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IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
P. CHANDRA REDDY, SATYANARAYANA RAJU, SYED QAMAR HASAN, JJ.
Eda China Gurunadham & others - Appellants;
Versus
Palakurthi Venkata Rao & others - Respondents.
A.S. Nos. 705 & 706 of 1953 and (Memo of Cross-objections in Appeal No. 705 of 1953)
Decided on : 7-1-1959
An alienee of an alienee of a specific item of property from a Hindu coparcener cannot maintain a suit for general partition and claim the allotment to him of that specific item.
Headnote:
HINDU LAW - PARTITION - ALIENEE FROM AN ALIENEE OF A SPECIFIC ITEM OF PROPERTY FROM A HINDU COPARCENER - WHETHER CAN MAINTAIN A SUIT FOR GENERAL PARTITION AND CLAIM THE ALLOTMENT TO HIM OF THAT SPECIFIC ITEM - WHETHER THE FIRST ALIENEE WHO HAS DIVESTED HIMSELF OF ALL INTEREST IN THE PROPERTY CAN CLAIM THE EQUITY.
Fact of the Case:
The suit was filed for partition of the properties in dispute, viz., an extent of ac. 11-85 cents after avoiding an exchange entered into between the 10th and 1st defendants under Ex. A-1 dated 25-5-1956. The second one was filed by the 1st defendant and his vendees for a general partition and for allotment of the lands in question to the share of the 1st defendant in case the exchange transaction fell through.
Finding of the Court:
1. An alienee of an alienee of a specific item of property from a Hindu coparcener cannot maintain a suit for general partition and claim the allotment to him of that specific item. 2. The first alienee who has divested himself of all interest in the property cannot claim the equity.
Issues: 1. Whether an alienee of an alienee of a specific item of property from a Hindu coparcener can maintain a suit for general partition and claim the allotment to him of that specific item? 2. Whether the first alienee who has divested himself of all interest in the property can Claim the equity?
Ratio Decidendi: 1. The equity which arises in the case of a first alienee is not available to the alienee from an alienee of a specific item of property from a Hindu coparcener and the latter could not maintain a suit for general partition claiming the allotment to him of that specific item. 2. When the first alienee has parted with his interest in the property, he could not raise an action claiming the equity. The very foundation of a suit is the existence of some interest in the property. When he is not possessed of it, we think he cannot bring a suit to work out equities.
Final Decision: Both the appeals are dismissed and they involve more or less the same questions of law and fact, we think it right that costs need not be separately fixed in the two appeals. We fix the advocates' fee at Rs. 350/- in 705 of 1953. The Memorandum of Cross-objections as to improvements is wholly without substance and is dismissed, but without costs.
ORDER :
SATYANARAYANA RAJU, J.:— Before we finally dispose of these appeals, it is necessary to get the authoritative decision of a Full Bench on a question on which there is divergence of judicial opinion.
2. In Dakshinamurthi v. Sitharamayya1 a Division Bench of this Court, consisting of Umamaheswaram and Mohd. Ahmed Ansari, JJ., held that an alienee from an alienee of a specific item of property from an undivided member of a joint Hindu family, is entitled to work out the equity in a suit for partition and have the property allotted to the share of the alienating coparcener. The basis of this decision is that the right of an alienee to the equity is a right in personam and is heritable and transferable.
3. A contrary view was taken in two Bench decisions of the Madras High Court, Viz., Dhadha Sahib v. Muhammad Sultan Sahib2 and Sabapathi Pillay v. Thandavaraya Odayar.3 In Dhadha Sahib v. Muhammad Sultan Sahib,2 which deals with very much the same question as in Sabapathi Pillay v. Thandavaraya Odayar3, the learned Judges Abdur Rahim and Oldfield, JJ. observed that even though a vendee of specific lands from a coparcener of a Hindu family, may be entitled to recover lands of equal value out of the lands allotted to his vendor in a subsequent partition in the family, a vendee from the first vendee has no such right, his only remedy being to get damages from his vendor. At page 168, the learned Judges observed:
“When analysed, the position is simply this. A sells a particular parcel of land to B. It is found that A has no title to the land. Can it be said that B is entitled to ask A to convey to him some other land in place of what he bought? When stated in these words, the position of the plaintiff would be quite untenable and it is difficult to see why the character of the superior title by which the title of the vendor in land which he purported to sell is defeated, should make any difference to the vendee's rights……… We are of opinion that if we were to hold that the plaintiff is entitled to whatever land the first defendant might have got in substitution for what he had purchased from his vendor we would be giving him property which he never bargained for.”
4. In Subbiah v. Venkateswarlu4 Horwill, J., after referring to a passage in Mulla's Hindu Law, where the learned author discusses the rights of an alienee from an alienee of an item of joint family property, and disagrees with the conclusions arrived at on this point in the above two decisions of the Madras High Court observed that since they were Bench decisions, he was bound to follow them.
5. In Chinnu Pillai v. Kalimuthu Chetti5 the right of the alienee is defined as a right to institute a suit and to get allotted the share of the alienating coparcener if it is possible to do it without injustice and prejudice to the other coparceners. This, it is emphasised, is only an equity and not a right.
6. The decision in Dhadha Sahib v. Muhammad Sultan Sahib1 was cited with approval in the Full Bench decision in Venkata Subbaiah v. Kondayya.2 In Sitamahalakshmi v. Ramachandra Rao3 Chandra Reddy, J. (as he then was), referred to Dhadha Sahib v. Muhammad Sultan Sahib as authority for the position that a vendee from the first vendee has no right to work out the equity, his only remedy being to claim damages from his vendor.
7. In Dakshinamurthi v. Sitharamayya4 the learned Judges referred to Dhadha Sahib v. Muhammad Sultan Sahib1 but distinguished that decision on the ground that in the case before them the partition action was pending and in the alienating coparacener, the alienee and the subsequent alienee were parties to the suit. In the present case also the alienee and the subsequent alienee are both parties to the action and the question is whether that would make any difference to the application of the rule laid down in Dhadha Sahib v. Muhammad Sultan Sahib1.
8. It is contended for the respondents that the alienee having parted with the interest purchased by him, he is
