JUDGMENT

1. The District Judge has based his decision largely on Court Exs. 1 and 2, which he admitted as evidence produced on the Court's own motion. He states that the documents are conclusive on the point of fact. O. 40, R. 27 of the CPC, makes it imperative that an appellate Court should record its reasons for admitting additional evidence whenever additional evidence is allowed to be produced. Apart from the irregularity arising from the omission to comply with this rule we think that in fairness these documents should not have been relied on for the purpose of proving that the properties attached by defendant, 3, (plaintiff in Original Suit No. 133 of 1909) were treated as the joint properties of defendants 1 and 2 in this case defendants 1 and 2 in Original Suit No. 133 of 1909, without giving defendant 3, who was examined as D.W 1 at the original trial, an opportunity of explaining the circumstances under which he made the application to attach those properties and his admission in the application. In considering the other evidence of joint dealing with the property the District Judge has not considered and met the possibility of the explanation suggested by the District Munsif for the joint execution of the mortgage deed to Abboy Chetti by plaintiff and defendants 1 and 2 being true; and he also appears to have overlooked the point, which the District Munsif noticed, that the plaintiff's evidence as to the purchase of the plaint properties by sale of ancestral properties must be hearsay, when he spoke to what occurred when he was only two years old.

2. We think that it is necessary to call for a fresh finding from the District Judge on the question whether the plaintiff has any interest in the properties. If he finds this question in the affirmative, he will also return a finding on issue 3 which is has left undetermined. Findings should be returned within two months from this date. Ten days will be allowed for filing objections.

FINDINGS

3. This is a case which has been remanded to me for findings on the question, “Whether the plaintiff has any interest in the, properties;” and secondly, if the above issue is found in the affirmative, “If the sale is to be set aside, to what equities, if any, is defendant 3 entitled?” It has been pointed out by the High Court that I have fallen into an irregularity in not complying with O. 41, R. 27 of the CPC, in replying on Court Exs. 1 and 2 which I admited as evidence produced on my own motion, in that I did not record the reasons for admitting this further evidence. It is also observed that there was great hardship on defendant 3 in admitting this in evidence because he was not given an opportunity of meeting this document which contradicted his evidence. It is brought to my notice by the learned vakil for the appellant that as a matter of fact the subject of these two Exs. 1 and 2 was brought to the notice of defendant 3 when he gave his evidence in the Court and that he then bad an opportunity of explaining the fact, which must have been present to his memory, that he attached the property as being the property of the defendants. However, the man is since dead and in view of the High Court's observation I do not think it advisable that I should rely on these documents nor record a reason at this stage why I should admit them, because in any case one obvious explanation and observation attaches to them, that the general conduct of the parties might have led defendant 3, who would not be intimately acquainted with family affairs, to believe the property to be joint family property and it is not the conduct or the admissions of a third party, as defendant 3 was, which can affect the nature of the ownership of any given bit of property. The learned vakil for the appellant brings it to my notice that the decisions in Indar Sahat v. Shaim Bahadur(1) and Madhavaiya Chetty v. Damodaram Chetty(2) are a clear basis for holding that, although there may be no nucleus of family property, where the family work together and live together and that together and treat the property as joint property, they make a joint family even if there has been no original nucleus of family property.

4. As regards the observations of the District Munsif with reference to the joint execution of the mortgage deed to Abboy Chetti by the plaintiff and defendants 1 and 2, I have had my attention directed to it in argument and I have given my attention to it as directed by the order of reference of their Lordships of the High Court; and I think it is right to observe that this explanation by the District Munsif, that it was possible that the sons were also joined in the execution of this document as they were naturally required to do as a matter of safety by the mortgagee, is an explanation which was open to the parties and yet was not made by defendant 3. But as regards the explanation that the execution of the mortgage deeds Exs. 1 and 10 to Shroff Abboy Chetti might show that the plaint properties were thrown into the common stock and enjoyed by the family jointly though acquired by a single member, that does in fact appeal to me and that is in fact my final view. The decision in Thyalambeal v. Krishna Pattar(3) is an exact decision in point. As regards the Full Bench case in Ethirajulu Naidu v. Govindarajulu Naidu(4) I have to observe with great respect that it seems to me that a good deal would turn on the date of the will in question.

5. If after treating the property in every way as joint property, the acquirer at his very last gasp makes a will disposing of it as if it was still his sole self-acquired property, I think it would be open to the other members of the joint family to show that by his action in treating the property as joint property and thus keeping the family together they were prevented from going out in the world and setting upon their own account, and therefore it was not open to him, just before his death, to execute a will which reversed the tacit agreement among them. If, on the other hand, in such a series of circumstances as are detailed in Ethirajulu Naidu v. Govindarajulu Naidu the acquirer of the property made and registered a will three or four years before his death, that would be a very different matter. However though I venture to express this proviso, my present finding is not given in opposition to the decision in Ethirajulu Naidu v. Govindarajulu Naidu, but because it seems to me, having regard to the provisions of Ex. 10, dated 1904, and Ex. 1 dated 1908, that after setting forth most clearly that it was self-acquired property it is stated with equal clearness and precision that the property is in the joint possession of all the members of the family and this is exactly the course and conduct which, according to the ruling in Madhaviya Chetty v. Damodaram Chetty, where the family all live together, is enough to finally invest the property with the character of joint family property. The learned vakil for respondent 4 would wish to argue from Ram Kishen Das v. Tanda Mal(5) that there can be no joint family unless there is a nucleus of joint family property. But the decision in 1912 M.W.N [Madhavaiya Chetty v. Damodaram Chetty] is exactly opposed to such a view. It is perfectly true that the evidence as to the property having been acquired with the grandfather's own money is mere hearsay, as the High Court has been pleased to point out to me, and it is true that in certain cases, as set out in the decision in Jangi Nath v. Janki Nath(6), a single owner of a property may for certain reasons, and to avoid family quarrels, associate with himself persons who in reality have no joint title and may afterwards insist on his own full separate rights. Personally I incline to the view that this is not a line of conduct which should be encouraged or which in the end conduces to the peace and welfare of families [to quote the Privy Council in Lala Muddun Gopal Lal v. Khikhinda Koer(7)] because it seems to in that it is substituting for a temporary disagreement an inevitable, bitterly-contested law suit, which will certainly go as far as the Privy Council if the family funds or credit permit. However that may be, the present is not such a case. Here there has been a living together in one house ever since the family migrated to Sandaipittai on account of the great famine of 1876–1877. A house was bought and eventually land; and this land is the subject of the present litigation. The oral evidence on the side of the plaintiff is indeed meagre and a great part of the evidence he gives as his own witness is false. But the learned District Munsif found as a fact that the plaintiff and defendants 1 and 2 have been living all along and messing together and the plaintiff's present statement to the contrary is a deliberate falsehood. This fact while leading great weight to the theory of collusion in the present suit, is also a very important one in deciding whether the family have been throwing all their income such as it is into one joint stock. Taken with the contents of Exs. 1 and 10, I am satisfied that the property was altered into joint family property with the full final consent of the father who acquired it and for this reason I find the issue in the affirmative that the plaintiff has an interest in the properties.

6. As regards issue 3 the learned vakil for the respondent wishes me to go once more over the whole question of fraud and to show that on account of the fraud being non-existent and the promotes being executed with legitimate purposes, his client is entitled to repayment of the following sums of money: Rs. 600 for Ex. 1, Rs. 224 under Ex. C and Rs. 800 towards the discharge of Ex. 6. He argues from the decision in Palamalai Mudaliyar v. South Indian Expori Co. Ltd.(8) that defendant 3 is entitled in equity to have these sums made a charge on the property as there is no evidence to rebut the fact of payment; for, as he points out, P.W 1 (defendant 2) admits in evidence that Rs. 40 is due from him on the pro-note for which Ex. C was substituted. On the other hand my attention has been drawn to the Privy Council decision in Sahu Ram Chandra v. Bhup Singh(9), by which it is said that the sale of joint family property by only one or two members excluding a person who is a common cosharer with them has no effect whatsoever and cannot bind the property at all.

7. Thus there is no equity for defendant 3 retaining his two thirds of the suit property nor for his getting his money back. It seems to me that this is the decision which I must apply in the present case and that my finding on issue 3 in the same as the lower Court's, viz., that defendant 3 (who is now represented by respondent 4) is not entitled to any equities in this case. Although I base my decision on the ruling in the Privy Council cases noted above, and not on the finding as regards fraud—because it seems to me that I am not bound or justified in reviewing my finding on that point that there was fraud in the matter—if I take that finding as holding good, I will also say that on account of the fraud practised in the matter to which defendant 3 was necessarily a party he is not entitled to any equities in the case. But my finding as given above is independent of the finding on the question of fraud, which as it seems to me has been excluded from the scope of the reference. I am corrected by the learned vakil for the respondent as regards his arguments based on 33 All. [Ram Kishen Das v. Tanda Mal]. He points out that his argument was that there is no presumption as to the existence of joint family property and anyone who alleges it must prove it. This, of course, I concede, but he proceeded to argue as stated above that there must necessarily be a nucleus of joint family property before anything can be added to it, and this is not a correct statement of the law. Allowing, as I do, that all the burden of proof rests entirely on the plaintiff in such a case as this, it seems to me that he has discharged that burden and proved that he has an interest in the plaint properties.

8. (After return of the findings).

Spencer, J.:— My learned brother has fully discussed the questions of law which have been raised in the arguments upon appellant 2's memorandum of objections and I have little to add to what he has written in the judgment he is about to deliver.

9. We must accept the learned District Judge's findings on the issues referred to him. I think that the plaintiff is not entitled to recover more than his one-third; undefined share and that the decree in Original Suit No. 133 of 1909 is binding: on defendants 1 and 2 who were parties to it.

10. I am further of opinion that on the District Judge's finding as to fraud, and on the principle that he who comes into equity must come with clean hands, defendant 3 having been a party to a collusive decree based upon a non-existent debt, cannot ask as against a person who was not a party to that decree for an equitable remedy such as that implied by subrogation: vide Karuppan Ambalagaran v. Muhammad Sakuth Levvai(10). The suit must be remanded to the lower Court for having a partition of the plaintiff's share effected by metes and bounds and for passing a final decree for the possession of the share allotted to the plaintiff. The plaintiff will get costs throughout proportionate to the value of his share. The defendants will bear their own costs throughout. The lower Court's decree will be modified accordingly.

Krishnan, J.:— The learned District Judge has returned findings on the issues remitted to him, adversely to the appel and he has filed a memorandum of objections to them. On issue, 1 the learned Judge finds that the plaint properties were treated as joint family property with the full consent of the father long before the decree in Original Suit No. 133 of 1909 and the sale in execution of it, and that therefore the plaintiff has a share in them. It is objected that this is a new case which had not been set up previously by the plaintiff and that defendant 3 has been prejudiced by such a new case being now made out against him. Plaintiff had stated in the plaint that the properties were “common family properties” without specifying how; on the other hand, defendant 3 had alleged that they were defendant 1's self acquisitions. Though there was no direct issue on this question, the parties treated the second part of issue 1 as raising it and evidence was given about it by both sides. The plaintiff's evidence was not only that they were purchased from family funds, but also that they were dealt with by his father and other members of the family as joint property. The District Judge has now accepted the latter portion of his case, though he had originally found that the properties were purchased with joint family funds. There is however no ground for saying that the present finding amounts to the setting up of a, new case for the plaintiff. All the evidence was on record and the finding is on such evidence. I do not think defendant 3 can properly be said to be prejudiced, nor has he shown that any evidence was properly omitted by him from being adduced. As this is the only objection to the finding as to the joint character of the property, and as it fails, we must accept it.

11. The next question is what relief the plaintiff is entitled to on that finding. He claims the right to recover the whole property, whereas defendant 3 contends that he should be given only his one-third share. The District Judge has accepted the plaintiff's contention. The plaint items were attached and sold in execution of the decree in Original Suit No. 133 of 1909 obtained by defendant 3 against defendants 1 and 2, the father and brother of plaintiff; and they were purchased by defendant 3 himself. The Munsif has found that the promissory notes on which that decree was obtained were sham transactions and without consideration, and the decree was a collusive and fraudulent one probably intended to harass a creditor. On this finding plaintiff's rights in the property were clearly unaffected by the decree and sale, as he was no party to them. The District Judge has concurred in this finding of fraud. Defendants 1 and 2 had them selves brought Original Suit No. 965 of 1912 to set aside the decree and sale; but that suit failed for non-payment of costs within the time fixed. They can no longer sue to avoid the sale; and being parties themselves to the fraudulent decree they would have even otherwise, no right to recover the plaint properties; see Kama Row v. Nukamma(11). So far therefore as their two-thirds share is concerned, it must thus be taken that defendant 3's sale certificate is valid against them and the title to their share has passed to him. That being so it will not be right to allow the plaintiff to recover the whole property and thus enable defendants 1 and 2 to get their shares indirectly through him when they cannot get them directly, unless it is strictly necessary to allow plaintiff to do so to work out his own rights. It has not been attempted to be shown that plaintiff would in any way be prejudiced as to his own rights in the properties if partition should be directed in this suit itself and he given his share.

12. It was however urged that defendant 3 should be looked upon as a trespasser and that it was plaintiff's right as a member of the joint family to eject him altogether from the properties. This argument fails, as defendant 3 is not altogether a trespasser but has got the rights of defendants 1 and 2 in the properties. Then it was argued that even if we look upon defendant 3 as the Court auction-purchaser of the shares of defendants 1 and 2, he is still not entitled to resist the plaintiff's suit to recover the whole property, his right being only to bring a suit for partition. In support of this proposition the learned vakil relied on the Privy Council judgments in Deendayal Lal v. Jugdeep Narain Singh(12) and Suraj Bunsi Koer v. Sheo Persad Singh(13), Ramanna v. Venkata(14) and Nanjaya Miidali v. Shanmuga Mudali(15). Though the alienee of a undivided co-parcener is not strictly entitled to possession of any property before suing for partition, he having only an equity to enforce a partition, still in a case like the present where he is in possession of specific properties, it is not necessary to eject him and drive him to a fresh partition suit, as the rights of the parties could be worked out in this suit itself without prejudice. In the case in Deendyal Lal v. Jugdeep Narain Singli their Lordships of the Privy Council no doubt confirmed the decree giving the son possession of the whole property purchased by the holder of the decree against his father, but they aided in declaration that the purchaser was entitled to have the share and interest purchased by him ascertained by partition. The case in Suraj Bansi Koer v. Sheo Persad Singli takes a similar view. But neither of them is in my opinion against allowing the alienor's equity being worked out in the suit by the co-parcener, if it can be done without prejudice to the plaintiff. That question was not before their Lordships in the two cases cited. On the other hand they have themselves recognized that a partition may be directed in the co-parcener's suit itself; for in the case of Ramkishore Kedarnath v. Jainarayan Ramrachpal(16) their Lordships, while holding that the co-parcener was not party to the alienation was not bound to sue for partition, expressly say

“that it may well be that it is open to the alienee to insist that he stands in the shoes of his alienor as to the latter's share on partition and that the Court then would itself at the alienee's instance direct partition in that suit.”

13. The case in Ramanna v. Venkata was one of a gift by a Hindu father which was found to be invalid and not binding on the son or on the father. The learned Judges, while giving effect to the power of interdiction by the son in those circumstances, recognized that in the case of a sale the alienation should be upheld to the extent of the alienor's share as a matter of equity, which however did not exist in that case. They did not consider how the alienor's equity was to be worked out; and moreover in the present case we have a Court auction sale binding on defendants 1 and 2, and therefore the observations in that case do not apply to this case. The decision in Nanjaya Mudali v. Shanmuga Mudali is not in point here and the observations in it are not inconsistent with the view I am taking; in fact the observations in the case in Ramkishor Kedarnath v. Jainarayan Ramraohpal above referred to is cited and followed. Where co-parceners alienate their shares in specific properties, the other co-parceners have a right to sue for partition and for recovery of their shares in those properties alone without suing for a general partition; the validity of such suits has now been settled by the Full Bench in Ibhramsa Rowthan v. Thiruvenkatasami Naiok(17). Though no doubt an alienee of a co-parcener's share in a specific property has to sue for general partition to work out his rights, still where, as in the present case, there do not seem to be any other properties to be divided than the suit ones, there is no object in making him bring a fresh suit. The District Judge has relied on the case in Sahu Ram Chandra v. Bhup Singh for his view that defendant 3 has no “equity” to get a two-thirds share in the properties apparently he relies on the observation of Lord Shaw that

“any deed of gift, sale or mortgage granted by one coparcener on his own account of or over the joint family property is invalid; the estate is wholly unaffected by it and its entirety stands free of it.”

14. The observation refers to private alienations and does not apply to the present case, which is one of a Court sale; the right to attach and sell a coparcener's share for his decree debt has been established by the decision of the Privy Council itself and has never been doubted. In our Presidency, even as regards private alienation it is settled law that one coparcener may dispose of the ancestral undivided estate to the extent of his own share by private conveyance whether for value or by gift; and this was recognized and laid down by the Judicial Committee itself in Suraj Bunsi Koer v. Sheo Persad Singh above referred to. That being so, an alienation of the joint family property by one coparcener will bind his share, though it may not bind the shares of the other coparceners. Their Lordships cannot well be taken to have overruled this view as they do not refer to it at all. The Madras cases referred to by their Lordships were all cases in which the question was whether the amount borrowed under a mortgage could itself be considered an antecedent debt justifying a Hindu father in mortgaging his son's share also in the joint property. As stated above, we have here a case of a court-sale but when the question is raised about a private alienation, the applicability of Sahu Ram Chandra's case, may be considered with reference to the observations of the learned Chief Justice and of Kumaraswami Sastri, J., with reference to another point dealt with by the sue case, in Peda Venleanna v. Sreenivasa Deelcshatulu(18). For the above reasons I am of opinion that the plaintiff should be given a decree only for his share in the plaint properties, which is admittedly one-third.

15. The next question is, whether there are any equities in favour of defendant 3. He states that Rs. 280 of the money he paid for the Court purchase was used to pay off two other decrees binding on the plaintiff and that the subsequently redeemed an othi binding on the property by paying Rs. 600. He claims that he should be paid one-third of these amounts by the plaintiff on his getting one-third of the property. Plaintiff on the other hand contends that defendant 3 is not entitled to any equities in his favour as against him, and both the lower Courts have accepted this view. Whatever the rights of defendant 3 may be as against defendants 1 and 2, we must take it on the findings in this case that the decree in Original Suit No. 133 of 1909 was a collusive one for a non-existent debt and that defendant 3 was a party to the fraud by which it was obtained. His Court auction purchase was in execution of that fraudulent decree and the payments he pleads were made as such purchaser. The very foundation of his present claim is thus tainted with fraud and it seems to me the lower Courts were therefore right in refusing to recognize any equity in his favour against plaintiff who was not involved in that fraud.

16. His payments have no doubt enured to the benefit of the plaintiff but that consideration by itself is not sufficient to give rise to any equity; as for example in the case of volunteers where no equity is recognized as arising from such payments. The learned vakil for the appellant relied on the cases in Chama Swami v. Padala Anandu(19), Palamalai Mudaliyar v. South Indian Export Co. Ltd. and Ummachakutti v. Ummerkutti Haji. The two last cases referred to payments by persons to whom real conveyances had been executed by owners of property for consideration paid and which were only set aside against creditors as being in fraud of them. Those cases are clearly distinguishable from the present case, as here there was fraud from the very beginning and there was no consideration paid by defendant 3 for the notes sued on by him. This is a stronger case against allowing any equity than the one in Karuppan Ambalagaram v. Muhammed Sakuth Levvai, where subrogation was disallowed. In the case in Chama Swami v. Padala Anandu, there was no fraud at all; the sale to the person who paid off the prior mortgage failed because of a prior sale to another under whom some of the defendants claimed. I am therefore of opinion that the equitable doctrine of subrogation cannot be invoked here in defendant 3's favour against the plaintiff. In the result I would give a decree for partition to plaintiff for his one third share in the plaint properties and dismiss the suit as to the balance. Plaintiff will receive proportionate costs throughout. The case will go back to the first Court for a final decree.

S.N/R.K

17. Case remanded.