1. In this second appeal 4th defendant is the appellant. It arises out of a suit for partition. Plaintiff' s father, 1st defendant, and the 3rd defendant's father were brothers. The 2nd defendant is the son of the 1st defendant. The 4th defendant is an alienee of two of the items in the plaint schedule, he having purchased the property under Ex. I, dated 28th February 1908, for Rs. 1,900. The Munsif dismissed the suit as one for partial partition. On appeal the Subordinate Judge decreed the plaintiff's suit. The 4th defendant, therefore, appeals.
2. The first point argued before me is whether the suit is bad for partial partition. The Subordinate Judge held that it is not open to an alienee to raise such a point. It is true that where a member of the family sues for partition and recovery of his share of an alienated item alone, such a point is not open to the alienee. But, I doubt if there is any general rule that an objection on the ground that the suit is one for partial partition can never be taken by a stranger. However this may be, I do not think this case is one in which such an objection ought to be allowed to be taken as a bar to the maintainability of the suit. Though the 4th defendant raised the point in his written statement he never took an issue specifically raising the point. The third issue 'What are the joint family properties,' is too general to cover a plea as to the maintainability of the suit. It seems to me, therefore, that this point should not be allowed to be raised for the purpose of getting plaintiff's suit dismissed. It may be that it may have to be inquired into for the purpose of the point to be next discussed.
3. The next question is whether the alienation in favour of 4th defendant should be upheld as binding on the family and whether in any event, as a matter of equity the alienated item should not be allotted to Defendants Nos. 1 to 3 so as to uphold the alienation in favour of 4th defendant if possible. The sale itself was effected by 1st defendant and 3rd defendant's father who alleged in the deed that plaintiff was adopted into another family. The consideration of Rs. 1,900 was made up among others of three items:
(1) Rs. 43-3-0 for kist for Fasli 1317.
(2) An othi (Ex. II) dated 10th October 1891, for Rs. 200.
(3) Another othi (Ex. II-D), dated 28th April 1907, also for Rs. 200.
4. It is unnecessary to refer to the other items of consideration, for the Subordinate Judge has found them to be not binding on the family, and I agree with him. As to the three items mentioned above the Subordinate Judge found the first to be binding on the family, but not the second and third as to which I think they are binding on the plaintiff by reason of adverse possession because they were effected more than 12 years prior to the filing of the suit, so that it is unnecessary to go into the question whether the money was actually spent for the benefit of the family. Incidentally I may observe that in the case of one of them Ex. II it purports to be
for the benefit and expense of the family and for contract works.
5. It is attested by the plaintiff who must have been 20 or 21 at the time. His answers to the questions about Ex. II (d) are not very straight though the cross-examination might have been pushed further. It seems to me that this is a case in which one can infer from the circumstances that the plaintiff was aware of the contents of the document and on this ground also one may hold that Ex. II (d) is binding on the whole family including the plaintiff. But anyhow, on the ground of lapse of 12 years from the dates of Exs. 2 and 2 (d) I think they are binding on the plaintiff. If so, the plaintiff cannot recover possession of this third share of the items sold under Ex. III without paying also his third share of the othi amounts; that is, he has to pay 1/3rd of Rs. 443-3-0. One third of Rs. 250 (improvements allowed by the Sub-Judge). i. e., 1/3rd of Rs. 693-3-0 or Rs. 231-1-0.
6. This leads me to the main question about the alienee's equity, namely, whether these items should not be allotted to the share of the vendors of 4th defendant, which I think, if possible may be done. He raised the question in his written statement. The 2nd part of the 6th issue runs:
Whether he (4th defendant) is entitled to any equity.
7. I do not see why this should not be construed as including the point raised. In the view taken by the District Munsif on the binding nature of the sale-deed it was unnecessary for him to discuss this point. The Subordinate Judge has not discussed this question either, but the defendant cannot be blamed for it as he was respondent before him. I do not see any peculiar feature in this case or any conduct on the part of the 4th defendant specially mala fide to disentitle him to such equity. Seeing that he has spent some money for improvments, that he is entitled to 2/3rds of the items purchased by him in any event and that as to the remaining third he has got the possession as othidar and the plaintiff cannot recover it without paying the othi amount and some amount for improvments, I think this is a case in which the 4th defendant's right to equity is stronger than in many other cases. I, therefore, direct that in effecting the partition the purchased items should be allotted, if possible, to the share of the 1st and 3rd defendants so that 4th defendant may continue to be in possession. For this purpose if the other items in the plaint schedule are enough to constitute the plaintiff's third share or more than that share, well and good. If they are not, the Courts below may take into consideration the question how far three of the items mentioned in para. 24 of the Munsif's judgment, namely, the 5 acres in Thattankulam, the house at Madura re-conveyed by Ramasamy Kone by Ex. F-3 and the house mortgaged to D. W. No. 5 under Ex, 5 are joint family properties. The plaintiff should be given an opportunity of adducing evidence on this matter, that is, that they are not family properties. If the Court find that some or all of them are family properties, they may be used for the purpose of allotting to the plaintiff his 1/3rd share so as not to trench on the alienated items.
8. There is a third point argued before me, the question of mesne profits. The Sub-Judge has given a decree for three years' profit prior to the suit. There is no dispute before me as to the rate of mesne profits before the suit, but the appellant says that he is not liable for the profits prior to the suit. The suit was brought 11 years and 7 months after the sale and the plaintiff never sent any kind of notice to the 4th defendant questioning it. I, therefore, do not think he is entitled to profits prior to suit [see Ramaswamy Iyer v. Venkatarama Iyer A. I. R. 1924 Mad. 81. This question of profits does not really arise if the Courts below succeed in allotting the alienated items to the share of Defendants Nos. 1. and 3 and through them to the 4'th as I expect they will. The case will go back for passing a final decree with reference to these observations.
9. As between the plaintiff and the 4th defendant each party will bear his own costs throughout.