1. I directed the question raised in this order of reference to be argued before a Bench of five Judges. The question was argued before a Bench of five Judges of whom the Hon'ble Mr. Krishnaswami Ayyar was one. The Hon'ble Mr. Krishnaswami Ayyar has now resigned his office. After the hearing of the arguments, he wrote what he intended to deliver as a judgment. The Advocate General has suggested that the judgment or opinion of the Hon'ble Mr. Krishnaswami Ayyar cannot be treated as a legal judgment since he resigned office before it could be delivered. The Advocate-General has also suggested that a question might be raised as to the validity of the judgment of a Bench consisting of four Judges, since the tribunal would not be constituted as directed by my order.
2. To prevent the possibility of any difficulty arising I now direct that the question raised in the order of reference be heard before a Full Bench consisting of the four Judges who with the Hon'ble Mr. Krishnaswami Ayyar constituted the Full Bench on the previous occasion. The Advocate-General and Mr. Etharaja Mudaliar argued the question on the previous occasion. They are now present, but they do not desire to add anything to their arguments.
Arnold White, C.J.
3. I would answer the question which has been referred to us in the affirmative.
4. As pointed out by the Privy Council in Suraj Bunsi Koer v. Sheo Persad Singh (1880) I.L.R. 5 cal 148 (P.C) an alienation by a co parcener of his joint interest in family property is inconsistent with the strict theory of a joint and undivided Hindu family. But the doctrine recognizing this right is well established in this Presidency, and it seems to me to be only the logical development of this doctrine that, for the purpose of ascertaining the quantum of interest alienated, the test to apply should be the state of the family, as regards the number of co-parceners at the time the alienation is made, and not the state of the family when the owner of the interest seeks to reduce his interest into possession. Seeing that the right of alienation is really inconsistent with the theory of the undivided family, it is perhaps not unnatural that the Courts have shrunk from recognising the development of the doctrine to what seems to me to be its logical conclusion, The question came before a Full Bench of this Court in Rangasami v. Krishnayyan I.L.R. (1891) Mad. 408. In the order of reference in the case the learned Judges observe: 'He (that is the member of the family who alienates his joint interest) cannot put his alienee in a batter position than himself, and thereby prejudice his co-parceners, and the alienee, therefore, must be liable, until he obtains partition, to the same fluctuations in the amount and value of the share caused by changes in the number and circumstances of the family, as his alienor would have been liable to, had the alienation not taken place. It was pressed upon us in argument that if this be so, the purchaser might in some cases take nothing, for his vendor might e before any thing was done to enforce the purchase, and also that if the purchaser is to be liable to have what he has purchased diminished by changes in the family be must also have the benefit if such changes should increase the share of his vendor. It seems to us that both these consequences logically follow from the legal position which the alienee occupies, and we do not sea that they involve any absurdity. He who purchases the interest of a member of an undivided family in the family property purchases that which is from its nature uncertain, and the purchase must always partake of the nature of a speculative transaction; but he knows perfectly well what he is buying, and is not to be pitied if he gets less than he hoped for, any more than be is to be blamed if he gets more. '
5. This seems to me a perfectly logical and intelligible position, but it is a position which the Full Bench declined to accept. In the Full Banch case the doctrine is stated thus: 'The purchaser who can only take what can be lawfully sold, must be taken to purchase an uncertain and fluctuating interest with the right of converting it at any moment after the purchase by partition into definite separate property.' But the learned Judges were not prepared to apply this doctrine to a case where the interest alienated increased by reason of a diminution in the number of co-parceners. On principle, it is very difficult to see why it should not be so applied. If the interest is liable to fluctuate one way, why should it not fluctuate the other? In dealing with the contention that, if the vendor dies before the purchaser effects a partition, the purchaser will take nothing, their Lordships observe: 'If it is necessary to notice it as an objection to the rule of decision indicated above, the answer is that the interests carved out by the sale vest in the purchaser at once and that the vendor being competent to sell, his subsequent death is an event which cannot divest the interest which has once vested; and for the purpose of giving effect to his contract of sale the purchaser must be dealt with as if the seller were alive when the purchaser demanda partition.' With the greatest respect, it seems to me that if this proposition is effective as an answer to the contention as to the right of survivorship on the death of the alienor, it is just as effective as an answer to the contention that after an alienation the quantum of the interest alienated is liable to be affeatel by a change, whether by way of increase or decrease in the number of co-parceners.
6. In Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) Mad. 690 a Fall Bench, of which I was a member, held that the death of the co-parcener who had made the alienation did not divest the interest of the alienee. The question whether the decision in Rangasami v. Krishnayyan I.L.R. (1891) Mad. 408 was right was raised in this case; but as we were able to answer the question referred to us without expressing an opinion on this question, Moore, J. and I did not think it necessary to discuss it. But it seems to me that when once it has bean held that the death of the alienor does not create any right of survivorship in the other co-parceners, it follow, almost as a necessary corollary, that the quantum of the interest which vests in the alienee is not affected by subsequent changes in the number of co-parceners.
7. The general question is discussed by Sir Bhashyam Ayyan-gar in his judgment in Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) Mad. 690 and I am prepared to accept the conclusions at which ha arrives as containing the true exposition of the law of this Presidency upon the subject;.
8. As I have said, I would answer the question in the affirmative.
9. I am of the same opinion. The question is really concluded by the decision of the Privy Council in the case of Hardi Narain Sahu v. Ruder Perkash Misser (1884) I.L.R. 10 Calc. 626 (P.C.). As pointed out by Sir Bhashyam Ayyangar, 'In that case a creditor obtained a decree for money against the father only and in execution attached, caused to he put up for sale, and himself bought, the right, title and interest of the judgment debtor in a certain property which belonged to him and to his minor son jointly, and obtained possession. Shortly afterwards, the judgment-debtor made a gift of his interest in the family property in favour of his minor son. A suit was thereupon brought on behalf of the minor son to recover the whole of the property purchased by the decree-holder. During the pendency of the suit another son was born to the judgment-debtor and it was contended before the High Court, that a share should be allotted to snob, son also. The High Court, however, following the decision of the Privy Council in Suraj Bunsi Koer v. Sheo Persad Singh (1990) I.L.R. 5 cal 148 (P.C.) overruled this contention and held that the property which passed to the defendant--the purchaser--was the share and interest of the father which would have been allotted to him if a partition of the family property had taken place just before the execution sale and that as the family at that time consisted only of the father, his wife and one son, the father was entitled to one-third share and that such one-third share ought to be allotted to the defendant--the purchaser-and the other two-thirds, to the minor plaintiff and his mother. The case was carried in appeal to the Privy Council by the defendant--the purchaser--principally on the ground that the sale should be upheld in its entirety as it was not shown that the decree debt was contracted by the father for any illegal or immoral purpose. The Judicial Committee affirmed the decision of the High Court, holding that the purchaser became entitled only to one-third which would have been the share that would have been allotted to the father if a partition had taken place at the time of the sale. Pending the appeal to the Privy Counoil the mother died, but the decision of the Privy Council proceeds on the footing that neither the birth of the second son after the date of the execution sale, nor the subsequent death of the mother before a partition was affected, affected the share to which the purchaser became entitled at the date of the execution sale' [Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) Mad. 690]. In the Fall Bench ease of Ranga-sami v. Krishnayyan I.L.R. (1891) Mad. 408 there was no reference to the decision of the Privy Council summarized above. In my opinion the latter cannot be reoonoiled with it. Their Lordships indicate clearly enough that the alienee takes the interest of the alienor as it exists at the time of the alienation, not at the time of partition. This conclusion also seems to be the logical and almost necessary consequence of the rule established in this Presidency by a long course of decisions that an alienation by sale, mortgage or otherwise, by an undivided member of his interest in the whole or any part of the joint family property in favour of a purchaser for value is valid as between the transferor and the transferee. Any other conclusion than that above stated would lead to great practical inconvenience and injustice. It is, however, unnecassary to dwell on this line of argument as the matter is concluded by the authority of the Privy Council would I answer the reference in the affirmative.
10. I agree that the question should be answered in the affirmative and have nothing to add.
11. The question is whether the alienee of the interest of a co parcener is entitled to enforce his claim against the co-pireener's share as it stood at the time of the alienation or the share that the vendor is entitled to at the time he brings his suit for partition.
12. If, as argued on behalf of the appellant, he is only entitled to recover the reduced share that the vendor may be entitled to at the time of the pirbHion on the ground that, according to the theory of the Hindu Law, a co-parcener's interest is liable to fluctuation, to increase by death, decrease by birth of other coparceners, to extinction by his own death, then it appears to me that, on the death of the co-parcener, the alienee is not entitled to enforce the alienation in his favour at all, as the alienor's interest survived to the others on his death. On the other hand, it is only right that the purchaser must in that case have the benefit of an increase, if any, in the share of his vendor.
13. As pointed out by the Judicial Committee all alienations by a co-pacener, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided family, and the law recognizing the validity of the alienation as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has, to be allowed to stand in his vendor's shoes and to work out his rights to a partition--see Suraj Bunsi Koer v. Skeo Persad Singh (1880) I.L.R. 5 Calc.148 (P.C) I do not think, as the alienation itself is inconsistent with the theory of Hindu law, we are likely to derive much help from a consideration of the Hindu law texts in the determination of this question. The creditor's equity which is the basis of the Madras and Bombay decisions subsists even after the death of the coparcener and I entirely agree therefore, if I may say so, with the Fall Bench decision in Aiyyagari Venkalaramayya v. Aiyyagari Ramayya I.L.R. (1902) Mad. 690. which follows prior decisions that the mortgagor or vendor is entitled to enforce his claim after the coparcener's death. Farther I do not sea how it can be said that his equity does not subsist to the same extent as before,
14. Again it would be entirely against the principle of equity on which these decisions are based to give the alienee anything more than the value of the consideration advanced by him; or in other words, the principle of the decisions would not justify the courts in giving him the increased share to which the coparcener may have become entitled. This shows that we have to reject the strict theory of the Hindu law in the ascertainment of the share; and if the purchaser is not to be entitled to an increased share, I do not see how we are to say he can get only the reduced share in the other contingency.
15. As the doctrine is based on equity, it is more consistent with equitable principles to hold that the purchaser gets the share which his vendor was entitled to at the time of alienation rather than that he gets a fluctuating share with the result that it will depreciate the value of property and impart to the alienation the nature of a gambling transaction. I have not referred to the cases decided by the Privy Council referred to in the argument, as I do not think there is any final decision by their Lordships or that the question was before them for decision. However the opinions incidentally expressed by their Lordships in some cases are of very great weight and, as they accord with the view I have expressed, I do not propose to refer to them in detail. I accordingly hold that the plaintiff, the alienee, is entitled to enforce his claim against the share to which the vendor was entitled to at the time of the alienation and in the case before us the mortgagee is therefore entitled to proceed against the share of the son subsequently born.
16. Note.--Appended under orders of the Chief Justice. --The following was written by the Hon. Mr. Krishnaswami Ayyar, as a judgment to be delivered, before he resigned his office as a Judge of this Court.
17. The statement of facts made in the order of reference is somewhat inaccurate. The mortgagor would at the date of the mortgage be entitled to a fourth and not a fifth share in the family properties. A brother and a son were subsequently born. The plaintiff who is the mortgages is content to have a decree on a fifth share in the mortgaged property. The lower Appellate Court has given that decree and he has not chosen to appeal against it. The son, who is the third defendant, contends that his one-tenth share should be exonerated from liability. If the son were alive at the data of the mortgage, his share in the property would be bound by it, as the mortgage was apparently for an antecedent dab's and not tainted with illegality or immorality. His interest is a fortiori liable if he was not in existence at the date of the mortgage. Ha succeeds only to a moiety of the father's equity of redemptior. See Bholanath Khettry v. Kartick Kissen Das Khettry I.L.R. (1907) cal 372 and Ajodhya Roy v. Hardwar Roy (1909) Cri.L.J. 485. This aspect of the matter appears to have been overlooked by the Full Bench in Rangasami v. Krishnayyan I.L.R. (1991) Mad. 108 , and by the Division Bench that finally disposed of that case. The vakil for the appellant fairly admitted before us that he had no answer to this view of the case.
18. The more important question raised by the order of reference is practically whether the decision of the Full Bench in Rangasami v. Krishnayyan I.L.R. (1891) Mad. 403, is right. It appears to me that we are bound to answer it in the negative. Thai ease decided that the share to which the mortgagee or purchaser is entitled should be determined as at the date of the suit for partition. What the alienor would be entitle 1 to. whether alive or not, at the date of the suit for partition, is, according to the Pull Bench what the alienee is entitled to, subject to this reservation that, if the alienor's share would then be more than at the date of the alienation, the alienee, if he had bargained for less, would not be entitled to the increased share. In other words, the alienee gets a fluctuating share actually ascertainable only at the date of the suit for 'partition, though such fluctuation can only be to reduce but not ordinarily to increase the share of the alienee.
19. It is in the first place not easy to understand why the date of the suit for partition and not the date of the decree for partition should settle the share of the alianee. In an ordinary suit for partition this sharers in existence at the date of the decree, and not at the date of the suit, determine the share of each. The same rule must apply to the case of an alienee suing for partition, if the date of the alienation itself be not the determining factor as regards the quantum of the alienee's interest-What is the principle on which the date of the alienation is not to determine the share of the alienee? It is said 'that the alienee cannot be in a better position than the alienor' and that the purchaser must be taken to purchase an uncertain and fluctuating interest with the right of converting it at any moment after the purchase by partition into definite separate property,' I admit that the alienee should not be in a better position than the alienor, but when? I answer, at the date of the alienation and not at some subsequent date when the alienor's share might be reduced by the birth of other members into the coparcenary if ha had not made the alienation. What ground is there for supposing that the alienee purchases a fluctuating interest. The interest would no doubt fluctuate if there was no alienation. That is an incident of co-pareanary property. But the very fact of alienation by a co-parcener puts an end to fluctuating character of the property alienated. Joint tenancy is destroyed by severance and an alienation by a joint tenant effects a severance. The fluctuating character of a joint tenant's interest ceases in the hands of his alienee, Williams' Real Property, 20th edition, page 138; Jogeswar Narain Deo v. Ram Chund Dutt (1896) 23 I.A. 37. The alienee becomes a tenant in common, Kallapa bin Girmallapa v. Venkatesh Vinayak I.L.R. (1878) Bom. 676, Udaram Sitaram v. Ranu Panduji and Venku Panduji (1874) 11 B.H.C.R. 76, Mahabalaya bin Parmaya v. Timaya bin Appaya (1875) 12 B.H.C.R. 133, Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75, no doubt held '' According to the true notion of an undivided family in Hindu law, no individual member of that family, while it remains undivided, can predicate of the joint and undivided property, that he--that particular member --has a certain definite share until partition,' That is the law still. See Parbati v. Naunihal Singh (1909) I.L.R. 31 All. 412 (P.C). But it does not follow from this that if a co-parcener alienates his interest in family property the alienee has until actual partition no definite share of the property. Like the alienee from a joint tenant in England the alienee from a co-parcener in India has a fixed share in the common property with reference to the date of alienation. Where the alienor dies before the alienee institutes a suit for partition the alienee's share does not dwindle into nothing. The Full Bench in Aiyyagari Venkataramayya v. Aiyuagari Ramayya I.L.R. (1902) Mad. 690 has settled that. The learned Judge who delivered the judgment of the Full Bench in Rangasami v. Srishnayyan I.L.R. (1891) Mad 408, took the same view and explained it by saying that 'the interest carved out by the sale vests in the purchaser at once' and 'the purchase must be dealt with as if the seller were alive when the purchaser demands partition.' If this be so with raferance to a seller dying before the purchaser sues for partition, why should it be different when the co parcenary is; enlarged by the birth of other members. It is difficult to see why the interest of the co-parcener who makes the alienation should not vest likewise in the purchaser to the extent of whatever share he would then have on a partition. With reference to the case of the co parcenary being reduced in numbers subsequent to the alienation it is said that the alienee may not get an increased share if he bargained for less. The decision in Virayya v. Hanumantai I.L.R. (1891) Mad. 459, is not opposed to this view for it proceeded on the provision contained in Section 43' of the Transfer of Property Ant of 'interest feeding the estoppel.' If a fluctuating interest may dwindle, parity of reasoning would require that it should also expand. This apparently the learned Judges in Rangasami v. Krishnayyan I.L.R. (1891) Mad. 408, were not prepared to accept-, though the referring Judges in that case were of that opinion. Mr. Justice Shephard one of the Judges who composed the Full Bench, is not apparently prepared to stand by Rangavami v. Krishnayytm (1891) I.L.R. Mad. 408, for he says in his commentaries on Section 44 of the Transfer of Property Act, VI edition, page 144 'in the case of a sale by a co-parcener of his share of the family property the better opinion seems to be that the extent of the interest purchased must be determined with reference to the state of things at the date of the sale' and he relies on the observations of Sir Bhashyam Ayyangar, J., in Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R. (1902) Mad. 690. The whole question is fully threshed out in the exhaustive judgment in that case. It is difficult to add anything to the trenchant reasoning of the learned Judge. Gurlingapa Nandapa I.L.R. (1897) 21 Bom. 797 has quoted Rangasami v. Krishnayyan I.L.R. (1891) Mad. 408 with approval, and in fact the proposition is in terms laid down 'that the purchaser like the alienator is liable to have his share diminished upon partition by the birth of other co-parceners.' But beyond following the decision of this Court on the point now under consideration that ease adds nothing to the reasoning on which the decision rests.
20. There are numerous difficulties in accepting the view of the Full Bench as correct. In the case of a mortgage by a co-parcener of his interest, if the date of the mortgage does not determine the quantum of interest of the alienee, why should the date of the suit on the mortgage determine it? The suit does not saparate the share nor does the decree in the suit. The interest of the mortgagor may be bought in court sale, but the purchase also does not separate the share. The purchaser may sue for partition, but the suit itself does not operate as a severance. The share of the alienor might be fluctuating backwards and forwards on those several stages from the mortgage to the decree for partition.
21. Again if; is anomalous to hold that the alienor's share may go on dwindling but cannot vanish. The authority of the Privy Council is clear that the purchaser must have the alienor's share though ha may be dead when the purchaser sues for partition as if he were then alive. Suppose the alienor is dead but further additions have bean made to the co-parcenary; is the share of the alienee to be taken as at the date of the alienor's death or as at the date of the suit for partition when there are more co- parceners?
22. It appears to me that the only sound rule to adopt in the matter is to fix the share of the alienee as at the date of the alienation. The authority of the Privy Council may also be invoked in support of this view. It is no doubt true as contended by the learned vakil for the appellant that in none of the cases relied on Deendyal v. Jugdeep Narain Singh (1878) I.L.R. 3 cal 198 (P.C.), Suraj Bunsi Koer v. Sheo Per sad Singh (1880) I.L.R. 5 cal 148 (P.C.), Hardi Narain, Sahu v. Ruder Perkash Misser (1884) I.L.R. 10 cal 626 (P.C.) and Balgobind Das v. Naratn Lal (1893) I.L.R. 15 All. 339 (P.C.) did the question arise for decision. But the language of the Privy Council does not leave any room for doubt as to their meaning. In Deendyal v. Jugdeep Narain Singh (1878) I.L.R. 3 cal 198 (P.C.), they say at page 209 'the right of the purchaser at the execution sale (of the father's interest) may be limited to that of compelling the partition, which his debtor might have compelled had he been so minded, before the alienation of his share took place.' This language may perhaps be explained by saying that the period anterior to the alienation is referred to, because the debtor could only then have sued for partition of the property. In Suraj Bunsi Koer v. Sheo Persad Singh (1880) I.L.R. 5 cal 148 (P.C.), their Lordships of the Judicial Committee state at page 164 'An intermediate proposition between the extreme contentions on both sides is that the sale would be operative upon the right, title, and interest of the judgement-debbor in the property pub up for sale, so as to pass the share to which, upon a partition effected during his life-time, he would have bean entitled.' At page 147 they proceed to say 'The mortgage executed by Adit Sahai in his life-time, as a security for the debt, might operate after his death as a valid charge upon Mouza Bissumbharpur to the extent of his own then share.' This may mean the share to which she wag entitled either at the date of the mortgage or during his life-time. It does not appear that the share varied afterwards. The Privy Council does not speak of the share of Adit Sahai as if he were alive at the date of the partition. Adit Sahai was dead at the date of the Court sale. They made a declaration in favour of the purchaser that ha was entitled to the third share of Adit Sahai which he possessed in his life-time and which he also mortgaged. Hardi Narain Sahu v. Ruder Perhash Misser I.L.R. (l884) cal 626 is a stronger ease. The purchaser at the Court sale of the father's interest was held entitled to his one-third (he had at that time a wife and one son) treating it as if the sale was to operate as a partition at that time. The appeal to the Privy Council was by the purchasar claiming the whole property, The Privy Council negatived that claim. Ha then asked for a moiety instead of the third which the High Court gave him on the footing of a partition as at the date of sale. Mr, Doyen who appeared for the appellant contended that the mother was no co-parcener and he was therefore entitled to a moiety. The Privy Council did not say that, the mother having died and another son having been born pending the appeal to their Lordships, ha was only entitled to a third as a purchaser from one of three co-parceners, but that the purchaser only obtained the share which the father would take if a partition took place at the date of the sale. They added that the two song were parties to the appeal in respect of the share which the mother was entitled to take at a partition. I am inclined to think that there is an express pronouncement in this case which is against the view taken by the Full Bench in Rangasami v. Krishniyyan I.L.R. (1891) Mad. 408. The observation in Bal-gobind Das v. Narain Lal I.L.R. (1893) All. 339, is a mere repetition of the remark in Deendyal v. Jvgdeep Narain Singh (1878) I.L.R. 3 cal 198 (P.C.), to which reference has already been made and may be similarly explained.
23. The purchaser from a co-parcener of his share in all the family property or in one of several items belonging to the family may not succeed in a suit for partition in getting the share allotted to him that he purchased or the item. But that is because there may be liabilities which attach to the share of the coparcener making the alienation. The equities between the co-parceners may reduce the share of the alienating coparcener in the pro party alienated, But such equities or liabilities must only be determined with reference to the data of alienation. Future contingencies of births and deaths do not stand on the same footing as conditions and liabilities existing at the date of the alienation which are referred to in Section 44 of the Transfer of Property Act These latter incidents of a co percenary interest do not conflict with the principle that an alienee from one of several co-parceners takes the interest which may be carved out at the date of alienation.
24. I would answer the question referred to the Full Bench in the affirmative.