JUDGMENT
Prabha Sridevan, J.
1. This appellants are aggrieved by the decree granted in favour of the first respondent herein for 11/16th share in item No. l of the suit property and for damages.
2. The learned Counsel for the appellant who was the first defendant in the suit would state even at the outset that the matter actually in controversy is only the l/16th share in item No. l of the suit property. Therefore, it is sufficient if the facts are stated in brief. The appellants 1 and 2 are brother and sister, born to one Sivasami and Chengammal, the third appellant is the son of Sivasami’s daughter through another wife.
3. The said Chengamalam filed O.S.No. 1239 of 1974 for l/8th share in the property of her husband Sivasami. The defendants in that suit were the 1st appellant, the 1st respondent, the mother of the third appellant and the second appellant. The same was decreed by the District Munsif, Ariyalur, who also held that the properties left by the deceased Sivasami were ancestral in nature. This l/8th share was arrived at by giving 5/8th share in the properties left behind by Sivasami to the first appellant herein, l/8th share to the second appellant herein and l/8th share to the mother of the third appellant herein. This decree and the division of shares have become final. The first respondent herein was arrayed as the second defendant in the earlier suit since she had purchased item No. 1 of the suit property under a sale deed dated 28.5.1974. Though, in that suit, she claimed that she had to be allotted the entire property, the learned District Munsif, held that since the first appellant herein had not right to deal with the interest of the others in the coparcenery property, he could only deal with the share he had alienated shall be allotted to him in equity.
4. Preliminary decree was passed in O.S.No. 1239 of 1974 on 28.4.1976. After the preliminary decree was passed. Chengamalam died on 4.9.1978. Therefore, the first appellant’s share in the suit property got increased by 1/16th share which was his share in his mother’s property. This gave rise to the present suit out of which, this appeal arises. The first respondent filed the suit claiming that she would be entitled to 11/16th share in item No. 1 of the suit property, since her vendor viz., the first appellant was now entitled to 11/16th share. She also claimed a sum of Rs. 2,093.75 as damages being the value of 5/16th share, which the first appellant purported to convey under the sale deed, for which he had no title. The suit was decreed. Hence this appeal. A cross-objection has been filed by the first respondent herein since costs was not allowed.
5. Mr. Valliappan, learned Counsel for the appellant fairly stated that since the first appellant had conveyed his share in the suit property on 28.5.1974. It would not be possible for him to contend that the first respondent was not entitled to any right in the suit property. But she was only entitled to 5/8th share which was what the first appellant had on the date of the sale deed and which was what he also conveyed. His subsequent acquisition of 1/16th share upon the death of his mother cannot be claimed by the first respondent and the learned Judge erred in in decreasing the suit as prayed for. He relied on four decisions to support his case.
(1) Shantaya Kotraya Bannadnula v. Malappa Pasappa Shettar A.I.R. 1938 Bom. 500 (D.B.). (2) Majeti Kasi Viswesra Rao v. Pulled Kurti Varahanarasimhan and Ors. A.I.R. 1937 Mad. 631. (3) Kovvuri Satyanarayanamurthi v. Tetali Pydayya (1943)1 M.L.J. 219. (4) Chinna Pillai minor by Guardian Ramachandran Pillai v. Kalimuthu Chetti 21 M.L.J. 246 : 35 Mad. 47 (F.B.).
He also stated that the decree for damages was absolutely without any basis. There was nothing to show how the learned Judge quantified the entitlement of the first respondent to an extent of Rs. 2,093.75.
6. Mr. Kunchithapatham learned Counsel for the respondent submitted that there was no reason to interfere with the judgment of the trial court except in so far as the denial of costs was concerned. He urged that costs have to follow the event and there was no justification for the learned Judge not to decree the costs.
7. I have heard the submissions made on behalf of both the parties. Ex.A-1 the sale deed in favour of the first respondent is dated 28.4.1974. The consideration for the sale is Rs. 6,700 and from the recitals of the sale deed. It is seen that the value of the suit property is fixed at Rs. 7,624. O.S.No. 1239 of 1974 was decreed as stated earlier in 1976. The copy of the judgment is marked as Ex.A-3. In this judgment it is clearly held that the first respondent herein is entitled to the share of the first appellant in item No. l of the suit property, which is 5/8th share. Merely because the mother of the first appellant died, the first respondent cannot claim that the increase or augmentation of share subsequent to the transfer would also be transferred to her. The share to which she is entitled to in the property gets fixed or is ascertained by the date on which the transfer was made. In the judgment reported in Chinna Pillai minor by Guardian Ramachandran Pillai v. Kalimuthu Chetti 21 M.L.J. 246 : 35 Mad. 47 (F.B.). It is held as follows:
In Hindu Law the alienee of the interest of a co-parcener is entitled to enforce his claim against the share to which the vendor was entitled to at the time of the alienation.
The Full Bench also held that,
Again it would be entirely against the principle of equity on which these decisions are based to give the alienee anything more than the value of the consideration advanced by him; or in the other words, the principle of the decisions would not justify the courts in giving him the increased share to which the co-parcener may have become entitled. This shows that we have to reject the strict theory of the Hindu Law in the ascertainment of the share; as if the purchaser is not to be entitled to an increased share, I do not see how we are to say he can get only the reduced share in the other contingency.
8. Therefore, the transferee will only take what interest the transferor had at the time of the sale deed alone. The Full Bench also held that any other conclusion would lead to great practical inconvenience and injustice.
9. The decision reported in Shantaya Kotraya Bannadnula v. Mallapa Basappa Shettar A.I.R. 1938 Bom. 500, was with regard to the right of the subsequent born member of the family to challenge the alienation and their Lordships held that even he could only challenge the alienation for the purpose of setting aside the alienation to the extent of his share at the time of alienation.
10. The decision reported in Kovvuri Satyanarayanamurthi and Ors. v. Tetali Pydayya and Ors. (1943)1 M.L.J. 219, arose out of a mortgage decree and the question was whether the share of the transferor in the property would diminish because one or more sons were subsequently born to him. This Court held that if the transferor had l/5th share on the date of the transfer, the fact that he had one or more sons subsequently born to him and his share was accordingly diminished would not be material. The alienation made by him was in respect of 1/5th share and that cannot be challenged.
11. The decision reported in Majeti Kasi Viswesra Rao v. Pulletirkurti Varahanarasimhan and Ors. A.I.R. 1937 Mad. 631, dealt with a suit by co-parceners to declare the alienation by one co-parcener void to the extent of their share. This Court held that,
Alienation of joint family property has been made by a coparcener and other coparceners bring a suit for a declaration that the alienation is void to the extent of their shares, the share to which the alienee would be entitled is to be determined with reference to the date of alienation and not to the date of the institution of the suit.
12. It is seen from these decisions that it is the date of transfer which is relevant for ascertaining the share which the transferee is entitled to. The reason is this. The transferer could not have transferred a larger or smaller share than what he had on the date of transfer. If there had been a partition on that day that is what the transferee would have got. In 1974, the first appellant had only 5/8th share and this was how the shares were ascertained in the earlier suit. Then there is no room for ambiguity that the first respondent would only be entitled to 5/8th share and nothing more. The 1/16th share which the first appellant got upon the death of his mother cannot be claimed by the first respondent. The person who purchases an undivided interest of a Hindu co-parcener can only assert his right in respect of the share to which his vendor was entitled to at the time of sale and this share gets neither diminished by birth nor augmented by death in the family after the date of the sale.
13. Therefore, I held that the first respondent will only be entitled to 5/8th undivided share in item No. 1 of the suit property.
14. The next question is with regard to the damages. According to the first respondent, the suit property had been purchased for Rs. 6,700 and since she is entitled to only 11/16th share in the suit property, the proportionate consideration would come to Rs. 4,606.25. The balance of sale consideration which was paid by her for 5/16th share in respect of which the first appellant had no title, got to be reimbursed to her. A perusal of Ex.A-1 shown that the market value of the suit property is Rs. 7,624 whereas the consideration is paid as per the document is Rs. 6,700. It is the evidence of D.W. 1 (the first appellant) in chief that the suit property is worth Rs. 12,000 on the date of the sale deed and that has not been challenged in the cross examination. Even in the pleadings, the appellants have stated that the first respondent has not paid the entire sale consideration and a major portion is yet to be paid and what was sold was only 5/8th share and there was no basis for fixing the claim for reimbursement on Rs. 2,093.75. The first respondent has not proved that apart from stating that she has sustained a loss of Rs. 2093.75, and the lower court has accepted it without any question. Further even in the earlier suit, she had only asked for equity and had not asked for reimbursement in the event of her vendor being allotted a smaller share. In any event, since there is no material to show that the amount claimed by the first respondent reflects the true value of the 5/16th share and when the sale consideration cited in the sale deed is less than the market value of the property as on the date of sale, even as per the recitals of the sale deed, it is not possible to reject the plaintiff’s contention that the suit property was worth much mere and the first respondent had only paid the value of roughly 5/8th share of the suit property. In any event in the absence of acceptable evidence, this claim made by the first respondent is rejected.
15. As regards costs we have already seen that in the earlier suit the court had accepted alienation made by the first appellant herein in favour of the first respondent and also directed that this 5/8th share should be allotted to the share of the first appellant in equity. This suit has been filed by the first respondent only because of the death of the mother of the first appellant herein, several years after the date of sale, The right that she had claimed was not one which she is en-titled to. Moreover, before she filed the present suit, she has not issued any notice to the defendant claiming 11/16th share or damages. Hence the lower appellate court exercised its discretion rightly in not awarding the costs. I see there is no reason to interfere with the order of the lower appellate court. Hence the cross-objection is dismissed.
16. In the result the appeal is partly allowed and the first respondent’s claim for 5/8th share is decreed. The claim in respect of 1/16th share is dismissed. The decree for Rs. 2,093.75 as damages is set aside. The mesne profits will be decided separately under Order 20, Rule 12, Civil Procedure Code. The cross-objection is dismissed.
