1. The first point urged in the second appeal is that the second defendant is not a transferee of the right of the first defendant and that therefore Section 27 of the Specific Belief Act has no application to him. The first and the second defendants are brothers. By Ex. I, called a deed of settlement, the first defendant relinquished all his rights in the family property in favour of the second defendant. The contract of sale with the plaintiff was on 4th March, 1919. The Subordinate Judge has held that the second defendant entered into the arrangement evidenced by Ex. I with the knowledge of the contract, in favour of the plaintiff. The question is whether the second defendant is a transferee of the right of the first defendant. The argument of Mr. Lakshmanna for the appellants is that the second defendant is a member of a joint Hindu family and when the members of the family agree to divide their property, it cannot be said that there is a transfer of the right of any one in favour of any other and that every member of a joint family is entitled to all the properties and that if one member takes some property for himself, under a partition arrangement, it cannot be said that the person, so taking all the properties, acquires the right of the other, or is a transferee, within the meaning of Section 27 of the Specific Belief Act. When a partition arrangement is made, members relinquish their rights in the properties allotted to the other members. If there is a release by one member in favour of others, by the release, the other members acquire the right of the person, who releases his right in the properties. Though the right to partition is by virtue of birth, yet when properties are divided, it cannot be said that there is no transfer of the right of each of the members in favour of the others. Mr. Lakshmanna relied upon an observation in Bappu v. Annamalai Chettiar A.I.R. 1923 Mad. 313 that
When one member of the co-parcenary dies, his share passes to the other; but it is a mere question of the lapse of the title of the deceased person, rather than an acquisition of title in the survivors; for, even before the death of the ODO co-parcener they had a right in the whole of the property including the share of the deceased members.
2. In the case of the death of one of the members, the shares of the others are increased. If there are four members and if one of them dies, each of the remaining brothers would be entitled to one-third share. Though the members of an undivided Hindu family have a right to a share, on partition, it cannot be predicated at any time that they will be entitled to so much at the time of partition. The share of each co-parcener can be determined only, at the time of partition. In this case, there is no question of any member dying and the share of the others being increased, or the share of any one lapsing in favour of the others. Here the first defendant, by an act of his, transferred whatever right he had in the property in favour of the second defendant. Ex. I is not an ordinary partition deed. It is a settlement deed and under that deed, the family property is settled upon the second defendant, subject to a reservation, in favour of the first defendant, of a small portion of the property. I think under Ex. I, the first defendant has transferred his right in the family property to the 2nd defendant; and Ex. I is a transfer of the first defendant's right with-in the meaning of Clause (b) of Section 27 of the Act. That a partition can amount to a transfer was held by a Bench of this Court in Rasa Coundan v. Arunachala Goundan A.I.R. 1923 Mad. 577. The learned Judges differred from an observation of Mr. Justice Spencer that the partition affected only a mode of enjoyment of property and was not an act conveying property from one person to another and held that a partition arrangement did amount to a transfer of the interest of one person, in favour of another. In this case, Ex. I is not an ordinary partition deed it is called a deed of settlement and from the terms, it is quite clear that the 1st defendant transferred whatever right he had in the family property, in favour of his brother, the second defendant. I therefore hold that there is nothing in this contention of the appellants.
3. The next point urged by Mr. Lakshmanna is that there should be a finding that the partition arrangement was a fraudulent one, in order to enable the plaintiff to get specific performance against the defendants; and he relied upon an observation of Srinivasa Aiyangar, J., in Bangayya Eeddy v. Subramania Ayyar (1917) 40 Mad. 365. It is unnecessary for the plaintiff to show that the transaction is a fraudulent one. If the second defendant got a title to the property under a transfer, subsequent to the date of the contract of sale, with the knowledge of it, that would be quite sufficient to enable the plaintiff to get the remedy he seeks. The question was not specifically raised in Bangayya Reddy v. Svbramania Ayyar (1917) 40 Mad. 365 and the observation is only obiter and with all respect to the learned Judge, I do not think that it is necessary for the plaintiff to show that the partition arrangement is a fraudulent transaction in order to claim specific performance, against one of the members of the joint family. Granting that the obsertion of Srinivasa Aiyangar, J., lays down a sound principle of law I do not think it can apply to this case; for, as I have already held, Ex. I is not an ordinary partition deed, but a deed of settlement, by which the first defendant relinquished all his rights in the family property in favour of the second defendant.
4. The next point urged by Mr. Lakshmanna is that the agreement, Ex. A, relates only to two items of the family property and that the Court should not decree specific performance in respect of specific items of property, contracted to be conveyed by a member of joint Hindu family, before partition. He strongly relies upon the observation of Sankaran Nair, J., in Subba v. Venhatasami (1915) 38 Mad. 1187. The learned Judge observed at page 1192:
If the learned Judges intended to go further and lay down that if a junior member of a Hindu family agrees to sell any specific property, belonging to his family, a decree may be passed against him, to sell his share of that specific property. I am unable to agree with that view.
5. This observation is dissented from, in Balmwami Aiyar v. Lakshmana Aiyar A.I.R. 1921 Mad. 172. Kumaraswami Sastriar, J., who delivered the leading judgment in that ease, comes to the conclusion that specific items of immovable property could be contraetsd to be gold by a member of the joint Hindu family, before the divides his share from the other members. I do not think any hard and fast rule can be laid down, as regards this. If there are numerous items of property and if the joint family consists of a large number of members, it would not be proper for any member to alienate any specific item, in favour of a stranger and insist upon that item being conveyed to his vendee. Whether it is an actual sale, or contract of sale, the question whether the vendee, or one who has contracted to buy a specific item of the joint family property, should be given that item would depend upon the circumstances of each case. Whereas, in this case, there are only two items of land and both of them are capable of equal division ; and where there are only two members of the family, the first and second defendants, it would not be right to say that the plaintiff is not entitled to the half share of the first item. Each case must depend upon the circumstances and no hard and fast rule should be laid in cases like these. The Courts should see whether the parties are likely to suffer by enforcing any hard and fast rule. If members of a joint family are not likely to suffer by giving the vendee or the person, who has contracted to buy a specific item of the family property, the Court should give him that item. In this case, as I have already said there are only two items of property. There can be no ground at all, either in law or in equity to deny the plaintiff the right to a half share of the plaint item.
6. The next point urged by Mr. Laksh-manna is that the plaintiff should be given only damages and should not be given a decree for specific performance. No such point was raised in the grounds of appeal. No issue was raised, as to whether the plaintiff is only entitled to damages, in case he is not entitled to specific performance, I do not think I should allow him to raise this point, at this stage. Even had it been raised, I should bold that this is an eminently fit case, in which the Court should grant specific performance in favour of the plaintiff. It cannot be said that the plaintiff has by his conduct or otherwise lost his right to get specific performance of the contract entered into with him, by the 1st defendant.
6. In the result, the Second Appeal fails and is dismissed with costs.