VASUDEO DAGADULAL Vs. KANKOOCHAND HIRACHAND VISASHRIMALI

JUDGEMENT

(1.) THIS second appeal raises an important question with regard to the auction purchaser's rights in respect of the undivided interest of a coparcener in specific property belonging to a coparcenery,

(2.) THE plaintiff, the auction-purchaser, filed the suit against the five defendants who were the members of the coparcenary and defendant. 6 who was their mother, for a partition by metes and bounds of the moveable and immoveable properties of the defendants, for the ascertainment and separation of the one-fifth share of his judgment-debtor, defendant 8, in the moveable and immoveable properties of the family and for allotment to the share of defendant 3 of the property in suit which he had purchased at the auction sale and for a declaration in accordance with the partition that he had the right to maintain possession of the property in his capacity as absolute owner thereof, for costs and further and other reliefs Defendants 1 to 5 filed their written statement in which they; contended inter alia that the plaintiff was not entitled to the relief which be claimed in regard to the property in suit, that defendant 3 had only a one seventh undivided share in the joint family properties of the defendants and that the suit was not maintainable unless the liability of defendant 3 in respect of the joint family debts of the defendants was taken into consideration at the time of partition,

(3.) THE trial Court dismissed the plaintiff's suit with costs. The plaintiff filed as appeal in the District Court of West Khandesh at Dhulia the appellants being the heirs and legal representatives of the original plaintiff, who bad by then died, and the respondents being the hairs and legal representatives of the original defendant 1 the heirs and legal representatives of the original defendant 2 who had died pending the disposal of the suit, defendants 3 to 5 the brothers, and defendant 6 the mother. The lower appellate Court allowed the appeal and declared that the plaintiff was entitled to remain the suit property as part of the share of defendant 3 in the family properties and awarded to the plaintiff the costs in both the Courts from the respondents. This second appeal has been filed by the legal representatives of the original defendants 1 and 2 and the original defendants 4, 5 and 6 from that judgment of the lower appellate Court. Defendant 3 did not join as an appellant but was joined in this appeal as respondent 3 respondents 1 and 2 being the heirs and legal representatives of the original plaintiff who had been the appellants in the lower appellate Court.