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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 ..... 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 by his uncle Ammal Iyengar. 6. This was the first issue recorded in the Court below; and the finding of the sub-judge is in the affirmative--see Paragraph 32 of his judgment in which he expresses his finding to the above effect after discussing the evidence at length in paragraphs 14 to 31. We do not think it necessary to do more than notice the documents which afford unambiguous evidence of the adoption. These are Exhibits L. Series, O. Series, A and 14, C and E. 7. Prom exhibits L, L1, L2, L3 and L6, it is seen that the adoption of Varadayyangar by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oiety 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 Srinivasan and Defendants 2-3 and 4 are the sons of 1st Defendant. 11. The eldest son Dorasami had no issue. The case of Defendants 1 to 4 is that Dorasami adopted 1st Defendant's younger brother Sindu, and that this latter adopted 3rd Defendant. If such be the fact, Kistna Iyengar's moiety of the property is divisible into three shares, one of which belongs to 3rd Defendant, another to Defendants 1, 2, and 4 and the third to 5th Defendant. 5th Defendant however denies the alleged adoption (1) of Sindu by Dorasami and (2) of third Defendant by Sindu, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded 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 the receipts XXXII series (which are admitted by him as a witness examined on commission) and the remaining ₹ 21,000 were to be paid to 8th defendant, the father of 7th defendant, for the purpose of liquidating other debts of the executant of LVIII. The evidence on the point is stated in paragraph 40 of the Sub-Judge's judgment. There is no reason for holding that this sale to 6th defendant was not for valuable consideration or that 6th defendant purchased benamee for the plaintiff. According to the Law administered in this presidency, a sale by a coparcener of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 intercession and of debts which he was requested to liquidate. The 8th defendant stated also that the 6th defendant executed a promissory note in his favour for ₹ 21,150 at the date of the sale to him, and that he obtained a decree upon the promissory note against the purchaser and recovered from him after decree ₹ 7,410. He alleged further that the plaintiff's case that ₹ 9,000 remained with him as unexpended balance of the sale, amount viz., ₹ 40,000 was false. 17. These contentions formed the subject of the 9th, 10th, and 16th issues and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, show that a coparcener is not at liberty to alienate his undivided interest by gift, except when he is expressly authorized to do so by a text of Hindu Law, because the equity which exists in favour of a purchaser for value does not arise in favour of a donee who is a mere volunteer. In the former case the question was fully discussed by a Full Bench of this Court and the conclusion arrived at is that a co-parcener has no power to alienate his undivided interest by gift, unless such gift is sanctioned by an express text of Hindu Law. As regards devises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 provisional decree. 23. It is first urged that the Subordinate Judge has recorded no finding on issues 21 to 24. As to issues 23 and 24 the Sub-Judge has expressed, as his opinion, in paragraph 40 of his judgment that the sale to the 6th defendant was not benami for the plaintiff as alleged by him and in this opinion we concur. The question of fraud suggested by the 23rd issue must also be negatived, for we are referred to no evidence in its support, while it is clear that the 6th defendant paid full value for his purchase. No distinct findings are however record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 object the determination of the co-parcenary is similar to it. The decree before us is however somewhat defective in form. A provisional decree ought to declare the several rights and liabilities which have been adjudicated on and embody an order similar to the one contemplated by Section 215 and Section 215 A. The decree passed by the Subordinate Judge will be so amended as to declare all the rights and liabilities which have already been adjudicated on and contain directions as to what remains to be done viz., that an account be taken in respect of the matters ..... X X X X Extracts X X X X X X X X Extracts X X X X
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