Phillips, J. — In this case the plaintiff is the son of one Sambasiva Aiyar, the adopted son of Sivarama Aiyar; and he sues to recover possession of certain properties sold by his grandfather Sivarama Aiyar, on the 29th of June, 1901, to the 1st defendant, who is the father of defendants 2 to 4, on the ground that the sale was not effected for any necessity and is not binding on him. The plaintiff's father and grandfather are now both dead; and, therefore, the plaintiff claims to recover the whole of the suit properties.

The Subordinate Judge has found that there was no necessity for the sale and that it is, therefore, not binding on the plaintiff's share, and he has given a decree to the plaintiff for a division of the property into two parts and that for recovery of possession by the plaintiff of one-half with mesne profits, from the date of sale. The defendants now appeal and state that the decree is wrong and that the plaintiff's suit should have been dismissed on the ground that the 1st defendant acquired a right by the sale in his alienor's share and that he is also entitled to ask for partition of the family property, and to have the specific item assigned to his alienor's share, if that is consistent with the rights of other co-parceners.

It is not disputed that an alienee from an undivided co-parcener has a right to sue for a partition of the family property and to recover his alienor's share, in the case of a sale of an undivided share that share itself, and in the case of sale of a specific item of property an equitable right to have that property assigned, if possible to his alienor's share. This principle was laid down in Ayyagari Venkataramayya v. Ayyagari Ramayya, and was followed in Chinnu Pillai v. Kalimuthu Chetti, when it was further held that the share of the alienor which passes to the alienee is the share to which the former was entitled at the date of alienation. This latter ruling disposes of the respondent's contention that the 1st defendant has lost all right to the property on the death of Sivarama Aiyar. It is thus quite clear on all the authorities that the 1st defendant is entitled to partition of the family property and to have the plaint property assigned to Sivarama Aiyar's share, if that can equitably be done, and can bring a suit for that purpose.

It is then argued for the respondent that relief cannot be given to the defendants in this suit and that they must be left to work out their rights in a subsequent suit, and reliance is placed on several cases cited, beginning with Deendyal Lal v. Jugdeep Narain Singh(3). In that case it was held by the Privy Council that the purchaser of the right, title and interest of one co-sharer in joint ancestral estate at a sale in execution acquires merely the right to compel a partition as against the other co-sharers which the judgment-debtors possessed. In a subsequent case Hardi Narain Sahu v. Ruder Perkash Misser(4), the same proposition was enunciated; but the Privy Council refused to interfere with the decree of the High Court, ordering a partition and allotting a share to the purchaser, but observed that the decree ought to have been for the recovery of the whole property by the other co-parcener, with a declaration of the rights of the purchaser. In neither of these cases, was the equity of the purchaser to stand in his vendor's shoes, with which we are now concerned, fully discussed. There have also been observations in several Madras cases that the right of the purchaser is only a right to obtain, by a suit for partition, the share to which the alienor was entitled: vide Kota Balabadra Patre v. Khetra Doss to which one of us was a party: Manjaya Mudali v. Shanmuga: and Maharaja of Bobbili v. Venkataramanjulu Naidu and also a very recent case, Subbe Goundan v. Krishnamachari. It is only in the last case, however, that the question really arose as to whether the purchaser was to be driven to a suit for partition, or whether relief could be given to him, when defending a suit by another co-parcener. In this case, the Privy Council ruling in Ramkishore Kedarnath v. Jainarayan Ramrachhpal(5) was interpreted as meaning that the Privy Council, while raising the point, expressed themselves unwilling to decide it. In Ramkishore Kedarnath v. Jainarayan Ramrachhpal the suit was instituted by members of a Hindu joint family to set aside an alienation in favour of the 1st respondent, who claimed to be adopted into the family, and it was held that, as between the father Kedarnath and the alienee Jainarayan:

“the latter may be entitled to insist that he stands in the shoes of the former, as to the share, which would come to Kedarnath upon a partition; and that the Court, if that position were established, would itself, at Jainarayan's instance, decree a partition as between the plaintiffs on the one hand and Kedarnath on the other. Their Lordships think that on the present pleadings it is open to Jainarayan to set up such a cage, but express no opinion as to its validity either in law or in fact,”

that this pronouncement does relate to the competency of a Court to give a decree for partition in such a suit, is, I think, clear from the succeeding passage, according to which the suit is remanded for the trial:

“with a declaration that it is competent for the Court, in the event of the respondant Jainarayana failing in his other defences, to make the whole or any part of the relief granted to plaintiffs, conditional on their assenting to a partition, so far as regards Kedernath's interests in the estate, so as to give effect to any right to which the respondant may he entitled claiming through Kedernath.

This latter statement, seems to me to lay down quite clearly that the Court to which the suit was remanded was competent to order partition and to give decree accordingly and that the statement in the previous paragraph that their Lordships' “express no opinion as to its validity either in law or fact” refers merely to the question of how much of his case Jayanarayan would be able to establish when it formed the subject matter of inquiry, and this is the view taken by the learned Chief Judge in Davud Beevi Ammal v. P.R. Radhakrishna Aiyar. In this latter case, the suit was by a member of a family for general partition, and it was held that the alienee from one of the co-parceners was entitled, if otherwise equitable, to retain property alienated to him as the share of his alienor. No doubt in many cases it would not be easy to enforce the alienee's equitable right in a suit brought by one of the co-parceners to recover the property, because it would be necessary to add all the co-parceners to the suit and ascertain the amount of family property available for division, etc., and consequently it would often be simpler to refer the alienee to a separate suit; but that is not to say that, when the circumstances are favourable, the alienee must of necessity be driven to another suit. The principle originally laid down in Deendyal Lal v. Jugdeep Narain Singh, is that the purchaser has the right to compel partition and it was held that he was entitled to take proceedings to have his alienor's share ascertained by partition. This being the principle, where such share can be ascertained, without driving the parties to a separate suit, it should be done in order to avoid multiplicity of litigation. The observations referred to above that the alienee has only a right to sue must be read with reference to the facts of the cases concerned; for, if an equity exists in the alienee and it can be enforced without a separate suit, there seems to me to be no reason for restricting that equity to a mere right to sue, a limitation which cannot be supported on equitable principles. As I read Ramkishore Kedarnath v. Jainarayan Ramrachhpal, that case is authority for the proposition that, in a suit by a co-parcener for recovery of the property or for partition, the alienee is entitled to claim partition, if it can conveniently be done. In the present case, the plaintiff is the only surviving member of his family and at the time of the alienation to the 1st defendant the plaintiff's grandfather was entitled to one-half share in the family property, he having only one son. The family property at that time was a great deal more than double the amount sold to the 1st defendant; for, by that sale, about two velis were sold at a time when the family properties amounted to something like 13 velis of land. There is no necessity in the present case to implead any other co-parceners; for, they do not exist, and the partition, so far as the plaint property is concerned, can be effected without any trouble at all. Sivarama Aiyar was entitled to property at least equal in value to the property alienated and there is no reason why it should not be allotted to his share, and consequently to the 1st defendant.

The plaintiff has also claimed mesne profits, but he would not be entitled to such, except from the date of the plaint. The sale was by a manager of the family and, as such is not prima facie void, but only voidable at the instance of other members of the family. (Vide Hanuman Kamat v. Hanuman Mandur: also Subba Goundan v. Krishnamachari). The plaintiff is, therefore, not entitled to any mesne profits, until the date of the plaint and, as it has been held that the defendants are entitled to retain possession of the property, it follows that he is not entitled to any mesne profits. The appeal is allowed and plaintiff's suit dismissed with costs throughout. The memorandum of objections is also dismissed.

Venkatasubba Rao, J.—I agree.

C. K.Appeal allowed: suit dismissed.