DHANALAKSHMI Vs. S PALANIVELU

JUDGEMENT

(1.) DECREE-holder/court auction purchaser (1st respondent) has been driven from pillar to post for several years by the petitioners, who, at every stage, lost in their litigations upto this Court. First respondent, court auction purchaser, did not have a right in species and necessarily, as ordained in law, he is constrained to file a suit for partition and get preliminary and final decrees, wherein equivalent in species, got allotted to him.

(2.) IN this Civil Revision Petition, Mr. K. Doraisami, learned senior counsel, contended that Art.134 of the Limitation Act would apply and the first respondent ought to have filed the execution petition within one year from the date of final decree. He then argued that even a suit for partition was barred by limitation, for auction was confirmed on 7.8.1979 while the suit was filed on 22.10.1980 after a period of one year. The principle that has to be applied in cases of this nature has been clearly stated by a Division Bench of this Court in Thani Chettiar v. Dakshinamurthy Mudaliar AIR 1955 Madras 288 = 68 L.W. 166 (D.B.). The following observations of Rajamannar, C.J. will be relevant. ?A person, who purchases an undivided share of a coparcener of a joint Hindu family, cannot claim to be put in possession of any definite piece of family property. He does not even acquire any interest in the property sold. He does not become a tenant-in-common with the members of the family. He is not entitled to joint possession with them. He has only an equity to work out his rights by means of a partition standing in his vendor's shoes. The alienee's suit for partition must be one for partition of t he entire property and not for the partition of any specific item of, or interest in, the family properly. Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. A suit by an alienee of an undivided share from a coparcener of a Hindu joint family, will fall under Art. 144 (Art. 65 of the present Limitation Act) so long as property concerned is immovable property. There can be no delivery, either symbolical or actual, in pursuance of the sale of an undivided interest in joint family property. It is not competent to a court on a mere application for execution by a purchaser of such an undivided share to pass an order directing delivery of possession.? The principle laid down in Thani Chettiar's case AIR 1955 Madras 288 = 68 L.W. 166 (D.B.) was approved by the Supreme Court in Manikayala Rao v. Narasimhaswami AIR 1966 S.C. 470 These are the observations of the Supreme Court: