BABU JAYSINGRAO SHELKE Vs. PITAMBER VISHWAMBHER WAEKAD

JUDGEMENT

(1.) Purchaser of an undivided Hindu family property under an alienation is the Appellant before me. The trial Court decreed the suit of non-alienating coparceners and a decree for possession of the whole property was passed in favour of the plaintiffs. The trial Court held that the alienation made by defendant No. 2 is wholly void and directed that the possession of the property be delivered to the plaintiffs. This decree was passed on 29th August, 1974. The purchaser preferred an appeal before the District Court and the learned Assistant Judge, Latur has modified the decree defining the share of non-alienating coparceners and giving the rest of share to the purchaser and directed partition to be made by the Collector. This decree was passed by the learned Assistant Judge on 2nd February, 1976.

(2.) Being aggrieved by this decision, the purchaser has come in second Appeal before this Court. When the appeal came up for hearing the learned Advocate for the appellant-original purchaser submitted before me that he should be allowed to file a general suit and pending the filing of the suit within the stipulated time the execution of this decree should be stayed. The learned Advocate invited by attention to the observations in Hindu Law by Mulla, l5th Edition, at page 349. I am not quoting those observations. The sum and substance of the observations is that the decree for partition cannot be passed in such case when the purchaser is in possession of the whole property under alienation. The decree for the whole property should be passed and a direction should be added in the decree that the purchaser should file a general suit for partition and pending the filing of the said, execution for delivery of possession should be stayed.

(3.) The short question for determination in this second Appeal is that what is the nature of the decree passed in a suit where the non-alienating coparceners are entitled to obtain a share in the property.