NILAKANTA PILLAI Vs. GOURI
LAWS(KER)-1955-7-7
HIGH COURT OF KERALA
Decided on July 21,1955

NILAKANTA PILLAI Appellant
VERSUS
GOURI Respondents

JUDGEMENT

- (1.) SECOND Appeal No. 570 of 1952 is against the decision in A. S. No. 220 of 1123 on the file of the District Court of Alleppey arising from the decision in O. S. 175 of 1116 of the District Munsiff's Court there. SECOND Appeal No. 572 of 1952 is against the decision in A. S. 218 of 1123 arising from O. S. No. 460 of 1116. The circumstances leading to these second appeals are as follows. Two brothers, Krishnan Sankaran and Krishnan Narayanan, who were carpenters by caste and were governed by the Hindu Law obtained the plaint schedule properties in their family partition in 1084 as per Ext. A. On 23. 11. 1115 Sankaran executed a sale deed, Ext. I, in favour of one Neelakanta pillai purporting to transfer the property stated to have been set apart to him in an alleged oral partition between the two brothers in Vrischikam 1103. O. S. No. 175 of 1116 was filed by Narayanan and other members of the family for setting aside the sale deed on the ground that under law Sankaran had no right to execute such a deed and it was without consideration. The assignee neelakanta Pillai was the first defendant and Sankaran, the third defendant. The assignee contended that there was an outright partition in 1084 and the assignment is not sham. While that suit was pending O. S. 460 of 1116 was filed by Sankaran and Neelakanta Pillai against Narayanan and other members of the family for a declaration that Sankaran was entitled to the properties covered by the assignment, Ext. I, under the oral partition and in the alternative for partition of the properties by metes and bounds and recovery of Sankaran's share. Narayanan contended that there was no partition as alleged and that the suit was vitiated because all the members of the family were not impleaded. The two suits were jointly tried. The trial court held that Ext. I, sale deed, was supported by consideration to the extent of Rs. 50 which itself was not binding on the joint family and hence it was liable to be set aside as there was no partition between the parties as claimed by Sankaran and his assignee, and a co-parcener's assignment had no validity. Hence O. S. 175 of 1116 was decreed. O. S. No. 460 of 1116 was dismissed on the ground that there had not been a prior partition and the suit itself was vitiated because the necessary parties had not been impleaded. Sankaran had passed away during the pendency of these suits. In O. S. No. 460 of 1116 he had filed a petition praying for permission to withdraw the suit on the allegation that he instituted the suit under a misapprehension. No order on the merits was passed on this as it was only recorded. The appeals were preferred by the assignee Neelakanta Pillai against these decrees and both of them were dismissed. Hence he has preferred the present second appeals, S. A. 570 of 1952 being also by the second defendant in O. S. 175 of 1116.
(2.) THE lower courts have found that there was no partition between Sankaran and Narayanan prior to Ext. I, sale deed. This finding cannot be challenged. So the first question that arises for consideration is as to what is the effect of the assignment of a specific item of family property by a co-parcener in a Hindu joint family. On behalf of the appellant it is contended that the assignment is valid to the extent of the share of the co-parcener and the other co-parceners cannot challenge the assignee's rights. In Mayne's Hindu Law, in paragraph 386, this point is discussed. THEre it is observed as follows:- "where the transfer is of an undivided interest in the whole of the family property the transferee will get whatever may be allotted to the transferor's share in a suit for partition. A co-parcener may alienate either his undivided share in the whole of the family property or his undivided share in certain specific family property or the whole of a specific item of the family property. In all these cases the alienee does not acquire an interest in the property so as to become a tenant-in-common with the members of the family entitled to possession but only an equity to stand in the vendor's shoes and to work out his rights by means of a partition. Here the assignment under Ext. I is of a specific item. That, if at all, gave the assignee a right to sue for partition of the alienor's share and claim his right as standing in the shoes of the alienor basing his rights on the alienation. In the present case the lower courts have held that the alienation is supported by consideration only to the extent of rs. 50 which itself is not binding on the joint family. THEre is no ground to interfere with this concurrent finding. In O. S. 460 of 1116 the trial court held that proper parties were not before court and the suit was vitiated on that ground itself. It is seen that the first plaintiff Sankaran had filed c. M. P. 12092 of 1116 on 15. 10. 1116 praying for permission to withdraw the suit on the allegation that he instituted the suit under a misapprehension. Within a few days of that he passed away. THE petition was merely recorded. His legal representatives were never impleaded as such. Thus clearly the suit was vitiated by the absence of proper parties and the finding of the trial court on that basis is correct. On that ground itself the appellant in S. A. 572 of 1952 cannot get any relief here. THEn it was argued that in O. S. 175 of 1116 the right of the appellant Neelakanta Pillai to stand in the shoes of his alienor sankaran on the basis of Ext. I ought to have been upheld. THE legal effect of an alienation by a co-parcener of the joint family property is referred to in Venkapathy naicken v. Pappiah Naicken (A. I. R. 1928 Madras 788 ). THEre at page 790 the following conclusions have been arrived at: "to sum up, three possible cases arise:- (1) Where the whole of the consideration even after being allotted to the alienor's share only is grossly inadequate the whole transaction may have to be set aside making the consideration proved a charge on the family property. That would be a case resembling R. Ranganathan Chetty v. P. Ramaswamy Chetty (27 Madras 162 ). (2) Where the whole consideration is not grossly inadequate and can be regarded as the price of the alienor's share but is less than the value of such share the transaction may be upheld as a sale of the alienor's share only and the other members who question the transaction are entitled to recover their share of the property without being subjected to any other equity. THE case would then resemble Marappa Goundan v. Rangaswami Goundan (23 Madras 89 ). In such a case if the members are divided and the alienor leaves other heirs than the members who question the transaction he or his heirs may have a right to contribution. (3) Where the consideration proved exceeds the value of the alienor's share the transaction may be upheld as sale of the alienor's share only and for the excess a charge may be given over the shares of other members". As in the present case only Rs. 50 out of the total consideration of Rs. 250/- mentioned in Ext. I has been held to be binding it is clear that the only relief that the appellant Neelakanta Pillai is entitled to in S. A. 572 of 1952 is to get a charge for this on the plaint schedule property belonging to the joint family. He is entitled to 6 per cent interest on that from 23. 11. 1115 being the date of Ext. 1. In the result, S. A. 570 of 1952 is dismissed with costs. S. A. 572 of 1952 is allowed to the extent pointed out above and the appellant's right to a charge on the plaint item for Rs. 50/- and interest upheld. The parties are entitled to proportionate costs in all the courts.;


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