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TMI Blog1894 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... | (died 1880-1) | | Sreenivasa Iyengar |-------------------------------| Krishnasami 5th Deft. (died 1883) | | 1 st Deft. Sindh alias deceased hus- | Srinivasan band of 7th Deft. Plaintiff Defts. 2 3 and 4 3. Plaintiff's case is that his grand-father Varadayyangar, the second son of Kristniengar, was adopted by the latter's brother Amnfal Iyengar, and that plaintiff is consequently entitled to a moiety of the property as representative of Ammal Iyengar, the other moiety going- to defendants 1 to 5 representing Kristnayyangar's branch to which also belonged the late husband of 7th Defendant. 4. The adoption of plaintiff's grand-father by Ammal Iyengar was denied by all the present appellants as Defendants in the Lower Court and the denial is persisted in by them all as appellants in this Court. 5. The first question for determination now is therefore, whether or not Varadayyangar was adopted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso the N. Series of Exhibits. 8. [Their Lordships then discussed the evidence and continued as follows] 9. We see no reason, therefore, to doubt the correctness of the Lower Courts finding either as to the factum or validity of the adoption of Varadayyangar by Animal Iyenger and the adoption being found to be a fact and valid, plaintiff is clearly entitled to a moiety of the property as representative of Ammalayangar's Branch. 10. The next point for consideration merely affects the shares to which defendants 1 to 5 are entitled inter se out of the moiety belonging to their branch as representatives of Kristna Iyengar. On reference to the genealogical table given at the beginning of this judgment, it is seen that Kistnayyangar had five sons, the second of whom Varadyyangar (the grand-father of the plaintiff) was as found above, adopted by Ammalayyangar, the 4th son Periasami had a son Kistnasami who died in 1889, leaving a widow (7th Defendant) and no male issue (his father predeceased him), 5th Defendant is the son of Kristnayyangar's youngest son Chinnasami, Rangasami the 3rd son of Kristnayyangar (died in 1880-1) had two sons, 1st defendant and one Sindu alias S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The finding of the Sub-Judge as to these two adoptions is thus supported by evidence which we see no reason for holding to have been misappreciated, nor do we see reason to differ from the finding of the Sub-Judge on the 4th, 5th, and 6th issues. We also agree with him in finding that the 7th defendant's late husband was an undivided coparcener at the date of his death. 15. The next question is as to the validity of the transfer evidenced by Exhibit LVIII executed by 7th defendant's late husband to the 6th defendant. It was the subject of the 8th issue recorded by the Subordinate Judge. The Sub-Judge has found that though 7th defendant's late husband could not convey any definite portions of the undivided family property, he could convey his undefined interest and share in the same and that to this extent the conveyance under LVIII is valid, and 6th defendant stated his readiness to accept his vendor's share whatever it comes to. As pointed out by the Sub-Judge the consideration for the conveyance is ₹ 40,000, of which ₹ 8,000 odd were paid to one Sadagopachary under Exhibit XXXIII, ₹ 11,000 odd to N. Saminatha Iyer by whom were granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the 7th defendant was the lawful heir entitled to succeed to it upon her husband's death. With reference to items 1 to 3 in Schedule H, the 9th defendant's case was that they belonged exclusively to the 7th defendant's husband, and he purchased them at a revenue sale for arrears of revenue due to the Government by Kristnasamy Iyengar. As regards all the above items, the plaintiff averred in paragraphs 5 and 6 of his plaint, that out of the sale amount, viz ₹ 40,000 due by the 6th defendant to 7th defendant's husband, the latter paid his father-in-law, the 8th defendant, ₹ 21,500 which was the surplus that remained after payment of his debt, in order that the father-in-law might purchase land for him, that the items in dispute were so purchased, and that the coparceners of the 7th defendant's husband were entitled to recover them from defendants 6 to 8. As to this sum of ₹ 21,500, 8th defendant contended that it was paid to him out of the purchase money, not to be invested as alleged in the purchase of land for the benefit of 7th defendant's husband, but in payment of debts due by him to the 8th defendant, of monies lent at his inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution of his separate debt. It is also pointed out that the law obtaining in the Presidency of Bombay differs from that administered in this Presidency to this extent viz., that in the former the alienation must be for value, whilst in the latter, an alienation by gift was recognised. The judicial committee proceeded to observe that there can be little doubt that all such alienations are inconsistent with the strict theory of a joint and undivided family and the law as established in Madras and Bombay has been one of gradual growth founded on the equity which a purchaser for value has to be allowed to stand in his vendor's shoes and to work out his rights by means of a partition. 20. In paragraphs 331 to 334 of Mayne's Hindu Law the learned writer gives the history of Hindu Law on the alienability of an undivided share by a co-parcener as administered in this Presidency. The decisions passed subsequent to the date of the decision of the Privy Council and reported in Baba v. Timna I. L. R, 7M, 357 and Ponnuswami v. Thatha I. L. R, 9 M, 273, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sights by partition, as he has paid value for his purchase, the purchase-money, except so far as it is applied to payment of debts continues to be co-parcenary property. There are no doubt decisions to the effect that when a co-parcener's share is alienated, the alienor ceases to be a co-parcener quo ad the property so alienated and the co-parcenary is thereby determined pro tanto, inasmuch as the purchaser who is a stranger to the joint family cannot be a coparcener. But they do not establish the proposition that the sale-proceeds, when they are not paid to a creditor in whole or part but retained by the co-parcener, cease likewise to be co-parcenary property. The Subordinate Judge must be requested to come to fresh findings on the contention of the plaintiff and the other co-parceners and 7th, 8th and 9th defendants in regard to the several items of property mentioned in Schedule H including Es. 9,000 and pass a final decree with reference to those findings and the foregoing observations on the law applicable to the case. 22. There are several minor points as to which the Subordinate Judge has come to no finding though it was desirable to do so be-fore passing a provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that there is no evidence in regard to it and we adopt his finding so far as it relates to Plaintiff and we leave it, so for as it relates to 7th defendant, to abide the result of the further enquiry which we have ordered. 26. It only remains for us to notice the preliminary objection taken on behalf of the 8th defendant that the decree passed by the Subordinate Judge is incomplete and that no appeal lies until there is a complete and final decree. We are of opinion that this objection cannot be supported. A decree is defined by-Section 2 of the Code of Civil Procedure, and it implies that an order directing accounts to be taken is separable from the rest of the decree adjudicating on the rights claimed or the defences set up in the suit. A provisional decree is clearly appealable, and the decree before us appears to us to be in the nature of a provisional decree. The decision of the Privy Council reported in I. L. R, 11M, 83 and Section 540 of the Civil Procedure which allows an appeal from part of a decree support that view. A provisional decree is permitted to be passed by Section 215 in a suit for dissolution of partnership, and a partition suit which has for its ob ..... 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