MUKTINATH MISHRA Vs. KAPILDEO PRASAD

JUDGEMENT

(1.) This appeal has been admitted to hearing on two questions-(1) Whether stranger purchaser can institute a suit for partition with respect to the said property alone as against stranger purchaser, purchasing from another co-sharer the very said property, by impleading the two vendors only in the said suit ? and (2) whether the plaintiff purchaser having purchased a specified property, in order to sue for partition of the said property qua the other purcha- ser of a part of the said property, is required to sue for partition by bringing in all the properties of the family of the co-sharer vendor, impieading all the other co-sharers of the family as party to the suit, even though the relief claimed is confined to the vended property only ? In answering the said two questions, some of the facts in is issue are necessary.

(2.) It is not disputed that the properties in dispute belonging to the family of one Deoki Prasad, the common ancestor. The plaintiff-appellant purchased I Bigha, 10 Kathas and 3 Dhoors of the land being 3/4th share of 2 Bighas 4 dhoors on 4-9-1967 from defendants 1, 2, 3, and 6. Defendants 9 to 11on 12-1-1967 purchased 2 Bighas 8 Kathas 3 dhoors from defendants 7 and 8. The purchase by the plaintiff is with respect to a portion of the purchase by the defendants 9 to 11. According to the plaintiff, his vendors are entitled to 3/4th share in the joint estate and excluding a previous sale are entitled to 2 Bighas 4 dhoors of land described in schedule 3 of the plaint. They have vended their share as there has already been a separation and thus severence of the coparcenery, but there has been no partition metes and bounds. According to defendants 9 to 11 there had been a mutual partition, in which defendants 7 and 8 were allotted the said 2 Bighas 8 Kathas 13 dhoors which is transferred in their favour. Although the trial court entered into all the controversies between the parties and decreed the plaintiff's suit, the Court of appeal below has rejected the plaint holding that the suit is not maintainable for partial partition.

(3.) The Courts in India have always recognised the general rule that a property held in common by two or more co-owners, cannot be partitioned in fragments. A property may be held in common by two or more persons, either as joint tenants or tenants in common. To Hindu Jaw in the case of the joint property of an Undivided Hindu Family governed by the Mitakshara law, in which inheritance by survivorship is recognised as the rule, a purchaser is an alienee. He has got only an equitable right to partition unlike the right of a person who has a legal right to claim partition.