M. Natesan, J.
1. Defendants 1 to 3 against whom the suit was decreed on appeal by the learned District Judge of Coimbatore reversing the dismissal of the suit by the learned Subordinate Judge of Coimbatore, have preferred this Second Appeal.
2. The facts leading up to the second appeal not now in dispute may be briefly set out. The suit properties along with other properties belonged to one Kandaswami Pillai who died in 1923 leaving four sons Sivagurunathan, Chithran, Thirumurthi and Jagadisan by his first wife and three sons Palaniswami, Saravanaperumal and Jagannathan by his second wife. With considerable properties he left also large debts. The eldest son Sivagurunatha as family manager dealt with the properties and incurred further debts. At the instance of a creditor Sivagurunatha was adjudged an insolvent in I.P. No. 43 of 1924 on the file of the District Court, Coimbatore, and on orders of the Court the entire properties of Kandaswami Pillai also vested in the Official Receiver. The suit properties formed part of an extent of 72.53 acres which vested in the Official Receiver and the entire extent were sold by him on 4th September, 1934, for the low figure of Rs. 800 the purchaser being no other than one Meenakshisundaram Pillai, the son-in-law of Kandaswami Pillai. Before the sale, one of the sons Jagannadhan had sent a notice pointing out that only the share of Sivagurunatha in the properties could vest in the Official Receiver and only his share in the properties should be sold. After the sale by the Official Receiver, Jagannadhan on 1st September, 1935, filed a suit O.S.No. 223 of 1935 on the file of the Sub -Court, Coimbatore, for partition and separate possession of his share in the properties of his father Kandaswami Pillai. In that suit Jagannathan challenged the Official Receiver's sale of the properties contending that only the insolvent's 1/7th share could be conveyed by the Official Receiver. His six brothers including the insolvent were made party defendants to the suit, besides the Official Receiver and various creditors. The purchaser of the properties, Meenakshisundaram Pillai, was impleaded as 35th defendant. Pending that suit Meenakshisundaram Pillai sold his right in the properties to one Valliammal, sister of defendants 1 and 2 in the suit out of which the present Second Appeal arises. In the partition suit O.S. No. 223 of 1935 excepting the insolvent brother, the other brothers filed written statements supporting the claim of the plaintiff and claiming their respective 1/7th share each in the properties. The suit was dismissed by the trial Court and the matter was brought up on an appeal in A.S. No. 158 of 1938 to this Court. Pending the appeal, Valliammal the purchaser of the properties from Meenakshisundaram Pillai, conveyed her rights in the properties to her brothers the present defendants 1 and 2. Thereupon the present defendants 1 and 2 were impleaded as party defendants in the pending appeal in this Court. A compromise was entered into therein between the present defendants 1 and 2 and the sons of Kandaswami Pillai excepting the insolvent son. It was agreed that the present defendants 1 and 2 should take one half of the properties sold and the other half should be taken by the non-insolvent six sons of Kandaswami Pillai. Defendants 1 and 2 were also made liable for mesne profits in respect of the shares which they have to give up to the sons. Exhibit A-2 is the certified copy of the judgment in A.S. No. 158 of 1938 pursuant to the compromise and Exhibit B-1 dated 16th October, 1942, is the certified copy of the compromise decree passed by this Court in A.S. No. 158 of 1938.
3. Very shortly after the compromise on 30th December, 1942, the six sons who secured half the rights in the properties from the alienees, defendants 1 and 2 sold their entire rights to defendants 1 and 2 for Rs. 4,000. The sale is evidenced by Exhibit A-1, Registration copy of the sale deed. It is this sale whose validity is impugned in the suit out of which this Second Appeal arises.
4. Plaintiffs 1 to 3 in the present suit are the sons of Palaniswami Pillai and Plaintiffs 4 to 6, the sons of Saravanaperumal. The third defendant is the son of the first defendant. He claims title to a portion of the suit properties as a purchaser from one Janaki Ammal who is stated to have purchased the property in execution of a decree against the first defendant. As stated already defendants 1 to 3 are appellants in the Second Appeal. The plaintiffs have contended that the sale evidenced by Exhibit A-1 executed by their fathers and their four paternal uncles was not supported by any necessity or benefit. The Courts below have concurred in holding that the brothers got the properties under the compromise as joint family properties, and that their sons had interest in the properties. The right of the present plaintiffs to impugn the sale has been found in their favour. The sale recited cash consideration and it is observed by the Courts below that there is absolutely no evidence to show that on the date of the sale the brothers had any necessity to borrow or sell the properties. The trial Court has observed that there was no escape from the conclusion that the sale under the original of Exhibit A-1 was not valid and binding on the plaintiffs. In the lower appellate Court this finding was not challenged learned Counsel appearing for defendants 1 and 2 not arguing that the safe was valid and binding on the plaintiffs. Notwithstanding the finding that the sale was not binding on the plaintiffs, the trial Court held that the suit as framed was not maintainable. It was contended for defendants 1 to 3 that there were other grandsons of Kandaswami Pillai by other sons and that the suit by the plaintiffs alone without impleading them as parties was bad and could not be maintained, While otherwise finding in favour of the plaintiffs, the trial Court accepted this contention on behalf of the defendants and dismissed the suit. The trial Court was of the view that under the compromise the six sons of Kandaswami Pillai excluding the insolvent son took the properties from the alienees jointly and it could not be said that the father of plaintiffs 1 to 3 and that of plaintiffs 4 to 6 had become divided from their brothers.
5. On appeal by the defeated plaintiffs the learned District Judge pointed out that it cannot be that after the institution of the partition suit the six brothers continued as one joint family. He pointed out that the brothers had severaly claimed their reserve shares-Jagannadhan in his plaint and other brothers in their written statements The learned District Judge observed-and in my view quite properly-hat simply because under the compromise half the properties were given to the six brothers jointly they could not constitute a joint family thereafter. The brothers had expressed their unequivocal intention to divide earlier and claimed their respective shares. There was a clear disruption or division in status and there was no plea or proof of reunion thereafter. The learned District Judge quite correctly took the view that the brothers, each with his sons, if any, would constitute a separate of family, there being no commonality or jointness among the brothers Even the trial Court has negatived the defence that the suit was bad as one for partial partition , and this point was not even argued in the lower appellate Court, as pointed. out by the learned District Judge. The plaintiffs were found by the lower appellate Court to be each entitled to a 1/24th share in the suit properties There was no dispute about the correctness of the shares. The only substantial defence to the suit was the failure to implead the other grandsons of Kandaswami Pillai and as the learned District Judge was of the view that they need not be impleaded he gave a preliminary decree for partition in favour of the plaintiffs.
6. The point pressed before me in the Second Appeal is the plea of non-joinder of the other grandsons of Kandaswami Pillai. Learned Counsel for the appellants contended that the suit was one for partition and such being the case, all the sharers must have been made parties to the action. The non-joinder of the other grandsons of Kandaswami Pillai who like the plaintiffs could claim shares in the suit properties, it was contended, is fatal to the action. Though a ground has been raised questioning the finding of the learned District Judge that there was a division in status between the brothers the point was not stressed as it could not on the records. There was no serious argument before me that the six brothers held the half share in the suit properties conveyed by defendants 1 and 2, as members of an undivided joint family.
7. The alienation impugned was on 30th December, 1942 and the suit was filed on 11th January, 1957. No question of limitation arises, as the plaintiffs were minors the date of the impugned alienation and none of them had completed 21 years of age by the time the suit was filed. The plaintiffs in their suit had claimed only their shares each a 1/24th. In the written statement the defendants challenged the frame of the suit and Issue No. 5 was framed thereon and it is on that issue the plaintiff failed in the trial Court. Even then when they filed the appeal, no application was made to implead the other grandsons as party defendants. But the plaintiffs succeeded in their appeal, the learned District Judge holding that the other grandsons need not be impleaded as parties. In this Court in Second Appeal the suit got adjourned on several occasions and evidently in view of some observations made by this Court, the plaintiffs filed a petition C.M.P. No. 10748 of 1966 to implead as parties their surviving uncles and their children as defendants-respondents. In their affidavit the plaintiffs would maintain that the other grandsons are not necessary parties, but that they would have them impleaded to avoid the technical objection taken by defendants 1 to 3. It is stated in the affidavit that two of the sons of Kandaswami Pillai, Chithran and Thirumurthi, are dead. It is stated that Chithran died issueless and Thiruniurthi, unmarried. It is only the other two brothers, Jagannadhan and Jagadisan that have sons; and that these sons were born after the alienation. The petition is to implead these sons as party defendants-respondents. Defendants 1 to 3 in the counter-affidavit filed on their behalf naturally--and if I may say quite properly--oppose the addition of parties at this late stage. They pointed out that the plea of non-joinder had been taken at the earliest opportunity and the plaintiffs had, even after failing in the first Court, not applied to rectify the defect in the frame of the suit. One thing is clear that if the proposed parties are necessary parties, they are impleaded long after the period of limitation and the arguments proceeded before me on the agreed basis that the rights, if any, of the proposed parties stood extinguished long before the application was filed.
8. The case for the appellants-defendants 1 to 3 was presented before me in the following form. It was said that the Courts below find that the alienation in favour of defendants 1 to 3 by the brothers is invalid and not binding on their sons. The sons would therefore be entitled to claim their shares in the properties. The plaintiffs represent only some of the shares. There has to be a partition of the properties which have been improperly alienated between all the grandsons and the plaintiffs cannot have their shares alone separated in the absence of the other grandsons of Kandaswamy Pillai. It is stated that the other grandsons are co-owners and being persons jointly interested in the properties, the suit will not lie unless all of them are joined. In the absence of any application to have the other persons joined as parties before their claim became barred by limitation, the whole suit has to fail. The plaintiffs failed to implead the other sharers in time in spite of the objection raised at the earliest opportunity. Learned Counsel for the appellants urged that under Section 22 of the Limitation Act when after the institution of a suit a party is added as plaintiff or defendant, the date of addition has to be considered as regards that party as the date of the institution of the suit, and it followed that where necessary parties are not joined within the period of limitation, the suit has to be dismissed. Learned Counsel stressed the well-established proposition that all co-sharers are necessary parties to a suit for partition, and that they should be joined as parties to the suit.
9. Strong reliance was placed by learned Counsel for the appellants on the decision of the Supreme Court in Kanakarathnammal v. Loganatha : 6SCR1 . In that case the appellant could not have inherited the property solely and she could take it if at all with her two brothers. The two brothers were not made parties and an application was made in the Supreme Court for impleading them as co-plaintiffs or as, defendants if they were not willing to join as co-plaintiffs. Their Lordships in rejecting the application pointed out that there was no justification for allowing the appellant to amend her plaint by adding her brothers at the late stage The plea of nonjoinder had been expressly taken even at the trial Court and an issue framed. Even when the suit was dismissed by the trial Court on the ground of non-joinder the appellant did not move the High Court. Their Lordships pointed out:
It is true that under Order 1, Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or non-joinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order 1, Rule 10, Sub-rule (2) direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties plea of limitation. Once it is held that the appellant's two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court.
10. Following this decision one thing is clear that the application for impleading the grandsons must be dismissed. The fact that the learned District Judge has taken a different view in the matter does not make any difference. But the next question that arises for consideration is whether the grandsons are necessary parties and whether their non-joinder is fatal to the present suit. I have to see whether the 'estate' in the present suit can be represented for the purposes of the adjudication only when all the grandsons are before the Court. Learned Counsel for the appellants also referred me to another decision of the Supreme Court in State of Punjab v Nathu Ram : 2SCR636 . In that case where a certain land belonging jointly to two brothers was acquired and the award of compensation was jointly in favour of both the brothers an appeal filed by the State questioning the quantum awarded was held to have abated on the death of one of the brothers, no substitution having been made of his legal representatives. Emphasis was laid on the following observations of the Supreme Court:
The appellate Court will have to determine the share of Nathu Ram and necesssarily the share of Labhu Ram in the absence of his legal representatives. This is not permissible in law. Further the entire case of Labhu Ram and Nathu Ram in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them.... Their claim was a joint claim based on the allegation that the land belonged to them jointly. The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate shares.
I will now set out the stand taken by the plaintiffs. It is contended for the plaintiffs that the other grandsons cannot be considered to be their co-sharers or tenants in common with them in regard to the suit properties. They may have a cause of action, but no property was vested in the grandsons. Once it is postulated that the six brothers were divided when under the compromise the suit properties were acquired by them, the brothers held the properties as tenants in common and not as members of an undivided joint Hindu family. The sons of each brother would hold his father's share in the property in coparcenary with his father. Each brother's branch formed an independent joint family without there being any coparcenary between the brothers. It followed according to learned Counsel that when the six brothers joined in alienating the properties each represented his own family. Learned Counsel contended that an alienation by the father may be repudiated by his son, but if not challenged, the alienation would stand. The alienor brothers themselves could claim no share in the properties and their sons, if they had not repudiated the sale in time would equally be bound as their respective fathers and would have no interest in the properties. Therefore it is submitted that those grandsons who did not challenge the alienation cannot be regarded as tenants in common with the plaintiffs. The plaintiffs alone repudiated the alienation by their fathers. Others ex facie stood by the alienation. The alienation was voidable at their instance, but until they choose to avoid they would have no interest in the properties. They were not tenants in common with the plaintiffs, the properties having been alienated away. It followed that the alienee-defendants 1 and 2 will alone be tenants in common with the plaintiffs in shares specified. If the plaintiffs' suit is in time, they get their shares in the properties and the remaining shares would be taken by the alienees. The other grandsons if they do claim can get no share in the suit properties; nor is it necessary when dividing the properties between the plaintiffs and the alienees-defendants to provide for or take notice of the shares of the other grandsons. The defendants do not concede that they too had shares, and must be provided for in a partition.
11. Learned Counsel for the plaintiffs submits that the sole aim is to defeat the present action and the entire case of the appellants is rested on the supposition that there are grandsons who are necessary parties. The plaintiffs for their part have not admitted that there are other persons who are entitled to shares in the properties apart from themselves. If it is the contention of the defendants that the suit is bad for nonjoinder, it is for them to establish that necessary parties to the action have been left out. Prima facie the brothers themselves are not necessary parties to the action. They are bound by the alienation. The alienation is for consideration. It is not a gift and so far as the plaintiffs are concerned, they are satisfied that they get their shares in the property leaving to the alienees their fathers' shares in the properties. They do not question the alienation by the other branches. If the brothers are tenants in common then even though they may join and make a single conveyance it may be perfectly valid and unimpeachable in regard to some and liable to be questioned in respect of others.
12. The law is clear that an alienation of joint family property made by a father who has no male issue in existence on the date of alienation, is valid though made without legal necessity. Such alienation cannot be objected to by a son born after the date of the alienation on the ground that it was made without legal necessity. An alienation made by a father who has sons living ,when challenged by the sons on the ground of invalidity, would be valid to the extent of the father's interest in the property. The period of limitation for setting aside an alienation by a father of joint family property, is 12 years from the date when the alienee takes possession of the property, under Article 126 of Schedule 1 of the Limitation Act, 1908. In the present case the contesting defendants in their written statements have no doubt taken the plea on non-joinder. But all that is stated there is that the suit is bad for non-joinder of the other grandsons of Kandaswami Pillai. It is for the defendants to make out that there were other grandsons of Kandaswami Pillai in existence at the time of alienation. We have absolutely no evidence in this regard. The fact that it is admitted that there are grandsons, does not necessarily warrant the conclusion that they are necessary parties. To hold them to be necessary parties, one has to further held that these grandsons could have challenged the alienation. But that can only be when it is made out that there were sons of other brothers alive at the time of the alienation and the brothers were not in their respective branches the sole coparceners at the time of the alienation. The present suit, it will be seen, has been filed more than 12 years after the date of the alienation. The plaintiffs have contended and it has been established that the suit has been filed within three years after the attainment of majority by the first plaintiff and third plaintiff, the eldest sons in their respective branches. A perusal of the judgments of the Courts below would show that apart from stating that there are other grandsons who are sharers nothing further is stated. The other grandsons do not automatically become co-sharers. In my view when a plea is put forward that a suit has to fail for non-joinder of necessary parties, it would be for the defendant who sets up this plea to make out that the persons not impleaded are necessary parties, and that their non-joinder would be fatal to the suit. In the present case, as it is, it has not been made out that there were in existence other co-sharers who could claim partition along with the plaintiffs though the discussion appears to proceed on that assumption. I do not find anything on the record for the assumption to stand.
13. The trial Court has relied upon the decision in Shyam Sunder Rai v. Jagarnath Misra I.L.R. (1923) Pat. 925. That was a case of alienation of coparcenary property. It was held therein that a coparcener in a joint Hindu family governed by the Mitakshara is not competent to sue for the recovery of his share of the property from the transferees and that the plaintiff must in such a case sue for recovery of the whole property and implead the other coparceners. That was a case where there were two branches, each branch consisting of father and son. The plaint proceeded on the basis of division between the two branches and questioned the alienation of a half share by the other branch. The plaintiff pleaded absolute separation and sued for possession of property. There was no claim for partition of a share. The defence was' that the family was joint and there was no separation. This plea of jointness was upheld while finding against the case of legal necessity pleaded. I am doubtful when there are only two branches it would be necessary to implead the alienating branch in the suit against transferee for a half share, assuming that there was no division. It appears to me that that may not be good law, the alienors having become disqualified by the alienation from questioning the validity of the alienation. I do not find any plea of partial partition put forward in that case. One thing is clear. The claim there, was for a separated share and on the finding of non-division the suit in that case had to fail. The judgment leaves the impression that if there had been separation between the two branches it would not be necessary to implead the other members. This case cannot help the appellants.
14. The basis on which all the co-sharers are required to be made parties in a partition action is found in the following passage in Freeman's Co-tenancy and Partition at paragraph 463 at page 618.
If a decree is made which is intended to bind them, it is manifestly unjust to do this when they are not parties to the suit, and have no opportunity to be heard. But as the decree cannot bind them, the Court cannot for that very reason afford the relief asked to the other parties. If for instance, the decree should partition the land and state an account, the particular pieces of land allotted to the parties before the Court would still be undivided as to these parties, whose interest in each piece would remain as before the partition. And they could at any . time apply to the proper Court, and ask a repartition of the whole tract, unaffected by the decree in this case, because they can be bound by no decree to which they are not parties.
15. Referring to the persons entitled to claim partition, the following passage is found at paragraph 446 at page 592 in the Treatise:
If the property of a co-tenancy be a proper subject for compulsory partition, and if some or all of the estates held therein be estates of which the Courts will take jurisdiction for the purpose of compelling an enjoyment in severalty, the next subject for inquiry is whether the person who proposes to file the bill or complaint for partition, is in respect to his present interest in the property, and to his present relations towards it, one of the persons authorised by law to emand its partition.
16. Can it be said in the circumstances of the case that the other grandsons had their present interest in the properties and their relation towards the properties was of persons authorised by law to demand partition? Except assuming that they are co-sharers nothing is found as to the right of grandsons to challenge the alienation and claim partition of their shares in the properties.
17. What has to be considered here is whether the suit can be proceeded with in the absence of the other parties and in this we have to look to the substantial law regarding the rights of these grandsons The question for consideration always is : is it absolutely necessary to have the absent parties? When they ought to be added, if they refuse to join as plaintiffs, they must be added as defendants. If a necessary party is not added in time, the suit may fail. If it is not a case of imperative necessity, that is, where the non-joinder would not result in the entire legal title in issue remaining unrepresented, then it will only be convenience or expediency to have the absent parties added as parties. Their non-joinder would not be fatal to the suit. In the present case the other grandsons of Kandaswami Pillai could have been impleaded as parties to the suit even if they could not have under the personal law challenged the alienation of their father. Why, even the fathers could have been impleaded. For me to hold that the non-joinder of the other grandsons is fatal, I must first find that they are necessary parties and the suit has not been properly framed. The question whether these grandsons admittedly now in existence could have challenged the alienation, has not been found at all. If that is found, then the further question will arise whether the mere existence of a right to challenge would make them necessary parties in the action by such of the grandsons who have chosen to challenge the alienation. This is a difficult question for decision. Before that question is taken for consideration, it is desirable first to find whether at all the other grandsons could have challenged the alienation, that is, they are persons who have or had a right of action with reference to the properties, at the time the present suit was constituted.
18. In the view taken by the trial Court it was unnecessary to decide whether the other brother's sons were alive at the time of the alienation. The trial Court proceeded in the view that the six non-insolvent brothers took the properties as members of a joint family. It ignored that all the brothers had asked for division of the family properties and there was a decree showing them as divided members of the family. In fact the shares of the brothers as 1 /7th each was specified in the decree. It may be that the conveyance by defendants 1 and 2 is a joint conveyance in favour of the brothers. But if the brothers were not members of a joint Hindu family, even though the properties were acquired by them as properties of the erst while joint family, the six brothers will not as a unit by virtue of the purchase be re-constituted into a coparcenary. The learned District Judge as stated above finds that the brothers held the properties as tenants in common and this view has not been challenged before me. But in the view taken by the learned District Munsif that all the brothers were coparceners, the sons of the other brothers were not only proper but necessary parties. The plaintiffs and the other branches would therefore be members of a coparcenary and the plaintiffs cannot sue for their shares alone ignoring the other grandsons all of them being members of the joint family entitled to impeach the alienation. The alienation is of a joint family properties by some of the members of the joint family, the fathers. But all the grandsons could challenge the alienation and in any suit for partition challenging the alienation all of them must be on record whether as plaintiffs or defendants. This being the position, it was unnecessary for the learned Subordinate Judge in the Court of first instances to find out specifically whether any of the other brothers had grandsons alive at the time of alienation and whether these grandsons had subsisting rights to challenge the alienation when the present suit was filed by the plaintiffs. But in the view taken by the learned District Judge it was essential to decide this question. Two issues were raised in the said Issues 3 and 6. Issue 3 specifically refers to nonjoinder. Issue 6 refers to the frame of the suit. The issue of non-joinder, the subject of Issue 3 relates to impleading of persons stated to be owners of portions in some of the survey fields, the subject-matter of the suit. This issue has been found against by the trial Court. These co-owners of the same survey fields were enjoying specified extents of properties without survey sub-divisions. As regards. Issue 6 which relates to the frame of the suit, the argument for the defendants was that the suit for partition by the plaintiffs claiming their shares alone was bad, and that all the other sharers, namely, the grandsons and the other sons of Kandaswami Pillai should have been impleaded. This was found for the defendants.
19. In the light of the discussion above, the mere existence of the grandsons would not be sufficient if their fathers had taken the alienated properties as tenants in common. In the plaint nothing is stated about the other grandsons. The genealogical table found in the plaint specified only the grandsons who figure as plaintiffs. It did not show the other grandsons. In the written statement of the first defendant it was pointed out that the genealogical table was not correct in a much as one of the sons of Kandaswami Pillai, Jagadesan, was not shown, and that the other grandsons of Kandaswami Pillai were omitted. This traverse was accepted at the trial as correct, Jagadisan has been omitted and there are other grandsons of Kandaswami Pillai. Coining to the issue of non-joinder, in this written statement in paragraph 10 it is stated that there are other co-sharers, that is, in relation to the survey fields. This has been dealt with by the trial Court and found against the defendants and is not the subject of any argument. In paragraph 15 however there is a specific plea of non-joinder of the grandsons. The plea runs thus:
The suit is bad for non-joinder of parties, the other sharers namely the other grandsons of Kandaswami Pillai.
This plea will be sufficient if all the brothers formed members of a joint family. The evidence does not carry the matter far. It is not made out by the evidence that at the time of alienation the other grandsons of Kandaswami Pillai were alive. In my view, when a plea of non-joinder of parties which will be fatal to a suit is taken, it is incumbent on the party pleading to make out how the absent parties are necessary parties. To repeat, the mere presence of grandsons at the time of the suit if the brothers take as tenants in common does not make them co-sharers. If they are not co-sharers, then they are not necessary parties. The lower appellate Court which overruled the defence that the other co-sharers are not necessary parties, has itself not examined the matter in detail. It has proceeded on the basis that the brothers were tenants in common and that in such a case the other co-sharers are not necessary parties. That is not so easy a question and I need not embark for a definite decision on this question on an assumption that the grandsons are co-sharers. While it is true that it is for the party pleading non-joinder to establish how the non-joinder is fatal to the suit and he cannot content himself with a vague statement that they are necessary parties, without even specifying them, I cannot in the present case simply proceed on the basis that it has not been established on record that the other grandsons are necessary parties. The lower appellate Court while reversing the decision of the trial Court has failed to consider this aspect of the matter and the parties have not applied their mind at all to this question. It will not be fair to the parties in the circumstances, that I should shut out the plea altogether though a technical one when the materiality of the finding in this regard has not been appreciated in the Court below, and the appellants were able to stand in one Court on that plea. The questions further can be answered on fairly reliable evidence.
20. In the circumstances, before I proceed further with the case I would like to have findings on the following questions : h
1 Whether the other sons of Kandaswami Pillai that is Chitran, Tirumurthi, Jagannathan and Jagadisan, had sons at the time of the impugned alienation?
2 Whether such grandsons, if any, of Kandaswami Pillai had subsisting rights to challenge the alienation in question under the personal law when the present suit was instituted by the plaintiffs on the 11th of January, 1959?
21. The learned District Judge, Coimbatore, will submit his findings on these questions within four weeks of the re-opening of his Court after the summer recess. The parties will be at liberty to adduce such evidence as they desire for decision on these questions. Time for submission of objections if any to the findings is 10 days after the receipt of the findings by this Court.
22. In pursuance of the aforesaid order, the District Judge, Coimbatore submitted the following findings:
The High Court has called for finding on two points. The suit was one for partition and separate possession of the plaintiffs' shares in the plaint schedule properties. The properties originally belonged to one Kandaswami Pillai. He had two wives. By his first wife he had four sons, Sivagurunathan, Chitran, Thirumurthi and Jagadisan. By his second wife he had three sons, Palaniswami Saravanaperumal and Jagannathan. Kandaswami Pillai died in 1923. He had debts, His eldest son Sivagurunathan managed the family properties. He also incurred debts. There was an insolvency petition against Sivagurunathan, and he was finally adjudged an insolvent. After that the entire properties of Kandaswami Pillai vested in the Official Receiver.
2. The Official Receiver proclaimed the properties and sold the same on 4th September, 1934 for Rs. 800. While so, on 1st September, 1935 Jagannathan the youngest son by the 2nd wife filed a suit in O.S. No. 223 of 1935, for partition. The other six brothers were the defendants therein. The alienees were also there. Pending that suit, the purchaser Meenakshisundaram Pillai sold these properties to one Valliammal, who in her turn, sold them to defendants 1 and 2 in the present suit and who were the appellants in the High Court. The suit was dismissed on the ground that the manager of a Hindu family could alienate the properties for satisfying the antecedent debts and that right vested in the Official Receiver. In that suit, the other six brothers have all filed written statements claiming their 1/7th share each.
3. Jagannathan filed an appeal in A. S. No. 158 of 1938 to the High Court. Pending that appeal, the appellants purchased the rights of Valliammal and they were also impleaded. The appeal was compromised and half the properties were decreed to be given to the sons of Kandaswami Pillai. The certified copies of the said compromise decree and judgment have been produced. The High Court ordered that the plaintiff, Jagannathan, and his other six brothers were each entitled to 1/7th in half the properties of Kandaswami Pillai and sold by the Official Receiver.
4. The decree of the High Court is on 16th October, 1942. On 30th December, 1942 the six brothers who got their rights in the properties by virtue of the compromise decree, sold their right to defendants 1 and 2. The plaintiffs, the sons of two brothers, questioned this sale deed as not valid and binding on them and filed the suit for partition. According to the plaintiffs, that sale was not supported by any necessity or benefit.
5. The defendants contended that the plaintiffs were not competent to question the sale deed as, under the compromise, the brothers got their rights in their own individual capacity and not for and on behalf of the family. It was also contended that the suit was not properly framed and that it was bad for non-joinder of necessary parties. According to the defendants, there should be a suit impleading all the persons interested in the properties and their prayer should be one for general partition. Defendants 1 and 2 are the vendees. The 3rd defendant is the son of the 1st defendant and he claims right to a portion of the properties by virtue of the sale from one Janaki Ammal who purchased it in execution of the decree against the 1st defendant. The 4th defendant is a mortgagee under defendants 1 and 2. The 5th defendant is impleaded as one of the purchasers. So, the plea merely was that none of the other sons who were interested in the properties has been impleaded.
6. The trial Court found that the suit was bad for non-joinder of necessary parties. It also found that the plaintiffs would be entitled to question the sale deed in a properly framed suit. The suit was dismissed. There was an appeal to this Court and this Court held that the suit was not bad for non-joinder of necessary parties and it was properly framed. Under the compromise decree the brothers did not get the properties individually and so it was not their self-acquired properties. Out of the seven brothers one had become insolvent. In the partition suit filed by Jagannathan all the other brothers wanted their shares separately. Thus there was a complete division in status. So, since the plaintiffs were claiming partition only in respect of their father's shares, the vendees alone were considered to be necessary parties.
7. Now, in appeal, the High Court has called for findings on two points. It has observed that the question whether the suit is bad for non-joinder of necessary parties could be answered only after a finding was recorded; (1) whether the other sons of Kandaswami Pillai, i.e., Chithran, Thirumurthi, Jagannathan and Jagadesan had sons at the time of the impugned alienation and (2) whether such grandsons, if any, of Kandaswami Pillai had subsisting rights to challenge the alienation in question under the personal law when the present suit was instituted by the plaintiffs on the 11th of January, 1957.
8. Subsequent to the remand, defendants 1 and 2 have examined one witness on their side and have also produced certain documents. D. W. 2 Jagadesan is the youngest among the four sons of Kandaswami Pillai by his second wife. His evidence is to the effect that his brothers Chithran and Thirumurthi have no children. We are not concerned with Sivagurunathan as he is an insolvent. D. W. 2 has five sons, Nandakumar, Sivasubramaniam, Sathianathan, Muruganadan and Arumugham. The last two are minors. Nandakumar is 25 years old and he was born on 31st January, 1942. He gave evidence with reference to Exhibit B-5 the certified copy the Birth Register extract relating to Nandakumar obtained from the Udamalpet Municipality. Sathianathan is 21 years old and he was born on 24th January, 1946. Exhibit B-6 is a similar extract relating to his birth. Sivasubramaniam is 19 years old and Exhibit B-7 shows that he was born on 10th February, 1949. Jagannathan has a son aged 8 years. In view of the evidence of D.W. 2 supported by Exhibits B-5 to B-7, I find that these persons are alive and that on the date of the suit Nandakumar, Sathiananthan and Sivasubramaniam were alive. I further find that Nandakumar alone among the grandsons of Kandaswami Pillai was alive on the date of the impugned alienation. Regarding the finding on point No. 2, Nandakumar who was live on the date of the impugned alienation had subsisting rights to challenge the alienation in question when the suit was instituted.
23. I shall also observe her that Mr. Meenakshisundara Sastriar wanted to argue that as on today Nandakumar's rights to challenge the alienation is barred. That is a matter which he has got to urge in the High Court.
After the receipt of the said findings, the Court delivered the following
24. The learned District Judge has submitted his finding that of the other sons of Kandaswami Pillai who are not represented in the suit, Jagadesan, the youngest of the sons has sons who could have challenged the alienation. Of the seven sons of Kandaswami, the eldest Sivagurunatha was adjudged insolvent and he is out of the picture. Plaintiffs 1 to 3 are the sons of Palaniswami, one of the second wife's sons of Kandaswami Pillai and plaintiffs 4 to 6 are Kandaswami Pillai's grand sons by his son Saravanaperumal also by the second wife. The impugned alienation by the six sons of Kandaswami Pillai which is challenged was on 30th December, 1942. The plaintiffs have claimed partition and allotment of a 1/24th share to each of them in the suit properties. It is now seen that of the four brothers not represented in the suit, two of them Chidamabaram and Jagannathan have no children. To the remaining two sons, Jagannatha and Jagadesan, Jagannathan's son was born several years after the impugned alienation. For his branch Jagannathan was the sole coparcener, when he joined the impugned alienation. Now his heir is stated to be only 8 years. But the other brother Jagadeesan had a son born to him on 21st January, 1942, prior to the alienation, and this son by name Nandakumar has four brothers all subsequently born. This suit was instituted on 28th January, 1957, and clearly if Nandakumar had a cause of action to challenge the alienation and claim his share in the properties, his rights were subsisting on the date of suit and his brothers subsequently born also would have right. In my order calling for a finding, I have pointed out that the mere fact other brothers had sons at the time of the suit would not be sufficient but they must be co-sharers if they were to be considered as necessary parties. To constitute a valid suit for partition, in the parties arrayed in the suit, either as plaintiffs or defendants must be found represented the entire estate. Persons who have no interest in the estate cannot be considered to be necessary parties, though they may in some cases be proper parties. An estate is partitioned, if there is severance of title and severance of possession in to parcels and the severed title of the sharers and their separated possession are co-related. If some of the parties having title in the estate and right to possession are excluded at the partition, their interest in each parcel of land would remain as before the partition and there can be no final partition. The persons excluded would not be bound by the decree for partition and their tenancy in common would be continued. Hence the requirement for impleading all the co-sharers.
25. So, what first falls for determination now is whether Jagadeesan's son Nandakumar and the brothers of Nandakumar had shares in the properties at the time, when the suit was instituted. Their father had for consideration parted with his interest in the properties. As I have already pointed out, Kandaswami's sons inter se were divided in status and in regard to the property alienated, though there has been no division by metes and bounds, they held it only as tenants-in-common and the coparcenary was only between each son of Kandaswami and the son's sons. It is well settled that an alienation by the father of joint family property without legal necessity is not void, but voidable at the option of other coparceners. They may affirm it or they may repudiate it, the right of repudiation is personal to them and a third party cannot repudiate it, when there is no justification that the alienation was in fraud of creditors.
26. In Subba Goundan v. Krishnamachari : AIR1922Mad112 , it is stated:
The alienation by the father to the extent of his share will be good. In the case of sales by a father or managing member of the joint family for alleged necessity, we think the sale will be good till avoided, as it is open to the other coparceners to affirm the transaction.
In that view the claim for mesne profits in the suit by the plaintiffs challenging the sale of properties by their father was limited to the period from the date of suit as there was no repudiation before the suit.
27. In Perama Nayakam v. Sivaraman (1952) 1 M.L.J. 308 : I.L.R. (1952) Mad. 835, Satyanarayana Rao, J., observes:
It has been recognised in Chinna Sanyasi v. Suriya I.L.R. (1882) Mad. 196, that a non-alienating coparcener may sue to recover his interest in a parcel of family property which was conveyed away by a coparcener to a purchaser. In such a case, the coparcener has got the option of repudiating the transaction altogether and recovering the property from the alienee who was put in possession for the benefit of the joint family. (See Subba Goundan v. Krishnamachari : AIR1922Mad112 , or he may elect to affirm the transaction and sue to recover possession of his share of the property after partition! In such a case, it is held that the suit is not liable to be dismissed on the ground that it is bad for partial partition. Where the member repudiates the transaction, he can recover the property only for the benefit of the joint family and the property when recovered, continues to be joint family property. But what is the position if he affirms the transaction and sues only to recover his share? In a case where members of a family are two and two alone, the share so recovered would be the separate property of the plaintiff as held in Chinna Sanyasi v. Suriya I.L.R. (1882) Mad. 196, followed in Kadegan v. Periya Munuswami : (1903)13MLJ477 . If, however, there is more than one non-alienating coparcener, a suit to recover the share in the property cannot be instituted by one alone without the concurrence of the coparceners, who should be impleaded either as plaintiff, or as defendants, unless it be that the coparcener suing is the manager and head of the family. When there are more than one Coparcener who did not join in the alienation, if the right of recovering possession of their share is to be exercised after affirming the transaction, it can be done only by all of them, and not by any one of them. The property so recovered therefore would be the joint property of all the non-alienating coparceners.
In the present case, there is no question of coparecenary of the plaintiffs with the persons who have been left out.
28. In Hanuman Kamat v. Hanuman Mandur I.L.R. (1892) Cal. 123 : L.R. 18 IndAp 158, the sale was by the father in a family governed by Mithila Law, which on the question in issue, did not differ from Mitakshara. A point of limitation had to be considered and the Judicial Committee observed:
But their Lordships are inclined to think that the sale was not necessarily void; but was only voidable if objection were taken to it by the other members of the joint family.
29. In Mumma Reddi v. Durairaja : 2SCR655 , the Supreme Court lays down:
A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Article 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property.
30. In Banwari Lal v. Mahesh L.R. (1919) 45 IndAp 284 : I.L.R. 41 All. 63, where conveyances by a father were not wholly for justifiable or necessary purposes and the Court held that the plaintiff was entitled to possession on payment of a certain portion of the consideration, the Judicial Committee remarked that' the defendants must be deemed to be lawfully in possession until they are set aside, and are therefore not accountable for mesne profits.'
31. In Imperial Bank of India, Jullundur v. Mst. Maya Devi I.L.R. (1935) Lah. 714, after pointing out that ah alienation by the father which cannot be supported on the ground of family necessity or the consent of the other coparceners who are adults, is not unlawful or void ab initio, but is voidable at the option of the other coparceners, who alone are affected by his unauthorised act, held that
No person who is a stranger to the family and does not possess a right to have the transaction defeated on other grounds, (e.g., under Section 53 of the Transfer of Property Act) has a locus standi to intervene and impugn an alienation by the manager, merely because it is an excess of his authority to deal with the property for family purposes.
In that case, the learned Judges were of course dealing with a case of gift. But there cannot be the least doubt about the applicability of the principle to sales and mortgages.
32. The following passage in Sayyaparaju Surayya v. Nekkanti Anandayya (1950) 2 M.L.J. 313, is instructive in the context of the present discussion. The question there under consideration was a widow's alienation and the principle a fortiori would apply to a Case like the present where we are concerned with the rights of tenants-in-common.
33. Ragahava Rao, J., observes:
It is well settled law that an alienation by a widow is voidable at the instance of the reversioners and if one of two reversioners has chosen to attack the alienation and succeeded in establishing the ground for an attack, then it is only to the extent of his share of the property that he can succeed, because the rights of the two reversioners are the rights of tenants-in-common and no decree can be passed in favour of one reversioner, who has not chosen to challenge the alienation because of the challenge that has been made to it at the instance of the other reversioner.
The principle is, that in the case of tenants-in-common while one sharer may stand by the alienation, another need not. One may repudiate and the other may acquiesce in or accept the alienation. The fact that one of them challenge the alienation for himself and claims his share will not ipso facto entitle the other to his share. It is not necessarily either voidable in toto or not at all. It may be that some of them are bound and others not : some though not bound may for reasons best known to them affirm and stand by the alienation.
34. In the light of these decisions, it follows that Nandakumar and others had no share in the property itself on the date of the suit. Their father had conveyed their share and they may have had a case to challenge their father's alienation even as the plaintiffs had. But that right was not held by them jointly with the plaintiffs. There was no coparcenery. When the suit was filed, in relation to the property, there was neither unity of possession nor unity of title between the plaintiffs and the other grandsons. Of course, they may have been proper parties to the suit by the plaintiffs challenging the alienation and claiming partition of their shares. When the right to partition can follow only on the sale being set aside, it cannot be said that the non-joinder of others who can also at their option seek to get the sale set aside is fatal to the suit by the plaintiffs. No decision has been placed before me for such a contention. No point was raised and no argument addressed that the sale being by all the six brothers together must be set aside in its entirety or not at all. Here, there is no single indivisible right to set aside the alienation vesting in all the grandsons of the several divided brothers as a body. To take a plain case of four divided brothers holding property as tenants-in-common without division by metes and bounds and each of them conveying by a separate deed his one-fourth share to the same vendee; if the sons of one of the brothers find that his father's alienation cannot bind him, I fail to see any principle of law or procedure to compel him to implead sons of the other brothers in his suit. What difference does it make on the aspect now under consideration if the four brothers had joined together and made the conveyance by a single deed. I see none. Though the deed is one title has to pass to the vendee severally from each.
35. In the present case it is seen two of the brothers have no male issue. The sale, in so far as their shares are concerned, is valid and binding and none can question it. Regarding Jagannathan, at the time of alienation, he was the sole coparcener and his son was born years after. So far as his interest in the property is concerned, no one can question the alienation. This is not a case of any indivisible contract which is sought to be set aside. The contract of conveyance is by the fathers. The cases where suits have been held defective for non-joinder on the ground of indivisibility of a mortgage contract can have no application here. Under the personal law, in certain circumstances a father's alienation of joint family property is voidable by the sons. But a voidable alienation takes its full and proper legal effect unless and until it is disputed and set aside by the person entitled so to do. In this suit, the alienation has been disputed only by the plaintiffs. In respect of their shares only they sought to have the alienation set aside. The institution of the suit by the plaintiffs does not give the sons of the other divided brothers right in the property itself to make them co-sharers along with the plaintiffs thereby making the suit defective for non-joinder of necessary parties.
36. No doubt this view may necessitate a re-allotment of the properties, if right of action has been subsisting in the sons of other brothers and they successfully challenged the alienation and claimed their shares. When the question is as to the maintainability of the suit as framed, all that we have to find is whether under the substantial law, the estate of which partition is sought was fully represented in the suit by the parties on record. Here, the entire estate was vested in law in the defendants in title and possession and the dispute in the suit was confined to the shares claimed by the plaintiffs. It is manifest that there was no non-joinder of any necessary party.
37. It is interesting to notice that though the suit has been pending from 1957, Nandakumar even after becoming a major has not chosen to intervene in the proceedings or institute a suit of his own challenging the alienation. Nandakumar has completed 21 years with the 31st January, 1963 and clearly the right to challenge the alienation even by this branch has now become extinguished. Nandakumar, as the eldest son, could have given a valid discharge for his brothers also. One curious feature is that on remand, Jagadeesan has come and deposed for the alienees of his having sons who could challenge the alienation. It may be for reasons best known to himself, the sons of Jagadeesan never thought of impugning the alienation. After 31st January, 1963 the only persons between whom the properties have to be divided are the plaintiffs and the defendants. It is submitted for the plaintiff that even if the other branches of Kandaswami Pillai should be considered to be necessary parties being co-sharers, this Court could take notice of the subsequent events showing that all others have lost interest in the property. I may here usefully refer to Sahul Hamids Sulthan : AIR1947Mad287 . That was a suit for partition between Muhammadan co-sharers and two of the co-sharers in appeal sought to exclude any liability from partition of certain items; but only the plaintiff and defendants 5 and 13 were made respondents in the appeal, the other co-sharers not being made parties. There was no appeal from the partition decree in other respects. After the partition decree, other members of the family were stated to have entered into a compromise with the plaintiff. In that context, it is said:
But the question is whether the appellants can be given any relief in the absence of the other co-sharers. No doubt, both in a suit for partition of undivided property among tenants-in-common, as well as in appeals from the decree in such suits, all the coparceners or tenants-in-common should be made parties. Otherwise, there would be difficulties in adjusting the equities between the parties. We consider, however, that the objection is not so formidable in a case like the present. What the appellants now claim is that certain properties in their possession ought to be excluded from the operation of the decree for partition in favour of the plaintiff. Moreover in this case there is no decree for a general partition among all the co-sharers. The decree only directs that the plaintiff may be awarded 19/240th share of the properties in the plaint schedules after excluding certain items in the possession of alienees. The result of the success of the appellants would be that the plaintiff would be entitled to a decree for partition in properties other than the items which are the subject-matter of the appeal. It may be that the result of the appellant's success in the appeal will necessitate an adjustment inter se between them and the other sharers. But that is not a matter which calls for a decision in this case.
As pointed out in the above passage, if the other sons of other brothers are tenants-in-common, they must be necessarily made parties in a suit for partition. But here they were not tenants-in-common on the date of the suit and it is not said that they too had repudiated the alienation at the time of the suit.
38. For all the aforesaid reasons, I see no reason to differ from the view of the learned District Judge that the suit as framed is maintainable. In the result, the Second Appeal fails and is dismissed with costs.