Arnold White, C.J.
1. In the case of Rangasami v. Krishnayyan I.L.R. 14 Mad. 408 the point which was before the Full Bench for consideration was whether, where the purchaser from a member of an undivided family of his share of the family property sues for partition, the share to be awarded to the plaintiff is to be computed with reference to the state of the joint family at the date of the purchase or at the date of the suit. The Full Bench held that the share was to be computed with reference to the state of the family at the date of the suit. In the course of the judgment the question now before us was considered. In discussing the contention which had been put forward (though the question did not arise on the facts of the case then before the Court) that if the vendor died before the purchaser effected a partition, the purchaser would take nothing, the Judges point out that the purchaser acquires a vested interest by the sale and that the vendor being competent to sell, his subsequent death is an event which cannot divest the interest which has once vested. Although these observations are merely obiter they seem to me to lay down the rule of law which, under the Mitakshara law as administered in this Presidency, is applicable to the facts of the present case. The same rule is laid down in an earlier Madras case Alamelu v. Rangasami I.L.R. 7 Mad. 588 at p. 590 where Sir Charles Turner puts it thus: “If a purchaser for value purchases the interest of an undiveded co-parcener who dies before partition is effected, the contract nevertheless takes effect and the purchaser may apply for partition.”
2. As regards the point now under consideration the same rule of law has been applied in Bombay. In the judgment in the case of Gurulingapna v. Nandappa I.L.R. 21 Bom. 797 the following proposition is laid down (Page 806): “As the purchaser does not by the death of his vendor lose his right to partition so his position is not improved by the death of other co-parceners before partition.” It is now well settled that under the Mitakshara law as it is administered in Madras and Bombay one co-parcener may dispose of ancestral undivided estate by private contract to the extent of his own share. Under the Mitikshara law as administered in Bengal the law which prevails in the other Presidencies as regards alienation by private deed has not been adopted. See the judgment of the Privy Council in the case of Suraj Bunsi Koer v. Sheo Persad I.L.R. 5 Calc. 148 at pp. 166, 167 In the Privy Council case of Madho Pershad v. Mehrban Singh I.L.R. 18 Calc. 157, the appeal was from Oudh where the law as administered in Bengal prevails and the decision is based on the Mitakshara law as administered in Bengal. The authorities cited and discussed are Bengal cases, and I think the decision only applies and was only intended to apply to a case governed by the Mitakshara law as it prevails in Bengal. The question of the soundness of the decision in the case of Rangasami v. Krishnayyan I.L.R. 14 Mad. 408 on the point which was then actually before the Court, viz., whether the time with reference to which the share is to be ascertained is the date of purchase or the date of suit, was discussed at some length in the course of the argument of the present case. In the present case the result would be the same whether the time is taken to be the date of purchase or the date of suit. The point therefore does not arise and I dot think that a determination of the question is necessary for the decision of the question which has been referred to us. In these circumstances I do not propose to discuss it. So far as this High Court is concerned there is express authority that a suit, such as the present, is maintainable, and the decisions of the Privy Council do not appear to me to be in conflict with the Madras decisions to which I have referred.
3. I am of opinion that our answer to the reference should be that the suit is maintainable. As regards the remedy to which plaintiff is entitled, I think this is a matter which should be dealt with at the trial of the suit under the order of remand, which I think was rightly made.
4. I concur.
Bhashyam Ayyangar, J.
5. The main question referred to the Full Bench in this case, i.e., whether a suit by a purchaser from a member of an undivided Hindu family, of his undivided half share in two specific plots of land forming part of the joint family property of the vendor and his two undivided nephews, is maintainable after the death of the vendor, against the surviving nephews, to enforce the sale, is, in my opinion, practically concluded in the affirmative by the authority of the Judicial Committee of the Privy Council in appeals from the High Court of Calcutta in cases governed by the Mitakshara law.
6. Before referring to these, it is necessary to advert briefly the difference between the Mitakshara law bearing on the question under consideration, as administered in the provinces of Madras and Bombay on the one hand and the same as administered in Bengal and the North-West Provinces on the other. Both here and in Bombay, according to a long course of decisions, an alienation by sale, mortgage or otherwise, by an undivided member, of his interest in the whole or any portion of the joint family property in favour of a purchaser for value is perfectly valid as between the transferor and the transferee; and an involuntary sale in execution of a decree stands on the same footing. In Bengal and the North-West Provinces, a purchaser from an undivided member, though he be a purchaser for value, acquires no valid title as against the alienor or the undivided family of which he is a member; and until some time back, even an involuntary sale in execution of a decree was equally invalid. But the Judicial Committee of the Privy Council, in Deendayal v. Jugdeeb Narain (1877) L.R. 4 I.A. 247 : (S.C.) I.L.R. 3 Calc. 198 held that so far at any rate as involuntary sales were concerned the law in Bengal must be assimilated to the law in Madras and Bombay, and that decision has been followed in several cases both by the Judicial Committee and the High Courts of Calcutta and the North-West Provinces. In Deendayal’s case the undivided family consisted of a father and a son, and a decree was obtained against the father only, on a mortgage bond executed by him, and in execution of that decree, the right, title and interest of the judgment-debtor in certain other family property not covered by the bond was sold and purchased by the decree-holder himself who took exclusive possession of the property. The son brought a suit against the purchaser and the father to recover for the family the whole of the property sold including the father’s share, and the High Court of Calcutta decreed the claim in its entirety holding the sale to be void. In appeal, the Judicial Committee came to the conclusion that the law in respect of a purchaser at an execution sale should be declared to be the same in Bengal as that which exists in Madras and held that ‘the right of the purchaser at the execution sale’ should be limited to that of compelling the partition which his father might have compelled, had he been so minded, before the alienation of his share took place’ (the italics are mine) and accordingly varied the decree of the High Court by “adding a declaration that the appellant as purchaser at the execution sale has acquired the share and interest of the father in that property and is entitled to take such proceedings as he shall be advised, to have that share and interest ascertained by partition.” In this case, no doubt, the father was alive both when the execution of the decree against him was completed by sale and also when decree was passed in the suit subsequently brought by the son under which latter decree the purchaser was to be wholly dispossessed, without prejudice to his right to enforce the sale by a partition suit for ascertaining and separating the father’s share and interest in the property sold. In the judgment their Lordships expressly state that the right of the purchaser is to compel the partition which his debtor, the father might have compelled had he chosen to do so immediately before the execution sale, but that they refrain from making a precise declaration as to his share since if a partition takes place not only his son, but his wife also may be entitled to a share under the Mitakshara law as administered in Bengal. It may be said that the Judicial Committee in varying the decree of the High Court of Calcutta by adding the declaration above referred to did not contemplate a suit being brought by a purchaser, for partition, subsequent to the death of the vendor (the father) and that the decision of the Privy Council in this case cannot, therefore, be regarded as an authority that such a suit could be maintained after the alienor’s death. Be that as it may, there is in this case a clear pronouncement by the Judicial Committee, that for the purpose of ascertaining the interest and share of the undivided member which has passed to the purchaser, you are to see what it would be if a suit for partition had been brought by the alienor immediately before the sale and not what it would be at the date when the purchaser brings his suit to enforce the sale.
7. The decision of the Privy Council in Suraj Bunsi Koer v. Sheo Persad L.R. 6 I.A. 88 : (S.C.) I.L.R. 5 Calc. 148 passed (in 1879) two years after the above is a direct authority that a purchaser in execution of a decree against the father alone can work out his right as purchaser by a suit for partition brought after the death of the father. In that case, a suit had been brought against the father only, upon a mortgage bond executed by him, and a decree had been obtained thereon in execution of which the property mortgaged was sold and purchased by a stranger. Before, however, he was put into possession of the property, a suit was brought on behalf of the minor sons of the mortgagor by their mother and guardian against the purchaser and the execution creditor, for the adjudication of their rights and confirmation of their possession and the setting aside of the auction sale and for an injunction to restrain delivery of possession of the property sold to the purchaser. It was found that by reason of the nature of the debt neither the sons nor their interests in the property sold were liable to satisfy the father’s debts and as the mortgage was not made by the father for a family purpose, it was as a mortgage invalid under the Mitakshara law as administered in Bengal, even in regard to the father’s share. The High Court of Calcutta, however, dismissed the sons’ suit as the purchaser was a stranger who had no notice of the nature of the debt. Before the Privy Council, the extreme contention on behalf of the infant sons was that nothing passed or could pass to the respondent under the execution sale because, on the death of the judgment-debtor before the sale, the whole of his interest vested by survivorship in his sons, leaving nothing upon which the execution could operate. The extreme contention on behalf of the respondent was that the sale took effect on the whole of the mortgaged property, and passed the interests of the sons as well as of the father therein. An intermediate proposition, which was upheld by the Privy Council, was that the sale was operative upon the right, title and interest of the judgment-debtor in the property put up for sale, so as to pass the share which upon a partition effected in his lifetime, the father would have been entitled to, in the property sold. Adverting to these contentions their Lordships observed as follows I.L.R. 5 Calc. 148 at pp. 173-274: “It seems to be clear upon the authorities that if the debt bad been a mere bond debt, not binding on the sons by virtue of their liability to pay their father’s debts and no sufficient proceedings had been taken to enforce it in the father’s lifetime, his interest in the property would have survived on his death to his sons, so that it could not afterwards be reached by the creditor in their hands. On the other hand, if the law of the Presidency of Fort William were identical with that of Madras, the mortgage executed by Adit Sahai (the father) in his lifetime, as a security for the debt, might operate, after his death, as a valid charge upon Bissumberpore to the extent of this one-third share [the italics are mine]. The difficulty is that so far as the decisions have yet gone, the law as understood in Bengal does not recognize the validity of such an alienation…They (their Lordships) think that at the time of Adit Sahai’s death, the execution proceedings under which the Mouzah had been attached and ordered to be sold had gone so far as to constitute in favour of the judgment-creditor a valid charge upon the land to the extent of Adit Sahai’s undivided share and interest therein which could not be defeated by his death before the actual sale…If this be so, the effect of the execution sale was to transfer to the respondent, the undivided share in eight annas of Mouzah Bissumberpore, which had formerly belonged to Adit Sahai in his lifetime and their Lordships are of opinion that, notwithstanding his death, the respondents are entitled to work out the rights which they have thus acquired by means of a partition,”
8. In the above extract from the judgment of the Privy Council there is an express pronouncement by the Judicial Committee that if the mortgage bond in question in this case were given by an undivided Hindu father having two sons, governed by the law of Mitakshara as administered in Madras, it would have operated after his death as a valid charge to the extent of his own one-third share as against his two sons, though the mortgage debt was not such as would bind the sons. In other words, though no suit be brought during the lifetime of the father to enforce the mortgage made by him, yet the sons’ right by survivorship on the death of the father does not prevail in respect to the father’s share in the mortgaged property and the mortgagee may, in a suit brought against the sons, after the death of the father, enforce it to the extent of the father’s one-third share. Though, under the Mitakshara law as administered in Bengal, a voluntary alienation made by the father does not prevail, as in Madras, even to the extent of the alienor’s share, yet an attachment made or an order for sale obtained, in his lifetime, is recognized by the Privy Council as sufficient to transfer the alienor’s share and interest in favour of the purchaser, though the actual sale takes place subsequent to the death of the father. A purchaser of the interest of an undivided member under an involuntary sale has to work out his rights under the sale by a suit for partition in the same way as a purchaser under a voluntary sale. If, in the former case, notwithstanding the death of the judgment-debtor before the sale and therefore necessarily before a partition suit by the purchaser, the right of survivorship is no impediment to the purchaser working out his right by partition after the death of the judgment-debtor, it necessarily follows that the death of a voluntary vendor could be no impediment to the purchaser enforcing the sale in respect of the vendor’s share as against the surviving members. If a mortgage bond executed by an undivided member can be enforced by the mortgagee after the death of the mortgagor against the surviving members of the family, as expressly declared by the Privy Council in the above case, with reference to the law of Mitakshara in Madras, a purchaser by sale from such undivided member cannot be in a different and worse position.
9. The next case before the Privy Council which has an important bearing upon the question under consideration is that of Hardi Narain Sahu v. Ruder Perkash Misser I.L.R. 10 Calc. 626 decided in 1883. In that case a creditor obtained a decree for money against the father only and in execution attached, caused to be put up for sale and himself bought the right, title and interest of the judgment-debtor in certain property which belonged to him and to his minor son jointly, and obtained possession. Shortly afterwards, the judgment-debtor made a gift of his interest in the family property in favour of his minor son. A suit was thereupon brought on behalf of the minor son to recover the whole of the property purchased by the decree-holder. During the pendency of the suit another son was born to the judgment-debtor and it was contended before the High Court that a share should be allotted to such son also. The High Court, however, following the decision of the Privy Council in Suraj Bunsi Koer v. Sheo Persad I.L.R. 5 Calc. 148, 166, overruled this contention and held that the property which passed to the defendant–the purchaser–was the share and interest of the father which would have been allotted to him if a partition of the family property had taken place just before the execution sale and that as the family at that time consisted only of the father, his wife and one son, the father was entitled to one-third share and that such one-third share ought to be allotted to the defendant–the purchaser–and the other two-thirds, to the minor plaintiff and his mother. The case was carried in appeal to the Privy Council by the defendant–the purchaser– principally on the ground that the sale should be upheld in its entirety as it was not shown that the decree debt was contracted by the father for any illegal or immoral purpose. The judicial Committee affirmed the decision of the High Court, holding that the purchaser became entitled only to one-third which would have been the share that would have been allotted to the father if a partition had taken place at the time of the sale. Pending the appeal to the Privy Council the mother died, but the decision of the Privy Council proceeds on the footing that neither the birth of the second son after the date of the execution sale, nor the subsequent death of the mother before a partition was effected, affected the share to which the purchaser became entitled at the date of the execution sale. In connection with this case it may also be observed that, in the opinion of their Lordships of the Privy Council, the proper decree to be passed in a suit against a purchaser from a member of an undivided Hindu family, is, as in Deendayal’s case for recovery of possession of the whole property with a declaration that the defendant–the purchaser–had acquired the share and interest of the judgment-debtor in such property and was entitled to take proceedings to have it ascertained by partition.
10. The learned pleader for the appellant strongly relies upon the decision of the Privy Council in Madho Pershad v. Mehrban Singh L.R. 17 I.A. 194 : (S.C.) I.L.R. 18 Calc. 157 [passed in 1890] as an authority that the undivided share on the death of the vendor passes by survivorship, if the purchaser had not, during the lifetime of the vendor, taken steps to effect a partition of such share. That case was an appeal from Oudh and it was there “conceded in argument that the rules of the Mitakshara law which prevail in the Courts of Bengal are applicable in Oudh to the alienation of interests in a joint family estate,” It was accordingly held that a sale made by one of two undivided members of a joint Hindu family without any legal necessity or the consent of the other member was void, both during the lifetime of the vendor and after his death and that therefore his undivided share passed by survivorship to the surviving member, according to the ruling of the Full Bench of the Calcutta High Court in Sadabart Prasad v. Foolbash Koer 3 B.L.R. F.B. 31 in which it was held that where family property is mortgaged by an undivided member, for a purpose not binding on the family, such mortgage will not, under the Mitakshara law as administered in Bengal, affect the property mortgaged, or the mortgagor’s share and interest therein, and that on his death, therefore, the property passes to the surviving members unaffected by the mortgage and can be recovered by them without redeeming the mortgage. The main contention before the Privy Council on behalf of the purchaser– appellant based on the authority of Mahabeer Prasad v. Ramyadsingh 12 B.L.R. 90 was that the price paid by the appellant ought to be declared a charge on the interest and share of the deceased vendor. In overruling this contention, Lord Watson, delivering the judgment of the Judicial Committee, observed as follows: “Their Lordships are unable to see that any analogy exists between that case and the present, It is unnecessary to decide whether if Zalim Singh (the vendor) had been still alive, and so entitled to resume his undivided share on cancellation of the sale-deeds, it would have been possible to order partition and to charge Zalim’s divided share with the Rs. 10,000 paid to him by the appellant, That course is rendered impossible by his death. It might have been quite consistent with equitable principles to refuse Zalim restitution of the interest which he sold except on condition of its being made at once available for repayment of the price which he received. But the respondent is not affected by any equity of that kind. He took in his own right by survivorship and is not liable for the personal debts and obligations of his uncle Zalim; and it appears to their Lordships that an equity which might have been enforced against Zalim’s interest whilst it existed cannot be made to affect that interest when it has passed to a surviving co-parcener, except by repealing the rule of the Mitakshara law.”
11. In this very case Lord Watson points out that if there has been an attachment of a member’s undivided share during his lifetime in execution of a decree against him at the instance of a creditor, that will be sufficient to support the alienation of a member’s interest in the estate or a sale under the execution and to defeat the rights of survivorship of the remaining members in respect of such interest or share.
12. The principle affirmed by this decision, viz., that, on the death of an undivided member, a debt due by him personally cannot be charged against his interest and share in the joint family property or realised by attachment and sale thereof, is equally applicable in this presidency. Thus, a simple creditor of a member of an undivided family, even if he has obtained a decree against him which, however, has not been enforced in his lifetime by attachment of his interest in the family property cannot, after his death, seek to enforce the decree against such share and interest. In Bengal and the North-Western Provinces, a mortgage or sale made by an undivided member without legal necessity or the consent of the remaining members, being altogether invalid as a mortgage or sale, the mortgagee or vendee is only in the position of a simple creditor as against the undivided member and the position of a simple creditor of an undivided member is the same under the Mitakshara law as administered in all the provinces.
13. I shall now proceed to consider a few of the decisions of this Court bearing upon the question,–chief among them, the Full Bench decision of this Court in Rangasami v. Krishnayyan I.L.R. 14 Mad. 408. The learned Judges, who made the reference to the Full Bench in that case, stated their opinion as follows, in the order of reference:
He (the vendor) cannot put his alienee in a better position than himself and thereby prejudice his co-parceners, and the alienee, therefore, must be liable, until he obtains partition, to the same fluctuations in the amount and value of the share caused by changes in the number and circumstances of the family as his alienor would have been liable to if the alienation had not taken place. It was pressed upon us in argument that, if this be so, the purchaser might, in some cases, take nothing, for his vendor might die before anything was done to enforce the purchase, and also that if the purchaser is to be liable to have what he has purchased diminished by changes in the family, he must also have the benefit if such changes should increase the share of his vendor. It seems to us that both these consequences logically follow from the legal position which the alienee occupies, and we do not see that they involve any absurdity. He who purchases the interest of a member of an undivided family in the family property purchases that which is from its nature uncertain and the purchase must always partake of the nature of a speculative transaction; but he knows perfectly well what he is buying and is not to be pitied if he gets less than he hoped for any more than he is to be blamed if he gets more” (pages 410-411). With all deference to the learned Judges, I am compelled to dissent from their opinion as to the character and incidents of an alienation, made by an undivided member, of his share and interest. The Full Bench adopted the view of the referring Judges only to the extent of holding that if the alienor’s share in the family property diminishes after the date of the alienation by the birth of other co-parceners in the family, the share which the alienee will be entitled to get will only be the diminished share which the alienor himself will be entitled to, on the date of the suit which the alienee may institute for the purpose of enforcing the sale by partition of the family property. But in the judgment of the Chief Justice and Muttusami Iyer, J.–which was concurred in by the other two Judges without any qualification–the Full Bench expressly dissents from the view that the purchaser will take nothing if the vendor dies before the purchaser effects a partition, or that he will take a larger share if between the date of the alienation and that of his suit, there is a diminution in the number of co-parceners. The actual decision in this case no doubt was that the purchaser was entitled only to a diminished share, as in that case new co-parceners had been born between the date of the alienation and the date of the suit by the purchaser. But that decision cannot be relied upon as logically leading to the conclusion that the purchaser will take nothing if, as in the present case, the vendor dies before proceedings are taken by the purchaser to enforce the sale by partition–having regard to the fact that the learned Judges expressly guarded themselves against such conclusion. In my opinion the actual decision in the case itself is opposed to the principle on which the above decisions of the Privy Council proceed, none of which is referred to in the judgment except Deendyal’s case, and even that for another purpose. But whether that is so or not–a point which it is unnecessary to decide in this case–there is nothing in it to warrant the contention that the share and interest conveyed by an undivided member of a Hindu family will lapse to the family on his death unless the purchaser has, in the meanwhile, enforced the sale by partition. If that should be the result when no suit has been instituted by the purchaser prior to the death of the vendor, the result would be the same even if the vendor be alive at the time of the suit but died before the passing of the final decree therein. It seems to me that the right of survivorship is incompatible with the position that a member of a Hindu family can alienate his undivided share and interest for value–a position which has long been established by judicial decisions both in Madras and in Bombay. To hold that the right of survivorship will prevail against the purchaser would be tantamount to assimilating the law in Madras and Bombay, in this respect, to that in Bengal and the North-Western Provinces–whereas the tendency of the Privy Council, if not of the High Courts themselves, has been gradually to assimilate the law in Bengal and the North-Western Provinces to that in Madras and Bombay, the course of decisions in both of which is but the natural development of the principle that under the Mitakshara law every co-parcener can enforce partition at his will and pleasure even as against his father.
14. In meeting the contention that if the vendor dies before the purchaser effects a partition, the latter will take nothing, the interest conveyed under an alienation made by an undivided member is thus explained in the Full Bench decision–
The answer is that the interests carved out by the sale vest in the purchaser at once and that the vendor being competent to sell, his subsequent death is an event which cannot divest the interest which has once vested and, for the purpose of giving effect to his contract of sale, the purchase must be dealt with as if the seller were alive when the purchaser demands partition.
15. I fully concur in this statement of the law save that in place of the concluding words “as if the seller were alive when the purchaser demands partition,” I would substitute “as if a partition of the family property had been made immediately before the sale.” So far as the present case is concerned it is immaterial whether the above statement of the law is thus modified or not– for the only fluctuation in the number of co-parceners in the family between the date of the alienation and the date of the suit has been the death of the alienor himself.
16. The decisions of this Court in Alamelu v. Rangasami I.L.R. 7 Mad. 588 and in some unreported cases referred to in the order of reference are directly in point, but it is argued that they carry no weight as the question is not discussed in them, being dealt with “as settled law,” and as no authority is quoted in them, and that up to the date of the ruling in Alamelu v. Rangasami I.L.R. 7 Mad. 588 there appears to have been no decision of this Court to the same effect.
17. The question of a member of an undivided Hindu family alienating family property for his own purposes is not a topic dealt with, as far as I am aware, by any texts of Hindu law or by the commentators. No express authority on the subject can therefore be found in the Hindu law books, and it is questionable whether an alienation by a co-parcener of his undivided share and interest was recognised by Hindu jurists. As observed by the Judicial Committee “there can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family and the law as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has to be allowed to stand in his vendor’s shoes and work out his rights by means of a partition” Suraj Bunsi Koer v. Sheo Persad I.L.R. 5 Calc. 148 at p. 166.
18. Before discussing the question further, with reference to the growth of the judiciary law, I may point out that before the date of the ruling in Alamelu v. Rangasami I.L.R. 7 Mad. 588, there was a ruling to the same effect in Venkatachella Pillai v. Chinnaiya Mudaliar 5 M.H.C.R. 166. In that case, the vendor (one Subbaraya Mudali) as one of two co-parceners was entitled to a moiety of the joint family property. He sold one entire village and put the purchaser in possession thereof. After the death of the vendor the surviving co-parcener brought a suit to recover his one-half share in the village. The purchaser resisted the suit on the ground that the entire village formed less than a moiety of the whole family property and that therefore the conveyance would operate to vest in him the whole village. Though the principle was recognized “that each co-parcener has a vested present undivided estate in his share which he may at any time convert into an estate in severalty by a compulsory or voluntary partition, and that such estate was transferable like any other interest in property,” yet the contention that the vendee was entitled to the whole village was overruled on the ground that though the extent and value of the village in question was less than the extent and value of a moiety of the entire family property, yet as the vendor was entitled only to one moiety in the village, the conveyance could operate to convey only a moiety of the village. It will here be noted that though the vendor was dead at the time of the suit, yet it was not contended or held that his share lapsed by survivorship to the plaintiff, and the purchase was upheld to the extent of a moiety. This decision, so far as it holds that the purchaser can recover the share of the vendor by a partition only of the specific property sold, has been modified by subsequent decisions Venkatarama v. Meera Labai I.L.R. 13 Mad. 275 and Palanikonan v. Masakonan I.L.R. 20 Mad. 243, and the law as now settled is that the purchaser can enforce the sale only by a partition of the entire family property and if in such partition the property sold can, with due regard to the interests of the other sharers, to the debts due by the family and to an equitable allocation of the various items of family property to the shares of the several co-parceners, be wholly allotted to the vendor’s share, the purchaser will be entitled to the whole property which the vendor professed to convey to him.
19. According to the theory of an undivided Hindu family, each member has a present vested interest, which, by a partition at his will and pleasure, can be converted into a separate interest. The judicial decisions have recognised that such interest is transferable either in whole or in part for value and that the transferee therefore takes a vested present interest. What is transferred to him is thus a present vested interest and not a future contingent interest, uncertain and fluctuating, until the transferee actually effects a partition–even assuming that such a contingent and possible future interest could legally be transferred [vide Section 6 (a) of the Transfer of Property Act]. The transfer in question operates upon the vested interest which the transferor had in the family property just before the alienation and the same is converted for the benefit of the transferee into the separate share and interest of the transferor by a partition of the family property at the time of such alienation. The estate that is transferred to and vested in the alienee is not an “equitable interest” as understood in the English law, but a ‘legal estate’ which has to be reduced into possession by the alienee standing in the shoes of the transferor and effecting a partition on the footing on which the family and the property both stood at the time of the transfer. No subsequent alienations made for purposes binding upon the family or by the vendor himself can affect the interest that has passed to the prior transferee, nor will such interest be enlarged or diminished by fluctuations in the number of co-parceners in the family. Thus, to take the two extreme cases where a co-parcener has transferred for value his undivided share in the joint family property, the death of all the other coparceners before the vendee sues to enforce the sale will not entitle the vendee to recover from his vendor, the sole surviving member, the whole of the joint family property, nor, on the other hand, will the death of the vendor prior to the enforcement of the sale divest the vendee of the interest vested in him by the sale.
20. The vendee’s suit to enforce the sale by partition is not a suit for ‘partition,’ in the technical sense in which ‘partition ‘or vibhaga’ is used in the Hindu law. A suit for partition, in the technical sense, can be brought only by an undivided member of the family. The right to such partition is personal to him and not transferable. Such a suit can be brought only in the lifetime of the co-parcener and even if so brought, it will abate if he should die before final decree, without leaving male issue. A partition in the technical sense, whether effected amicably or by decree of Court, breaks up not only the joint ownership of property, but also the family union, i.e., the corporate character of the family. Each member thereafter becomes a divided member with a separate line of heirs to himself. An undivided member of a family, though’ he may alienate either the whole Gurulingappa v. Nandappa I.L.R. 21 Bom. 797, or any part of his undivided share will continue to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the family property other than what he has transferred, No doubt such a member acts unfairly towards the rest of the family and if they are dissatisfied with his so doing, their only remedy is to become divided from him. When a partition is effected subsequent to such alienation, either amicably or by suit, the property alienated will be included in such partition and debited to the share of the alienor. The transferee, however, does not step into the shoes of the transferor as a member of the family and there will be no community of property between him and all or any of the members of the family in respect either of the property transferred to him or the rest of the family property. The only uncertainty or speculative character of his purchase, which may exist in certain cases, is not as to the extent of the share and interest transferred, but the impossibility of predicting what particular properties would be. allocated to his vendor’s share if a partition were effected immediately before the transfer. A co-parcener may profess to alienate either his undivided share in the whole of the family property or his undivided share in some specified portion of the family property–as in the present case–or the whole of a specified portion of the family property–as in the case in Venkatachella Pillai v. Chinnaiya Mudaliar 5 M.H.C.R. 166. The same thing may take place in the case of involuntary sales also. In all these cases, the sale operates upon the interest and share of the transferor as the same existed at the date of the transfer and the transferee must work out the transfer by bringing a suit for ascertaining what the share and interest of the transferor was at the date of the transfer, Such a suit is not technically a suit for partition and the decree which he may obtain enforcing the transfer, either in whole or in part, by a partition of the family property will not by itself break up the joint ownership of the members of the family in the remaining property, nor the corporate character of the family. Such being the nature and consequences of a suit to enforce a transfer–in which suit partition of the family property has to be made only incidentally for the purpose of working out the transfer–it is immaterial whether the suit is brought during the lifetime of the alienor or after his death. The cause of action on which the suit is based is the transfer made to the plaintiff of the interest of the transferor at the date of the transfer in the family property to which the transfer relates. When the transfer is of an undivided interest in the whole of the family property, the transferee will get whatever may be allotted to the transferor’s share in a suit for partition. But if the transfer relates to any specified portion of the family property, there is the risk that it may turn out that in a partition of the whole property it is impracticable or inequitable to allocate either the whole or a part of such specified portion to the share of the transferor. Whether the transferee brings his suit immediately after the transferor at any time during or after the lifetime of the transferor, the transfer will have to be enforced by effecting a partition in the same way as it would be if the partition were effected immediately before the transfer. If it be found impracticable or inequitable to allot to the transferor’s share the whole or any portion of the specific property transferred, the transfer will become inoperative either in whole or in part, as the case may be, and in that case the transferee can only have an equitable claim for compensation against the alienor and on the principle laid down by the Judicial Committee in Madho Pershad v. Mehrban Singh I.L.R. 18 Calc. 157 such claim for compensation cannot, in the case of the alienor’s death, be enforced against the surviving members of the family against whom the transferee has no equity and who have taken in their own right by survivorship.
21. The claim of a transferee from a co-parcener to work out the transfer is no doubt an equitable claim in the sense that he must be a transferee for value and in cases where the transfer relates to a specific portion of the family property, he has no legal right, any more than his transferor himself, to insist on that specific portion being allotted to the share of the vendor. Being a purchaser for value he will have an equity to have such portion or so much thereof as is practicable so allotted, if that can be done without prejudice to the interests of the other sharers. In any suit which may be brought by him to enforce the sale, all the members of the family should be joined as parties as in a partition suit, the subject-matter of the suit being the family property as it existed at the date of the transfer. Such a suit may, at the option of the members of the family, assume the character of a family partition suit and a decree may be passed for a partition, among all the members, of the entire family property.
22. In the present case, the plaintiff, who seeks to enforce the sale after the death of the vendor against his two surviving undivided nephews, seeks to recover, by partition, one-half of two plots of land measuring 4 acres 52 cents, in which an undivided moiety was sold to him, the plots themselves forming only a portion of the joint family property as it existed at the date of the sale. It being admitted, as I presume, that the vendor was entitled to a half share in the whole of the family property, there can be no doubt that the extent of land claimed is within the limits of the vendor’s share and the only question for determination in the case will be whether, having regard to the nature and value of the plots of land in question and the rest of the family property, a moiety of the fields in question could equitably have been included in the vendor’s share, if a partition had been effected between the vendor and his nephews at the date of the sale.
23. As regards the analogy between a person buying a Hindu widow’s life-estate and a person buying the interest of an undivided co-parcener it seems to me that such analogy as there is between the two leads to the inference that a person buying from an undivided co-parcener necessarily buys an estate lasting beyond the lifetime of his vendor unless, of course, the family has only a limited interest in the property, and that his death cannot affect the purchaser’s interest.
24. In my judgment in Sriramulu v. Kristnama Second Appeal No. 706 of 1900 : 12 Mad. L.J. Rep. at p. 200 after referring to the nature of a widow’s estate under the Hindu law, and her power of alienation for a necessary purpose according to the standard of Hindu law, I stated that “the texts of Hindu law, however, do not deal with a widow’s power of alienation of her husband’s estate at her will and pleasure for the term of her life or for any shorter period, but she is enjoined by those texts to restrain her personal expenditure within the modest limits which were considered suitable to her bereaved condition. But it has now long been established by judicial decisions that a Hindu widow has an absolute right to the fullest beneficial interest in her husband’s property for her life and that she has a personal right therein which she can exercise at her will and pleasure by giving, selling or transferring the estate to another for her own life.” Similarly a co-parcener in an undivided Hindu family can, under the texts of Hindu law, deal with the family property for necessary purposes and there is nothing in those texts, as far as I am aware, empowering him to alienate his undivided share and interest at his will and pleasure and for his own purposes. But it has now long been established by judicial decisions that a co-parcener has a personal right in the family property to the extent of his undivided share and interest therein, which right he can dispose of at his will and pleasure in favour of a purchaser for value though not in favour of a volunteer. A Hindu widow, according to judicial decisions, has a personal right in her husband’s estate which she can dispose of for her life only whether in favour of purchasers for value or volunteers. Her personal right in her husband’s estate is only an estate for life and therefore, even if the purchaser enforces the sale and recovers possession during her lifetime, his right in the property terminates with her life. But a co-parcener’s estate and interest to the extent of his share in joint family property is not one for his life only, as in the case of a widow; and if the family estate be an estate in fee simple, the individual estate of each of the co-parceners, which he can dispose of for value, is also one in fee simple and the purchaser therefore acquires an estate in fee simple and not one limited to the lifetime of the vendor–and the death of the vendor, whether before or after the purchaser works out the transfer and reduces the estate into possession, cannot affect his right, title and interest in such estate.
25. For the foregoing reasons, I would, in answer to the question referred to the Full Bench, say that the plaintiff’s suit is maintainable and that he is entitled to recover, by partition, a moiety of the plots of land in question if such moiety could have been equitably allotted to the plaintiff’s vendor’s share in case a partition of all the family property, between him and his nephews, had been effected immediately before the sale to the plaintiff.