JUDGMENT

Sadasiva Ayyar, J. — The plaintiff is the appellant in this case. The suit was brought for the partition of the only properties which he and his father, the 1st defendant, owned in British Territory near Negapatam. The plaintiff was born on the 25th of August 1888. At that time he and his father owned the plaint properties in British Territory, worth Rs. 800 and certain immoveable properties in Karaikal, French Territory, worth about Rs. 4000. The plaintiff and his father became joint owners of these properties on the plaintiff's birth. The father, the first defendant, had hypothecated the plaint properties in 1881 long before the plaintiff was born, and Rs. 350 became due under that hypothecation bond in May 1891. In May 1891 the 1st defendant sold the plaint properties in British Territory for the proper value of such properties, namely Rs. 800, under the sale deed, Exhibit II, to the 4th defendant's father. Out of the purchase money of Rs. 800, Rs. 350 went in discharge of the hypothecation debt due under Exhibit II, while the remaining Rs. 450 was received in cash by the 1st defendant. It is not proved that this Rs. 450 was required for any family necessity or to discharge any antecedent debt of the 1st defendant. These are the facts found by the Lower Appellate Court, which finding has of course to be accepted in second appeal.

It will be seen from these facts that the sale of the plaint properties took place when the plaintiff was less than 3 years old. The plaintiff attained majority on the 25th August 1906 and he brought this suit on the 25th August 1909, just within the period of limitation allowed him by law for setting aside his father's alienation.

Two other facts may be noted before we proceed to the question of law argued in the case. In October 1891 the 1st defendant executed a security bond, Exhibit A, in favour of the 4th defendant's father, his vendee, for Rs. 200 as security for the losses to which the 4th defendant's father may be put if and when the plaintiff who was (as I said before) a child of three then, should, after he attained age, “object to the sale” of the plaint lands by his father. This security bond further says that it should have effect for 18 years from the date of that bond, i.e, till October 1909, but that, after the said period of 18 years the security bond shall cease to have effect by itself and be of no use afterwards.

The other fact I referred to is that in 1897 when the plaintiff was a boy of about nine his father, the 1st defendant, made a gift of all his properties in French Territory to his son, the plaintiff, the plaintiff's mother accepting the gift on behalf of the plaintiff (see Exhibit IV).

These being the facts, the lower Appellate Court dismissed the plaintiff's suit with costs, and its reasons may be summarised thus:—(a) After transferring all his family properties in French Territory to the plaintiff, the 1st defendant, has instigated his son, the plaintiff, to bring this suit to defraud the 4th defendant, the son of 1st defendant's vendee, (and the 5th defendant claiming under the 4th defendant); (b) the gift deed, Exhibit IV, of 1897, by the 1st defendant to the plaintiff was obtained fraudulently by the plaintiff; if the plaintiff had not so fraudulently obtained the gift, the plaint lands could easily be allotted to the share of the 1st defendant by effecting a partition of all the properties both in French Territory and British Territory between the plaintiff and the 1st defendant, and the plaint land so allotted to the share of the 1st defendant would then belong to the 4th and 5th defendants solely and injustice could be prevented. But the plaintiff “took care to get a gift deed, Exhibit IV, in his favour” and has “brought this suit to defraud” the 1st defendant's vendees (see end of paragraph 9 of the learned Subordinate Judge's judgment); (c) the properties given as a guarantee against the plaintiff's objection to the sale of the plaint lands are situated in French Territory, that security has now become useless as the 18 years' period mentioned in that security bond lapsed during the pendency of this suit and the security bond is now useless to the defendants Nos. 4 and 5.

The first reason, it seems to me, is irrelevant, because, the moral guilt of the plaintiff's father in instigating his son cannot deprive the son of his legal rights under the modern Hindu Law, whatever may be the stricter view of the ancient Hindu Law and the Shastras. As regards the second ground, the learned Subordinate Judge in paragraph 9 of his judgment seems to charge the Plaintiff himself with fraud in getting the gift deed, Exhibit IV, in 1897 from his father. The plaintiff was a boy less than nine years old when the gift deed was made of the properties in French Territory by his father to him and I am unable to see how this boy could be convicted of fraud. In short, there is absolutely no evidence, that this gift deed, executed more than 12 years before this suit was brought, was tainted with fraud. As regards the third ground mentioned by the Subordinate Judge, assuming that the security bond, Exhibit A, has not become useless, I do not see that the plaintiff's rights can be affected thereby. The 4th defendant's father was negligent in not having obtained an unconditional security bond, instead of a bond which was to remain in force only for 18 years. Thus the three reasons given by the Subordinate Judge to support his decision against the plaintiff seem to me to be untenable. The Respondent's Vakil, however, urged some new contentions which may belformulated as follows: (1) Though only Rs. 350 was the antecedent debt which existed on the date of the sale to the 4th defendant's father, the 1st defendant's father received Rs. 450 in cash also on that date. If the sale deed is now set aside in favour of the plaintiff so far as regards his half share is concerned, there would be a failure of consideration to the extent of Rs. 400 which is the price of the plaintiff's half share. The 1st defendant (father) would be bound to repay that 400 Rupees to the 4th defendant, That debt might be treated as an antecedent debt and the sale of the plaintiff's half share might be validated as made for this antecedent debt. (The Respondent's learned Vakil, did not put forward this argument in the words and in the order I have above stated it, but so far as I could follow his arguments, this appeared to me to be the gist of that argument). (2) His next argument was that the father, the 1st defendant, was entitled to sell the plaintiff's half share alone to discharge the antecedent debt of Rs. 350 and he might be deemed to have sold under Exhibit II the plaintiff's half share alone for the antecedent debt of Rs. 350 plus Rs. 50 received in cash and to have sold the father's own half share for the remaining Rs. 400 out of the Rs. 450 received in cash on that date. If so, the sale of the plaintiff's half share (it was argued) was legally validated and could not be contested by him. (3) It was next contended that, even if there was necessity to pay only an antecedent debt of Rs. 350, a sale of property worth Rs. 800 should be deemed wholly valid on the analogy of cases of alienations by Hindu widows; that is, it was argued, that a Hindu widow in order to discharge her husband's debt was not bound to sell exactly that area of property which would fetch the exact sum required to discharge the debt, but could dispose (if it was more convenient to do so), of a larger area of property for a larger amount. As regards the first contention, it seems to me that a debt which was to arise in future through a failure of consideration owing to the plaintiff objecting to the sale by his father could not be treated as an antecedent debt due at the time of the sale for the purpose of validating that sale. As regards the second contention, it seems to me that the answer is that the father, when he sold the entire property for the Rs. 800 (made up of the antecedent debt of Rs. 350 and the ready cash payment of Rs. 450) did not purport to divide the transaction into two halves, one transaction being the sale of his own share for Rs. 400 out of the Rs. 450 received in cash and the other transaction being the sale of his minor son's share for the Rs. 350 antecedent debt and Rs. 50 received in cash. Sundara Aiyar, J. and my self held in Vadivalam Pillai v. Natasam Pillai:—“Where one of two coparceners of a Hindu joint family sells property belonging to both and half the consideration is only found binding on the family, the consideration for the sale must be, in the absence of anything apparent to the contrary, be distributed over the whole property sold in proportion to the value of each part” and that “therefore, in a suit by the other coparcener for recovery of his half share from the vendee, the plaintiff would be entitled to recover the same only on payment of his share, i.e, half of that portion of the purchase-money which went towards the discharge of the debts binding on both”. In that case we dissented from Marappa Goundan v. Rangasami Goundan. The Respondent's learned Vakil, however, argued that in the case of a father's antecedent debt, the division of the sale transaction in the manner contended for by the alienee in Vadivalam Pillai v. Natasam Pillai but disallowed by Sundara Aiyar, J. and myself, could be allowed, though in the case of a debt borrowed by a managing member for family necessity (which was the case in 23 M.L.J, 256) such a division could not be allowed. I am unable to make a distinction in principle between the antecedent debt of a father which is treated as equal to a debt contracted for the benefit of the family (so far as the son is concerned) and a debt really contracted for the benefit of the family, in respect of the application of the legal principles laid down in Vadivalam Pillai v. Natasam Pillai. In Suraj Bunsi Koer v. Sheo Persad Singh their Lordships say, at page 165, “Hence the rights of the coparceners in an undivided Hindu family, governed by the law of the Mitakshara, which consists of a father and his sons, do not differ from those of the coparceners in a like family which consists of undivided brethren, except so far as they are affected by the peculiar obligation of paying their father's debts which the Hindu law imposes upon sons (a question to be hereafter considered) and the fact that the father is, in all cases, naturally, and, in the case of infant sons, necessarily, the manager of the joint family estate”. I am, therefore, clear that in this case, the sale of the entire lands for a sum of Rs. 800 of which Rs. 350 only was the father's antecedent debt can be divided (if it can be divided at all) only into the sale of the father's half share for Rs. 175 antecedent debt and Rs. 225 received in cash and into the sale of the son's share for a like sum of Rs. 175 antecedent debt and a like sum of Rs. 225 received in cash.

Coming to the third contention, reliance was placed by the Respondent on the decision in S. A. No. 1429 of 1912, recently decided by Miller and Tyabji, JJ, and on some other cases. No doubt, it has been held in several cases that, when the greater portion of the money obtained by a widow by sale of a defined block of land inherited by her from her husband, was required to discharge her husband's debt, it is unreasonable to hold that she ought to or could have sold bhat particular large fraction of the block whose proportionate value would have been exactly equal to the debt which had to be discharged; that is, that a purchaser would have been available to purchase that fraction alone. On this view the sale deed as a whole has been upheld in such cases in favour of the alienee. In S. A. No. 1429 of 1912, the widow had to raise more than Rs. 1000 to discharge her husband's debt and she sold one property for Rs. 700 and another property for Rs. 600 and discharged the debt of Rs. 1022. It was decided that both sales might be upheld, subject to the purchaser under the Rs. 600 sale being asked to pay the reversionary heir on charge of the property sold, the amount of Rs. 200 and odd which was not required by the widow to discharge any debt of her husband. It will be seen that even out of Rs. 600 purchase money, the major portion went to discharge the husband's debt in that case. On the other hand where the amount required to meet a family necessity was only one half of the value of the property sold, Sundara Aiyar, J. and myself held in the above case of Vadivalam Pillai v. Natasam Pillai that the sale should be set aside so far as the coparcener who did not join in the sale was concerned, he being ordered, however, to pay the proportionate share of the debt really due by both the coparceners to the alienee.

Having dealt with the three contentions strongly pressed by the Respondent's learned Vakil, I may notice shortly one other contention of his, namely, that under the ruling in Koer Hasmat Rai v. Sunder Das the Plaintiff should pay the whole Rs. 800 purchase money before recovering even his half share of the property sold. In the first place the case in Koer Hasmat Rai v. Sunder Das though quoted by the learned District Munsiff in the case of Virabhadra Gowdu v. Guruvenkata Charlu in support of his decision, was not followed by Subrahmania Iyer and Davies, JJ., in that case; the said learned Judges followed Sivaganga Zamindar v. Lakshmana which held that “there was no equity in favour of the purchaser from the father” in respect of that half of the purchase money which was sought to be made liable on the son's half share, I have also in considering the first contention given my reasons for holding that the purchase money paid in cash cannot be treated as an antecedent debt which could be made a charge on the son's half share of the properties. Lastly, I might state following Ramacharya v. Anantacharya which was approved in Purushottam v. Atmaram that even if the gift deed, Exhibit IV, be held invalid, a coparcener's right to get his half share by partition of the properties belonging to the coparcenery in British India cannot be affected by the existence of coparcenery properties out of British India and I do not think that the equity pointed out by their Lordships in the recent Privy Council decision reported in Ramkishore Kedarnath v. Jainarayan Ramrachpal could enable a court in British India to enforce division of properties situated outside. British India. Besides, their Lordships expressly guard themselves by stating as follows:—” Their Lordships think that on the pleadings it is open to Jainarayan to set up such a case but express no opinion as to its validity either in law or fact.” The Respondent's learned Vakil suggested, rather than relied on, the case in Penn v. Baltimore during the course of the argument. I do not think that the rights of Courts of Equity in England can be invoked’ against the strict provision of section 16 of the Civil Procedure Code. I think it is difficult to argue, for instance, that a suit for possession of immoveable property in Tinnevelly could be brought in the Tanjore Court, simply because the defendant resides in Tanjore and could be arrested in Tanjore, if he refuses to obey the decree of the Court directing him to deliver possession of the property in Tinnevelly. To borrow the language of Harington, J., in Hara Lall Banerjee v. Nitambini Debi*, “the jurisdiction” of Courts in India “it must be borne in mind, is limited by the express terms of” the Statute Law. “The question, therefore, has to be decided by reference to the words of the Statute Law and not by a consideration of the jurisdiction exercised by the Courts of Equity in England”. [See also Arunachella Chettiar v. Muthiah Chettiar]. The plaintiff, again, cannot be compelled to sue for the division of properties, the entire interest in which has been enjoyed by him for 16 years adversely to his father from 1897 under the gift deed, Exhibit IV.

In the result, I would set aside the Judgment of the Subordinate Judge and give a preliminary decree for the plaintiff that, on his paying Rs. 175 into the District Munsiff's Court within 3 months of this date, he do recover half share in the plaint properties, and direct that a final decree be passed by the District Munsiff for possession of the half share after appointing commissioners to divide, if necessary, and taking the other usual steps to give effect to the preliminary decree. I would make no order as to costs in any Court, in case the plaintiff is given this preliminary decree for partition on his depositing Rs. 175. If he fails to do so, the suit will stand dismissed with costs in all Courts.

Spencer, J:—The facts of this case may be briefly stated as follows. In 1891 a Hindu father alienated a part of his ancestral family property in British India for a sum of Rs. 800 of which Rs. 350 represented an antecedent debt and Rs. 450 was a fresh advance. All the remaining family property in British India was subsequently conveyed away under sale deeds about which there were disputes which were settled before judgment. Six years later, ha gifted the remainder of his property worth Rs. 4000 which was situated in French Territory, to his son, the plaintiff. The plaintiff's father is the 1st, defedant in the suit and the 4th and 5th defendants are transferees from the purchaser Venkatachella Mudaly. The son now seeks to set aside the alienation as having been made without necessity; and though, he was successful in the first Court, the Subordinate Judge on appeal held that this suit had been brought by the son at his father's instigation, when the security bond, given by the first defendant to Venkatachella Mudaly, the father of the 4th defendant, to safeguard the rights of the vendees was about to expire, and with the intent to defraud the vendees. He dismissed the suit with costs, observing that, if the plaintiff had brought a suit for a partition without first obtaining fraudulently a gift of the properties in French Territory, the plaint lands could have been allotted to the father's share without disturbing the vendees.

Mr. C. V. Ananta Krishna Aiyar, Vakil for the Appellant, contends that the Lower Appellate Court erred in taking into calculation the existence of family property in a foreign jurisdiction in an attempt to equalise the shares of parties to a partition, and though this point was not distinctly taken in his grounds of appeal, he quotes the decision in Purushottam v. Atmaram which follows Ramcharya v. Anantacharya in support of this view.

Now, it is one thing to hold, as was done in Ramacharya v. Anantacharya that in a suit for partition the Court had no power to order the partition of immoveable property lying outside of British India, though even this position may be open to doubt in view of the leading English case of Penn v. Baltimore, in which the Court of Chancery enforced an agreement made between parties who were both before the Court, when the agreement related to the boundaries of two Foreign Provinces. It is quite another thing to argue that in adjusting the equities prevailing between the parties to a suit instituted for recovering separate possession of one share of family property after division, the Court should not take note of the fact that the father's share outside the jurisdiction of the Court, which has since become the property of the son and is worth Rs. 4000 was in value far more than enough to satisfy the debt of Rs. 450 for which the father's share might have been made exclusively liable in a partition, if one had taken place before or at the time of the alienation.

Aiyyagari Venkataramayya v. Aiyyagari Ramayya and Chinnu Pillai v. Kalimuthu Chetti are authorities for the view that in working out the equities arising on a partition, the Court should proceed on a consideration of the position of the family at the time of the alienation and should act as though partition had taken place before the alienation of the alienor's share. There can be no doubt that at an entire partition of the family property, the Court can, and should so marshall the properties among the sharers as to allot the portion upon which an incumbrance not binding on the family has been created by one member of the family to that member's share at partition. [vide Udaram Sitaram v. Ranu Panduji and Venku Panduji, and Mayne's Hindu Law, 7th edition, p. 487, Section 367]. What reason can there be for not observing such an equitable principle in a case, where owing to the rights of all the members of the family having become merged in one individual, no partition is necessary and there are no competing equities of other coparceners?

In Vadivalam Pillai v. Natasam Pillai the Judges, of whom my learned brother was one, observed, “The right of a coparcener to sell his own property being now well recognised, the equities as between the vendee and the other coparceners have to be adjusted by the Court in the best manner possible.” That was a case of a sale by one brother of property belonging to himself and another coparcener for a consideration, only one half of which was binding on the family. This is a stronger case, being the case of a sale by a father of family property for a consideration nearly one-half of which was binding on the son as being an antecedent debt, [vide Venkataramanaya Pantulu v. Venkataramana Doss Pantulu) ] Even as regards the rest of the consideration an obligation would lie on the son to pay the debt unless it was contracted for an immoral purpose.

In Ramkishore Kedarnath v. Jainarayan Ramrachpal the Privy Council in a suit brought by sons against a recipient of a share of the ancestral estate given by a Hindu father to a stranger held that it was competent to the Court before granting any relief to insist on the sons consenting to a partition, so far as regards their father's interest, so as, to protect the recipient's rights.

Iburamsa Rowthan v. Theruvenkatasami Naick, cited by the appellant's pleader, is only an authority for the proposition that such a suit as the present brought by a member of a Hindu family for the recovery of his share in a portion of family property improperly alienated without claiming a complete division, will lie in this presidency. Reference is made in the course of the judgment of the Full Bench to certain Calcutta decisions which are authorities for the position that the purchaser cannot resist such a claim made by persons not bound by the alienation, by pointing out the existence of equities in his favour, but he must be left to work out his rights by means of a partition. But these decisions have not much bearing on the present case, where owing to the rights of the family having become merged in the son it would be too late to refer the purchaser to a suit for partition.

In my opinion, the Subordinate Judge was right in disallowing the plaintiff's claim on the finding of fraud which he found established on a review of all the circumstances of the present case, and also upon a consideration of the equities existing as between the purchaser and the plaintiff.

I, therefore, consider that this second appeal should be dismissed with costs.

Under section 98 of the Code of Civil Procedure the result is that the second appeal is dismissed with costs.

Appeal dismissed.