Decided on January 28,1953

Minor Balakrishnan And Anr. Appellant
Balasundara Gramani And Anr. Respondents


Venkatarama Aiyar, J. - (1.) THE plaintiffs are the appellants. They are the sons of one Vaiyapuri Filial and all of them constitute members of a joint Hindu family. On 9 -3 -1944, Vaiyapuri Pillai settled various properties on plaintiff l under Ex. A. 1. Thereafter he executed a deed of gift Ex, B. 1 on 11 -2 -1945 in favour of his step -sister Sendamaral Ammal, who is defendant 2 in the suit. The deed of gift related to one of the properties comprised in the settlement deed Ex. A. L On the same day Vaiyapuri Pillai executed the sale deed, Ex. B. 3, in favour of defendant 1, Balasundara Gramani, who is no other than the husband of Sendamarai Ammal, defendant 2. That sale deed related to properties not covered by Ex. A. 1 and that was for a sum of Rs. 200. The plaintiffs claimed that both the deeds, Exs. B. 1 and B. 3 were not binding on them. That contention has been accepted by both the courts below. It has been held that Ex. B. l, the gift deed in favour of defendant 2, is void and not binding on the plaintiffs. It has also been held that the sale deed Ex. B. 3 in favour of defendant l could not be supported as one for necessity and that it was not binding on " the plaintiffs. On these findings, the learned District Munsif granted a decree for possession in favour of the plaintiffs. The Subordinate Judge on appeal while accepting the findings merely granted a declaration that the two alienations were not binding on the plaintiffs but refused the prayer for possession. The plaintiffs prefer this second appeal in so far as their prayer for possession has been negatived.
(2.) I am unable to see how, on the findings, the plaintiffs can toe refused the prayer for possession. So far as Ex. B. 1 is concerned, it is a gift deed and being void, the plaintiffs, who are members of a joint family, are entitled to recover possession of the property concerned therein. The learned Subordinate Judge has not given any legal ground for refusing them this relief. As regards defendant 1 who claims under the sale Ex. B, 3, the judgment of the lower appellate court is based on the decision in - - 'Ramaswami Aiyar v. A. S. Venkatarama Aiyar',, A. I. R. 1924 Mad. 81 (A). There it was held that an alienee in possession can as a defendant plead that the suit might be regarded as one for partition; and that he might be allotted the alienated properties if that would be less than what his alienor would be entitled to in a suit for partition and on that basis though the alienation may be set aside the properties alienated may be allotted to the deft, as on account of the share of the father. But it has been frequently pointed out that this is an exceptional procedure to be adopted. In that case there were only two coparceners and all the properties of the joint family were ascertained and it was possible to give effect to that equity in favour of the defendant. But here the father is not a party to the suit. We do not know what the extents of the family properties are. We do not know what debts have been incurred chargeable against the share of the father and we do not know what other alienations he has made. Such an equity as this has not been properly pleaded and the necessary materials have not been placed before the Court. Therefore, there is no ground for adopting the exceptional procedure of granting relief on the basis of equity to defendant 1 when the alienation is set aside. The alienee should normally be relegated to filing his own suit for partition and therein ask that in equity the alienated property might be allotted to his alienor's share. But in a suit filed by the coparceners for setting aside the alienation, they should be granted possession of the properties subject to these equities in favour of the alienee, being worked out in an independent action. I am therefore of opinion that there were no grounds for modifying the decree of the first court even as regards defendant 1. In the result, this appeal will be allowed and the decree of the trial court restored with costs throughout.
(3.) NO leave.;

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