JAGDISH PANDEY Vs. RAMESHWAR CHAUBEY

JUDGEMENT

(1.) In the suit which is the subject-matter of this appeal the plaintiff alleged that the properties in dispute originally belonged to Janmerjai Pathak and that his widow Musammat Bhagwano Kuer and his daughter Monturna Kuer surrendered the properties to defendants 6 and 7 by a registered document dated 16-11-1930. It was also alleged in the plaint that defendants 6 and 7 were in separate possession of the property, and they were also separate in status. In Rent Execution Case No. 300 of 1935 the holding was sold and purchased, by defendant No, 8, who in turn sold it in favour of defendants 1 to 4. The case of the plaintiff was that this sale in cent execution was not in the character of a rent sale, that the decree was a money decree, and the share of defendant No. 7 did not pass to defendants 1 to 4 in that sale. The case of the plaintiff was that on 31-7-1946, he purchased half the share of the disputed properties from defendant No. 7. The plaintiff therefore-claimed that he had title to half shave of plot No. 61 of khata No. 17 and that he should be granted possession. The suit was contested by defendant No. 1, and his case was that the rent suit was properly framed and in the sale in execution of the rent decree the entire holding passed to defendant No. 8, and defendants 1 to 4 were entitled to the entire sixteen annas share of plot No. 61 of khata No. 17. It was contended, therefore, that the plaintiff had no title to half share of the disputed plot, and the suit should be dismissed. Upon these rival contentions the lower appellate Court has found, in the first place, that the sale in execution case No. 300 of 1935 was only a sale in execution of a money decree and only the undivided interest of defendant No. 6 in the disputed plot was sold in the execution case. The lower appellate Court has also disbelieved the case of the plaintiff that defendants 6 and 7 were separate. The finding of the lower appellate Court on the point is that defendants 6 and 7 belonged to a joint family and they continued to be joint at least till 31-7-1946, when plaintiff purchased the ha'lf share of the dis-puted plot from defendant No. 7. Upon this finding the lower appellate Court has given a decree to the plaintiff declaring that he was entitled to a half share of plot No. 61 of khata No. 17 and that he should be given joint possession to the extent of this share along with defendants 1 to 4.

(2.) In support of this appeal it was contended on behalf of defendants 1 to 4 that upon the findings of the lower appellate Court the plaintiff was not entitled to a decree for joint possession of eight annas share along with defendants 1 to 4. It was pointed out, in the first place, that an alienation by a coparcener does not put an end to the coparcenary and whether he alienaies the whole or part of his interest in the family property he will continue to be an undivided member with rights of survivorship between himself and the others in respect of the family property. It was also argued that if the transfer is of an undivided interest of a joint family property the alienee does not acquire any interest in the property so as to become a tenant in common with the members of the family entitled to possession. He acquires only an equity to stand in his vendor's shoes and to work out his rights by means of a partition : This view was expresssed by the Madras High Court in Nanjaya Mudali v. Shanmuga Mudali, ILR 38 Mad 684 : (AIR 1914 Mad 440 (2)), where it was pointed out by Sankaran Nair, J. that when a coparcener alienates his share in certain specific family property the alienee does not acquire any interest in that property but only an equity to enforce his rights in a suit for partition and to have the property alienated set apart for the alienor's share if possible. Such an alienee has no right to possession and no status of a tenant in common. It was pointed out by Bakewell, J. in the same case that a transferee only acquires an equity and it is only a right in personam and not a right in rem and the the transferor remains a member of the coparcenary until partition is effected. At page 692 (of ILR Mad) : (at p. 444 of AIR) the learned Judge states as follows :

(3.) It was, however, submitted on behalf of the respondent plaintiff that this suit should be con verted into a suit for partition of his eight annas share and relief should be given to him by granting a partition decree. We do not think that, in, view of the pleadings of the parties in this case it is now possible to allow the prayer of the plaintiffs-respon dent to amend the plaint and have the whole suit retried from the beginning. It was observed by the Madras High Court in Subba Goudan v. Krishna- machari. ILR 45 Mad 449 at p. 464 : (AIR 1922) Mad 112 at p. 118) as follows :