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Citation Codes
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Case Number
Judges
  • Sadasiva Aiyar
  • Moore, JJ.
Acts
  • Article 126, Limitation Act.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Sadasiva Aiyar
  • Moore, JJ.
Acts
  • Article 126, Limitation Act.
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Smart Summary

Structured Summary of the Opinion delivered by Sadasiva Aiyar, J. (with Moore, J. concurring)

Factual and Procedural Background

The appellant (the plaintiff in the original suit) brought this Letters Patent appeal against the dismissal by Ayling, J. of Second Appeal No. 1191 of 1914. The original factual matrix (briefly) is:

  • In February 1885 the appellant's father sold all his remaining properties to one Swami Aiyangar for Rs. 4,000 by a sale-deed dated 6 February 1885.
  • Swami Aiyangar instituted Original Suit No. 221 of 1887 for possession; a razinamah decree (compromise decree) was passed which required the payment of a specified amount by a certain date or else Swami Aiyangar would obtain possession; the father failed to make payment and Swami Aiyangar obtained possession in 1899 (possession recorded in 1889 under the razinamah decree).
  • In 1906 the appellant's elder brother (who had been in utero in 1885 at the time of the sale) brought Suit No. 241 of 1906, naming the appellant, the appellant's father and the purchasers from Swami Aiyangar as parties; the elder brother succeeded in obtaining a decree for an alleged one-third share on payment of one-third of Rs. 3,706, and a second appeal in that matter was decided on 4 February 1910.
  • The present suit (by the appellant) was brought in 1910 (the appellant was born on 20 December 1901). The appellant seeks recovery of a 2/3rds share in the properties; the appellant's claim arises after the elder brother's suit and decree. The appellant's father died in 1903 during the pendency of the brother's appeal.

The trial of the issues before the High Court involved questions about the validity of the 1887 compromise decree, the appellant's entitlement to challenge the 1885 alienation despite being born much later, and limitation bar under the Limitation Act.

Legal Issues Presented

  1. Was the compromise (razinamah) decree in Original Suit No. 221 of 1887 obtained by fraud and collusion as alleged in the plaint?
  2. Given that the plaintiff (appellant) was not in existence in 1885 (date of the sale), 1887 (date of the decree) or 1889 (date of adverse possession), is the plaintiff entitled to question the said alienation?
  3. Is the suit barred by limitation?
  4. To what share is the plaintiff entitled to recover, and on what terms, if the other questions are decided in his favour?

Arguments of the Parties

Appellant's Arguments (as advanced by Mr. Venkatarama Sastriar)

  • The appellant relied on authorities (including Ramkishore Kedarnath v. Jainarayan Ramrachpal and Ganesh Row v. Tulja Ram Row) and on passages in Mayne's Hindu Law to contend that a son born after an alienation may still have a cause of action to set aside the alienation.
  • Two principal propositions were advanced on behalf of the appellant:
    • (a) That the cause of action to set aside the father's alienation (in respect of a half-share) which arose at the date of alienation in 1885 vested, on the appellant's birth, jointly in the appellant and his elder brother; in short, the appellant acquired, by birth, a share in the pre-existing cause of action.
    • (b) That when the appellant's elder brother sued for his one-third share, the appellant thereby acquired an independent cause of action to set aside the alienation as regards the remaining one-sixth share, entitling him to the three-year period after his own attainment of majority to bring suit.
  • The appellant relied on precedents and textual authority to challenge the limitation defence and to argue that subsequently born sons may participate in relief setting aside alienations made without necessary consent or necessity.

The opinion does not record detailed pleadings or a distinct set of formal arguments advanced by the respondents; the court's account focuses on the appellant's contentions and the authorities relied upon.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Chinnu Pillai v. Kalimutliu Chetti (Full Bench decision) That an alienation may be binding on the father's half-share (as applied in the earlier suit's finding of the consideration binding on entire properties). The court observed that because of this authority the father's half-share was held binding under the prior proceedings, limiting the appellant's potential recovery and leaving, at most, a one-sixth share available to the appellant.
Ramkishore Kedarnath v. Jainarayan Ramrachpal (Privy Council) Held (in that factual context) that if the eldest plaintiff sues within three years of majority he may not be barred, and that if he succeeds younger brothers born before partition may share in the relief; younger brothers born after adverse possession were held to be barred in that case. The court quoted and considered the passage but held the case distinguishable on the facts (because in the present case the father had no other joint family property and thus the reasoning did not apply); consequently the authority was not found to support the appellant's position here.
Ganesh Row v. Tulja Ram Row Determined that sons born after an alienation may be entitled to share in the remaining portion of joint family property, where other joint family properties existed and the family continued to possess joint assets. The court distinguished Ganesh Row on the ground that in the present case the father had alienated the only family property and did not possess other joint family properties at the appellant's birth, so Ganesh Row was not applicable.
Soundararajan v. Arunachchlam Chetty (Full Bench) Held that an unequivocal intention to create a divided status effects division; cited in connection with whether alienation of all joint interests indicates intent to sever joint status. The court cited this Full Bench decision to support the view that a coparcener's alienation of his entire share can be evidence of an intention to sever joint status and that such an alienation may leave no joint family property for subsequently born sons to acquire an interest in.
Maharaja of Bobbili v. Venkataramanjulu Naidu Contains observations (cited by other decisions) that a division into shares does not necessarily take place on alienation of a share by a coparcener. The court's opinion (Sadasiva Aiyar, J.) expressly dissented from the observation in that case where it suggested alienation did not effect division; he treated the sale of all the father's share as strong evidence of division (i.e., cessation of joint status).
Doraisami Sirumadan v. Nondisami Saluvan (Full Bench) Authority concerning limitation: if an elder could have sued for the younger's interest and did not, the younger may be barred by limitation. The court invoked this Full Bench decision to hold that because the elder brother could have sued for the appellant's share (but sued only for his own one-third), the appellant's suit was barred by limitation when brought more than three years after the elder brother attained majority.
Tulshiram v. Babu Lal Decided that where an alienation of ancestral property is invalid for want of necessity or consent, coparceners (including those born subsequently) may object to such alienation. The court regarded Tulshiram as distinguishable and not directly in point on the facts of the present case, because the present family had no other joint family property at the time of the appellant's birth.
Nanjaya Mudali v. Shanmuga Mudali Authority relevant to whether a father who alienated his share remained a member of the joint family. Moore, J. cited this and related authorities to consider whether the father remained a member of the joint family at the time of the appellant's birth; the court noted the view that even after alienation the father might remain a coparcener, but observed that no joint family property remained to give the subsequently born son a share.
Bholanath Khettry v. Kartioh Kissen Das Khettry Authority addressing the principle that on his birth a son gets an interest in what is left of the ancestral property. The court cited this decision when discussing whether, on the appellant's birth, he obtained any interest in the property given that the father had already alienated his share and the family had no remaining joint property.

Court's Reasoning and Analysis

The court's reasoning proceeded in stages and focused primarily on (i) the appellant's lack of any pre-existing interest at the time of the alienation, and (ii) the limitation consequences under the Limitation Act.

  1. Foundational facts: The sale by the father occurred in 1885; the razinamah decree was in 1887 with possession effectively taken by the purchase in 1889; the appellant was born in December 1901 (16 years after the sale and more than 12 years after the adverse possession commenced). The elder brother's suit of 1906 resulted in a decree for one-third and a second appeal was decided in 1910.
  2. Quantification of appellant's potential share: Relying on the Full Bench decision (Chinnu Pillai v. Kalimutliu Chetti) and the outcome of the brother's suit, the court held that the appellant's claim for two-thirds was excessive; at most, if anything, the appellant could claim a one-sixth share because the elder brother had already recovered one-third in proceedings in which the appellant was a party.
  3. On the central question whether a son born after alienation acquires a right to challenge the alienation, the court examined the authorities relied upon by the appellant (such as Ramkishore and Ganesh Row) but found them factually distinguishable: in those authorities the family retained other joint family properties or the plaintiffs were members of a joint family possessing other assets; by contrast, in the present case the father had alienated the only family property and no joint family property remained at the time of the appellant's birth.
  4. The court emphasized that where, by the alienation of his interest in all joint property, a coparcener evidences an intention to sever the joint status, subsequently born sons do not thereby acquire an interest in property which no longer remained joint. The judge (Sadasiva Aiyar, J.) expressed a doctrinal position against extending a birth-right principle to enable the appellant to claim a share in property that had already been effectively alienated long before his birth.
  5. Limitation: The court agreed with Ayling, J.'s treatment that the suit falls under Article 126 of the Limitation Act (suits to set aside an alienation by a Hindu son), whereby the relevant cause of action is the taking of possession by the defendant of what was the son's joint share, and the statutory period therefore ran from the date of adverse possession. Because the appellant's elder brother could have included the appellant's share in his earlier suit but did not, the appellant was barred by limitation (citing Doraisami Sirumadan v. Nondisami Saluvan).
  6. The appellant's two articulated propositions (that the cause of action vested in the appellant on birth; and that he obtained an independent cause of action upon his brother's suit) were expressly rejected as unsustainable in law and on the facts.
  7. Conclusion of the court: Both Sadasiva Aiyar, J. and Moore, J. concurred that the Letters Patent appeal should be dismissed. The reasons combined factual distinction from the cited authorities, the absence of joint family property at the appellant's birth, and the operation of limitation under Article 126.

Holding and Implications

HOLDING: The Letters Patent appeal is DISMISSED.

Consequences and Immediate Effects

  • The appellant's claim for recovery of two-thirds of the properties was rejected as excessive and untenable on the facts.
  • The court concluded that, at best, only a one-sixth share could arguably have been available to the appellant in light of the elder brother's decree, but the appellant's suit was barred by limitation under Article 126 of the Limitation Act.
  • The appellant's primary legal contentions — that he acquired a vested cause of action on birth and/or an independent cause of action upon his brother's suit — were negatived by the court.
  • The appeal was dismissed with costs (as expressly stated by Sadasiva Aiyar, J.).

The opinion does not announce or establish any novel binding precedent; it rests on application and distinction of earlier authorities to the particular factual matrix before the court and disposes of the appeal on limitation and related doctrinal grounds.

Show full summary ...

    Soundararajan v. Saravana Pillai

    The Judgment of the Court was delivered by

    Sadasiva Aiyar, J.:— This is a Letters Patent appeal against the judgment of Ayling, J., who dismissed Second Appeal No. 1191 of 1914, filed by the plaintiff in a suit brought by him for recovery of ⅔rd share in certain properties, the remaining ⅓rd share having already been recovered by the plaintiff's elder brother in Suit No. 241 of 1906, on the file of the Court of the District Munsif of Shiyali. The facts are a little complicated but the material ones might be shortly stated thus: (a) The plaintiff's father sold away all his then remaining properties to one Swami Aiyangar for Rs. 4,000, under a sale-deed dated 6th February 1981 (b) Swami Aiyangar brought Original Suit No. 221 of 1887 for possession of the properties so sold. A razinamah decree was passed that on payment of a certain amount within a certain date, Swami Aiyangar should give up his claims over the lands. But if the plaintiff's father failed to make the payment Swami Aiyangar was to get possession of the properties through the Court, his purchase being up hold. Plaintiff's father failed to make the payment and so Swami Aiyangar got possession in 1899, (c) In 1906 the plaintiff's elder brother (who was in his mother's womb in 1885, the date of the sale by the plaintiff's father) brought the Suit No. 241 of 1906 making the plaintiff and the plaintiff's father and the purchasers from Sawmi Aiyangar parties to the suit. The plaintiff's brother ultimately succeeded in getting his alleged ⅓rd Share decreed to him on payment of ⅓rd of the amount of Rs. 3,706, to which extent the consideration for the sale-deed to Sawmi Aiyangar was held binding on the entirety of the properties sold. The second appeal to the High Court in the plaintiff's brother's suit was decided on 4th February 1910, (d). The present suit was brought very soon afterward? by the plaintiff who was born on 20th December 1901. I must add here that the plaintiff's father died in 1903 during the pendency of the appeal in the plaintiff's brother's suit of 1906.

    2. The above being the facts, the questions for decision are: (1) Was the compromise decree in Original Suit No. 221 of 1887 obtained by fraud and collusion as alleged in the plaint? (2) The plaintiff not having been in existence in the year 1885 when the plaintiff's father sold the plaint property to Swami Aiyangar or in 1887 when the decree was passed in Swami Aiyangar's favour or in 1889 when Swami. Aiyangar got possession under the razinamah decree in 1887, is the plaintiff entitled to question the said alienation? (3) Is the suit barred by limitation? (4) To what share is the plaintiff entitled to recover and on what terms, if the other questions are decided in his favour? I might at once state on the 4th question that as the plaintiff's father was entitled to half share on the data of the alienation, the plaintiff's elder brother who was in his mother's womb being then entitled to the other half share, and as the alienation is binding on the plaintiff's father's half share under the Full Bench decision in Chinnu Pillai v. Kalimutliu Chetti(1), the plaintiff's elder brother in the suit of 1906 could have sued for the recovery of the other half share either on his own account or on behalf of himself and his youngar brother, the plaintiff. But he chose to sue only for ⅓rd as belonging to himself and he has succeeded in getting a decree for that ⅓rd share in that suit to which the plaintiff was a party. So there remains only 1/6th share available to the plaintiff. The present suit for ⅔rd share is therefore, clearly an exaggerated claim. Even as regards the 1/6th share, if he is entitled to recover it at all he can recover it only on payment of 1/6th of the Rs. 3,000 odd which was found in the former suit (to which he was a party) to be binding on the entire properties. The question relating to the alleged fraudulent and collusive nature of the compromise decree in Original Suit No. 221 of 1887 was not decided by the lower appellate Court and if the plaintiff succeeds. On the other two questions, the case will have to go back to that Court for a decision on that question.

    3. As regards the second question, the plaintiff who was born in 1901 had no interest whatever in the properties when they were alienated in 1885 by his father. It is therefore prima facie a startling proposition to be told that he has a cause of action to set aside an alienation which took place 16 years before he was born and when he had no interest in the properties. But Mr. Venkatarama Sastriar relied upon the observations found in the Privy Council case of Ramkishore Kedarnath v. Jainarayan Ramrachpal(2), and the judgment of the present learned Chief Justice sitting on the Original Side reported as Ganesh Row v. Tulja Ram Row(3). In Ramkishore Kedarnath v. Jainarayan Ramrachpal the following passage occurs at p. 979 of 40 Cal.

    “On appeal to the Court of the Judicial Commissioner, the learned additional Commissioner held that as plaintiff 1 had instituted the suit within three years of attaining the age of 21, he was entitled”

    (the suit having been brought to set aside an alleged alienation without consideration made by the father)

    “to the benefit of Section 7 of the Lim. Act of 1877, and the suit was not barred as against him; but he held that it we? barred as against his younger brothers, who were born after the commencement of the advance possession of the defendant Jainarayan. It was however conceded before this Board, and, as their Lordships think, rightly conceded, that if plaintiff 1 succeeds in the suit, his you geer brothers born before a partition of the estate will be entitled to share in tbs relief.”

    4. Now, in that case, when the suit was brought the plaintiffs (if I have understood the facts aright) were members of a joint Hindu family owning and possessed of properties other than those alienated by their father. In the present case, the father had no other property in 1885 except the property alienated to Sawmi Aiyangar and he is not alleged to have acquired any other property afterwards. His half share having vested in Sawmi Aiyangar, he and his elder son never formed a joint Hindu family as there was no property to be held jointly. When the plaintiff was born in 1901, then also there was no joint property and hence no joint Hindu family. It seams to me therefore that the reasoning of their Lordships' decision in Ramkishore Kedarnath v. Jainarayan Ramrashpal does not apply to the facts of this case. If I am wrong in the above view, then it can only be on the ground that though the plaintiff's brother alone was entitled to the remaining half share till the plaintiff was born, the plaintiff by his birth got an interest in that half share which till then belonged to the plaintiff's brother alone. That is, we must take it that though under the Mitakshara Hindu law, the plaintiff gets by birth a right only in the ancestral property, and the property belonging solely to the elder brother cannot be called ancestral property in his hands when a question arises between him and his yonger brother, the plaintiff somehow obtained a right by birth to share in that property also. Speaking for myself, I am against any such extension of the (in my opinion unprogressive and unshastraio) mediaeval doctrine of right by birth.

    5. In Ganesh Row v. Tulja Ram Row it was no doubt held that after, born sons are entitled to share with the sons born before the alienation, but in that case also it did not appear that the father and the prior born sons were not possessed of other family properties which remained as joint family properties, owned by the father and the prior born sons when a son was born subsequent to the alienation in dispute. I am further of opinion that when the father and the elder son held no property in common after the father had alienated the whole of his interest in the joint family property, they became divided members. In Soundararajan v. Arunachchlam Chetty(4) I have respectfully dissented from the observation found in Ganesh Row v. Tulja Ram Bow and Maharaja of Bobbili v. Venhataramanjulu Naidu(5), which held that a division into shares of the alienated properties does not take place on the alienation of his share by a coparcener. At least, in a case where he sells away his share in all the coparcenary properties without exception, I am clear that a division in status takes place and he ceases to be a member of the joint Hindu family and if there is only one other coparcener at the time of the alienation, the joint family ceases to exist. If, as was recently held by a Full Bench of this Court in Soundararajan v. Arunachalam Chetty, an unequivocally expressed intention to create a divided status effects division, the alienation of his interest by a coparcener in all the joint family property in favour of a stranger seems to me to be almost conclusive evidence of such an intention to break himself off from the joint status completely.

    6. Further, the plaintiff's brother, when he brought his suit for his alleged one-third share, did not seek to set aside the alienation of 1885 in respect of the plaintiffs share, whatever it may have been. As I said before, the only arguable position is (and even that position is, in my opinion, untenable) that the plaintiff's brother could have sued for the setting aside of the alienation of the half share other than the father's half share on behalf of himself and of the plaintiff. If he had done so and if the arguable position was also tenable, the alienation would have been set aside as regards half the property for the benefit of the plaintiff's brother and the plaintiff, and the plaintiff would have been entitled to a one-fourth share. But as the plaintiff's brother sued for recovery of his alleged one-third share in his own individual interest, that suit cannot be said to have been brought in the interest of the plaintiff and it cannot be held that the alienation was set aside in that former suit of 1900 as regards the interests of the plaintiff also in the plaint properties. The plaintiff, therefore, was bound in his own suit (that is, the present suit) by the terms of Article 126, Lim. Act, which gives a period of 12 years, from the date when the alienee takes possession of the property, for a suit by a Hindu son to set aside his father's alienation. As the plaintiff's brother could have brought such a suit as regards the plaintiff's share also (assuming that plaintiff had a share) and did not do so, the plaintiff is now barred, more than three years having elapsed from the date of the plaintiff's brother's attainment of majority when this suit was brought: See the Full Bench decision in Doraisami Sirumadan v. Nondisami Saluvan(6).

    7. Mr. Venkatarama Sastriar's arguments, strenuously and (as usual) ably advanced, involved two propositions; (a) that the plaintiff's brother's cause of action to set aside the father's alienation (in respect of a half-share) which occurred on the date of alienation in 1885 became vested in the plaintiff jointly with the plaintiff's brother as soon as the plaintiff was born even in 1901; (or, perhaps conceived in 1900 or 1901); (b) that when the plaintiff's brother sued for his one-third share, the plaintiff got an independent cause of action for suing to sat aside the alienation as regards the remaining one-sixth share and hence the plaintiff has got three years after he himself attains majority to bring a suit to set aside the alienation of that one-sixth share. I am unable to agree to either proposition and if either is negatived the plaintiff's suit fails. I would, therefore, dismiss the Latter Patent Appeal with costs.

    Moore, J.:— I agree.

    8. The facts are fully stated in my learned brother's judgment which I have had the advantage of reading. The suit was brought in 1910 by the appellant, a minor, for a declaration that a sale made by his father in February 1885 was invalid, and for the recovery of such share of the properties as he might be found entitled to. The alienee took possession of the property in 1889. The appellant was born in December 1901, i.e, 16 years after the property was sold by his father and more than 12 years from the date when the alienee took possession. The respondents are subsequent alienees who have purchased the properties. Ayling, J., held that the suit must be treated as falling under Article 126, Limitation Act. In my opinion the learned Judge was right. In the case of suits governed by Article 126 the plaintiff's cause of action is the taking possession by the defendant of what was the son's joint share of the property. Prima facie, therefore the suit was clearly barred by limitation. In order to entitle the appellant to succeed, it is necessary for him to set aside the alienation which stands in the way of his recovering his share of the property. It was not contended before us that any article other than Article 121 was applicable. In support of his argument that the appellant, a subsequently born son, is entitled to sue to set aside the alienation made by his father, Mr. Venkatarama Sastri relied on the following passage in Mayne's Hindu Law, Edn. 8, at pp. 460 and 461:

    “If the alienation was made by the father without necessity, end without the consent of sons then living, it would not only be invalid against them, but also against any son born before they had ratified the transaction: and no consent given by them after his birth would sender it binding upon him;”

    and he cited the decisions reported as Ganesh Row v. Tulja Ram Row, Tulshiram v. Babu Lal(7) and Ramkishore Kedarnath v. Jainarayan Ramrachpal. None of these decisions are I think, in point. In the case of Ganesh Row v. Tulja Ram Row the question for decision was:

    “Where a father and son constitute a joint family, and a father alienates to a third party his share in a certain portion of the joint family property and subsequently to the alienation but before partition of the joint family property, another son is barn to the father, is such son entitled by birth to share to any and if so to what extent in the unalienated moiety which did not pass to the alienee by virtue of the alienation; or is the eldest son entitled to the whole unalienated moiety to the exclusion of his younger brother?”

    9. The learned Chief Justice held that subsequently born sons were entitled to participate in the remaining half of the property which remained joint family property. As pointed out by my learned brother the property which was alienated by the appellant's father was the only property which the family possessed and it is not alleged that the father subsequently acquired any other property. Ganesh Row v. Tulja Ram Row is distinguishable as the family seems to have possessed other joint family properties. Tulshi Ram v. Babu Lal merely decided that where an alienation of ancestral property is invalid as having been made without legal necessity by one member of the coparcenary without the consent of the rest, it is open to coparceners to object to such alienation notwithstanding that they were horn subsequently thereto. In Ramkishore Kedarnath v. Jainarayan Ramrachpal the facts shortly were that the plaintiffs and their father were owners of a joint undivided estate and the father improperly made a disposition of a portion of it. The Additional Judicial Commissioner held that the suit which was brought by plaintiff 1, the eldest brother, within three years of his attaining majority was not barred as against him, but was barred as against his younger brothers who were born after the possession of the defendant became adverse. Their Lordships of the Privy Council observe as to this:

    “It was however conceded before this Board, and as their Lordships think rightly conceded, that if plaintiff 1 succeeds in the suit his younger brothers born before a partition of the estate will be entitled to share in the relief.”

    10. In that case however the plaintiff formed a member of a joint family, and possessed joint family properties other than those alienated. Coming now to the facts of the present case, speaking for myself, it must, I think, be held having regard to the decision in Nanjaya Mudali v. Shanmuga Mudali(8) and Maharaja of Bobbili v. Venkataramanjulu Naidu, that even alienating his share the appellant's father continued to be a member of the joint family at the time of the appellant's birth; the family did not, however possess any joint family property the father having alienated his share, and it appears to in that by his birth the appellant did not obtain any interest in the property, there being no joint family property then in existence: Bholanath Khettry v. Kartioh Kissen Das Khettry(9); On his birth a son gets an interest in what is left of the ancestral property. It however I am wrong on this point, I agree with my learned brother that, assuming that the appellant's brother Govindasami instead of suing merely for the recovery of his ⅓rd share of the property could have sued for the recovery of the half share inclusive of his minor brother's share as he did not do so the appellant's suit was barred by limitation: sea Doraisami Sirumadan v. Nondisami Saluvan.

    S.N/R.K

    11. Appeal dismissed.

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    Soundararajan v. Saravana Pillai
    (Mar 6, 1916)