1. In this case the plaintiff is the son of one Sambasiva Ayyar, the adopted son of one Sivaramma Ayyar, and he sues to recover possession of certain properties, sold by his grandfather, Sivaramma Ayyar on the 29th of June 1901 to the 1st defendant who is the father of defedants Nos. 2 to 4 on the ground that the sale was not effected for any necessity and is not binding on him. The plaintiff's father and grandfather are now both dead and, therefore, the plaintiff claims to recover the whole of the suit properties.
2. The Subordinate Judge has found that there was no necessity for the sale and that it is, therefore, not binding on the plaintiff's share and he has given a decree to the plaintiff for a division of the property into two parts and for recovery of possession by the plaintiff of one-half with mesne profits from the date of the sale. The defendants now appeal and state that the decree is wrong and that the plaintiff's suit should have been dismissed on the ground that the first defendant acquired a right by the sale in his alienor's share of the family property and that he is in equity entitled to recover property not greater in value than his alienor's share, and that he is also entitled to ask for partition of the family property, and to have the specific item assigned to his alienor's share, if that is consistent with the rights of other coparceners.
3. It is not disputed that an alienee from an undivided co-parcener has alright to sue for a partition of the family property and to recover his alienor's share, in the case of a sale of an undivided share, that share itself, and in the case of tale of a specific item of property an equitable right to have that property assigned, if possible, to his alienor's share. This principle was laid down in Aiyyagari Venkataramayya v. Aiyyagari Ramayya 25 M. 690 and was followed in Chinnu Pillai v. Kalimuthu Chetti 9 Ind. Cas. 5961 : 35 M. 47 (1911) 1 M.W.N. 238 : 9 M.L.T. 389 : 21 M.L.J. 246 where it was further held that the share of the alienor which passes to the alienee is the share to which the former was entitled at the date of alienation. This latter ruling disposes of the respondent's contention that the 1st defendant has lost all right to the property on the death of Sivaramma Ayyar. It is thus quite clear on all the authorities that the 1st defendant is entitled to a partition of the family property and to have the plaint property assigned to Sivarama Ayyar's share, if that can equitably be done, and can bring a suit for that purpose.
4. It is then argued for the respondent that relief cannot be given to the defendants in this suit and that they must be left to work out their rights in a subsequent suit, and reliance is placed on several cases cited, beginning with Deendyal v. Jugdeep Narain Singh 3 C. 198 : 1 C.L.R. 49 : 4 I.A. 247 : 3 Sar. P.C.J. 730 : 3 Suth. P.C.J. 468 : 1 Ind. Jur. 6041 : 1 Ind. Dec.715 . In that case it was held by the Privy Council that the purchaser of the right, title and interest of a co-sharer in joint ancestral estate at a sale in execution acquires merely the right to compel a partition as against the other co-sharers which the judgment-debtor possessed. In a subsequent case Hardi Narain Sahu v. Ruder Parkash Missir 10 C. 626 : 11 I.A. 26 : 8 Ind. Jur. 211 : 4 Sar P.C.J. 510 : 5 Ind. Dec. 420 the same proposition was enunciated, but the Privy Council refused to interfere with the decree of the High Court ordering a partition and allotting a share to the purchaser, but observed that the decree ought to have been for the recovery of the whole property with the other co-parcener with a declaration of the rights of the purchaser. In neither of these cases was the equity of the purchaser to stand in his vendor's shoes with which we are now concerned fully discussed. There have also been observations in several Madras cases that the right of the purchaser is only a right to obtain by a suit for partition, the share to which his alienor was entitled vide Kota Balabhadra Pairo v. Khetra Doss 37 Ind. Cas. 168 : 31 M.L.J. 275 : 4 L.W. 99 : (1917) M.W.N. 149 to which one of us was a party; Nanjaya Mudali v. Shanmuga Mudali : AIR1914Mad440(2) and Maharaja of Bobbili v Venka aramanjulu 25 Ind. Cas. 585 : 39 M. 265 : 16 M.L.T. 181 : 27 M.L.J. 409 and also a very recent case Subbe Goundan v. Krishnamachari : AIR1922Mad112 . It is only in the last case, however, that the question really arose as to whether the purchaser was to be driven to a suit for partition, or whether relief could be given to him when defending a suit by another co-parcener. In this case the Privy Council ruling in Ramkishore Kedarnath v. Jainarayan Ramrachpal : (1913)15BOMLR867 was interpreted as meaning that the Privy Council, while raising the point, expressed themselves unwilling to decide it. In Ramkishore Kedarnath v. Jainarayan Ramrachpal : (1913)15BOMLR867 the suit was instituted by members of a Hindu joint family to Set aside an alienation in favour of the 1st respondent who claimed to be adopted into the family and it was held that, as between the father Kedarnath and the alienee, Jaynarayan 'the latter may be entitled to insist that he stands in the shoes of the former as to the share which would come to the former upon a partition; and that- the Court, if that position were established, would itself, at Jaynarayan's instance, decree a partition as between the plaintiffs on the one hand and Kedarnath on the other. Their Lordships think that on the present pleadings it is open to Jaynarayan to set up such a case, but express no opinion as to its validity either in law or fact;'' that this pronouncement does relate to the competency of a Court to give a decree for partition in such a suit is, I think, clear from the succeeding passage, according to which, the suit is remanded for trial, 'with a declaration that it is competent for the Court in the event of the respondent, Jaynarayan, failing in his other defences, to make the whole or any part of the relief granted to the plaintiffs conditional on their assenting to a partition so far as regards Kedarnath's interest in the estate, so as to give effect to any right to which the respondent may be entitled claiming through Kedarnath.' This latter statement seems to me to lay down quite clearly that the Court to which the suit was remanded was competent to order partition and to give the. decree accordingly and that the statement in the previous paragraph that their Lordships 'express no opinion as to the validity either in law or fact' refers merely to the question of how much of his case Jaynarayan would be able to establish when it formed the subject-matter of enquiry and this is the view taken by the learned Chief Justice in Davud Beevi Ammal v. Ramakrishna Aiyar 72 Ind. Cas. 81 : 17 L.W. 332 : 44 M.L.J. 309 : (1923) M.W.N. 202 : 1923 32 M.L.T. 263 : A.I.R (1923) (M.) 467. In this latter case the suit was by a member of a family for general partition and it was held that the alienee from one of the co-parceners was entitled, if otherwise equitable, to retain property alienated to him as the share of his alienor. No doubt in many cases it would not be easy to enforce the alienee's equitable right in a suit brought by one of the co-parceners to recover the property, because it would be necessay to add all the co-parceners to the suit and ascertain the amount of family property available for division, etc., and consequently it would often be simpler to refer the alienee to a separate suit but that is not to say that, when the circumstances are favourable, the alienee must of necessity be driven to another suit. The principle originally laid down in Demdyal v, Jugdeep Narain Singh 3 C. 198 : 1 C.L.R. 49 : 4 I.A. 247 : 3 Sar. P.C.J. 730 : 3 Suth. P.C.J. 468 : 1 Ind. Jur. 6041 : 1 Ind. Dec. 715 is that the purchaser has the right to compel partition and it was held that he was entitled to take proceedings to have his alienor's share ascertained by partition.
5. This being the principle, where such share can be ascertained without driving the parties to a separate suit, it should be done in order to avoid multiplicity of litigation. The observations referred to above that the alienee has only a right to sue must be read with reference to the facts of the cases concerned, for, if an equity exists in the alienee and it can be enforced without a separate suit, there seems to me to be no reason for restricting that equity to a mere right to sue, a limitation which cannot be supported on equitable principles. As I read Ramkishore Kedarnath v. Jainarayan Ramrachpal : (1913)15BOMLR867 that case is authority for the proposition that, in a suit by a co-parcener for recovery of the property or for partition, the alienee is entitled to claim partition if it can conveniently be done. In the present case the plaintiff is the only surviving member of his family and at the time of the alienation on the 1st defendant the plaintiff's grandfather was entitled to one-half share in the family property, he having only one son. The family property at that time was a great deal more than double the amount sold to the 1st defendant for by that sale about two Velies were sold at a time when the family properties amounted to something like 13 Velies of land. There is no necessity in the present case to implead any other co-parceners for they do not exist, and the partition, so far as the plaint property is concerned, can be effected without any trouble at all. Sivaramma Ayyar was entitled to property at least equal in value to the property alienated and there is no reason why it should not be allotted to his share and consequently to the 1st defendant.
6. The plaintiff has also claimed mesne profits, but he would not be entitled to such except from the date of the plaint. The sale was by a manager of the family and, as such, is not prima facie void but only voidable at the instance of other members of the family. [Vide. Hanuman Kamat v. Hanuman Mandur 19 C. 123 : 18 I.A. 158 : 6 Sar. P.C.J. 91 : 9 Ind. Dec 527 also Subbe Goundan v. Krishnamacharl : AIR1922Mad112 The plaintiff is, therefore, not entitled to any mesne profits until the date of plaint and as it has been held that the defendants are entitled to retain possession of the property, it follows that he is not untitled to any mesne profits. The appeal is allowed and the plaintiff's, suit dismissed with costs throughout. The Memorandum of Objections is also dismissed.
Venkatasubba Rao, J.
7. I agree.