Andhra HC (Pre-Telangana)
Ede China Gurunadham And Ors. vs Palakurti Venkata Rao And Ors. on 4 November, 1958
Equivalent citations: AIR1959AP523, AIR 1959 ANDHRA PRADESH 523, (1959) 2 ANDH WR 79, 1959 ANDHLT 486, ILR (1959) ANDH PRA 523
JUDGMENT Satyanarayana Raju, J.
1. Before we finally dispose of these appeals, it is necessary to get the authoritative decision of a Full Bench on a question on which there is divergence of judicial opinion.
2. In Dakshinamurthi v. Sitharamayya, 1958-1 Andh WR 85, a Division Bench of this Court, consisting of Umamaheswaram and Mohd. Ahmed Ansari, JJ., held that an alienee from an alienee of a specific item of property from an undivided member of a joint Hindu family, is entitled to work out the equity in a suit for partition and have the property allotted to the share of the alienating coparcener. The basis of this decision is that the right of an alienee to the equity is a right in personam and is heritable and transferable.
3. A contrary view was taken in two Bench decisions of the Madras High Court, viz., Dhadha Sahib v. Muhammad Sultan Sahib, ILR 44 Mad 167: (AIR 1921 Mad 384) and Sabapathi Piliai v. Thandavaroya Odayar, ILR 43 Mad 309 : (AIR 1920 Mad 316). In ILR 44 Mad 167: (AIR 1921 Mad 384), which deals with very much the same question as in ILR 43 Mad 309 : (AIR 1920 Mad 316), the learned Judges Abdur Rahim and Oldfield, JJ., observed that even though a vendee of specific lands from a coparcener of a Hindu family, may be entitled to recover lands of equal value out of the lands allotted to his vendor in a subsequent partition in the family, a vendee from the first vendee has no such right, his only remedy being to get damages from his vendor. At page 168 (of ILR Mad) : (at p. 385 of AIR). the learned Judges observed :
"When analysed, the position is simply this. A sells a particular parcel of land to B. It is found that A has no title to the land. Can it be said that B is entitled to ask A to convey to him some other land in place of what he bought? When stated in these words, the position of the plaintiff would be quite untenable and it is difficult to see why the character of the superior title by which the title of the vendor in the land which he purported to sell is defeated, should make any difference to the vendee's rights ......
We are of opinion that if we were to hold that the plaintiff is entitled to whatever land the first defendant might have got in substitution for what he had purchased from his vendor we would be giving him property which he never bargained for."
4. In Subbiah v. Venkateswarlu, AIR 1948 Mad 464, Horwill, J., after referring to a passage in Mulla's Hindu Law. where the learned author discusses the rights of an alienee from an alienee of an item of joint family property, and disagrees with the conclusions arrived at on this point in the above two decisions of the Madras High Court, observed that since they were Bench decisions, he was bound to follow them.
5. In Chinnu Piliai v. Kalimuthu Chetty, ILR 85 Mad 47, the right of the alienee is defined as a right to institute a suit and to get allotted the share of the alienating coparcener if it is possible to do it without injustice and prejudice to the other coparceners. This, it is emphasised, is only an equity and not a right.
6. The decision in ILR 44 Mad 167: (AIR 19211 Mad 384), was cited with approval in the Full Bench decision in Venkata Subbaiah v. Kondayya, 1956; Andh LT 322: ((S) AIR 1956 Andh 188) (FB). In Sitamahalakshmi v. Ramachandra Rao. 1957-1 Andh WR 87: ((S) AIR 1957 Andh Pra 572), Chandra Reddy, T., (as he then was), referred to ILR 44 Mad 167: (AIR 1921 Mad 384), as authority for the position that a vendee from the first vendee has no right to work out the equity, his only remedy being to claim damages from his vendor.
7. In 1958-1 Andh WR 85, the learned Judges referred to ILR 44 Mad 167: (AIR 1921 Mad 384), but distinguished that decision on the ground that in the case before them the partition action was pending and the alienating coparcener, the aliened and the subsequent alienee were parties to the suit. In the present case also the alienee and the subsequent alienee are both parties to the action and the question is whether that would make any difference to the application of the rule laid down in ILR 44 Mad 167: (AIR 1921 Mad 384).
8. It is contended for the respondents that the alienee having parted with the interest purchased by him, he is no longer entitled to work out his equity and that an alienee from an alienee cannot be on a better fooling because the alienee is a party to the action.
9. As we find that there is an apparent conflict between the two Bench decisions in ILR 44 Mad 167: (AIR 1921 Mad 384) and ILR 43 Mad 309: (AIR 1920 Mad 316). which were followed by Horwill, J., in AIR 1948 Mad 464, and the decision in 1958-1 Andh WR 85, we consider that the conflict should be resolved by a Full Bench.
10. We propose the following questions for the determination of the Full Bench :
1. Whether an alienee of an alienee of a specific item of property from a Hindu coparcener can maintain a suit for general partition and claim the allotment to him of that specific item?
2. Whether the first alienee who has divested himself of all interest in the property can claim the equity?
(Judgment of the Full Bench consisting of Chandra Reddy C. J., Satyanarayana Raju and Syed Qamar Hasan JJ. dated 4-11-1958).
Chandra Reddy, C.J.
11. The questions are referred to the Full Bench :
"1. Whether an alienee of an alienee of a specific item of property from a Hindu coparcener can maintain a suit for general partition and claim the allotment to him of that specific item?
2. Whether the first alienee who has divested himself of all interest in the property can claim the equity?"
12. This reference arises out of two suits, O.S. 38 of 1949 and 39 of 1951 on the file of the Subordinate Judge of Masulipatam. (The ranks of the parties will be referred to as in the 1st suit). The first of them was instituted for partition of the properties in dispute, viz., an extent of Ac. 11-85 cents after avoiding an exchange entered into between the 10th and 1st defendants under Ex. A-1 dated 25-5-1936. The second one was filed by the 1st defendant and his vendees for a general partition and for allotment of the lands in question to the share of the Ist defendant in case the exchange transaction fell through.
It is needless to set out further facts as we are not called upon to give a decision on the merits. Both the suits were tried together us common questions of law and fact were involved in them. One of the issues raised was whether the alienees were entitled to have the equitable right of allotment of A scheduled properties to the share of the 1st defendant. This was answered in the negative by the trial Court which decided the other issue also in favour of plaintiff. The aggrieved defendants preferred two appeals against that judgment.
13. When it came up for hearing before a Division Bench consisting of Satyanarayana Raju and Seshachalapathi, JJ., they made this reference since it was felt that there was divergence of judicial opinion on this matter and an authoritative decision should be obtained.
14. The authorities bearing on this problem, though few, lend us considerable assistance in answering it and we will advert to them presently. A member of a Hindu united family could alienate either his undivided share in the family property or in a specific immovable property or the whole of a specific item therein. In either of these cases, the alienee does not got an interest in the property but acquires an equity to stand in the shoes of his alienor and work out his rights in a partition suit. He could either institute a suit for partition or could get himself impleaded in a general suit for partition filed by any of the coparceners and ask for allotment of that share to the alienating coparcener if that does not prejudice the rights of the others.
If that could not be so set apart, he would be entitled to recover the other property falling to the share of his vendor in substitution of the property that was alienated to him. This is not a right which is founded on any of the texts of Hindu Law but is the result of a doctrine developed by judicial policy. These propositions are beyond controversy and no citation is necessary in order to support them.
15. The equitable doctrine seems to have been conceded having regard to the incidence of the rights of a coparcener in a joint Hindu family. So long as the family is united, a member's share does not attach itself to any particular part of the estate but to the estate as a whole and could be determined only by "taking a general account and making a distribution in accordance with the result." It is therefore only equitable that every thing being equal the alienating coparcener's share should be so made up as to embrace wholly or so far as practicable the lands which were sold by him, so that the vendee might not be prejudiced.
16. The only point is whether this equity could be extended to an alienee of an alienee from a Hindu coparcener.
17. The question presented itself in a similar Form, in JLR 44 Mad 167: (AIR 1921 Mad 384).
In that case, there was a private sale of a specific item of joint family property by a coparcener. The purchaser in his turn conveyed it to another person.
This property was not allotted in a family partition to the alienating coparcener. It was held by the Division Bench that though a vendee of specific lands from an undivided member of a Hindu family may be entitled to items of equal value out of the lands allotted to his vendor in a subsequent partition of the family properties, a vendee from the first vendee could not put forward any such right, his only remedy being to claim damages from his alienor. The ratio decidendi underlying this decision could be culled out from the following passage:
"When analysed, the position is simply this. A sells a particular parcel of land to B. It is found that A has no title to the land. Can it be said that B is entitled to ask A to convey to him some other land in place of what he bought? When stated in these words, the position of the plaintiff would he quite untenable and it is difficult to see why the character of the superior title by which the title of the vendor in the land which he purported to sell is defeated, should make any difference to the vendee's rights. xx xx We are of opinion that if we were to hold that the plaintiff is entitled to whatever land the first defendant might have got in substitution for what he had purchased from his vendor we would be giving him property which he never bargained for."
18. To the same effect is a judgment of another Division Bench of the same Court in ILR 43 Mad 309: (AIR 1920 Mad 316). This was a case of a purchaser from a purchaser at Court auction in execution of a money decree passed against a Hindu coparcener. Subsequent to the Court-sale, there was a family partition at which only some of the items purchased in Court-sale were assigned to the judgment-debtor. The vendee claimed allotment of an extent of land equivalent to that which he had lost, out of the other lands that had fallen to the share of the judgment-debtor. It was decided that the purchaser was only entitled to such of the properties as fell to the share of the judgment-debtor at the partition and as were included in the sale certificate.
The learned Judges were of the view that there being no privity of contract between the judgment-debtor and the auction-purchaser and no warranty of title to the lands sold in the Court auction, the rule of Caveat Emptor applied. In ILR 44 Mad 167: (AIR 1921 Mad 384), this ruling was referred to and the Bench thought that it was equally applicable to a case of private sale and the fact that the question raised before them was not argued in ILR 43 Mad 309: (AIR 1920 Mad 316) was not of much significance. Evidently, the learned Judges thought that the basic principle is the absence of privity of contract between the first vendor and the second vendee.
19. In AIR 1948 Mad 464, Horwill, J., after discussing a passage in Mulla's Hindu Law (10th Edition) in like circumstances disagreed with the rule stated therein in view of the two Bench decisions cited above and remarked:--
"The decisions proceeded on the basis that the relationship between an alienee from a member of a joint family and his alienee was that of a vendor and purchaser under the Transfer of Property Act, and that the only remedy of the alienee from the alienee arises out of their contract, i.e., a right to damages for breach of covenant of title."
20. In Mulla's Hindu Law (10th Edition) ILR 44 Mad 167; (AIR 1921 Mad 384) was adversely commented upon. eferring to the argument, negativing the right of the subsequent vendee in ILR 44 Mad 167: (AIR 1921 Mad 384) it was stated:
"But this argument, it is submitted, applies equally as between the alienor and the immediate purchaser from him."
We do not think we can subscribe to this view. We have already shown as to why the alienee from a coparcener was given this equity. It is pertinent to note that in the subsequent edition edited by B. K. Mukherjea, Judge, Supreme Court of India, this has been omitted. It must be noted that ILR 44 Mad 167: (AIR 1921 Mad 384) has stood the test of time for nearly 35 years. Our attention was not drawn to any case in which its correctness was doubted. On the other hand, it was referred to with approval by the Full Bench of this Court in 1956-2 Andh WR 251: ((S) AIR 1956 Andh 188), and 1957-1 Andh WR 87: ((S) AIR 1957 Andh Pra 572).
21. In the later edition, reference was made only to ILR 43 Mad 309: (AIR 1920 Mad 316) with disapproval. The editor thought that the correct view in that behalf was the one taken by a Division Bench of Bombay High Court in Vasudeo v. Kankoochand, . We cannot agree with this view having regard to the fact that the decision was accepted as correct by a Full Bench of this Court in 1956-2 Andh WR 251: ((S) AIR 1956 Andh 188).
22. A divergent note was struck by a Division Bench of this Court consisting of Umamaheswaram and Ansari, JJ., in 1958-1 Andh WR 83. There, a specific item of a joint Hindu family property was purchased from a person who bought it from a member of a joint Hindu family. The second sale was pending an action by the other coparceners against the first purchaser. Thereupon, the subsequent vendee was impleaded as one of the defendants. A question arose whether the subsequent alienee was entitled to have the equity worked out in the suit.
The learned Judges expressed the opinion that since the second sale was effected during the pendency of the suit it was hit by Section 52 of the Transfer of Property Act and if the second alienation was not valid and binding on the plaintiffs for that reason, the rights which inhered in defendants 2 and 3 could be properly worked out in that suit. The learned Judges, proceeded further and observed that even if by reason of the second sale, the first vendees bad lost interest in the property in dispute, the second alienee was entitled to work out the right which belonged to the first alienee. The basis of this conclusion is the opinion of the learned Judges that such a right was heritable and transferable. They said:--
"If defendants 2 and 3 are entitled to have the equity worked out in the suit, there is nothing on principle to prevent the 5th defendant, the alienee, from requesting the Court to allot the property to the share of the alienating coparcener and equitably work out his right."
The learned Judges distinguished ILR 44 Mad 167: (AIR 1921 Mad 384) on the ground that the position in the case before them was different from that in ILR 44 Mad 167: (AIR 1921 Mad 381).
23. It is incontrovertible that the property purchased is transferable and capable of being inherited, but that is not the same thing as saying that the equity which fixed itself to an alienee from a coparcener is transferable. Such an equity cannot be regarded as a right. It should be emphasised that this is only an equity and not a right as is apparent from ILR 35 Mad 47. See also Peramanayakam Pillai v. Sivaraman, (FB). We think that this equity is peculiar to the first vendee from a coparcener and is not transferable. Consequently, the position of the second alienee cannot be equated to that of the first alienee in that regard. We do not see any reason why the subsequent vendee should be treated differently from ordinary purchasers.
The rights of such purchasers are regulated by the provisions of the Transfer of Property Act. The relationship between an alienee from a member of the joint family and his alienee is that of a vendor and purchaser under the Transfer of Property Act, and their right should he determined with reference to their contract i.e., a right to damages for breach of covenant of title. There is no privity of contract between the first alienor and the second alienee and therefore the second alienee cannot be relegated to the position of the first alienee who stands in regard to his alienor in the relation of promisee, while the alienating coparcener and the subsequent alienee are strangers to each other.
24. As pointed out by a Bench of the Madras High Court in Maharaja of Bobbili v. Venkataramanujulu Naidu, ILR 39 Mad 265: (AIR 1915 Mad 453) the equitable doctrine referred to above need not be extended beyond what is absolutely necessary i.e., to persons other than the purchaser from a Hindu coparcener.
25. Different considerations might, however, arise in a case where the first vendee after invoking the equity by filing a suit for partition and for allotment to the coparcener of the share allotted to him. assigns his interest to another person. In such a situation the provisions of Order 22 Rule 10 C.P.C. would come into play and the second alienee may request that a decree might be passed in his favour instead of his assignor. However, we are not required to deal with such a situation here and it is not necessary to express a final opinion on that. For these reasons, our answer to the first question is that the equity which arises in the case of a first alienee is not available to the alienee from an alienee of a specific item of property from a Hindu coparcener and the latter could not maintain a suit for general partition claiming the allotment to him of that specific item.
26. Our answer to the second question is in the negatives when the first alienee has parted with his interest in the property, he could not raise an action claiming the equity. The very foundation of a suit is the existence of some interest in the property. When he is not possessed of it, we think he cannot bring a suit to work out equities. The case will go back to the Bench for consideration of other issues in, the matter and for final disposal.
(JUDGMENT OF THE DIVISION BENCH DATED 7-1-1959) Seshachalapathi, J.
27. These two appeals arise out of two connected suits (O.S. Nos. 38 of 1949 and O.S. No. 39 of 1951 on the file of the Sub-Court, Masulipatnam). O.S. No. 38 of 1949 is a suit for partition of the suit property and separate possession of the respective shares after setting aside an exchange transaction and evicting the defendants therefrom. O.S. 39 of 1951, is a suit by the alienees under the aforesaid exchange transaction and subsequent alienees from them for a general partition and allotment of the suit property to the share of the 1st defendant in that suit. O.S. 38 of 1949 has been decreed and a preliminary decree for partition was made. O.S. 39 of 1951 was dismissed with costs. Appeals Nos. 705 and 708 of 1953 are directed against those two decrees.
28. The 10th defendant in O.S. 38 of 1949, and the 1st defendant in O.S. 39 of 1951, is one Palakurthi Ranga Rao. He and his three brothers, Narayana Rao, Rajagopala Rao and Radhakrishna Murthy, constituted an undivided Hindu joint family, owning among others the suit properties. Ranga Rao was the eldest of the brothers and the Manager of the Joint family. Rajagopala Rao is stated to nave died in or about the year 1931. Narayana Rao, gave; a registered notice dated 21-5-1934, to the Manager of the family, Ranga Rao, expressing his intention to separate himself from the joint family. The Manager of the family, Ranga Rao, received that notice and stated that he had no objection to the severance in status as desired. Narayana Rao, died in 1935, Radhakrishna Murthy died in 1936. On 25-5-1936, Ranga Rao, entered into an arrangement of exchange, which is evidenced by a registered instrument, whereunder four items of property situate in Vinnakota village of an extent of 11 acres and 85 cents described to be in the absolute enjoyment of Palakurthi Ranga Rao, were exchanged for 3 acres of seri wet lands situate in the same village belonging to Ede Chinna Gurunadham, the 1st defendant. The deed of exchange is marked as Ex. A-1. Ede Chinna Gurunadham, in his turn sold the land obtained by him under Ex. A-1 to Perina Mahankalayya the third defendant in O.S. No. 38 of 1949 by a registered instrument of sale dated 30-5-1944 and marked as Ex. 2, in the case.
29. The 1st plaintiff in O.S. 38 of 1949 is the son of Rajagopala Rao. The second plaintiff is the widow of Narayana Rao. The 3rd and 4th plaintiffs are the sons of Radhakrishna Murthy. Their case is that though Narayana Rao and Radha Krishna Murthy had separated themselves from the joint family by issuing registered notices expressing their clear and unambiguous intention to effect severance in status and followed it up by living separately, the properties of the joint family were not immediately then divided by metes and bounds. Taking advantage of that situation, it is alleged that Ranga Rao with a sinister motive exchanged 11 acres and 85 cents of the family land for three acres of seri wet land, and that the said exchange is not binding upon the plaintiffs and that even otherwise the alienation is not for the benefit or necessity of the plaintiffs. The plaintiffs, therefore, prayed that the exchange under Ex. A-1 may be set aside and the property divided into four equal shares and three of them allotted to the plaintiffs.
30. Ede Chinna Gurunadham, and his son, the second defendant, supported the case of the third defendant, the subsequent alienee. Defendants 4 to 6 are the sons of the 3rd defendant. The case of the 3rd defendant is that the family had not been divided, that the exchanged property belongs to Ranga Rao alone and that in any event, the exchange was a prudent act and beneficial to the interests of the family. It was further alleged that the 1st defendant had made considerable improvements on the land and since their purchase under Ex. A-2, the family of the 3rd defendant had also made subsequent improvements. Various other defences were set up, which it is not necessary for us to refer to in detail.
31. O.S. 39 of 1951, is a suit filed by the alienees, Ede Chinna Gurunadham, Perni Mahankakyya and his sons for general partition. To that suit they impleaded Ranga Rao as the 1st defendant and the plaintiffs in O.S. No. 38 of 1949 as defendants 2 to 5. In that suit they contend that the exchange was a prudent and beneficial transaction, that the other brothers or their representatives did not question the validity of the exchange, and on the contrary took benefits thereunder and, therefore, claimed as a matter of equity that the 'A' schedule property under Ex. A-1 may be allotted to the share of the 1st defendnt, Ranga Rao. Ranga Rao, the 1st defendant, fried a written statement stating that the 1st plaintiff pressed him to effect the exchange and that he had expressly waived all the covenants enforcible against the 1st defendant with respect to the title and undertook all risks involved in the transaction, and as such he could not ask for the allotment of the 'A' schedule property to the 1st defendant's share.
Defendants 2 to 5, while asserting that Ex. A-1 was wholly void and that the allotment of 'A' schedule lands under the lands described in the schedule 'A' to Ex. A-1 to the share of Ranga Rao cannot be done without serious prejudice to the interests of defendants 2 to 5, have also raised a specific plea that the plaintiffs 1 to 2 having sold all their right, title and interest in the suit properties, had no subsisting interest to maintain the action for a general partition. It was also alleged that plaintiffs 3 to 6, (Perni Mahankalayya and others) as subsequent purchasers from the original alienee, are not entitled to claim the equitable relief of asking for the allotment of the suit properly to the share of the 1st defendant, Ranga Rao.
32. The learned Subordinate Judge framed appropriate issues in both the suits. By consent of the parties evidence was recorded only in O.S. 39 of 1951. The learned Subordinate Judge found: (1) that Narayana Rao and Radhakrishna Murthy, became divided from Rangarao and Venkalrayulu, the son of Rajagopala Rao, in 1934, (ii) that the exchange under Ex. A-1 though made in good faith and for legal necessity was not binding on the shares of Narayana Rao and Radhakrishna Murthy. since they had already got themselves separated from the family and (iii) that the plaintiffs in O.S. 39 of 1951 are not entitled to the equitable relief of having the suit properties allotted to the share of Ranga Rao for the reason that the equity to file a suit for general partition does not belong to an alienee from the original alienee. In that view he decreed O.S. 38 of 1949 and dismissed O.S. 39 of 1951.
33. When the appeals come up for hearing by us originally it was contended on behalf of the appellants that the trial Court was in error in holding that the equitable relief of asking for a general partition and allotment of the share can be claimed only by the alienee of an undivided-share of a coparcener and not by an alienee from that alienee. In support of that contention strong reliance was placed on the decision of Umamaheswaram and Ansari JJ., in 1958-1 Andh WR 85 that an alienee from alienee of a specific item of property from an undivided member of a joint Hindu family is entitled to work out the equity in a suit for partition and have the property allotted to the snare of the alienating coparcener, as the right of an alienee to the equity is a right in personam and, therefore, heritable and transferable:.
We found a contrary view had been taken in a large number of decisions of the Madras High Court, arid we thought it right to refer the matter to the; consideration by a Full Bench of this Court for the purpose of resolving the conflict between the view expressed by Umamaheswaram and Ansari JJ., and the contrary view held in several decisions of the Madras High Court such as: ILR 44 Mad 167:
(AIR 1921 Mad 384); ILR 43 Mad 309: (AIR 1920 Mad 316) and other cases which followed the authority of the list two mentioned cases. We, there fore, formulated these two questions for the determination of the Full Bench; (i) whether an alienee of an alienee of a specific item of property from a Hindu coparcener can maintain a suit for general partition and claim the allotment to him of that specific item, and (ii) whether the first alienee who has divested himself of all interest in the property can claim equity?
34. The reference was considered by the Full Ranch, and the learned Chief Justice speaking for the Full Bench held that the equity which arises in the case of a first alienee is not available to the alienee from an alienee of a specific item of property from a Hindu coparcener and the latter could not maintain a suit for general partition and claim the allotment to him of that specific item. In view of the decision of the Full Bench it is not open to the appellants to sustain their case on the authority of 1958-1 Andh, W. R. 8-5. We hold, therefore, that the plaintiffs in O.S. 39 of 1951 cannot maintain the action in the form in which it was filed and that the suit, therefore, is incompetent and unsustainable. This is the main question involved in A. S. No. 706 of 1953. The appeal, therefore, fails and is dismissed.
35. In the other appeal (A. S. 705 of 1953s against the decision of the learned Subordinate Judge) in O.S. 38 of 1949, the learned counsel for the appellant has endeavoured to argue that in spite of Ex. B-3 the family continued to be joint and that Ex. A-1 was a bona fide and beneficial transaction and that the plaintiffs in the suit, who are the other members of the joint family are bound by it. It is obvious that if on the date of Ex. A-1 there was disruption in status the transaction would not be binding upon the other members even though the act as such may be bona fide.
36. If the family was not joint, it is elementary that the exchange could not be the act of a Manager of such a family. That is why, the learned counsel has endeavoured to persuade us to take the view that Ex. A-1 was the act of the Manager of an undivided Hindu family and since it has been found by the trial Court that it is a bona fide and beneficial transaction, the plaintiffs in the suit are hound by it.
37. Before referring to the contentions of the learned Counsel on the evidence as to the severance, we may observe that the recitals in Ex. A-1 are by no means indicative of the continued existence of the joint family or the awareness on the part of Ranga Rao that he is the Manager of it. The suit land is described as one in which Ranga Rao has asolute enjoyment as of right. Further, it contains a clause that if disputes are raised by anyone except Ranga Rao, his sons or the descendants of his sons, Ranga Rao, will not be liable, and that the other party to the transaction should alone settle all of them at his own expense, and that he should not claim any damages to be made good by the first individual. This is by no means a usual covenant. We are inclined, therefore, to take the view that Ex. A-1 does not appear to be an instrument entered into by Ranga Rao purporting to act as the Manager of an undivided Hindu family.
38. We will now examine the contention of the learned counsel as to the severance. That Ex. B-3 contains a definite and unequivocal indication of the intention of Narayana Rao to separate himself from the family and enjoy his shard in severally cannot admit of any doubt. Nor can the legal effect of such an unequivocal declaration by one of the coparceners is capable of any argument. The matter is concluded by binding authority. It has been held by the Privy Council in Suraj Narain v. Iqbal Narain ILR 35 All. 80 thus:--
"What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided family and convert a joint tenancy into a tenancy in common must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed."
The same view has been consistently taken by several other decisions of the Judicial Committee such as: Mt. Girja Bai v. Sadashiv Dhundiraj 45 Cal. 1031: (AIR 1916 PC 104), Kawal Nain v. Budh Singh ILR 39 All 496: (AIR 1917 PC 39), and Ramalinga Annavi v. Narayana Annavi ILR 45 Mad 489: (AIR 1922 PC 201). In Balkrishna v. Ramakrishna ILR 53 All 300: (AIR 1931 PC 154), their Lordships have reaffirmed the position in these words:--
"It is now settled law that a separation may be effected by a clear and unequivocal intimation on the part of one member of a joint Hindu family to his cosharers of his desire to sever himself from the joint family. This was laid down in ILR 35 All 80 (PC). The question was further examined in ILR 43 Cal 1031: (AIR 1916 PC 104), and the principle was reaffirmed, and the last mentioned case was followed in ILR 39 All 496: (AIR 1917 PC 39), where Lord Haldane says: "the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate."
There can, therefore, be no question that by reason of the intimation of his desire to separate himself there was a severance in the joint status of the family. The notice given by Radhakrishna Murthy is not produced. But D. W. 1, the brother of Narayana Rao's widow has stated in his evidence that Krishnamurthy, presumably meaning Radhakrishna Murthy, gave notice in 1934 along with Narayana Rao. In the reply given by Ranga Rao, it is stated that he had no objection to divide the property between Narayana Rao and Radhakrishna Murthy and Rajagopala Rao's adopted son Venkatarayulu and himself. It may, therefore, be taken as proved in view of D. W. 1's evidence and the tenor of Ranga Rao's reply Ex. B-5 that Radhakrishna Murthy had also intimated his intention to separate.
39. But what is contended is that though these two brothers had expressed definitely and clearly their intention to separate, still that intention was not persisted in or acted upon; so much so, the family must be deemed to have continued to be joint. That being so, it is argued, that Ex. A-1 would be the act of the Manager or Karta of a joint family and in view of the finding that the exchange was bona fide and beneficial to the family, the plaintiffs in O.S. 38 of 1949, cannot seek to avoid it.
40. In support of the contention that the family continued to be joint notwithstanding Ex. B-3, Mr. Narayana Rao, placed strong reliance upon the recitals in the petition to record a compromise in. O.S. 4 of 1938, and the decree itself. The said suit was filed by the three sons of Radhakrishna Murthy represented by Andalamma, the widow of Narayana Rao against Palakurthi Ranga Rao, and his sons Madhava Rao and Venkatrayulu and Narayana Rao and Andalamma for a declaration that the alleged adoption of the third defendant, Venkatrayulu to Rajagopala Rao by his widow Anjani Rattamma was not valid.
That suit ended in a compromise. The compromise petition filed into Court has been exhibited in this case as Ex. B-7. It is stated in the petition that it was settled by all the parties to the suit that their respective costs may be taken from the joint family funds. A compromise was actually recorded on 24-3-1942. The compromise decree Ex. B-9 expressly states that the 3rd defendant Venkatrayulu alias Venkata Rao has been adopted by the lata Rajagopala Rao and is entitled to 1/4th share of the joint family properties, and that all the parties to the suit shall reimburse themselves from the joint family property the respective amounts spent by them.
These proceedings were long after the severance in status of the family by reason of Ex. B-3. It is argued that the agreement between the parties to take 1/4th share in the joint family property and all the parties to the suit should reimburse themselves from the funds of the joint family can only mean that Ex. B-3 was never acted upon and that there was a continued awareness on the part of the members of the family as to their joint status.
41. We are unable to assent to an argument built upon the expression "joint family" used in the compromise petition and in the decree. In the plaint filed in the said suit it was clearly mentioned in paragraph 3 that the three brothers had effected severance in status and began to live separately though the family properties were still undivided. The reference to joint family properties may presumably be an inaccurate way of describing the source from which the respective parties to the action could reimburse themselves. We see no warrant to read into those words a meaning wholly inconsistent with proved declarations and actings of parries.
42. There is, further, documentary evidence to show that the brothers had been living separately even from 1934 (vide Exs. B-14 (a) and B-14 (b) ). It is also on record that Narayana Rao left a registered will bequeathing his properties to his wife Andalamma the 5th defendant. The conduct of Narayana Rao in executing a will and her intervention in O.S. 4 of 1938 in her own right as the heir of Narayana Rao, go to show that the unequivocal intention expressed by Narayana Rao was acted upon with all its consequences.
43. The learned counsel for the appellant drew our attention to a statement in the evidence of D. W. 1 to the effect that Narayana Rao and Radhakrishna Murthy used to collect the rents. Narayana Rao died in 1935 and Radhakrishna Murthy died in 1936. The collection of the rents by these two brothers can only refer to a period anterior to Ex. B-3. That statement of D. W. 1, in our opinion, cannot be pressed into service to show that notwithstanding the notice under Ex. B-3 the family must be regarded as being joint.
44. The learned counsel argued that in a case where the notice given by one coparcener to separate himself is not acted upon there can be no severance in status and that such a notice is capable of being waived or abandoned. In support of that contention, he relied upon a decision of the Bombay High Court in Gangadhar Rao v. Ramachandra, AIR 1946 Bom. 146 at p. 147 where it has been held that:--
"An unequivocal demand for partition, which has not been persisted in and has been withdrawn or abandoned with the consent of the other members of the family, cannot be treated as nevertheless effecting a separation."
To the same effect is the decision of the Lahore High Court in Phangan Singh v. Hukan Singh, AIR 1933 Lah 588. The view expressed in these two decisions seems to imply a locus penitentiac for a coparcener who expresses his clear and definite intention for severance and make it permissible for such a coparcener to withdraw or abandon the notice to separate. This view is not in accord with the opinion expressed by a bench of the Madras High Court consisting of Rajamannar Offg. Chief Justice and Satyanarayana Rao, J., in Radhakrishna v. Satyanarayana, AIR 1949 Mad 173. Satyanarayana Rao J., who delivered the judgment of the Court held as follows;--
"A unilateral declaration by a coparcener which is unequivocal and which is communicated to the other coparcener brings about a disruption or division of the status of a family. Where once the communication of the intention is made which has resulted in the severance of the status, it is not open to him to withdraw such intention and nullify its effect so as to restore the family to its original joint status."
Therefore, it seems to us that the view that it is open to a coparcener who had given notice to separate himself subsequently either to abandon or withdraw it seems to be of doubtful authority, in view of the decision of a bench of the Madras High Court which is certainly binding on us. We are, however, relieved of the necessity to examine this question further, because on the facts, we are of opinion that there was no waiver or abandonment by either Narayana Rao or Radhakrishna Murthy of their intention to separate.
45. On the evidence adduced in this case, we are of the opinion firstly: that Narayana Rao and Radhakrishna Murthy had separated themselves from the family in 1934, secondly, that ever since their separation there was no joint family of which Ranga Rao could be said to be the Manager, thirdly, that the exchange evidence by Ex. A-1 was not in fact and cannot in law be an alienation, by the Manager of a Hindu undivided joint family which is binding upon the other members, fourthly, that the plaintiffs in O.S. 38 of 1949 are not hound by the said transaction, and lastly, that they are entitled to claim the share in the manner prayed for in the plaint. We, therefore, think that the decision of the learned Subordinate Judge is right.
46. It is next contended by the learned Counsel for the appellants that the plaintiffs in O.S. 38 of 1949 were participants in the income from the 3 acres of land belonging to the defendants 1 and 2, which had been exchanged for 11 acres and 85 cents belonging to the family under Ex. A-1. It is contended that such participation in the proceeds of the three acres disentitles the plaintiffs in equity from challenging the exchange, There is no evidence that the plaintiffs were in the receipt of the income from the 3 acres. The statement of D. W. 1 to which reference was made by the learned counsel that Narayana Rao and Radhakrishna Murthy were collecting rents can be of no avail, Narayana Rao died in 1935.
Radhakrishna Murthy died in 1936. By the date of Ex. B-1, Narayana Rao was dead. In these circumstances, there can be no question of either of them collecting rents arising from the three acres. Therefore, the equitable estoppel sought to be pleaded in bar of the claim of the plaintiffs cannot avail. It is also contended that the plaintiffs were standing by when Kanga Rao exchanged this property and, therefore, they are precluded from now challenging the transaction. To found a plea of estoppel on the doctrine of standing by it must be affirmatively established that the parties against whom that estoppel is sought to be pleaded were aware of what was being done and consciously stood by. There is no such evidence, and we see no force in this contention.
47. In the result, we agree with the findings of the learned Subordinate Judge and hold that the decree passed by him should stand.
48. Since both the appeals are dismissed and they involve more or less the same questions of law and fact, we think it right that costs need not be separately fixed in the two appeals. We fix the advocate's fee at Rs. 350/- in 705 of 1953. The Memorandum of Cross-objections as to improvements is wholly without substance and is dismissed, but without costs.