(1.) THE first defendant in O. S. No. 291 of 1964 on the file of the District Munsif court of Thanjavur is the appellant before this Court. The appellant is the father and the 3rd respondent is the son and they constitute a Hindu undivided family. The 3rd respondent on 18-9-1947 sold a particular item of property belonging to the joint family to the first respondent herein, and that the sale deed has been market as Ex. A. 2 in the case. The first respondent, in turn, sold the property to the second respondent by a document, dated 6-8-1959, market as Ex. A-1, in this case. As a result of these transaction the second respondent came into possession of the property. Thereafter the appellant filed O. S. 256 of 1959 on the file of the Court of the district Munsif, Thanjavur, for recovery of possession of the property contenting that the sale deed dated 18-9-1947 in favour of the first respondent herein was not binding on him, that he was himself the manager of the family and that the third respondent had no right to alienate the property. The suit itself had a chequered career and ultimately came to be disposed of by the learned District judge, West Thanjavur on 30-3-1964 in A. S. No. 196 of 1960. The learned district Judge came to the conclusion that the sale was not binding on the appellant herein and, therefore, the appellant was entitled to recover possession of the property from the second respondent herein. At the same time, he was of the view that respondents 1 and 2 herein as alienees from the third respondent herein would be entitled to file a suit for general partition. Consequently, while declaring that the appellant herein was entitled to possession of the property and that the sale by the third respondent was not binding on him, in terms of the law declared by this Court in Kandasami Udayan v. Velayudha udayan ILR 50 Mad 320 = (AIR 1926 Mad 774), he granted stay of the execution of the decree for a period of two months to enable respondents 1 and 2 herein to file a suit for partition. It is thereafter that respondents 1 and 2 herein instituted o. S. 291 of 1964 on the file of the court of the District Munsif, Thanjavur for a general partition of the properties belonging to the joint family of the appellant and the third respondent herein and allotment of the item purchased by the first and second respondents to the share of the third respondent herein. The suit was resisted by the appellant as well as the third respondent, the third respondent putting forward a further contention that the sale deed executed by him in favour of the first respondent was not enforceable as he executed the same under the influence of drink. This case put forward by the third respondent was rejected by the learned District Munsif, but the learned District Munsif by his judgment and decree dated 13-8-1965, dismissed the suit. He took the view that the first respondent had alienated the property in favour of the second respondent and that therefore he had no further interest in the property. As far as the second respondent was concerned, he was not an alienee from a coparcener, but an alienee from the alienee of a coparcener and, therefore, he had no right to institute a suit for general partition. For this purpose, he relied on the judgment of a Full Bench of the High Court of Andhra Pradesh in Gurunadham v. Venkata Rao, air 1956 Andh Pra 523 (FB ). Against this judgment and decree respondent 1 and 2 herein preferred A. S. 119 of 1965 before the learned Subordinate Judge, Thanjavur, who, by his judgment and decree dated 26-4-1966, reversed the conclusion of the learned District munsif and decreed the suit of respondents 1 and 2 herein. Before the learned subordinate Judge reliance was placed on behalf of respondents 1 and 2 on the decision of Veeraswami, J. , (as he then was) in S. A. No. 272 of 1959 (Mad) and following that decision alone the learned Subordinate Judge decreed the suit of respondents 1 and 2 herein. Hence the present second appeal by the first defendant in O. S. 291 of 1964.
(2.) IT is easier to dispose of the claim put forward by the defendants in the suit that the sale deed executed by the third respondent in favour of the first respondents was not valid as having been executed while under the influence of liquor. As I pointed out already, this point was found against by the learned, this point was found against by the learned District Munsif, but the learned Subordinate Judge did not go into the question stating that no cross appeal against that finding had been filed before him. In any event, as far as the present second appeal is concerned, no such ground has been taken in the memorandum of grounds of second appeal and, therefore, that question does not arise at this stage.
(3.) THE only question that remains for consideration is whether the suit instituted by respondents 1 and 2 herein for a general partition of the family properties with a prayer to allot a half share to the third respondent herein and to allot Item No. 1, purchased by respondents 1 and 2 to the share of the third respondents 1 and 2 herein is maintainable. As I pointed out already, the argument is that the first respondent had parted with his interest in the property in favour of the second respondent, and the second respondent being an alienee from the alienee, he is not entitled to the equity which the first respondent was entitled to, of filing a suit for general partition and having the properties sold to him allotted to the share of his vendor. In view of the legal position regarding the right of a coparcener to sell his undivided interest in a joint family property for consideration, and the right of the alienee to file a suit for general partition, having been elaborately considered by a Full Bench of his Court, in Peramanayakam Pillar v. Sivaraman, (FB) it is not necessary to deal with the question in any great detail. Summarising the legal position, with regard to this aspect, Satyanarayana rao, J. , observed in that judgment as follows:--
"a coparcener of a joint Hindu family governed by Mitakshara obtaining in the State is entitled to alienate his undivided share either in the whole of the property or in a certain specific item of the property or even the whole of a specific time. In all such cases the only right which the alienee acquires is to stand in the shoes of his vendor and to work out his rights by a suit for partition and in such a suit, if without prejudice to the rights of the other members of the family, it is possible to have the shares alienated to the alienee allotted to the alienor, it may be allotted to the alienee in the right of the alienor. . . . . . . '' Text books and decision generally refer to this right as a right in equity. The reason for this description is that, as far as the textual Hindu law is concerned, no such right was recognised on the part of a coparcener, to alienate his undivided interest in a coparcenary property and on the part of the alienee to file a suit for partition. To demand a partition of the coparcenary property is a right available only to a coparcener under textual Hindu law and when that right, for equitable considerations, was recognised in an alienee, text books writers and decisions started referring to that right as equity. Reference to that right as equity is merely for the purpose of indicating the origin of the right; that is, that right did not originate from the textual Hindu law, but that right was reconginsed on equitable considerations. But, none of less, that right is as effective and efficacious as any other right known to law. It is easily understandable why such a right for general partition alone has been recognised in an alienee. According to the textual Hindu law no member of a coparcenary can predicate that he had got and individual right in any specific item of the copercenary property. The coparcenary property belongs to all the coparceners in common and the specification of a fractional share of a coparcener or the specification of a particular item of the coparcener property has belonging to a coparcener cannot arise except in the event of a partition. From the very nature of the concept of coparcenary the interest which an undivided coparcener had in the coparcenary property is liable to fluctuation either by birth or by death in the family, and in view of this contingency, at no particular point of time it is possible to predicate with any degree of certainty that a coparcener has a specific fractional share in the property. All that can be said is that if at any particular point of time a suit for partition had been instituted or a partition had taken place, a particular coparcener would have been entitled to a particular fractional share. It is in view of this legal position, an alienee from a coparcener does not acquire any right in a specific item of the property, because the alienor himself does not have that the right. The only right the alienor has is the right to file a suit for partition and obtain his share of the property and that right by means of an alienation is transferred to the alienee and the Courts recognise that right. As I pointed out already, simply because this right was recognised in an alienee, on the basis of equitable consideration, the right is no less efficacious than any other right.;