Sitamahalakshmi v. Ramchandra Rao And Others

Judgement

CHANDRA REDDY, J. :- I agree with the conclusions reached by my learned brother, but having regard to the importance of one of the questions involved in this appeal, I would like to say something in regard thereto. The material facts are set out in his judgment and it is not necessary for me to state them once again except to give a brief resume for appreciation of the problems arising herein.

2. The suit giving rise to this appeal was instituted for recovering possession of plaint A scheduled properties or alternatively for a sufficient extent of the properties in the B schedule from the share of defendants 4 and 6 and equal in the aggregate to the plaint A scheduled properties in all respects and for profits. The 6th defendant is the husband of the plaintiff, the 4th defendant being their adopted son. 1st defendant is the natural father of the 4th defendant and brother of 6th defendant, defendants 2, 3 and 5 being the sons of the 1st defendant. The 6th defendant having had no children thought of taking the 4th defendant his brothers son in adoption in the year 1941. His wife was against this adoption, being anxious that some one of her own relations should be chosen for that purpose.

Through the intervention of a lawyer who was a family friend she was made to agree to the adoption and in consideration of it a settlement deed was executed under which she was given acres 11-0 of land with life interest. All the members of the family were parties to the settlement, the defendants then constituting members of an undivided joint Hindu family. Later on, the 6th defendant challenged the factum and validity of adoption of the 4th defendant, while the latter brought a suit for recovery of his share of the properties on the basis of adoption. The litigation resulted in the adoption being upheld and a decree granted for separate possession of the share of the adopted son in the properties of the 6th defendants branch. In that litigation, the present plaintiff sailed with her husband and did not take steps to obtain possession of the acre 11-0 demised to her under the settlement deed referred to above. She now filed suit for the relief mentioned above.

3. The suit was resisted on grounds inter alia that the plaintiff could not recover any properties from defendants 4 and 6 and that the suit was barred by limitation.

4. The Subordinate Judge dismissed the suit in toto holding that the plaintiff could not recover either the extent of acres 11-0 settled on her or any portion of the B scheduled properties in substitution of the acres 11-0 and if at all she is entitled to any relief, it was only as against the properties that had fallen to the share of her husband. In his view, the suit was also barred by limitation. The aggrieved plaintiff has preferred this appeal.

5. Two of the questions that were debated before us were whether the plaintiff could claim properties from the shares of defendants 4 and 6 equivalent in value to A scheduled properties and whether the suit was barred by limitation. The first question was argued at great length on either side. This matter has not arisen in any case directly i.e., in the form in which it presents itself now, though there are observations in decided cases supporting either contention. We have to examine this question at some length having regard to the divergence of judicial opinion especially in view of the dictum laid down in the recent Full Bench decision of our High Court in Venkatasubbayya v. Kondayya, 1956 Andhra WR 251 : ((S) AIR 1956 Andhra 188) (FB) (A).

While it is argued by Mr. Ramachandra Rao, counsel for the appellant, that the appellant could ask for allotment of an extent of land equal in value of the acres 11-0 conveyed to her under the settlement deed, if for any reason she could not recover the specified lands, it is urged by Mr. Chandrasekhara Sastry on the authority of 1956 Andhra WR 251 : ( (S) AIR 1956 Andhra 188) (FB) (A) that the alternative relief prayed for by the plaintiff could not be granted whatever might be her other remedies against the settlors.

6. We have now to decide which of the two views should prevail. My learned brother in his judgment has shown how the plaintiff is a transferee for value and I do not propose to go into that question again. Here, the rights will be determined on the basis of this theory. The right of a co-parcener to dispose of his share in the ancestral undivided family property even by private contract or conveyance for value is the result of the gradual growth of law and is inconsistent with the strict notions of Mitakshara law. This is not based on any text of Hindu Law but on the equitable doctrine that the alienee should be allowed to stand in the place of his alienor, and work out his means by way of a suit for partition. See Suraj Bunsi Koer v. Sheo Pershad Singh, ILR 5 Cal 148 (PC) (B).

The alienee may purchase either his whole undivided interest in the joint property or his interest in some of the items of property or specified items of the family properties. In any of these cases, the purchaser or the transferee does not acquire any interest as of right and he does not become a tenant in common with the non-alienating co-parceners. His only right is to demand a partition of the family property. We are now concerned with the rights of a purchaser of a specific item of property. Indisputably, he can ask at the general partition that that specific item of property could be assigned to the share of his vendor. All the authorities are agreed about it. But, the further question is, if, for any reason, that item of property could not be allocated to his vendors share, whether the vendee could have recourse against some other property that might be included in the share of his vendor. The earlier rulings of the Courts related to the rights of a mortgagee of either the undivided share of a co-parcener or specific items in the joint family property, etc.

7. In this context, I may first refer to Aiyyagari Venkataramayya v. Aiyyagari Rammayya, ILR 25 Mad 690 (FB) (C), which has an important bearing on this issue. There, a purchaser from a co-parcener of an undivided half share in two definite plots of land forming part of the joint family properties of the vendor and his two undivided nephews filed a suit to enforce his share after the death of the alienor against his nephews. The question arose whether that suit was maintainable. The Full Bench answered it in the affirmative. In discussing that matter, Bashyam Iyenger J., who wrote the leading judgment remarked at page 718.

"Whether the transferee brings his suit immediately after the transfer or at any time during or after the life-time of the transferor, the transfer will have to be enforced by effecting a partition in the same way as it would be if the partition were effected immediately before the transfer. If it be found impracticable or inequitable to allow to the transferors share the whole or any portion of the specific property transferred, the transfer will become inoperative either in whole or in part as the case may be and in that case the transferee can only have an equitable claim for compensation against the alienor."

It is this last sentence that was largely responsible for the dictum of Viswanatha Sastri J., in 1956 Andhra WR 251 : (( S) AIR 1956 Andhra 188) (FB) (A).

8. We will next turn to Nanjaya Mudali v. Shanmuga Mudali, ILR 38 Mad 684 : (AIR 1914 Mad 440 (2) ) (D). The question that fell to be considered there was whether an alienee of a specific item of property from a co-parcener could pursue it into the hands of another to whose share the specified item had fallen. The learned Judges answered it in the negative and in dealing with this it was inter alia stated by Justice Sankaran Nair that the property alienated should be given to the alienee as the transferee of such a co-parcener if it could be done without any injustice to other co-parceners. In dividing the family properties, the Court will set apart for the alienating co-parceners share the property alienated :

"If such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share though it may not be the property that was alienated in his favour. The property allotted will take the place of the property which has been alienated to him so far as he is concerned."

9. In referring the matter to a Full Bench in Rangayya Reddy v. Subramania Aiyer, ILR 40 Mad 365 : (AIR 1918 Mad 681) (E). Justice Oldfield, one of the Judges of the Bench accepted this rule as correct. Another Bench of that same High Court in Sabapathi Pillai v. Thandavaroya Odayar, ILR 43 Mad 309 : (AIR 1920 Mad 316) (F), made a reference to the dictum of Sankaran Nair J., with approval. In this case, a purchaser in a Court auction of specific items of property said to belong to a member of the joint Hindu family claimed to be entitled to have the equivalent of the properties bought by him out of the properties allotted to the share of the judgment-debtor, when some of the properties purchased by him fell to the share of two other members, only some being allotted to the share of the judgment-debtor.

It was held by the Bench that the purchaser was only entitled to such of the items as were common to the sale certificate and the share of the judgment-debtor under the decree and that he could not compel the judgment-debtors to give him some other properties in substitution. The argument that there was a conflict between the views of Bashyam Iyengar J., in ILR 25 Mad 690 (FB) (C), and that of Sankaran Nair J., in ILR 38 Mad 684 : (AIR 1914 Mad 440 (2) ) (D), did not weigh with the learned Judges. They stated that there was really no conflict between the two statements, and drew a distinction between a purchaser by private contract and a Court auction-purchaser. The ratio decidendi of the above ruling was that there was no warranty of title and privity of contract between the alienee and the judgment-debtor.

A contrary view was expressed in Vasudeo v. Kankoochand, ILR 1950 Bom 777 : (AIR 1951 Bom 226) (G). It is to resolve this conflict that the Full Bench in 1955 Andhra WR 251 : ( (S) AIR 1956 Andhra 188) (FB) (A), was constituted. I may also refer to Dadha Saheb v. Muhammad Sultan, ILR 44 Mad 167 : (AIR 1921 Mad 384) (H), where it was held that even though a vendee of specific lands from a member of an undivided Hindu family may be entitled to properties of equal value out of the lands assigned to his vendor in a subsequent partition in the family, a vendee from the first vendee had no such right, his only remedy being to claim damages from his vendor. This indicates that the learned Judges were inclined to agree with the view of Justice Sankaran Nair.

In fact they have referred to, ILR 38 Mad 684 : (AIR 1914 Mad 440 (2) ) (D), and observed that the principle of the case was acquiesced in two other decisions of that Court and they were prepared to assume for the purpose of argument that the proposition of law was correct. They proceeded on the footing that the first purchaser can have recourse against the substituted property. At any rate, they have not dissented from it or said anything which would have that effect.

10. Maharajah of Bobbili v. Venkata Ramanajulu Naidu, ILR 39 Mad 265 : (AIR 1915 Mad 453) (I), also throws some light on this point. The question posed there was whether a buyer of an undivided share of a joint Hindu family would become entitled to mesne profits from the date of sale or only from the date of suit. It was held by Wallis C. J., and Kumaraswamy Sastriar J., that he had not become a tenant in common with other members and that he was therefore not entitled to profits for the period between the date of purchase and the date of suit for partition in respect of his share. In the discussion of this question, the following passage occurs at page 268 (of ILR Mad) : (at page 454 of AIR) :

"In the suit for partition which may be filed by the alienee it may be that the property conveyed to him falls to some other co-parcener and it is difficult to see how this fact could be reconciled with the theory that by purchase he becomes entitled to a vested interest in the share of his co-parcener in the property alienated as from the date of the alienation."

These remarks could only be on the theory that the alienee could have recourse to some other properties that were assigned to the share of the alienating co-parcener.

11. The position of law is summed up thus in Maynes Hindu Law, (11th Edition), page 487 :

"A co-parcener may alienate either his undivided share in the whole of the family property or his undivided share in certain specific family property or the whole of a specific item of the family property. In all these cases, the alienee does not acquire an interest in the property so as to become a tenant-in-common with the members of the family entitled to possession but only an equity to stand in his vendors shoes and to work out his rights by means of a partition .....

In dividing the family properties, the Court will, no doubt, set apart for the alienating coparceners share the property alienated if that can be done without any injustice to the other co-parceners and such property, if it is so set apart, may be given to the transferee of the interest of such co-parcener. But this is only an equity and the alienee is not, as of right, entitled to have the property so allotted. If such property is not so set apart, then alienee would be entitled to recover that property which was allotted to his vendor for his share in substitution for the property that was alienated in his favour."

12. This passage was quoted with approval by Rajamannar J., (as he then was) in Koru Issaku v. Seetharamaraju, ILR 1948 Mad 454 : (AIR 1948 Mad 1) (FB) (J), which will be referred to in another context. To the same effect is the statement of law in Mullas Hindu Law (11th edition), page 321.

"The alienee of a specific property or of the undivided interest of co-parcener in such property has on a general partition an equitable right to have that property or his alienors share in that property as the case may be, assigned to him if it could be done without injustice to the other co-parceners. But there may be equities between the co-parceners or liabilities attaching to the alienors share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated."

13. It may be pointed out here that both the authors have relied in support of this proposition in ILR 38 Mad 684 : (AIR 1914 Mad 440 (2) ) (D). They also discussed the rights of an auction-purchaser to have this equitable relief and followed ILR 1950 Bom 777 : (AIR 1951 Bom 226) (G), in preference to ILR 43 Mad 309 : (AIR 1920 Mad 316) (F) and Chidambara Gauda v. Chennappa 36 Bom LR 694 : (AIR 1934 Bom 329) (K), which followed ILR 43 Mad 309 : (AIR 1920 Mad 316) (F), as it was thought that the view taken in these cases seemed to be rather narrow.

14. We are not here concerned with the right of a purchaser at a Court sale. Further, the controversy in that regard has been set at rest by the ruling of the Full Bench in 1956 Andh WR 251 : (AIR 1956 Andhra 188) (A), so far as this Court is concerned.

15. I may now refer to Paramanayakam Pillai v. Sivaraman, ILR (1952) Mad 835 : (AIR 1952 Mad 419) (L). The view of two of the five Judges on this subject is in accord with ours. The observations of Justice Satyanarayana Rao at page 847 (of ILR Mad) : (at page 427 of AIR) are apposite :

"If it is not possible to set apart property in the aforesaid manner, the only right of the alienee is to recover that property allotted to the vendor for his share though it may not be identical property alienated in his favour. This is on the principle of substitution and the earlier decisions."

The opinion of Justice Viswanatha Sastri on this aspect of the matter is brought out in the following passage at page 873 (of ILR Mad) : (at p. 441 of AIR) :

"It does not, however, follow that an alienee from a co-parcener has no right in or to any property but only a personal remedy against the alienor. Even when the alienee does not get an allotment of the property alienated to him at a general partition, he would be entitled to the property allotted to the vendor for his share in substitution for the property alienated to him. In support of this conclusion, the learned Judge relies on ILR (1948) Mad 454 : (AIR 1948 Mad 1) (FB) (J). Both the learned Judges concede the equitable right mentioned supra to the alienee of specific items of property. The decisions of the two Full Benches of the Madras High Court in ILR (1948) Mad 454 : (AIR 1948 Mad 1) (FB) (J), which were rendered prior to the formation of this High Court are binding on us in view of the Full Bench ruling of this Court in Subbarayudu v. State, 1955 Andh WR 150 : ( (S) AIR 1955 Andhra 87) (M).

16. A different note was struck by Viswanatha Sastri J., in 1956 Andh WR 251 : ( (S) AIR 1956 Andhra 188) (FB) (A). The learned Chief Justice and Bhimasankaram J., before whom the matter came first referred to the Full Bench for an authoritative ruling, the questions : (1) whether a purchaser in Court-sale of specific property belonging to the joint family held in execution of a decree obtained against one of the members of the joint family is entitled to ask for equitable relief in a suit for general partition that the property purchased by him should, if possible, be allotted to the share of his judgment-debtor : and (2) if it be not possible to allot to the share of his judgment-debtor, the entire property purchased by him or even a part of, it could he compel the judgment-debtor to give him other properties that fell to his share in substitution for the properties purchased by him.

Justice Viswanatha Sastri who delivered the judgment on behalf of the Full Bench answered the first question in the affirmative and the second in the negative. In the opinion of the Full Bench the law on the subject was correctly laid down by ILR 43 Mad 309 : (AIR 1920 Mad 316) (F), and the view of Bhagvati J., concurred in by Dixit J., in ILR 1950 Bom 777 : (AIR 1951 Bom 226) (G), which dissented from ILR 43 Mad 309 : (AIR 1920 Mad 316) (F), was not acceptable.

17. It is seen that the question of the rights of a purchaser of specific item of property from a co-parcener by a private treaty was not in issue and was not referred to the Full Bench. I may mention in passing that the referring order of My Lord the Chief Justice shows that the right of a purchaser in a private sale to be entitled to the equity to proceed against the substituted property was not questioned and a distinction was drawn between a purchaser in a private sale and a purchaser in a Court sale in that respect. Therefore, any expression of opinion on their part not covered by the reference is only obiter. But, even as an obiter dictum, it is entitled to great weight and we would have followed it but for the various reasons mentioned herein.

18. The view of Viswanatha Sastri J., in the Full Bench in regard to this question is founded upon the observations of Bashyam Iyenger J., in ILR 25 Mad 690 (FB) (C), that the remedy of the purchaser in such a case is only to claim compensation, and the judgment of Varadachariar J., in Ramana Chettiar v. Manickam Chettiar, AIR 1935 Mad 1011 (N). So far as Bashyam Iyenagar J.,s remarks in ILR 25 Mad 690 (FB) (C), are concerned they could not be construed as excluding the rights of a purchaser to proceed against substituted security. In my opinion, that is one of the remedies indicated by the learned Judge. He was not considering all the courses open to such a purchaser and this problem was not present to his mind. Therefore, that cannot furnish any basis for the view against the theory of substituted property.

19. I will now advert to AIR 1935 Mad 1011 (N). Two of co-sharers purported to mortgage a specific item of property. In a family partition the mortgagor was allotted only a part of that item and some other properties. These properties were subsequently purchased by third parties without notice of the mortgage and in good faith. The mortgagee sought to enforce his mortgage not only against the fraction of the originally mortgaged properties but also the substituted lands. Varadachariar J., rejected the claim of the mortgagee in regard to the properties not subjected to his mortgage holding that the principle of substituted security enunciated in Byjnath Lall v. Ramodeen Chowdry, 1 Ind App 106 (PC) (O), had no application to a mortgage of definite plot of land.

20. The proposition as stated by the learned Judge does not find support in any of the reported cases. On the other hand, there are a number of decisions of that Court and of other High Courts which justify the extension of the theory of substituted security to mortgages of particular items of property. Nowhere has it been postulated that it should be confined only to mortgages of undivided shares. Adverting to Muthiaraja v. Appalaraju, ILR 34 Mad 175 (P), the learned Judge said that the distinction between a mortgagee of an undivided share and a mortgagee of a special portion of property was not material for that case. He merely purported to state the effect of the authorities and therefore the statement of law

"that the mortgagee of an undivided share in common property, or of one of the joint properties before partition from one of the sharers is only entitled to proceed against the substituted property which falls to the share of the mortgagor at the partition unless the partition has been unfair or is in fraud of the mortgagee"

did not warrant the extension of the doctrine of substituted security. But it appears from the order of reference that the case related to a mortgage of one of the joint family properties.

21. The reasoning of Varadachariar J., was not accepted by a Full Bench of the Madras High Court in ILR 1948 Mad 454 : (AIR 1948 Mad 1) (FB) (J), though it was said that his decision could be justified on the facts of the case. The Full Bench ruled that the equitable rule adumbrated in 1 Ind App 106 (PC) (O), was applicable to a case of a mortgagee of a definite plot of property by one of the co-sharers. This case contains an exhaustive review of the case-law relating to the doctrine of substituted security and refers to decisions of various High Courts beginning from Hemchunder Ghose v. Thakomani Devi, ILR 20 Cal 533 (Q), which have extended the principle of substituted security enunciated in 1 Ind App 106 (PC) (O), to mortgages of specific items of property by a co-sharer.

See Amolakram v. Chandan Singh, ILR 24 All 483 (R) and Liladhar Uttamchand v. Shiwaji, AIR 1936 Nag 125 (S). I need not, therefore, refer to all the cases which are much to the same effect. It is now too late to contend in view of the long catena of decisions and of the Full Bench decision that the doctrine of substituted security cannot come into play in the case of a mortgage of specific items of property by a member of an undivided Hindu family.

22. Dealing with the statement in AIR 1935 Mad 1011 (N), that the hardship caused by the unlimited extension of the rule stated in 1 Ind App 106 (PC) (O), would be seen when considering the rights of a bona fide purchaser of properties allotted to the mortgagor at the partition Rajamannar J., who delivered the judgment of the Court remarked at page 476 (of ILR Mad) : (at page 5 of AIR) :

"But with great respect, I am unable to see how these considerations can apply to the mortgagor himself or his legal representatives. On the other hand, it appears to be inequitable that it should be open to the mortgagor to hold the substituted lands free of the burden of the mortgage which he had purported to create on a part of the joint property, though he might not legally have been competent to alienate that part. In my opinion, the consideration of the hardship to a bona fide purchaser is not relevant in determining the rights inter se between the mortgagee and the mortgagor.

With great respect, I do not think it would be correct to say that when a co-sharer purports to alienate a specific item of joint property, he is dealing with property to which he had no title at the time. He certainly had some title, viz., the interest of an undivided co-sharer. The learned Judge refers to the analogy of an alienation by a member of joint family of an item of joint family property, but we find that the law applicable to such cases is also the same," and then referred to the passage from Maynes Hindu Law already extracted. This is a definite pronouncement of the Full Bench that the principal of substituted security extends to a mortgage of definite plots of land and the law is the same in regard to an alienee of specific items of property. After this the propositions stated in AIR 1935 Mad 1011 (N), could not be regarded as sound law.

23. Adverting to ILR 1948 Mad 454 : (AIR 1948 Mad 1) (FB) (J), Justice Viswanatha Sastri in 1956 Andhra LT 322 : ((S) AIR 1956 Andhra 188) (FB) (A), remarked at page 335 (of Andhra LT) : (at page 192 of AIR) :

"At the same time, the learned Judge recognised that the mortgage as such would not bind the substituted property and that the mortgagee was only entitled to an equitable charge thereon for realisation of the mortgage money, such charge not being enforceable against a bona fide purchaser of the substituted property without notice of the charge."

But it cannot be overlooked that Justice Rajamannar has definitely stated that the considerations of hardship to a bona fide purchaser are not relevant in determining the rights inter se between the mortgagee and the mortgagor. The considerations that apply to the case of a bona fide purchaser for value are totally different from those applying to the alienor himself. It has to be remembered that this is only an equity and not a legal right and therefore cannot prevail against subsequent bona fide purchasers for value. Further, no distinction can be drawn between a mortgage and a sale in this behalf because the principle is the same.

24. If a mortgagee of specified lands could have benefit of substituted land there is no valid ground for denying it to a vendee in similar circumstances. The judgment of the Full Bench has clearly indicated that the rights of a purchaser of specific items of land are the same as those of mortgagee similarly situated. It may be mentioned here that Viswanatha Sastri J., himself has opined in ILR (1952) Mad 835 : (AIR 1952 Mad 419) (L), that a purchaser of specific items of property would fall within the scope of ILR 1948 Mad 454 : (AIR 1948 Mad 1) (FB) (J).

25. At page 335 (of Andhra LT) : (at p. 192 of AIR), the learned Judge seeks to make a distinction between mortgage and sale and invokes in support of it S. 68 (1) (b) of the Transfer of Property Act. Though a mortgagor can be called upon by virtue of S. 68 (1) (b) of the Transfer of Property Act by the mortgagee to furnish further security, the mortgagee has no remedy except to sue for the mortgage money if the mortgagor commits default in that regard. Therefore S. 68 (1) (b) does not afford any help in that regard. That does not confer any right on the mortgagee to insist upon any substitution of property. In fact, Varadachariar J., whose view was relied upon by Viswanatha Sastri J., thought there was no distinction between the two and the observations of Bashyam Iyengar J., in ILR 25 Mad 690 (FB) (C), need not be confined to sale of specified properties and would apply to mortgages also.

If it could be argued that the contract between the vendor and the vendee was only to sell a particular item of property, the same thing could be said of the mortgagor and the mortgagee also.

26. I shall now consider the difficulty envisaged on the basis of S. 55 (2) of the Transfer of Property Act. Under S. 55, the transferor seeks to sell some property to which he purports to have legal title. But, that is not the case in regard to sale of definite items of property by a member of a joint undivided Hindu family. While the family is undivided, no member can predicate that he has a right to any particular item of the joint family property. So, a co-parcener cannot convey any definite item of property as his and the purchaser does not prescribe a right to the specific items. If an undivided member sells any definite property, it is only on the assumption that it will be allotted to him and the alienee does not acquire as of right any interest therein.

Unlike the sale of property coming within the purview of S. 55 where the vendor asserts his title to the property and the vendee acquires title thereto, the alienee or purchaser of a specific item of property does not get any such right. It is an incident of a purchase of undivided share in the joint family property that he cannot follow it into the hands of the co-sharer. His is only a right to ask that the particular property may be allotted to the share of his vendor and the Court while making the partition as far as possible and ceteris paribus so marshal the family property amongst the co-parceners as to allot that special portion of the property or so much of it as may be just to allot the mortgagee or the purchaser. Thus the reasoning based on S. 55 of the Transfer of Property Act is not decisive of the matter. The same result could be reached even on a consideration of the first principles. In my judgment there is no scope for the application of caveat emptor in the case of a purchaser of specific items by private treaty.

27. If as stated, the alienee could request that definite property could be allocated to the share of the alienor and this could be done without detriment or injustice to the other co-parceners or prejudice to prior encumbrancers, there can be no formidable objection or resistance to the alternative prayer in a suit by him that if the special portion could not be equitably allotted to the share of the vendor some other extent equal in value could be allotted to him. Surely, in a suit for a general partition by the members of a joint family this could be done. If that were the position, there can be no answer to claim of the alienee to ask for such a relief because he takes the place of the alienor.

If this position is accepted, it should not make any difference if the alienee himself does not file the suit for general partition and in a subsequent partition to which he was not a party some other property was substituted to the share of the alienor. It follows as a necessary corollary that the transferee of specific items of joint family property from an undivided member of a joint Hindu family has a remedy against the substituted property. This is the principle expounded in several of the rulings and we are not propounding any fresh proposition of law. We are not considering a case of a competition between the alienee and a subsequent bona fide purchaser for value of the substituted property.

The view of Viswanatha Sastri J., is opposed to the preponderance of judicial opinion including his own as already noticed. In the circumstances, with great respect, I regret my inability to follow the obiter dicta of the learned Judge in 1956 Andh WR 251 : ( (S) AIR 1956 Andhra 188) (FB) (A). It may be remembered that the very case of ILR 43 Mad 309 : (AIR 1920 Mad 316) (F), has accepted the correctness of the proposition stated by Sankaran Nair J., in ILR 38 Mad 684 : (AIR 1914 Mad 440 (2) ) (D). In my opinion, the law as stated by Sankaran Nair J., in ILR 38 Mad 684 : (AIR 1914 Mad 440 (2) (D), and accepted as correct in several decided cases and approved by well-recognised authors like Mayne and Mullah is good.

28. It follows that the plaintiff has got a right to demand that an extent of property equal in value of acres 11 settled on her should be carved out of the properties now belonging to the 4th and 6th defendants. In this view of the matter, it is not necessary for us to enter upon a discussion of the right of the plaintiff to enforce against the property as originally demised to her. It was suggested by Mr. Chandrasekhara Sastry, counsel for the 4th defendant that if the plaintiff was entitled to proceed against the properties of his client and the 6th defendant on the doctrine of substituted property, a decree may be granted to her on that basis to avoid another litigation.

29. This leads me to the question whether the suit is barred by limitation. The trial Court thought that it was Art. 116 of the Limitation Act, which prescribes a period of six years for compensation for breach of contract that applies. Obviously, the suit does not fall within the operation of this Article in the view we have taken, namely, that the right of the alienee is not merely to claim compensation for breach of contract. This is a suit for recovering substituted property by a transferee from a co-parcener, and as such essentially a suit for possession of immovable property within the meaning of Art. 144. This is analogous to the suit by the vendee from a member of the joint undivided Hindu family for a general partition.

There is no Article of Limitation Act which specifically provides for such a suit by an alienee. That being so, the only appropriate Article is Art. 144 of the Limitation Act which is a residuary one. It was laid down by a Bench consisting of Rajamannar C. J., and Rajagopala Aiyyangar J., in Thani Chettiar v. Dakshinamurthy, 1955-1 Mad LJ 414 : ( (S) AIR 1955 Mad 288) (T), that there was no specific article of the limitation act applicable to suits by a vendee from a member of a joint family for general partition or for working out his equities and that as the main relief in such a suit was for delivery of possession after effecting partition the suit should be treated as one for possession of immoveable property and as such attracted Art. 144 of the Limitation Act.

The doctrine of this ruling governs the present case and I express my respectful accord with the ratio of this decision and hold that the suit having been filed within 12 years of the accrual of her rights, the plaintiffs suit is in time. The fact that possession of immoveable property is sought in lieu of some other property settled upon her does not make any difference to the applicability of Art. 144, the primary relief claimed being recovery of possession.

30. In the result, I agree that the appeal should be allowed on the lines indicated by my learned brother in his judgment.

UMAMAHESWARAM, J. :-

31. This is an appeal directed against the Judgment and decree of the Subordinate Judge of Narsapur in O. S. No. 29 of 1948 dismissing the plaintiffs suit for recovery of possession of the A scheduled property or, in the alternative, for recovery of

"possession of sufficient property partitioned from the plaint B scheduled property equally from the shares of the 4th defendant and 6th defendant and equal in the aggregate to the plaint A scheduled properties in all respects"

and for profits. As the Court below dismissed the suit, the plaintiff has preferred the appeal.

32. In order to appreciate the contentions of the appellant, it is necessary to set out a few relevant facts. The 4th defendant, the brothers son of the 6th defendant was adopted by the plaintiff and her husband, the 6th defendant, on 9th May 1940. As the plaintiff was not at first willing to the adoption of her husbands brothers son there was a mediation at the instance of P. W. 1, an advocate practising at Amalapur, and a friend of the family and an agreement was entered into between all the family members including the 4th defendant who was a major, that acres 11 of land should be given to the plaintiff with life interest and that the 4th defendant should be adopted by the 6th defendant and his wife, the plaintiff.

Subsequent to the adoption, an adoption deed, marked as Exhibit A-3 was executed by the 4th defendant. On the same day, a deed of settlement was executed by the 6th defendant. The property set out in the schedule was settled upon the plaintiff for life. It was recited in the document that those specified properties should come out of the share of the 6th defendants branch and the two undivided brothers of the 6th defendant, Kopparti Ramachandrarao and Kopparti Bhaskaranarayana attested the documents.

33. In spite of having adopted the 4th defendant, the adoptive father filed O. S. No 69 of 1942 on the file of the Sub-Court, Narasapur, for a declaration that the adoption deed dated 15th January 1941, was null and void and that he did not take the 4th defendant as his adopted son. The 4th defendant filed O. S. No. 10 of 1943 on the file of the same Court for partition and separate possession of his 1/6 share in the family properties. In the partition suit, the 4th defendant herein impleaded his adoptive father, his adoptive mother, his natural father, Kopparti Ramachandrarao and his natural brothers and his uncle, Bhaskaranarayana and his son, as parties. In paragraph 5 of his plaint, he set out the terms of the ante-adoption agreement entered into between him and his adoptive parents.

In paragraph 9, he stated that the adoptive mothers acres 11 should be partitioned so that the same might revert to him and his father after her death. The adoptive parents took up the stand that the adoption was not true and valid and that the plaintiff was not entitled to a share in the properties. They alleged that there was a final partition of the entire joint family properties between the adoptive father and his brothers and that the properties set out in the settlement deed were allotted to the natural father under the said partition. The Subordinate Judge of Narsapur held that the adoption was true and valid, that the settlement deed was accepted by the appellant herein, and that she was a necessary party as her rights under the settlement deed had to be adjusted in the partition between the adopted son and the adoptive father.

He also held that the partition entered into between the adoptive father and his brothers was a final and complete partition and that it was not open to the plaintiff to re-open it. The Subordinate Judge who held that the appellant had accepted the settlement deed and was a necessary party to the partition suit, curiously did not set apart any property equivalent or corresponding to acres 11 but reserved her right to pursue her remedies by a separate suit. In view of the attitude taken up by the appellant herein that there was no valid adoption, she did not prefer an appeal and agitate that her rights under the settlement deed should be secured in the partition suit itself. The appeals that were preferred by the adoptive father, A. S. Nos. 279 and 280 of 1944 were dismissed by the High Court of Madras on 12th December, 1945.

The plaintiff, the adoptive mother, instituted the present suit on 12th January, 1948, for the enforcement of her rights under the settlement deed. Her case is that she is entitled to recover the specific properties from the 1st defendant and his sons, defendants 2, 3 and 5. The alternative case is that, if for any reason, she is not entitled to recover those specific properties from them, she is entitled to recover from her husband the 6th defendant and the adopted son the 4th defendant, i.e., from and out of the B scheduled properties allotted to them in the partition between the 6th defendant and his brothers, in equal shares, and equal in value to the property settled upon her and described in the A schedule.

34. Defendants 1 to 3 and 5 pleaded that inasmuch as there was a final and complete partition between the three branches and the partition was upheld in the prior suit, it was not open to the plaintiff to claim the A scheduled properties from them. The 6th defendant who was colluding with his wife originally remained ex parte but later on got the ex parte order against him set aside and filed his written statement. He contended that the plaintiff was not entitled to any rights as against him. The adopted son also denied the plaintiffs right to recover any properties from him.

35. The Subordinate Judge of Narsapur who tried the suit held that the deed dated 15th January, 1941, was a gift deed and was not valid and binding inasmuch as the plaintiff did not accept it and that the gift deed was also not acted upon. He however found that the gift deed was true and that the 6th defendant had a right to execute it even though he was a member of joint Hindu family. He further found that the plaintiff was not entitled to recover the A scheduled properties from defendants 1 to 3 and 5 as there was a final and complete partition between the three branches and the A scheduled properties fell to their share. In paragraph 19, he held that if the plaintiff was entitled to any substituted property, she was entitled to recovery only from and out of the properties that were allotted to her husband. On the question of limitation, he found that the suit was barred. In the result, he dismissed the plaintiffs suit and she preferred the above appeal.

36. The questions that fall to be decided in the appeal are :

(1) Whether the deed dated 15th January, 1941, marked as Exhibit A-1 is a deed of gift or a family settlement deed and whether the plaintiff accepted the deed or not?

(2) Whether the plaintiff is entitled to recover the A scheduled properties from defendants 1 to 3 and 5.

(3) Whether the plaintiff is entitled to recover in equity, equally from defendants 4 and 6 from and out of B scheduled properties equivalent in value to A scheduled properties? and

(4) Whether the suit is barred by limitation?

(5) To what profits is the plaintiff entitled?

37. In order to decide the nature of the transaction evidenced by Exhibit A-1, dated 15th January, 1941, it is necessary to refer to the disinterested and independent evidence of the advocate who mediated and brought about the adoption and the settlement deed. The advocate, examined as P. W. 1 stated that, while the 6th defendant wanted to adopt the 4th defendant, his wife, i. e., the plaintiff herein was against the adoption and that he mediated between them and settled the terms. According to him, the terms were that acres 11 of land should be given to the plaintiff with life interest for pocket money, in addition to her right of maintenance and that she should consent for the adoption of the 4th defendant, and all the family members agreed to the settlement. In pursuance of this oral settlement, the settlement deed dated 15th January, 1941, was executed and the settlement deed was duly attested by the 1st defendant and Bhaskaranarayana, as also by P. W. 1.

The document was not described as a gift deed but as a deed of settlement. It recited that, in order to avoid inconvenience to the plaintiff, if differences should arise between her and the adopted son the land of the extent of acres 11 were given to her towards pocket money from and out of the properties due to my share in the partition between our brothers. Under this arrangement, the plaintiff agreed that she would not claim any right of inheritance but that she would rest content with receiving maintenance as acres 11 were being settled upon her. A perusal of the document clearly shows that it was supported by consideration and that it was executed with a view to settle the disputes which arose at the time of the adoption between the parties.

As it was provided in the document that the extent of acres 11 mentioned in the schedule should come out of the undivided share of the 6th defendants branch, the attestation of the two brothers Ramachandrarao and Bhaskaranarayana, was taken, after the document was read over to them. Ramachandrarao, the natural father who was interested in the son, the 4th defendant, being taken by his brother the 6th defendant in adoption, agreed that those specific items might be settled on the plaintiff herein. The other brother, Bhaskaranarayana, also agreed to the said agreement.

38. Sri Chandrasekhara Sastry, the learned advocate for the respondent, contended that this document was not valid and binding upon the 4th defendant inasmuch as he was not a party to it. There is no force in this contention inasmuch as we accept the evidence of P. W. 1 who deposed that the 1st defendant, his two brothers, the plaintiff, the 4th defendant and the karnam of the village were present when the terms were settled. When the 5th defendant executed the document, he was the manager of the joint family consisting of himself and his adopted son and he was therefore entitled to execute a document confirming the oral arrangement that was entered into prior to the date of adoption so as to bind his adopted son. If the terms of the arrangement had not been agreed to by the 4th defendant, the adopted son who was a major, the adoption would not at all have taken place.

39. The next contention of Sri Chandrasekhara Sastry was that the acres 11 should only come out of the 6th defendants share and not the properties that were allotted to the 4th defendant. Reliance was placed upon the words "due to my share in the partition between our brothers". This contention is also untenable as a reading of the document, as a whole, clearly shows that what was intended was that the acres 11 should come out of the share allotted to the 6th defendants branch. The partition referred to in the document was the partition that might be effected between the three brothers. No partition inter se between the adoptive father and the adopted son was ever contemplated under the terms of the document.

The document provided that after his lifetime, the plaintiff should not claim any share in the properties except maintenance and that all the properties allotted to their branch should pass to the 4th defendant. The contemporaneous document i.e., the adoption deed, marked as Exhibit A-3, also makes this position clear. It recites that the 4th defendant should after his death be the karta of the entire remaining property due to his share deducting the acres 11 settled upon his wife. It is therefore not possible to accept the contention of Sri Chandrasekhara Sastry that the words "my share" in the two documents should be construed as referring to the undivided 1/6 share of the 6th defendant.

40. The written statement of the 4th defendant herein in O. S. No. 69 of 1942 and his plaint in O. S. No. 10 of 1943 support this view. In paragraph 5 of the plaint he set out the terms of the ante-adoption agreement entered into between him, the 6th defendant and the plaintiff and the adoption deed and the settlement deed executed on 15th January, 1941. In paragraph 9, he stated that, out of the entire properties in the family, he was entitled to 1/6 share and his father to 1/6 share and that the 2nd defendants acres 11 of land had to be partitioned so that the same might fall to his share and his fathers share.

Similarly, in the written statement filed by him in O. S. No. 69 of 1942, he relied upon the ante-adoption agreement and the settlement deed and stated in paragraph 22 that, after the lifetime of the plaintiff herein, the property mentioned in the deed of settlement should pass to him and his father. His case therefore was that the acres 11 settled upon the adoptive mother should come out of the properties belonging to their branch and that it should revert, on her death, to them both. We have therefore no hesitation in accepting the contention of Sri Ramachandrarao, the learned advocate appearing on behalf of the appellant, that the acres 11 should come out of the shares of the 6th and 4th defendants equally.

41. The next contention urged on behalf of the respondent was that the deed dated 15th January, 1941, was not duly accepted by the plaintiff herein and it was not consequently valid and enforceable by her. This contention found favour with the Subordinate Judge ; but we are inclined to differ from his conclusion. In support of the respondents contention, our attention was drawn to the written statement filed by the plaintiff herein in O. S. No. 10 of 1943 on the file of Sub-Court, Narsapur, as also to her evidence in this suit. The learned advocate for the appellant, on the other hand, relied upon the evidence of P. W. 1 and the plaint in O. S. No. 10 of 1943 and the written statement in O. S. No. 69 of 1942 filed by the 4th defendant.

The 4th defendant stated in clear and unequivocal terms in paragraph 16 of his written statement in O.S. No. 69 of 1942, that the plaintiff herein had accepted the deed of settlement and received the document when it was sent by registered post to her. He has not gone into the witness-box and explained the admissions made by him in his pleadings in the prior proceedings. There is also the evidence of the advocate, P. W. 1 that the plaintiff was a party to the oral arrangement. Exhibit A-2, the postal cover, also clearly shows that the registered document was sent to the plaintiff and that she accepted it. Her evidence that she did not accept the settlement deed is absolutely false.

We agree with the learned advocate for the respondent that her conduct in repudiating the adoption and the settlement deed was unrighteous and wholly unjustifiable; but we are not prepared to accept his contention that, by reason of her conduct, the legal rights which were conferred upon her by the deed dated 15th January, 1941, should not be given effect to. As stated supra, the settlement deed was executed by the adoptive father as the manager of the joint family consisting of himself and the adopted son in pursuance of the oral agreement entered into at the time of the adoption.

42. It is clear law that one who is sui juris may enter into a valid agreement at the time of his adoption with his adoptive father or with the widow who adopts him so as to affect his interests in the property that he will acquire on adoption Vide Maynes Treatises on Hindu Law and Usage, 11th edition, at page 262. Sir John Beaumont discussed this question in Pandurang v. Narmadabai, ILR 56 Bom 395 at p. 399 : (AIR 1932 Bom 571 at p. 573) (U), and observed, in clear and forcible language, distinguishing the decision in Krishnamurthi Ayyar v. Krishnamurthi Ayyar, ILR 50 Mad 508 : (AIR 1927 PC 139) (V), as follows :

"But it seems to me that where a major is adopted he has an election whether he will be adopted or not. No doubt he is given in adoption by his natural father if he has one, and, if he has not, then by his mother. But obviously, if he is sui juris he is entitled to say that he refuses to be given in adoption. If he agrees to be given in adoption and at the same time agrees that on that event happening he will carry out certain arrangements as to the property which he will acquire on adoption. I cannot see why he should be at liberty to accept the adoption and disregard the agreement. I know of no principle in Hindu or English Law which enables that to be done and I do not think that their Lordships of the Privy Council intend to hold that such a thing was legal."

43. This decision was approved in Vithal v. Yamutai Shridar, ILR 58 Bom 234 : (AIR 1934 Bom 121) (W). Reference might also be made to the decision in Kashibai v. Tatya, ILR 40 Bom 668 at p. 673 : (AIR 1916 Bom 312 at p. 313) (X), wherein the learned Judges held that the adoption deed and the will executed by the widow Lakshmibai, should be read together, and that so read, they constituted a single family arrangement which was binding upon the adopted son who being of full age, deliberately accepted it and took advantage which the arrangement conferred upon him we are inclined to follow these decisions and hold that as the 4th defendant who was a major agreed to the settlement of acres 11 on the adoptive mother, he is bound by the settlement deed.

Moreover, as pointed out already, the adoptive mother agreed that she would not claim a share in the properties by way of inheritance but rest content with a claim for maintenance on the death of the 6th defendant if the properties should be settled on her. It is therefore not possible to regard this deed as a gift pure and simpliciter. The decision in Wajid Ali v. Ganga Din, AIR 1938 Oudh 97 (Y), does not, in any way, affect the conclusion which we reached. It was as a result of the valid arrangement entered into at the time of the adoption between the plaintiff, the 4th defendant and 6th defendant, the settlement deed was executed. As the plaintiff had antecedent rights under the oral arrangement, the settlement deed should be regarded as a valid family arrangement and not as a gift of immoveable property. For the reasons stated supra, the conclusion of the Subordinate Judge that the deed was a gift deed, that it was not valid as it was not accepted by the donee as required under the terms of Section 122 of the Transfer of Property Act and that it was not enforceable as against the share of the adopted son, is erroneous.

44. In view of our finding on the third question that the plaintiff is entitled, in equity, to recover properties equivalent to A scheduled properties from and out of B scheduled properties equally from defendants 4 and 6, it is unnecessary for us to discuss whether the plaintiff is entitled to recover A scheduled properties from defendants 1 to 3 and 5. Sri Chandrasekhara Sastry, on behalf of the 4th respondent stated that if the equity was enforceable against the substituted property in the hands of his client, it was not necessary to pass a decree against his natural father and natural brothers and drive them to a separate suit against defendants 4 and 6. We agree that multiplicity of proceedings should be avoided by adopting such a course. If the appellants contention is upheld and decree passed against defendants 1 to 3 and 5 for recovery of the A scheduled properties, in spite of the allotment of those properties at the partition between the three branches, they will be constrained to institute a suit against defendants 4 and 6 for recovery of an extent equivalent to A scheduled properties.

45. The learned Subordinate Judge held that the suit for enforcement of the equity as against the substituted properties in the hands of defendants 4 and 6 was barred by limitation. He took the view that Article 144 of the Limitation Act was not applicable and that only Article 116 applied. We do not agree that the suit to recover possession of immoveable property from and out of substituted property is by way of compensation for breach of a contract so as to attract the terms of Article 116 of the Limitation Act. As pointed out by Rajamannar, C. J., in 1955-1 Mad LJ 414 : ( (S) AIR 1955 Mad 288) (T), there is no article of the limitation act which specifically provides for a suit by an alienee from a coparcener for general partition or for working out his equities in such a suit.

It was held in that decision that as the main relief was actual delivery of possession after effecting partition, the suit should be regarded as one for possession of immoveable property and that Article 144 governed the case. Following the reasoning in that decision, we hold that the suit for recovery of possession of immoveable property by way of substitution by an alienee or transferee for consideration from a coparcener falls under Article 144 of the Limitation Act. As the suit was instituted within a period of 12 years from the date of the settlement deed, we have no doubt that the suit is in time.

46. In dealing with the third question, it is necessary to bear in mind the following facts. It has been found in the prior proceedings to which the plaintiff herein was a party that the allotment of the acres 11 settled upon her under Exhibit A-1 was properly allotted of the share of the defendants 1 to 3 and 5 and that the partition entered into between the 6th defendant, the 1st defendant and Bhaskaranarayana was valid and binding upon all parties. The result of such an allotment of A scheduled property to the 1st defendant is that the plaintiff is not in a position to recover those specific items settled upon her by the 6th defendant. She therefore claimed, in the alternative, that out of the B scheduled property allotted to her husband and adopted son, she was entitled to recover, in equity, the properties of value equal to A scheduled properties settled upon her.

The main question that falls to be considered in the appeal, namely, whether the plaintiff would be entitled to recover property equal in value to A scheduled property which was allotted to his transferor in the partition inter se between his brothers, is not free from difficulty. There is no direct decision on the point and the question will therefore have to be decided on first principles bearing in mind the conflicting observations made in some of the decisions. The law is well settled that the alienee or transferee is only entitled, in equity, to stand in his vendors shoes and to work out his rights by means of a partition. The Court will no doubt set apart the property alienated for the alienating coparceners share, if it can be done without any injustice to the other coparceners. In working out the equities, such property set apart will be allotted to the transferee in the partition action. It might often happen that such property is not set apart for the alienating coparceners share. If so, what is the remedy?

47. The answer to the above question is furnished by Mayne in his Treatises on Hindu Law and Usage, 11th edition (edited by Mr. Justice N. Chandrasekhara Aiyar) at page 488 in the following terms :

"If such property is not so set apart, then alienee would be entitled to recover that property which was allotted to his vendor his share, in substitution for the property that was alienated in his favour."

In Mullas Principles of Hindu Law, 11th edition (edited by Mr. Justice Bijan Kumar Mukherjea), the proposition is stated in the terms at page 321, namely :

In such a case alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated."

48. The first case that might be referred to in this connection is the decision in ILR 38 Mad 684 : (AIR 1914 Mad 440 (2)) (D). Though the present question did not directly arise for decision in that case, the observations made by Sankaran Nair, J., at page 687 (of ILR Mad) : (at P. 441 of AIR) are directly in point. After discussing the nature of the equity which the alienee is entitled to enforce, the learned Judge observed as follows :

But this is only an equity and the alienee is not, as of right, entitled to have the property, so allotted. "If such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share though it may not be the property that was alienated in his favour. The property allotted will take the place of the property which has been alienated to him so far as he is concerned."

49. The above observations or Sankaran Nair, J., were approved by Oldfield, J., in the order of reference made by him in AIR 1918 Mad 681 at p. 684 (FB) (E). The learned Judge stated as follows :-

"It is true that an alienee of specified property does not as of right acquire any interest in it. But it is well settled, and it was held by the same learned Judge in ILR 38 Mad. 684 : ( AIR 1914 Mad. 440 (2) ) (D), that his conveyance enables him to demand a partition of the family property and entitles him either to the specified property, if that can equitably be assigned to his vendors share, or to its equivalent from such other property as that share may include. The rights conferred by such a document, though not necessarily those expressed in it, are not unsubstantial and there is no reason why the law should refuse to enforce the contract to transfer them by compelling the execution of a sale deed in accordance with it."

The learned Judge was fully alive to the fact that the substituted properties sought to be recovered were different from those expressly conveyed under the document and was prepared to accede to the request of M. Govindaraghava Aiyar on behalf of the plaintiffs for the amendment of the plaint. In ILR 43 Mad 309 : (AIR 1920 Mad 316) (F), which related to the case of a purchaser in Court auction of specific items of property, Seshagiri Ayyar J., distinguished the decision in ILR 38 Mad 684 : (AIR 1914 Mad 440 (2) ) (D), as dealing with a case of private sale of specific properties by a coparcener. The contention of Sri Viswanatha Sastri who appeared on behalf of the appellant that the decision of Sankaran Nair, J., was opposed to principle and the decision of Bashyam Ayyangar, J., in ILR 25 Mad 690 (FB) (C), was negatived. In dealing with his contention, the learned Judge observed as follows at page 311 (of ILR Mad) : (at p. 317 of AIR Mad) :-

"In this latter case ILR 25 Mad 690 (FB) (C), what the learned judge decided was, that where a sale is made of specific items before partition, the proper remedy of the purchaser is to sue for partition and to claim the allotment to his vendor of the specific items sold to him. It was also held, that if this cannot conveniently be done, the right to compensation for selling properties without title can be against the vendor. This does not affect either Sankaran Nair, J.s dictum in ILR 38 Mad 684 : ( AIR 1914 Mad 440 (2) ) (D), or the pressnt case."

The observations made by the learned Judges in the three decisions referred to supra, support the proposition of law so laid down by the two learned text-book writers, Mayne and Mulla.

50. A similar question arose for decision before the Full Bench of the Madras High Court in ILR (1948) Mad 454 at P. 476 : (AIR 1948 Mad 1 at p. 4) (J). The case no doubt related to a mortgage and the mortgaged properties were allotted to the share of the non-alienating co-sharer. The rule of substituted security enunciated by the Privy Council in 1 Ind App 106 (PC) (O), that in such a case, the mortgagee can proceed only against the properties allotted to the mortgagor in substitution of his undivided share, was applied, even though the co-sharer mortgaged specific items of joint property. Rajamannar, J., who delivered the judgment of the Full Bench, approved the Principle of law as laid down in Maynes Hindu Law and overruled the decision of Varadachari, J,. in 1935 Mad WN 788 : (AIR 1935 Mad 1011) (N). After dealing with the decision of Varadachari, J., the learned Judges observed as follows at page 476 (of ILR Mad) : (at p. 5 of AIR) :-

"On the other hand, it appears to be inequitable that it should be open to the mortgagor to hold the substituted lands free of the burden of the mortgage which he had purported to create on a part of the joint property, though he might not legally have been competent to alienate that part .. ..

With great respect, I do not think, it would be correct to say that, when a co-sharer purports to alienate specific item of joint property he is dealing with property to which he had no title at the time. He certainly had some title, viz., the interest of an undivided co-sharer."

The opinion of the Full Bench that doctrine of substituted security applies to the case of a mortgage by a co-sharer of a specific item of joint property, is, in our opinion, equally applicable to the case of a transfer by a co-sharer of a specific item of property. The observations of Satyanarayana Rao, J., and Viswanatha Sastri, J., in AIR 1952 Mad 419 (FB) (L), are also to the same effect. After discussing the several decisions dealing with the nature of the alinees equity, Satyanarayana Rao, J., observed at page 427 as follows :

"This, it is emphasised, is only an equity and not a right. If it is not possible to set apart property in the aforesaid manner, the only right of the alienee is to recover that property allotted to the vendor for his share though it may not be identical property alienated in his favour. This is on the principle of substitution and the earlier decisions beginning from Pandurang Anandrav v. Bhaskar Sadashiv, 11 Bom HCR 72 (Z) were referred to and followed."

At page 441 Viswanatha Sastri, J., referred to the Full Bench decision in ILR 1948 Mad 454 at p. 476 : (IR 1948 Mad 1 at p. 5) (J), and applied it to the case of an alienee of a specific item of property in the following terms :-

"Even when the alienee does not get an allotment of the property alienated to him at a general partition, he would be entitled to the property allotted to the vendor for his share in substitution for the property alienated to him ; A IR 1948 Mad 1 (FB) (J), what an alienee gets is therefore a right in property carrying with it an equitable right to avail himself of the rule of substituted security. The right to get compensation of substituted property in case the property sold is lost for want of title in the vendor was recognised by the early texts."

From the above discussion, we are clear that the alienee of a specific item of property is entitled, at his option, to sue for recovery of possession of a sufficient extent of property equal in value to the alienated property, out of the properties allotted to his transferor at the partition.

51. Sri Chandrasekhara Sastri, the learned advocate for the respondent mainly relied upon the recent Full Bench decision of this court in 1956 Andh LT 322) : ((S) AIR 1956 Andhra 188) (A), as supporting his contention that the only remedy of the alienee was to sue for compensation against his alienor. Having carefully perused the decision, we are inclined to take the view that the present question did not directly arise for decision and the observations of Viswanatha Sastri, J., on the rights of a purchaser at a private sale are only obiter. The order of reference made by the Honourable the Chief Justice makes it clear that as a result of the conflict between the decisions in ILR 43 Mad 309 : (AIR 1920 Mad 316) (F), and ILR 1950 Bom 777 : (AIR 1951 Bom 226) (G), relating to the rights of a Court auction-purchaser of a specific item of property, the matter was referred to a Full Bench.

At page 327, the contention of the learned counsel for the respondent is set out. The equities which a purchaser in a private sale would be entitled to in a suit for partition were not in dispute. The decision in ILR 43 Mad 309 : (AIR 1920 Mad 316) (F), drew the distinction between the case of a purchaser in a Court sale and purchaser at a private sale an Seshagiri Aiyar, J., approved the decision of Sankaran Nair, J., in ILR 38 Mad 684 : (AIR 1914 Mad 440 (2) (D), as stated supra. The questions referred to the Full Bench were as follows :

(1) Whether a purchaser in a Court sale of a specific property belonging to the joint family held in execution of a decree obtained against one of the members of the joint family is entitled to ask for equitable relief in a suit for general partition that the property purchased by him should, if possible, be allotted to the share of his judgment-debtor ?

(2) If it be not possible to allot to the share of his judgment-debtor the entire property purchased by him or even a part of it, could he compel the judgment-debtor to give him other properties that fell to his share in substitution for the properties purchased by him?

The answer to the first question in the affirmative, does not in any way affect the decision in this case. It is only the observations made by Viswanatha Sastri, J., in dealing with the second question, that Sri Chandrasekhara Sastri greatly relies on. As the present case does not deal with the case of a Court auction-purchaser, the answer to the second question that the opinion expressed in ILR 1950 Bom 777 : (AIR 1951 Bom 226) (G), is wrong and that the decisions in ILR 25 Mad 690 (FB) (C), and AIR 1934 Bom 329 (K) are correct, do not conclude the matter.

The observations of Viswanatha Sastri, J., in regard to the rights of a purchaser at a private sale are in conflict with the decisions already referred to as also the observations made by him in AIR 1952 Mad 419 at p. 441 (PB) (L). We are not inclined to share his view that the observations of Sankaran Nair, J., in ILR 38 Mad 684 : (AIR 1914 Mad 440) (2) (D), or the statement of law as laid down by Mayne and Mulla in their text books as regards the rights of a purchaser at a private sale, are wrong. As laid down in 1955 Andh WR 150 : ( (S) AIR 1955 Andhra 87) (FB) (M), the Full Bench decision in ILR 1948 Mad 454 : (AIR 1948 Mad 1) (FB) (J) is binding on us and, as stated supra, Rajamannar, J., approved the statement of law as set out in Maynes Hindu Law.

52. The observations of Viswanatha Sastri, J., in 1956 Andh WR 251 : ( (S) AIR 1955 Andhra 188) (FB) (A), are mainly based on the observations of Bashyam Ayyangar, J., in ILR 25 Mad 690 (FB) (C), and the decision of Varadachari, J., in 1935 Mad WN 788 : (AIR 1935 Mad 1011) (N). With great deference to the learned Judge, we are not inclined to construe Bashyam Ayyangar, J.s observations as a statute and hold that the transferee can only have an equitable claim for compensation against the alienor, if it be found impracticable or inequitable to allot to the transferors share the whole or any portion of the specific property transferred and the transfer thereby becomes inoperative either in whole or in part as the case may be.

The transferor may claim damages or compensation in money or sue for recovery of possession of the substituted property in whole or in part. The right to get compensation of substituted property is, in our opinion, not ruled out by the observations of Bashyam Ayyangar, J. The principle laid down in Stranges Hindu Law (1830 edition) namely, that the vendor should make amends where the sale or mortgage could not be enforced against the family should not be restricted only to cases where the specific items are allotted to the share of the vendor. As pointed out by Rajamannar, J., in ILR (1948) Mad 454 : (AIR 1948 Mad 1) (FB) (J), it is inequitable that the transferor should hold the substituted lands and drive the transferee to a suit for damages. In our opinion, it is open to the transferee to sue for possession of the substituted lands or claim damages at his option as he is the person aggrieved by the allotment of the specific properties to the shares of the non-alienating coparceners at the partition.

53. Viswanatha Sastri, J., also strongly relied on the observations of Varadachari, J., in 1935 Mad WN 788 : (AIR 1935 Mad 1011) (N), that there was no scope for the application of the doctrine of substituted security where the sale or mortgage was not of a share but of a specific item of joint family property by a coparcener as full owner thereof. We have already pointed out, in dealing with the Full Bench case in ILR (1948) Mad 454 : (AIR 1948 Mad 1) (J), that the decision of Varadachari, J., on this point was overruled by the Full Bench. With great respect to Varadachari, J., we cannot accept his view as it was overruled by the Full Bench decision in ILR (1948) Mad 454 : (AIR 1948 Mad 1) (J).

54. We are not prepared to follow the observations of Viswanatha Sastri, J., based upon the terms of Section 55 of the Transfer of Property Act or his distinguishing the decision in ILR (1948) Mad 454 : (AIR 1948 Mad 1) (FB) (J). Varadachari, J., observed at page 790 (of Mad WN) : (at p. 1013 of AIR) in 1935 Mad WN 788 : (AIR 1935 Mad 1011 (N), that the principle of substituted security laid down by the Privy Council in 1 Ind App. 106 (PC) (O), was enunciated in 1874 before the passing of the Transfer of Property Act and the Registration Act, that any person dealing with property must be in a position to trace the encumbrances to which it is subject at any particular time and that the principle of substituted security ought not to be extended. He illustrated the position as follows :

"Where a joint family member purports to mortgage property A as his own and subsequently gets property B at a partition, a transferee of property B from him cannot ordinarily discover that property B is subject to any encumbrance. If on the other hand the original mortgage had purported to comprise the whole of his undivided share in joint family property, a search of the registration records will undoubtedly put the subsequent transferee on notice of the prior mortgage. These considerations ought not to be ignored when one is called upon to extend this doctrine of substituted security."

Those observations were dissented from in ILR (1948) Mad 454 : (AIR 1948 Mad 1) (FB) (J). The reasoning of Viswanatha Sastri, J., in the recent Full Bench Case in 1956 Andhra LT 322 : ((S) AIR 1956 Andhra 188) (A), is also based on the same lines. At page 336 (of Andhra LT) : (at p. 192 of AIR) he states as follows :

"When analysed, the position reduces itself to this : A sells a particular piece of land to B as if it were his own. It is found that A has no title to the land. Can it be said that B is entitled to compel A to convey to him some other land in the place of what he bought? When thus stated, the claim of the vendee of a specific item of joint family property from a coparcener to the substitution of some other property of the vendor for the property sold, would be untenable."

The question posed by him may be answered as follows : There is no distinction in principle between a mortgage and a sale of a specific item ; if in the case of a mortgage of a specific item of property, the mortgagee is entitled to proceed as against the substituted property by way of charge, even though the substituted property was not the subject-matter of mortgage, why should not the vendee of a specific family property from a coparcener proceed to recover at his option, in equity, against the substituted property? The right of the alienee from a co-parcener is mainly based on equity and the theory of "amends", and we see no reason why the doctrine of substituted security should be confined to mortgages and not extended to purchasers at a private sale.

Though this equity was extended by Bhagwait, J., in ILR (1950) Bom 777 : (AIR 1951 Bom 226) (G), to the case of a Court auction-purchaser, and both Mayne and Mulla accepted that view, it has been dissented from by the Full Bench in 1956 Andhra LT 322 : ( (S) AIR 1956 Audhra 188) (A), on the ground that the rule of caveat emptor applies to Court sales. We are not concerned here with a case of a purchaser at Court sale. As already stated, the question arising for decision in the present case, viz., as regards the rights of a purchaser at a private sale, did not directly arise for decision in that case and was not referred to the Full Bench and the reasons given by the learned Judge at pages 337 to 342 (of Andhra LT) : (at pp. 193 to 195 of AIR) for holding that the Court auction-purchaser has no such equity do not apply to the case of a purchaser at a private sale.

55. There are only two limitations to the application of this doctrine of equity : (i) that the alienees rights are subject to the rights of a bona fide purchaser for value of the substituted property without notice of such right, and (ii) that the alienee is entitled only to recover properties of the value equal to the specific items transferred in his favour from and out of the substituted properties. The limitations laid down by the Full Bench in ILR (1948) Mad 454 : (AIR 1948 Mad 1) (J) and Hakim Lal v. Ram Lal, 6 Cal LJ 46 (Z-1), in the case of mortgages apply with equal force to the case of a purchaser at a private sale. Applying these principles, we direct the Court below to ascertain and allot from and out of B schedule properties (equally from the shares allotted to defendants 4 and 6) an extent equal in value to the acres 11-00 settled upon the plaintiff under Exhibit A-1.

56. There is no force in the contention of the learned Advocate for the respondent that the appellant is not entitled to enforce the equity as we already held that the transaction evidenced by Exhibit A-1 is not a gift deed but a family settlement deed supported by consideration. The equity, in our opinion is not restricted to a purchaser satisfying the terms of S. 54 of the Transfer of Property Act but to all transferees for consideration. The observations of Bashyam Iyyangar J., in ILR 25 Mad 690 (FB) (C), do not conflict with above view.

57. On the question of mesne profits, the parties are agreed that defendants 4 and 6 should pay a sum of Rs. 4,000 each and from the date of the decree of this Court. It is further agreed that the 6th defendant should pay to the plaintiff the mesne profits decreed against the 4th defendant i.e., Rs. 4,000 and that the 6th defendant should be entitled to a set off or adjustment of the same against the amount which he would be liable to pay in respect of the mesne profits decreed against the amount which he would be liable to pay in respect of the mesne profits decreed against him in O. S. No. 10 of 1943, Sub-Court, Narsapur. It is represented that I. A. No. 870 of 1946 filed in O. S. No. 10 of 1943 Sub-Court, Narsapur, for the determination of mesne profits and for the passing of a final decree is still pending on the file of that Court even though it was filed as early as February, 1946. It is unfortunate that the application has not been disposed of till now. We direct the Subordinate Judge to dispose of that application without any further delay.

58. In the result, the decree of the Lower Court is set aside and the appeal is allowed. The plaintiff will be entitled to recover possession from and out of the B scheduled properties (equally from the shares allotted to defendants 4 and 6) of an extent equal in value to the acres 11-00 settled upon the plaintiff under Exhibit A-1 which will be determined by the Court below. There will be a decree for mesne profits as stated supra. The amount of mesne profits will carry interest at 6 per cent, per annum from the date of decree of this Court. Having regard to the conduct of the appellant which we have already commented upon, we make no order as to costs both in the Court below and in this Court.

Appeal allowed.