rs. 2,120/- paid to discharge of the promissory note debt under Ex. B-1 and a sum of Rs. 1,100/- paid to discharge the debt under Ex. B-2 dated 20-6-1966 cannot bind the plaintiffs. It is in this difficult situation the equities have to be adjusted. According to the fifth defendant the entirely of 4 acres of lands purchased by him are not fertile lands. The plaintiffs, on the other hand, would say that a small portion of the family properties is rocky land. There has not been a sufficient investigation presumably because it was not quite necessary at that stage as to the nature of the property and the quality of the property purchased by the fifth defendant. But as the plaintiffs and the second defendant are together responsible for discharging three fourths of the admitted debts contracted by Thangamuthu Gounder when he was alive, it follows that such debts are binding on the plaintiffs and the second defendant, and this has to be borne in mind at the time when a final division is effected of the family properties as between the shares thereto. We, therefore, find that the debts are binding, as found by the Court below, on the plaintiffs and the second defendant. But we add that this circumstances shall be taken into consideration by the Court below when a final decree is passed pursuant to the preliminary decree already passed. Mr. T. R. Ramachandran would say that even assuming as suggested by the other side that 10 acres out of 18 acres of the family lands are fertile lands, he would in equity be entitled to 2 1/2 acres of such fertile lands and for this purpose this Court may make a binding recommendation to the court below to the effect that at the time of the passing of the final decree, at least 2 1/2 acres of fertile lands of the family properties, if not more, be allotted to the share of the first defendant, so that her alienee viz., the appellant may get the benefit out of it. This appears to be a reasonable request. As we said already, there are no enough materials on record to find positively as to how many acres of lands belonging to the joint family are fertile lands. Both the parties referred to some rocky lands as family lands. No one has spoken to the existent of such rocky lands. In those circumstances, we feel that in the interests of justice and having regard to the well-known principle of adjustment of equities as between the members of a joint family and an alienee, we make it clear that at the time of the final decree the first defendant will be allotted the lands already alienated by her as and towards her share and on doing so the lower Court will remember that at least 2 1/2 acres of fertile lands will be allotted to the share of the first defendant, which advantage will necessarily flow to the appellant, as well. In so far as the rest of the lands alienated by the first defendant in favour of the appellant is concerned, the Court below shall after further investigation and as far possible see that the equities between the parties are so amicably adjusted, so that greater prejudice than necessary is not caused to the appellant.
10. With the above observations, the appeal is partly allowed. But there will be no order as to costs.
11. Order accordingly.