GANPATRAO Vs. KANHYALAL

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the vendee of a coparcener for general partition of the coparcener's estate and possession, after partition, of the property sold to him. The principal defendants are three brothers, Kanhyalal, Radhakisan and Kisanlal, who at the time of sale formed and still form a joint family. In December 1919 Kanhyalal and Radhakisan executed a sale deed in favour of the plaintiff in respect of malik makbuza field No. 138, area 21.20 acres, assessed at Rs. 41, of mouza Masod in the Katol Tahsil, for Rs. 5,000. In the sale deed there was a stipulation to the effect that if the minor brother of the vendors, Kisanlal, should get back the field by bringing a suit for it, the vendors, that is to say, Kanhyalal and Radhakisan would compensate the vendee proportionately to Kisanlal's share with interest and expenses. In 1926 Kisanlal did bring a suit and eventually in 1929 obtained a decree from the appellate Court for possession of the entire field, and the plaintiff was referred to a suit for general partition which he brought.

(2.) THE main contention in the present suit was that a direction should be given that in the partition the whole of the field should be allotted by Kanhyalal and Radhakisan and that it be declared that the plaintiff was entitled to possession of the whole field. The defendant denied the plaintiff's right to any of the reliefs claimed and contended that there was stipulation at the time of the sale that, in the event of the recovery of the field by Kanhyalal, the plaintiff's entire right in the field was to be given up in return for monetary compensation which the vendors offered to pay. The learned Judge of the lower Court found that, although the only way in which the plaintiff could enforce his claim against the defendants was by a suit for general partition, the equities of the case and the specific covenant in the sale deed warranted him in refusing a decree for general partition. He directed partition of the field in suit and decreed the plaintiff's claim for a two-third share of that field and compensation in respect of the purchase price paid for the one-third share of defendant 3 amounting to. Rs. 1,656-10-6 with interest from the date of the suit until realization. No interest from the time of the sale was allowed nor anything by way of compensation for improvements which were found to have been made to the field at a cost of Rs. 6,000, as the Judge held that some of the improvements were unnecessary and that in any case the profit derived by the plaintiff during his wrongful possession of the one-third share in the field was sufficient to cancel the interest and expenditure allowed for in the specific covenant of the sale deed. It is against this decree that the plaintiff now appeals and asks for a decree as in the plaint.

(3.) THE principle that in a suit for general partition the Court, in making the partition, should endeavour to give effect to the alienation, and so to marshall the family property amongst the coparceners as to allot that portion of the family estate, or so much thereof as may be just, to the purchaser, originally formulated in Udaram Sitaram v. Ranu Panduji (1874) 11 Bom HCR 76 and followed in Ishrappa v. Krishna AIR 1922 Bom 413 and Dhulabhai Dabhai v. Lala Dhula AIR 1922 Bom 137 has been cited with approval by Ismay, J.C., in Abdul Aziz v. Ajudhia (1902) 15 CPLR 156, and by Baker, J.C., in Narayan v. Mt. Dhudabai AIR 1925 Nag 299. We cannot see how any injustice can be done to the coparceners in following this principle. The lower Court has quoted a dictum of Macnair, J.C., in Kamtaprasad v. Madhaorao AIR 1929 Nag 60 to the effect that the fact of the purchaser having remained in possession for many years under a voidable title is not a strong reason for inflicting inconvenience to the coparcener in order to avoid possible hardship to the purchaser. That remark was made not in connexion with the marshalling of property in a partition but in connexion with the retention of the property with the alienee pending a suit for partition. In the case before us a decree for possession in favour of Kisanlal against the vendee has already been passed.