1. The appellant unsuccessfully sued for partition and separate possession of a fourth share of the properties described in schedule A to the plaint and a half share in the properties described in schedules B and C together with past and future profits and certain minor reliefs to which no specific reference is necessary. The relevant relationships are admitted and may be shortly stated as follows. There were two brothers Venkatarama Aiyar and Dharma Ayyar. Venkatarama Ayyar left two sons, Ramaswami Ayyar and Lakshmana Ayyar. Ramaswami Ayyar died on the 17th July, 1931, leaving two sons, the first defendant Nataraja Ayyar and the plaintiff Krishnamurthy Ayyar. Lakshmana Ayyar was the 109th defendant. Dharma Ayyar had a son Subramania Ayyar whose son is Thiagaraja Ayyar, the 4th defendant. The family originally belonged to a village called Thozhudur in Tanjore district. On the 24th August, 1927, Ramaswami Ayyar and Lakshmana Ayyar divided their properties where by the former got for his share lands in the villages of Kolappad, Thethakudi and Mutharasapuram and a house in Kolappad. On the 10th of July, 1929, Ramaswami Ayyar sold the Kolappad lands and the house for Rs. 99,000 to one Ramachandra Naidu. It is common ground that about Rs. 30,000 out of it was utilised for the discharge of debts. Nataraja Ayyar who joined in the sale deed as an adult was then aged about 19 or 20. The plaintiff however on whose behalf the sale deed was executed was a minor, and it was therefore stipulated that the vendee should execute a promissory note in favour of the plaintiff for Rs. 33,000 with interest at six per cent per annum, that the amount should be payable to the plaintiff on his attaining majority and on his executing a deed ratifying the sale or earlier if properties of the value of Rs. 33,000 should be purchased for the benefit of the plaintiff and the vendee is given adequate security against the possible claim of the plaintiff after he attained majority. It is not quite clear as to how the balance of about Rs. 36, 000 was collected by Ramaswami Ayyar and in fact this is one of the several dark patches in the case. It is however common ground that that amount was collected somehow and was utilised mostly for the expenses of the marriage of a daughter and for other purposes binding on the family leaving even according to the plaintiff's first witness only Rs. 6,000 or Rs. 7,000 by the time of Ramaswami Ayyar's death. P.W. 1 deposes that the wedding of Ramaswami Ayyar's daughter cost as much as Rs. 15, 000 or Rs. 16,000 while the fourth defendant who was examined as D.W. 5, states that a sum between Rs. 8,000 and Rs. 1 0,000 was spent and not Rs. 15,000. This however is immaterial.
2. With this short family history as the background it will now be convenient to deal separately with the claim in respect of each of the plaint schedules. First as to A schedule properties which are all in Thethakudi village
3. On 30th November, 1931, two agreements (Exs. D-1 (a) and D-2 (a) were executed between the first defendant for himself and as guardian of his undivided younger brother, the plaintiff on the one hand and the second defendant on the other. By Ex. D-1 (a) the first defendant agreed for himself and his younger brother to sell to the second defendant their half share out of 211 acres 15 cents of land in Thethakudi village including wet and dry lands for Rs. 13,000. Under Ex. D-2 (a) the second defendant undertook to sell to the first defendant and the plaintiff lands of the total extent of 140 acres 71 cents including wet and dry lands in the village of Thozhudur for Rs. 55,350. On 4th January, 1932, the sale deeds Exs. D-1, and D-2 were executed in pursuance of Exs. D-1 (a) and D-2 (a). Notwithstanding that the documents were drafted as sale deeds there is no doubt that the transaction was in substance a combination of an exchange and a credit purchase whereby while the properties in Thethakudi and Thozhudur changed hands a heavy payment had to be made by the first defendant and the plaintiff to the second defendant or for his benefit in the manner set out in Ex D-2. Apart from the Rs. 13,000 which was the consideration for Ex. D-1 and which was to be adjusted against the price of the Thozudhur lands sold under Ex. D-2, Rs. 1,000 was paid in cash by Nataraja Ayyar, Rs. 3,064-4-0 was adjusted towards a promissory note executed by the second defendant in favour of the first defendant and the plaintiff. The first defendant executed a promissory note in favour of the second defendant for Rs. 1,935-12-0 and the balance of Rs. 36,350 was directed to be paid by the first defendant in discharge of the debts of the second defendant set out in a schedule attached to the sale deed. These debts included an amount of Rs. 12,000 due by way of principal and interest on a mortgage executed in favour of the Tanjore Permanent Fund by the second defendant on the 19th March, 1931, over the properties covered by the sale deed Ex. D-2. There is no doubt that the parties went into possession of the properties which they respectively got under Exs. D-1 and D-2. Nataraja Ayyar was unable to pay the debts which he had undertaken to discharge except to an inconsiderable extent with the result that there were a number of suits by the second defendant's creditors against the first defendant and the plaintiff most of which were decreed against the first defendant alone and the rest both against the first defendant and the plaintiff. The Tanjore Permanent Fund obtained a decree on foot of its mortgage in O.S. No. 20 of 1936 on the file of the Court of the Sub-ordinate Judge, Tiruvarur, against 60 acres 20 cents out of the properties covered by Ex. D-2 and sold them away in the execution of that decree. The second defendant himself obtained a decree in O.S. No. 38 of 1941 on the file of the Court of the District Judge of Negapatam for a portion of the purchase money and subject to the charge for the amount of Rs. 6,924-7-6 due under that decree, the Official Receiver, East Tanjore sold the right, title and interest of the first defendant in the rest of the Thozhudur lands by the sale deed Ex. P-5 dated 30th September, 1943, the first defendant having been adjudicated insolvent on 18th November, 1936, in I.P. No. 9 of 1936 in the Court of the Subordinate Judge of Tiruvarur.
4. The plaintiff questions the validity of the transaction evidenced by Exs. D-1 and D-2. He disclaims all interest in the lands obtained under Ex. D-2 and seeks to recover his share out of the lands sold under Ex. D-1. These are lands of the total extent of 222 acres 71-1/2 cents in which the 109th defendant admittedly has a half share and the plaintiff therefore claims for himself only a fourth of 222 acres, 71 cents, i.e., 55 acres 68 cents. It is argued on his behalf that the first defendant who was admittedly the manager of the joint Hindu family at that time could not validly convey the plaintiff's a share in view of the circumstances in which the transactions were entered into.
5. A large number of cases have been cited on both sides as to the principles governing the validity of transactions of this kind. It is unnecessary to discuss these decisions in any detail. It is clear law established as far back as in Hanoomanpersad
6. Panday v. Mussamat Babooee Munraj Koonwaree (1856) 6 M.I.A. 393 that an alienation by a guardian of a minor or manager of a joint Hindu family can be justified where it is either for legal necessity or ' for the benefit of the estate,' ' need ' and ' benefit' being distinct grounds of justification. In Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi (1917) 33 M.L.J. 1 : L.R. 44 IndAp 147 : I.L.R. 40 Mad. 709 (P.C.) the Privy Council observed that it is impossible to give a precise definition applicable to all cases of what would come under the description ' benefit of the estate ' and that they are therefore not attempting to do so. They however give three instances of what would obviously be benefits, finally adding that it is difficult to draw a line as to what are, in this connection to be taken as benefits and what not. Relying on the nature of the instances given by the Privy Council in that case there was an attempt in several cases to construe the expression ' the benefit of the estate ' as confined to transactions which are of a ' defensive nature ' in the sense of being for the protection and preservation of property. In Jagat Narain v. Mathuradas I.L.R. (1928) All. 969 however, a Full Bench of the Allahabad High Court repelled the theory that a transaction must be of a defensive character in order to be regarded as being for the benefit of the estate. The Full Bench further held that:
a transaction must be judged, not by its actual results but by what might have been expected to be its results, at the time that it was entered into
7. and that the degree of prudence which might fairly be required from a person who was not the sole owner of the property might naturally be somewhat greater than that which might be expected in the case of a sole owner and might well be held to be that which could be demanded in ordinary cases from a trustee. In some of the later Allahabad decisions for instance in Raj Singh v. Kishan Lal : AIR1935All299 there was an attempt to whittle down this principle and lay down that a transaction in order to be justifiable must be so advantageous that a prudent person must certainly enter into it. In Amrej Singh v. Shambu Singh I.L.R. (1932) All. 1 and Ramnath v. Chiranji Lal I.L.R. (1934) All. 605 however the correctness of Jagat Narain v. Mathuradas I.L.R. (1928) All. 969 was re-affirmed. In Hemraj Dattubuva v. Nathu I.L.R. (1935) Bom. 525 a Full Bench of the Bombay High Court while no doubt holding that the benefit contemplated by Hanoomanpersaud Panday v. Mussamat Babooee Munraj Koonwaree (1856) 6 M.I.A. 393 need not be of a protective character observed that the Full Bench in Jagat Narain v. Mathuradas I.L.R. (1928) All. 969 went too far in holding that the question turns on what a prudent owner would do in dealing with his own estate. The Allahabad Full Bench no doubt says in one place that the degree of prudence would be the prudence which an ordinary man would exercise with the knowledge available to him; but they immediately follow this up by stating that when a person is dealing with property of which he is not the sole owner the degree of prudence which would be required of him would be somewhat greater and then they proceed to approximate it to what is required of a trustee. While on the one hand there would be no justi-fication for treating a manager of a joint Hindu family as if he were the sole owner and to require of him no more prudence than what would be expected in a transaction concerning his own individual property, there is on the other hand no justification for laying down any stricter standard than what would be applicable to a trustee. The decision in Jagat Narain v. Mathuradas I.L.R. (1928) All. 969 was approved by a Bench of this Court in Sellappa v. Suppan : AIR1937Mad496 and in an unreported decision in A.S. No. 206 of 1942. The expression ' Kutumbarthe,' in the Mitakshara which provides the ultimate textual basis for the doctrine of benefit as applied to transaction entered into by a manager of a joint Hindu family is elastic and we do not see any justification for laying down any hard and fast rule restraining its meaning. It is obvious that the question is essentially one of fact to be decided on a gathering together of all the circumstances surrounding the transaction at the time when it was entered into and that later events particularly if they were unexpected at the time of the transaction should not be taken into consideration.
8. The circumstances in which the transaction evidenced by Exs. D-1 and D-2 were entered into have been the subject of elaborate discussion before us. (After discussing the evidence their Lordships proceeded.)
9. The materials on winch the validity of the transaction has to be judged are meagre but giving our best consideration to such facts as can be gathered from the evidence that has been adduced, we are unable to uphold the transaction evidenced by Exs. D-1 and D-2 as beneficial to the estate and therefore binding on the plaintiff.
10. It has however been argued by Mr. Venkatarama Ayyar for the second defendant that even so his client could claim that the Thethakudi properties should be allotted to the share of Nataraja Ayyar and that those properties would be far below the one half share to which Nataraja Ayyar would be entitled in a partition between him and the plaintiff. It is established by Ramaswami Iyer v. Venkatarama Aiyar : AIR1924Mad81 Dharmarao v. Bapanayya : (1941)1MLJ15 and the unreported judgment of Leach C.J. and Kuppuswami Aiyar, ]., in A.S. Nos. 182 of 1938 and 62 of 1940 and other cases that in working out the equity which had been recognised in favour of an alienee of an item of family property the alienation being neither for necessity nor for benefit, it is open to a court to allot the alienated item to the share of the alienating coparcener where that could be done without prejudice to the rights of the other coparceners. It is equally clear notwithstanding the dissentient note struck in Sthapathiar v. Sivanarayana Pillai (1932) 64 M.L.J. 66 : I.L.R. 56 Mad. 534 that for this purpose the share of the alienating coparcener should be computed as at the date of his alienation. Assuming, as we must in the absence of any evidence contra, that the Thethakudi lands were worth Rs. 13,000 and the Mutharasapuram lands comprised in Schedule C to the plaint were worth Rs. 6,900 as recited respectively in Exs. D-1 and D-7 it is obvious that the two together are less than the amount of Rs. 33,000 which was due from Ramachandra Naidu and that if the Thethakudi and Mutharasapuram lands are allotted to the share of the first defendant there would still be more than half the property out of which the plaintiff's share could easily be satisfied.
11. Mr. Viswanatha Sastri for the plaintiff cited the decision in Virupaksha Reddi v. Sivareddi : AIR1943Mad652 in support of his argument that the value of the properties must be taken as at the time of the division. The learned Judges do not state any authority in support of this proposition; but even assuming that the values of the several properties must be estimated as at the time of partition it has not been shown by any evidence in this case that the properties in Schedules A and C are worth more than the amount of Rs. 33,000 together with interest at 6 per cent. per annum which it has been carrying since 1932. It has also been argued on behalf of the plaintiff relying on Iburamsa Rowthen v. Thiruvenkatasami Naick : (1910)20MLJ743 that it is open to a coparcener to sue for his share in one or more items of family property which have been alienated by another coparcener without instituting a general suit for partition of the entire family property, that a stranger purchaser cannot compel the plaintiff in such a case to convert his suit into one for general partition and that the only remedy open to such purchaser is for himself to file a suit in which all rights and equities could be worked out and adjusted. We do not regard Iburamsa Rowthen v. Thiruvenkatasami Naick : (1910)20MLJ743 as laying down an absolute rule that a Court cannot, in a suit by a coparcener to recover his share in an alienated item or items, give effect to the equity in favour of the alienee even where the alienor's share in the family property is easily ascertainable and that the alienee must, even in such a case, be driven to a separate suit. We are unable to see any principle behind any such absolute rule. In most cases no doubt it would not be easy in such a suit to work out the equity as there may be several other coparceners who are not parties to it and several other properties available for division. But where that difficulty does not exist and the facts are simple, there is no justification for compelling the alienee nevertheless, to file a suit for partition. That would lead to unnecessary multiplication of litigation and further, what is in effect a rule of convenience should not be transformed into a rigid rule of procedure to be enforced regardless of circumstances. We are in this matter substantially in agreement with what was said in Ramaswami Iyer v. Venkatarama Iyer : AIR1924Mad81 . We do not find either in Subba Goundan v. Krisknamachari : (1941)1MLJ15 or in Kandasami Udayar v. Velayudha Udayan : AIR1926Mad774 , anything directly opposed to the view expressed in Ramasami Iyer v. Venkatarama Iyer : AIR1924Mad81 .
12. In any view it is not denied that if the alienating coparcener himself files a suit for partition there is no legal impediment to the alienated items being allotted to the share of the alienating coparcener; but it is contended that the present is not such a suit. We are unable to agree with this argument. On a fair reading of the plaint it is abundantly clear that the suit is one for general partition.
13. After setting out the averments in the plaint and the written statement and the facts relating to the claim of the plaintiff for partition and allotment of the properties in the hands of the alienee, the Court proceeded.
14. In this case it is a matter of indifference whether that equity can be regarded as arising on the date of the alienation in 1932 or on the date of the present suit. The result is in either view the same. It is true that the Official Receiver representing the estate of the first defendant was a party to O.S. No. 9 of 1943, but we are unable to see how the adjudication in that suit would bar the defendants from seeking their equity. We are therefore of the opinion that the plaintiff is not entitled to claim a share in the properties in Schedule A as he is in possession of family assets far exceeding in value the properties set out in that schedule and in Schedule C.
15. The appellant will pay one set of costs to all the contesting respondents divisible among them according to the value of the properties held by each and they will also be entitled to their printing charges.