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1926 Supreme(Mad) 343
IN THE HIGH COURT OF MARAS
Ramesam
Nagur Pichai Rowther
Versus
Rakkappa And Ors.
Decided On : 3 August, 1926
The main legal principle established in the judgment is the court's discretion to uphold an alienation and direct partition to maintain equity, as well as the limitation on entitlement to mesne profits.
Headnote:
Partition - Suit for partial partition - Alienation - Equity - Mesne profits
Fact of the Case:
The case involved a suit for partition arising from a family dispute over property. The 4th defendant, an alienee of two items in the plaint schedule, appealed the Subordinate Judge's decree in favor of the plaintiff.
Finding of the Court:
The court held that the suit was not bad for partial partition and that the objection raised by the 4th defendant should not be allowed to dismiss the plaintiff's suit. The court also upheld the alienation in favor of the 4th defendant and directed the partition of the purchased items to the share of the 1st and 3rd defendants to allow the 4th defendant to continue in possession.
Issues: The issues included the maintainability of the suit for partial partition, the validity of the alienation, and the entitlement to equity and mesne profits.
Ratio Decidendi: The court found that the objection on the ground of partial partition raised by the 4th defendant should not be allowed to dismiss the suit. It also held that the alienated items should be allotted to the share of the vendors of the 4th defendant to uphold the alienation. Additionally, the court ruled that the plaintiff was not entitled to profits prior to the suit.
Final Decision: The court directed the partition of the purchased items to the share of the 1st and 3rd defendants, allowing the 4th defendant to continue in possession. The case was to go back for passing a final decree with reference to the court's observations.
Ramesam, J.
1. In this second appeal 4th defendant is the appellant. It arises out of a suit for partition. Plaintiff s father, 1st defendant, and the 3rd defendants father were brothers. The 2nd defendant is the son of the 1st defendant. The 4th defendant is an alienee of two of the items in the plaint schedule, he having purchased the property under Ex. I, dated 28th February 1908, for Rs. 1,900. The Munsif dismissed the suit as one for partial partition. On appeal the Subordinate Judge decreed the plaintiffs suit. The 4th defendant, therefore, appeals.
2. The first point argued before me is whether the suit is bad for partial partition. The Subordinate Judge held that it is not open to an alienee to raise such a point. It is true that where a member of the family sues for partition and recovery of his share of an alienated item alone, such a point is not open to the alienee. But, I doubt if there is any general rule that an objection on the ground that the suit is one for partial partition can never be taken by a stranger. However this may be, I do not think this case is one in which such an objection ought to be allowed to be taken as a bar to the maintainability of the suit. Though the 4th defendant raised the point in his written statement he never took an issue specifically raising the point. The third issue "What are the joint family properties," is too general to cover a plea as to the maintainability of the suit. It seems to me, therefore, that this point should not be allowed to be raised for the purpose of getting plaintiffs suit dismissed. It may be that it may have to be inquired into for the purpose of the point to be next discussed.
3. The next question is whether the alienation in favour of 4th defendant should be upheld as binding on the family and whether in any event, as a matter of equity the alienated item should not be allotted to Defendants Nos. 1 to 3 so as to uphold the alienation in favour of 4th defendant if possible. The sale itself was effected by 1st defendant and 3rd defendants father who alleged in the deed that plaintiff was adopted into another family. The consideration of Rs. 1,900 was made up among others of three items:
(1) Rs. 43-3-0 for kist for Fasli 1317.
(2) An othi (Ex. II) dated 10th October 1891, for Rs. 200.
(3) Another othi (Ex. II-D), dated 28th April 1907, also for Rs.
200.
4. It is unnecessary to refer to the other items of consideration, for the Subordinate Judge has found them to be not binding on the family, and I agree with him. As to the three items mentioned above the Subordinate Judge found the first to be binding on the family, but not the second and third as to which I think they are binding on the plaintiff by reason of adverse possession because they were effected more than 12 years prior to the filing of the suit, so that it is unnecessary to go into the question whether the money was actually spent for the benefit of the family. Incidentally I may observe that in the case of one of them Ex. II it purports to be for the benefit and expense of the family and for contract works.
5. It is attested by the plaintiff who must have been 20 or 21 at the time. His answers to the questions about Ex. II (d) are not very straight though the cross-examination might have been pushed further. It seems to me that this is a case in which one can infer from the circumstances that the plaintiff was aware of the contents of the document and on this ground also one may hold that Ex. II (d) is binding on the whole family including the plaintiff. But anyhow, on the ground of lapse of 12 years from the dates of Exs. 2 and 2 (d) I think they are binding on the plaintiff. If so, the plaintiff cannot recover possession of this third share of the items sold under Ex. III without paying also his third share of the othi amounts; that is, he has to pay 1/3rd of Rs. 443-3-0. One third of Rs. 250 (improvements allowed by the Sub-Judge). i. e., 1/3rd of Rs. 693-3-0 or Rs. 231-1-0.
6. This leads me to
