1. A question of Hindu law of some importance has been raised for decision in this second appeal. The necessary facts may. be very briefly stated. One Manikam and Chinnappa were two Hindu brothers. They were living separate for a considerable time. The plaintiff is the son of Manikam. He sues to recover one-half of certain lands which were sold by Chinnappa in 1898. Evidently, the lands in question, as well as other property belonging to the brothers, were managed by Chinnappa. The plaintiff's case was that he and Chinnappa were undivided members and that the sale made by Chinnappa was not binding on him. He, therefore, claimed to recover one-half of the properties sold, treating the sale of the other half as valid, as Chinnappa was entitled to alienate his own share for consideration.
2. Several questions of fact were raised by the defendant which it is unnecessary to refer to for the purpose of this judgment. The lower Courts found that family was undivided. The Appellate Court also overruled the contention of the defendant that the plaintiff's right to a share of the family properties was extinguished by the statute of limitations; no good reason is shown for interfering in the second appeal with the finding on this latter question.
3. Mr. Seshagiri Iyer argued that the plaintiff was estopped by his conduct from disputing the alienation made by Chinnappa but the finding of the Munsif on the question of estoppel was against him and no facts have been brought to our notice which would show that the plaintiff was estopped. The second Appellate Court held that out of Bs. 500, the consideration of the sale-deed, Exhibit VIII, executed by Chinnappa, Rs. 250 was borrowed by him for purposes binding on the family consisting of himself and his nephew the plaintiff but that the remaining Rs. 250 was not binding on the plaintiff. On these facts, he had to decide what decree the plaintiff was entitled to. He came to the conclusion that the plaintiff was entitled to a decree for the half share claimed by him without making any payments to the defendant. In doing so, he considered himself supported by the authority of the decision in Marappa Gaundan v. Rangasawmi Gaundan 23 M.L 89.
4. In second appeal, it is contended by the learned Vakil for the appellant that the view taken by the Judge is wrong. Mr. Seshagiri Iyer asks us to proceed on the basis that the amount, Rs. 250, which is found to have been borrowed for family purposes, must be regarded as a charge on the plaintiff's share of the property. He argues that the family having benefited to the extent of Rs. 250 by the sale, the plaintiff cannot recover his share without paying the amount. In effect, he asks us to treat Chinnappa as having sold his own half share for the portion of the consideration which has been held to be not binding on the family and the other half share for the portion held to be binding. Mr. Nalesa Iyer for the respondent asks us to do just the contrary, that is, to hold that Chinnappa must he taken to have sold his own half share for the portion of the consideration held binding on the family and the remaining half share for the portion held not to bind the family. We can find no legal principles on which we can adopt either of these ctuiees. According to accepted equitable principle, in the absence of anything appearing to the contrary, the consideration for sale must be distributed over the whole of the property sold in proportion to the value of each part on this principle, the whole of Rs. 500 must be distributed over the shares belonging to the plaintiff and Chinnappa respectively. There is no ground for supposing that one portion of the consideration was allocated to a particular half share and the other portion to the other half share, The valid portion of the consideration as well as the invalid portion must he distributed over each of the half shares of the plaintiff and Chinnappa respectively. The result would be that the plaintiff would be bound to pay one-half of the Rs. 250,, held binding on the family, that is, Rs. 125, before he can recover possession of the half share claimed by him.
5. Only one decided case Marappa Gaundan v. Rangaswami Gaundan 23 M.K 89 bearing on the point, has been brought to our notice, namely, the case relied on by the District Judge. That case was in its facts similar to the present one. A Hindu father sold certain property. The sale was held to be invalid but a portion of the consideration was found to have been used for the benefit of the family, namely, for the discharge of the mortgage of the family property. The sale was impeached by the alienor's son. Subramania Aiyar, J., held that the son was entitled to recover his half share without-re-paying any portion of the consideration which was used' for the benefit of the family. With great deference to the learned Judge, we find it difficult to accept the reasoning on which his judgment is based. He was much influenced by the practical inconvenience which, according to him, was likely to arise if the alienee was allowed in such a case to claim reimbursement of a portion of the consideration found to be binding on the family. The learned Judge observes: Now a sale of joint property by a coparcener, though made without legal necessity, is in this Presidency valid to the extent of the vendor's share. Suppose that that share is really worth the whole of the amount paid by the vendee as the prise, why should he get anything more? Next, suppose that that share is really worth less than the price paid, the vendee cannot in such a case reasonably ask for a charge for more than the difference between the real value of the share which he gets and the price he has actually paid. It is scarcely necessary to say that questions as to such valuation are often not capable of easy or satisfactory settlement.' The whole of this reasoning proceeds on the assumption that when a co-parcener sells his share as well as the share of the other members, the other co-parceners are entitled to raise the question as to what is the real value of the share of the alienor. It cannot be doubted that a co-parcener is entitled to part with his own share in any family property for any consideration he pleases. It is equally clear that as between the vendor and the vendee, in the absence of any contract to the contrary, the consideration for a sale will be apportioned between all the items of the properties sold in case of dispute. There seems to be no reason for allowing the alienor's co-parceners to ask the Court to adopt any other principle. It may be, as observed by the learned Judge, that questions as to valuation are often not capable of easy or satisfactory settlement, but, assuming 'it to be so, the right of a co-parcener to sell his own property being now well recognised, the equities as between the vendee and the other co-parceners have to be adjusted by the Court in the best manner possible. Nor does such adjustment seem to present any insuperable difficulties. No question is raised in this case of any collusion between the vendee and Chinnappa and it is difficult to find any reason for proceeding on any other view than the principle already enunciated of apportioning the consideration on the whole of the property sold. The learned Judge proceeds to say: 'The simpler and better view undoubtedly is that if the vendee wishes to stand by a sale which is valid only partially such as the present, he must be content with the vendor's share, but that if he wishes to repudiate the transaction altogether, his remedy is only against the vendor in a suit for the return of the price paid on the ground that the consideration for the payment failed.' It is hardly necessary to say that the remedy proposed might be altogether useless in many cases. On the whole, the proper course in this case appears to be to direct that the decree of the lower Appellate Court be modified by decreeing to the plaintiff a half share in the properties sold by Chinnappa after division by metes and bounds on condition that he pays to the defendants Rs. 125 with mesne profits from the day that he deposits the said amount of Rs. 125 into Court and give notice thereof to the defendants.
6. The memorandum of objections relates only to the form of decree and as we have already dealt with it, no further order is necessary. The defendants will pay two-thirds of the plaintiff's costs throughout.