NIHALU Vs. CHANDAR

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters patent raises the question whether the purchaser of a co-owner's share in a specific part of the common property has a right to insist that the suit for partition should include the whole of the common property and not only the specific portion of the common property sold to him.

(2.) ONE Mam Chand died some time ago leaving behind him three sons and three houses, and each of the three sons came to own one-third share in each of the three properties. Dipan who was in possession of one of these houses represented to Nihalu and Chandi defendants that this property had fallen to his share as the result of a mutual partition and that he was full owner of the said property and acting upon this representation the defendants agreed to take his property by way of exchange for another. Shortly after they had been put in possession of this house Daryao Singh a brother of Dipan, and Chandar and others, nephews of Dipan, brought a suit against the defendants for joint possession of the house in question and obtained a decree for possession of two-thirds share along with the defendants who were allowed to retain possession of the remaining one-third shave.

(3.) ON 12-11-1954, the plaintiffs brought a suit for possession by partition of the. house which had been transferred by Dipan to the defendants. The trial Court granted a preliminary decree for possession by partition, but the learned District judge set aside this decree on the ground that the suit had been brought only for the partition of one house and not for the partition of all the three houses belonging to the joint Hindu family or in other words that a suit for partial partition was not competent.