1. According to the findings of fact of the lower appellate Court, the father of a joint family consisting of himself and his minor sons sold the suit item of property to one Katta Subbayya, who subsequently became an insolvent. The rights of Katta Subbayya thereupon passed to the Official Receiver, who sold the land in auction to the present appellant. Later on, a collusive partition suit was instituted; and as one would expect, the suit item fell to the share of the minor in partition. He thereupon through his guardian alienated the property in favour of the first respondent in A.S. No. 1137 of 1946 (hereafter termed the first respondent). The appellant filed O.S. No. 291 of 1943 for an injunction) restraining the first respondent from interfering with his possession; in the alter-native, he asked for a general partition. The first respondent and the minor filed O.S. No. no of 1944 for possession. The Courts below found that the appellant had been in possession of the suit lands. The lower appellate Court also found it will perhaps be better to say that it assumed--that the transfer in favour of the appellant was a valid one. Although the question of the genuineness of the transfer in favour of the first respondent was considered by the trial Court and found in the negative, the Subordinate Judge held that it was not necessary to go into that question. He however said,
My finding on this point is that no question arises for decision in the present litigation with reference to the passing of consideration for Ex. D-13 (the sale in favour of the first respondent) I hold that it is a valid sale deed.
The Subordinate Judge held that since the appellant was entitled to the father's; half share and the first respondent was entitled to the minor's half share, they were co-owners of the property and that therefore the appellant was not entitled to an injunction. He therefore dismissed his suit. In the suit of the first respondent the learned Subordinate Judge held that although he was not entitled to possession of the whole of the property, he had acquired the interests of the minor and was therefore entitled to a half share. He passed a preliminary decree as if the suit had been one for partition, which it was not.
2. On the findings of fact, the appellant and the first respondent were clearly not co-owners. The father did not purport to convey his share of the property, but the whole of a particular item. That would not have entitled the vendee to a half share in that particular item. It would merely have given him an equitable right to sue for a general partition and to pray that, if possible, that particular item of property might be allotted to him in the partition, and if not, that he might be given some other property instead. The right of the first respondent was of a similar nature. It is incorrect to say that they were each entitled to an undivided half share in the property and that they were therefore co-owners. They were rival claimants to ownership rather than joint owners.
3. The learned advocate for the respondent has pointed out that whatever might have been the rights of the alienee from the father, who subsequently became an insolvent, the appellant has no such equitable rights. By his purchase in Court auction he did not purchase an equitable right but the land. In Section 261(3) of Mullah's Hindu Law, the learned author discusses the rights of an alienee from an alienee of an item of jont family property and disagrees with the conclusions arrived at on this point in two decisions of this Court. Since they are Bench decisions, however, I am bound to follow them. In Dadha Sahib v. Mohamed Sultan Sahib : AIR1921Mad384 , which deals with very much the same question as in Sabapathi Pillai v. Thandavaraya Udayar : (1919)37MLJ620 , the learned Judges said,
The plaintiff has not bought the land from a Hindu coparcener, who, according to Hindu Law, would have a right to demand partition of the family property and to get the share due to him. The plaintiff has bought certain specific land from the first defendant, who is a Muhammadan, and between them there can be no question of working out any such equity as is mentioned in Nanjaya v. Shanmugha (1913) 26 M.L.J. 576 : I.L.R. 38 Mad. When analysed, the position is simply this. A sells a particular parcel of land to B. It is found that A has no title to the land. Can it be said that B is entitled to ask A to convey to him some other land in place of what he bought? When stated in those words, the position of the plaintiff would be quite untenable and it is difficult to see why the character of the superior title by which the title of the vendor in the land which he purported to sell is defeated, should make any difference to the vendee's rights. As the vendor's title to the land in dispute has been super seded by a superior title, the only remedy open to the vendee is damages for breach of warranty of title.
It is argued that the particular kind of equity with which we are concerned now is not the equity to have another item of land out of the joint family property in the place of that conveyed, but the equitable right to have that particular item of property allotted to the alienor in partition. The two equities are not however separable. A vendee from a member of a family has a right in the first instance to ask that, if it be possible, the property purchased by him might be allotted to the share of his alienor in partition and failing that to have another item of family property allotted to him in its stead. The same line of reasoning would seem to apply to the cases immediately before me as in the cases under consideration in Dadha Sahib v. Mohamed Sultan Sahib : AIR1921Mad384 and Sabapathi Pillai v. Thandavaraya Udayar : (1919)37MLJ620 . The decisions proceeded on the basis that the relationship between an alienee from a member of a joint family and his alienee was that of a vendor and purchaser under the Transfer of Property Act, and that the only remedy of the alienee from the alienee arises out of their contract, i.e., a right to damages for breach of covenant of title.
4. The appellant's suit for injunction was therefore rightly dismissed, as was his; prayer for general partition.
5. The first respondent bases an argument on the decision in Iburamsa Rowther v. Thiruvenkatasami Naick : (1910)20MLJ743 and argues that the minor in the present case would have had a right to sue for a half share in the item alienated by his father and that the first respondent, being a purchaser from the minor, stepped into the shoes of the minor and acquired his right of demanding a half share in the suit property. In Iburamsa Rowther v. Thiruvenkatasami Naick : (1910)20MLJ743 , the learned Judges considered the various authorities dealing with the right of one member of a family with regard to items of property alienated by another member of the family; and they held that a coparcener aggrieved by the alienation of joint family property by another co-parcener is not bound to bring a suit for general partition and can bring a suit for his share in the specific items of property alienated by the other coparcener. The learned Judges then went on to consider the position of an alienee of the share of a coparcener other than the coparcener who had alienated the property; and they held that a person who purchased the rights of a coparcener to bring a suit for partition of the specific items alienated by the other coparcener acquired all his rights and can therefore sue for partition of the specific items of property and is no more bound to bring a suit for general partition than is the coparcener whose rights he has acquired. It is however very different when the conduct of the one coparcener is precisely the same as that of the other. If one coparcener alienates an item of family property and then another coparcener alienates the same item of property, the position of the alienee from the one is not stronger than the position of the alienee from the other. If there is any difference at all, the equity favours the first alienee rather than the second, who purchases the property with a knowledge of the equitable rights of the first alienee. The second alienee would not acquire the rights of the second member of the family; because his alienor had no more right than the other alienor of alienating an item of joint family property. Whatever may be the rights of the first respondent, therefore, it is not a right to possession of the property or even to a half of the property. His right is the ordinary one of an alienee of an item of joint family property, namely, to sue for a general partition and to ask that the item of property alienated to him be allotted to the share of his alienor. To that extent second appeal No. 1026 of 1946 succeeds.
6. The first respondent has filed a memorandum of cross-objections in S.A. No. 1026 of 1946 claiming the whole of the property on the ground that the appellant has no right in the land at all. Even if that were the case, it would not entitle the first respondent to possession of the whole or part of the property. S.A. No. 1026 of 1946 is allowed with costs, and the memorandum of cross-objections dismissed with costs. S.A. No. 1137 of 1946 is dismissed with costs, and the memorandum of cross-objections dismissed without costs.
7. The first respondent now asks for leave to amend his plaint. There is no petition before me containing such a prayer; and as a suit for partition is altogether different from the present suit for possession, alleging dispossession just before suit, no such amendment could be granted.