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Madras High Court
Muthusami Goundan vs Palani Goundan And Ors. And … on 30 March, 1927
Equivalent citations: (1927) 53 MLJ 763
Author: Wallace


Wallace, J.

1. These two appeals are from the judgments in connected suits. The facts necessary for the disposal of these appeals are as follows. One Palani Goundan was the father of one Kavundai Goundan, who is the 5th defendant in O.S. No. 559 of 21. His sons are defendants 6 to 8. 5th defendant sold certain family property under Ex. B to defendants 1 to 4, who in their turn sold it to the plaintiff under Ex. C. The sale covered eight items. Plaintiff claimed that they were all the 5th defendant’s properties at the time of the sale by him to defendants 1 to 4, that the 5th defendant had separated from his family and had got items 1 to 4 and 8 for his share and that as regards 5, 6 and 7 they were his self-acquisitions. The contest in the suits ranged round the question whether Palani Goundan was still joint with the 5th defendant and his sons, and whether items 5, 6 and 7 were the self-acquisitions of the 5th defendant. The lower appellate court has decided that there was no partition between Palani Goundan and his sons and that items 5, 6 and 7 are part of the joint family property. The findings must be accepted in second appeal.

2. The connected suit was by Palani Goundan to declare that the sales of joint family property under Exs. B and C did not bind him, and the judgment in that suit followed the judgment in the other.

3. In this Court the appellant in both appeals is the same, namely, the purchaser under Ex. C. In both suits Koundai Goundan, the vendor under Ex. B, remained ex parte. The contention here is that the lower appellate court ought not to have dismissed the appellant’s claim in toto but should have held that the transfer of Koundai Goundan’s own share in the joint family property to him was valid, it not having been contested by Koundai Goundan himself, that the other members of the joint family have no right to question that transfer, and that the lower appellate court ought therefore to have given the plaintiff a decree that the transfer of that share to him was valid and binding on the rest of the joint family.

4. But the lower courts concur that the sale under Ex. B by the 5th defendant to defendants 1 to 4 was a nominal transaction. The lower appellate court held that the plaintiff also paid no consideration under Ex. C; the first court held that the sale under Ex. C was for a grossly inadequate consideration but did not give a finding that it was nominal. The plea that these sales were nominal was of course not taken by Koundai Goundan himself since he was ex-parte, but they were taken by the other members of the joint family. The general point for consideration is whether, when a member of a joint family has purported to sell his share to a stranger and does not himself plead that the transfer was not a sale or that it was for no consideration, it is open to the other members of the family to put forward such pleas and prove that there was no sale or no consideration for the sale and thus retain that property for the members of the joint family, including the member who professed to sell it?

5. The right of a co-parcener of a joint family to sell his share is admitted by the law in this Presidency, but it is not an unrestricted right. It is restricted to a right to sell for valuable consideration. He is not allowed to make a gift of it. This law is founded on a rule of equity whereby a purchaser for value is to be allowed to stand in his vendor’s shoes–The Privy Council decision in Suraj Bunsi Koer v. Sheo Pershad- Singh (1879) LR 6 IA 88 : ILR 5 C. 148 at 166 (PC) and the Madras Full Bench case in Aiyyagari Venkataramayya v. Aiyyagari Ramayya (1902) ILR 25 M 690 at 715 (FB). It follows from this, that the mere assertion by an alienating co-parcener that he has sold his share for valuable consideration is not conclusive of that fact. Otherwise he might easily evade the law by styling as a sale what was in fact a gift. The fact that the sale is valid only if it is for valuable consideration carries with it as a corollary that the sale must be a real, genuine sale, and the mere word of the alienor is not the deciding factor on that point : Rottala Ranganatham Chetty v. Pulicat Ramaswami Chetty (1903) ILR 27 M 162 at 166. The Privy Council decision in Achal Ram v. Kasim Hussain Khan (1904) ILR 27 A 271 at 289 : 15 MLJ 197 (PC) has been cited by the appellant but a study of that case shows that the challenge to the sale which was repelled by the P. C. did not come from the co-parcener of the alienor at all, so that the case does not help. The ruling in Vadivelum v. Natesam (1912) ILR 37 M 435 at 437 : 23 MLJ 256 does not in my opinion carry the general principle any further. It in fact reiterates the proposition that such sales are only binding when they are for valuable consideration.

6. It follows that it is open to the other members to aver and prove that an alienation by a co-parcener was not a sale for valuable consideration, but was to all intents and purposes a gift. I think, therefore, that, in spite of the fact that the 5th defendant did not himself challenge Ex. B, it was open to the’ other members of the joint family to do so, and that if they were able to prove, as they have proved, to the satisfaction of the Court which is the final arbiter on this question of fact, that the sale Ex. B was nominal, that sale must be held to be wholly nominall and will not suffice to transfer even the share of the aliener himself. The sale therefore by the 5th defendant was not a sale for valuable consideration and therefore cannot be given any effect over joint family property. I can therefore see no reason to interfere and I dismiss both these appeals with costs.

7. (Note).–This judgment does not decide and is not intended to decide whether the plaintiff is entitled to a charge on the property to the extent of Rs. 1,000 said to have been paid by him towards the mortgage decree. As the alleged payment was made after the suit was filed, the matter cannot properly be disposed of in the suit. Plaintiff is at liberty to take such action as he is advised to do to establish this claim.

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