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Madras High Court
KAILASAM,MAHARAJAN
Venkatammal - Appellant
Versus
Sinna Venkatarama Chettiar - Respondent
Decided On : 04/30/1974
PARTITION - ALIENEE OF AN ALIENEE OF A COPARCENER'S SHARE - RIGHT TO SUE FOR PARTITION - WHETHER AN ALIENEE OF AN ALIENEE OF A COPARCENER'S SHARE IS ENTITLED TO ENFORCE HIS RIGHT TO CLAIM PARTITION AND ALLOTMENT OF THE COPARCENER'S SHARE TO HIM - HELD, YES.
Fact of the Case:
The plaintiff filed a suit for redemption of a mortgage and for partition and possession. The suit property was owned by one Raman Chetty, who had eight sons. He usufructuarily mortgaged the western half for Rs. 150/- in Favour of one Ranganna Gounder under Ex. A-7 dated 10-6-1919. The eastern half was subsequently mortgaged usufructuarily by him, to Narayana Chetty under Ex. A-8 dated 1-10-1923. The plaintiff claims title to 15/42 share under three sale deeds of Ex. A-14 dated 4-5-1951, Ex. A-15 dated 27-11-1950 and Ex A-16 dated 27-3-1961.
Finding of the Court:
The court held that the plaintiff had not proved his title with reference to 1/21 share under Ex A-16. It also found that the second alienee could acquire the right of the first alienee viz., the right to sue for partition. Apart from that right, it also found that an alienee from the alienee cannot get further rights and that the plaintiffs suit was barred under Article 144 of Limitation Act. Differing from the trial Court, it held that the suit was not barred by res judicata or under Order 2, Rule 2 C. P. C.
Issues: Whether an alienee of an alienee of a coparcener's share is entitled to enforce his right to claim partition and allotment of the coparcener's share to him.
Ratio Decidendi: The court held that the right of an alienee of an alienee of a share from an undivided coparcener is a right by himself to maintain a suit for working out his equitable right of asking for a partition and allotment of the share of the alienating coparcener. Such a right in our opinion, is heritable and transferable. The Hindu law principle that the equitable right of an alienee from an undivided coparcener should not be extended, could be qualified to this extent by permitting an alienee of an alienee of a share to maintain suit by himself.
Final Decision: Appeal allowed with costs.
KAILASAM, J. :- The plaintiff is the appellant. She filed the suit for redemption of a mortgage and for partition and possession. The suit property S. No. 449 is of an extent of 8.2 acres in Kalingiyam village. The property was owned by one Raman Chetty, who had eight sons. He usufructuarily mortgaged the western half for Rs. 150/- in Favour of one Ranganna Gounder under Ex. A-7 dated 10-6-1919. The eastern half was subsequently mortgaged usufructuarily by him, to Narayana Chetty under Ex. A-8 dated 1-10-1923. The plaintiff claims title to 15/42 share under three sale deeds of Ex. A-14 dated 4-5-1951, Ex. A-15 dated 27-11-1950 and Ex A-16 dated 27-3-1961.
2. Peria Venkataraman, first son of Raman Chetty sold his 1/7th share to Karuppan Chetty under Ex. A-4 dated 20-5-1924, Karuppan Chetty died leaving his sons Peria Raman and Chinna Raman. Under Ex. A-14 dated 4-8-1961 Peria Raman and Chinna Raman sold their 1/7th share to the plaintiff. The first son Peria Venkataraman and another sop Narayanan died and Kumban and defendants 1 to 4 constituted the members of the Hindu Family each being entitled to 1/5th share out of the remaining 6/7th share that remained. Under Ex A-5 dated 16-10-1940, the fourth defendant sold his 1/6th share to Karuppan Chetty. Under Ex A-15 dated 27-11-1950 Karuppan Chetty sold his 1/6th share to the plaintiff. The plaintiff thus became entitled to 13/42 share, that is, 1/7th share under Ex. A-14 and 1/6th share under Ex A-15. Subsequent to the death of Kumban, defendants 1 to 4 got the proper ties by survivorship, each being entitled to 1/4th of 6/7th share, namely 3/14 share, each. Out of this, the fourth defendant had already sold his 1/6th share under Ex A-5 dated 15-10-1940, thus retaining 3/14 minus 1/6th :1/21 share, Under Ex A-16 dated 27-3-1961, the fourth defendant sold his 1/21 share to the plaintiff for Rs. 450/-. Thus, the plaintiff became entitled to 15/42 share under Exs. A-14 to A-16.
3. The mortgagee under Ex A-7 that is, Ranganna Gounder died leaving his son Perumal Goundan. Perumal Goundan assigned half of his rights in favour of one Venkatarama Chettiar on 29-6-1932 under Ex. B-23 for Rs. 75/- and his son Venkatarama assigned his rights in favour of the fifth defendant under Ex A-2 dated 11-11-1952. The remaining half of the mortgagee's right was also assigned to one Ramakkal on 8-5-1935. Ramakkal, the assignee of other half assigned her mortgage rights on 12-6-1936 in favour of one Ramaswamy Gounder, who assigned it again in favour of the 6th defendant, Karuppan Chetty and deceased father of defendants 6, 7 and 8. The mortgagee under Ex A-8 dated 1-10-1923 assigned it on 31-5-1967 under Ex B-24 for Rs. 100/- in favour of one Palani. Palani assigned it in favour of the fourth defendant under Ex A-3 dated 19-4-1950. As the fourth defendant is one of the heirs of the mortgagor, there had been a merger of interest in the mortgage so far as the fourth defendant is concerned. Defendants 1 to 4 claim to have discharged the mortgage debt due to defendants 6 to 8. They also pleaded that in any event the mortgage debt had been discharged and completely wiped off by reason of the provisions of Madras Act, IV of 1938.
4. The plaintiff's suit was contested by defendants 2 and 3.
5. Defendants 4 to 8 remained ex parte.
6. The defence is that the plaintiff is not a sharer and has no right to redeem the mortgages. Defendants 2 and 3 claim that they are entitled to one half share in the property absolutely. They contended that Peria Venkatarama Chetty the first son of Raman Chetty got separated from his father and was not given any share in the suit property and his sale to Karuppan Chetty cannot confer any right. They further claimed that the suit property was in their enjoyment for over 20 years and defendants 2 and 3 discharged the mortgage in 1945 according to Madras Act, IV of 1938. They further contended that neither the plaintiff nor the other defendants were in possession and enjoyment of
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