Venkataramana Rao, J.
1. The suit out of which this second appeal arises was instituted by the plaintiffs for recovery of a half share in the suit properties under a deed of gift dated September 16, 1926, executed in their favour for and on behalf of a trust by the 6th defendant. Defendants Nos. 4 to 5 claimed title to item No. 2 of the suit property under a deed of sale Ex. XV, dated May 7, 1920, executed by one Ayyasami in their favour. Defendants Nos. 2 and 3 are mortgagees from defendants Nos. 4 and 5 of the said property. The 1st defendant claims items Nos. 1 and 3 under a sale deed Ex. XIV, dated June 17, 1921, from the said Ayyasami. Ever since, the date of the sales, the alienees have been in possession of the property. The case for the plaintiff is that Ayyasami and the 6th defendant Muruga Pillai were members of a joint family who became divided in status and each was entitled to a several half share in the property, that the deeds of sale executed by Ayyasami are not binding on the 6th defendant's half share, that by virtue of the gift deed in their favour they were entitled to recover possession of the half share from the defendants. The defendants allege that the sales by Ayyasami were made under circumstances which will bind the 6th defendant and his subsequent conduct also estops him from impeaching their validity. It is admitted that the patta for the entire lands stands in the name of the said Ayyasami.
2. The learned District Munsif found that Ayyasami and the 6th defendant were divided in status and the sales would not ordinarily be binding on the 6th defendant. But by his conduct as evidenced by Exs. I and II in the case he must be deemed to have ratified the sales. The learned Subordinate Judge came to a different conclusion.
3. Two questions fall to be decided, viz., (i) was Ayyasami competent to sell the entire property so as to bind the 6th defendant and (ii) assuming he was not authorised is the 6th defendant precluded from impeaching the validity of the sales No doubt one tenant-in-common cannot sell more than his share of the common property and any conveyance in excess thereof will not be binding on his co-tenants. But it is open to a tenant-in-common to authorise his co-tenant to sell his share of the property. The authority may be express or implied. The patta stands in the sole name of Ayyasami and a sale by him with the consent or authority of the 6th defendant will be operative to pass the entire interest in the property including that of the 6th defendant.
4. Exhibit II is a letter dated November 10,, 1923 written by the 6th defendant to Ayyasami in which he states that he has asked Ayyasami to sell the said properties and discharge a mortgage due to one Muthukrishna Pillai which is evidenced by Ex. IV in the case. It is a distinct admission on the part of the 6th defendant that he has authorised the sale of the suit property. It is contended that what he authorised was to sell the property for the purpose of discharging the said mortgage debt and not for any other purpose but in the sale-deeds there is a recital that they were effected for the purpose of discharging a debt due to one Dhanadeva Nainar. Therefore as he has acted in excess of the instructions the sale could not be said to have been effected with due authorisation from the 6th defendant. This argument is not tenable. The fact that a purpose other than the one intended by the 6th defendant was recited in the sale deeds or that Ayyasami did not carry out the instructions given to him, namely, the discharge of Ex. IV with the said money will not vitiate the sale. What is required was authorisation to effect the sale and not a proper application of the purchase money. It seems to me, therefore, that the sales by Ayyasami will be binding on the 6th defendant and therefore on the plaintiffs.
5. Assuming that the said sales are not binding as unauthorised, the question is, has the 6th defendant precluded himself from 'attacking them It is open to the 6th defendant to elect to confirm the said sales and call upon Ayyasami to account for the money or to repudiate the sales and sue to recover possession of the property from his alienees.
6. On October 10, 1923, a year or two after the sales and after becoming aware of them the 6th defendant addressed a letter Ex. I to the mortgagee under Ex. IV, to the effect that Ayyasami has sold the property for Rs. 200 and asked him to take that money from him in discharge of his mortgage and that he is sending his own younger brother to see that Ayyasami pays the money. He also addressed another letter Ex. II bearing the same date to his own brother in which he says that he will take him to task for not paying the mortgage with the sale proceeds of the land which he has directed him to sell, and that he is sending his younger brother to see to its payment and requested him to pay the money immediately.
7. The learned Subordinate Judge was of opinion that Ex. IV, was not binding on the 6th defendant. In this finding he is wrong in the face of the distinct admissions in Exs. I and II, his finding cannot be supported and he has not adverted to them in dealing with the binding nature of Ex. IV. His finding in respect of Ex. IV cannot stand and Ex. IV, must be treated as a valid transaction binding on the 6th defendant.
8. Subsequent to Exs. I and II it will be seen that on January 16, 1924, Ayyasami paid a sum of Rs. 366 in part discharge of Ex. IV which is evidenced by the endorsement Ex. IV-A. The lower Courts have taken the view that it is not proved that with the actual sale proceeds the said mortgage was discharged. It is quite unnecessary. The 6th defendant had a right to call upon Ayyasami to account for his share of the sale proceeds. He did call upon him and requested him to apply the proceeds in a particular manner. It was accordingly done. Whether Ayyasami paid the identical sale proceeds or some other money is immaterial. The question is had the 6th defendant derived any advantage from the sale of the suit lands? He did derive a benefit in that Ex. IV was discharged. What constitutes an act of election is in each case a question of fact. The request of the 6th defendant to apply the purchase money, the compliance with the same by Ayyasami, the discharge of Ex. IV and the resulting benefit to the 6th defendant, and the conduct of 6th defendant in not taking any steps to repduiate the sales for a period of five years are enough to show that the 6th defendant has elected to ratify the sales and his election has been conclusively determined. It is not open to a person to confirm a transaction and obtain a benefit therefrom and then turn round and repudiate it. (Vide, Smith v. Baker (1873) 8 CP 350 : 42 LJCP 155 : 28 LT 637. The 6th defendant and the plaintiffs who claim under him are, therefore, precluded from impeaching the validity of the said sales.
9. I therefore reverse the decree of the Subordinate Judge and restore the decree of the District Munsif with costs in this Court.
10. Leave refused.