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Duraisami Iyer Vs. Subbaraya Iyer and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in72Ind.Cas.322
AppellantDuraisami Iyer
RespondentSubbaraya Iyer and ors.
Excerpt:
hindu law - joint family--alienation, invalid, by co-parcener--partition--alienated property taken into account--subsequent suit to recover property, whether maintainable. - - it was held by the munsif and the subordinate judge that the alienation was perfectly good. i entirely fail to see, that being so, how he can sue the alienee of his father......and thereafter. the money that was realised on the sale was invested by the managing member in a family money-lending business which he carried on. in 1915 there was a general partition of the family property between the plaintiff and the 1st defendant and other members of the family. in that partition the money-lending business was brought into account, but the property alienated in 1903 was not, though the proceeds of that sale, were in effect brought into the accounts of the money-lending business as it stood in 1915. after this partition, plaintiff sued the other members of his family and the alienee to recover back the property alienated. it was held by the munsif and the subordinate judge that the alienation was perfectly good. it was also held by the subordinate judge that on.....
Judgment:

Walter Schwabe, C.J.

1. In this case the facts are, that the 1st plaintiff, the managing member of a joint Hindu family, in 1903 sold some land. It is conceded that that sale was not binding on the other members of the family as not being for necessity. The plaintiff was at the date of that sale 17 years of age and he knew all about it then and thereafter. The money that was realised on the sale was invested by the managing member in a family money-lending business which he carried on. In 1915 there was a general partition of the family property between the plaintiff and the 1st defendant and other members of the family. In that partition the money-lending business was brought into account, but the property alienated in 1903 was not, though the proceeds of that sale, were in effect brought into the accounts of the money-lending business as it stood in 1915. After this partition, plaintiff sued the other members of his family and the alienee to recover back the property alienated. It was held by the Munsif and the Subordinate Judge that the alienation was perfectly good. It was also held by the Subordinate Judge that on the partition in 1915 this property was brought into account in the way I have mentioned. In my judgment, that finding which was on admitted facts, was conclusive of the suit. It is only in his capacity as co-parcener that a member can sue for joint family property unlawfully alienated. His suit must be in the nature of a partition suit. In that suit, it is open to the alienee to claim partition, so that the property in dispute may, if possible, without injustice, be decreed to the alienor on partition and the alienee standing in his shoes may keep it. But once you have got a general partition in which the property in question and the sale of it has been taken into account, the parties to that partition ceased to be co-parceners. If there were property left outstanding and not dealt with in that partition, they would be entitled, indeed, to claim that property and to have, that property, divided. But the property in question in this suit was taken into consideration in the partition between the parties and the plaintiff has no right, title or interest whatever to it. He cannot sue for partition, there being nothing left outstanding for partition. He cannot sue his father or other members of the family. I entirely fail to see, that being so, how he can sue the alienee of his father. The second appeal on that ground alone must be dismissed with costs.

Wallace, J.

2. I agree.


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