BHAU Vs. BUDHA MANAKU DHAR

JUDGEMENT

(1.) The following principles seem to me to have been laid down, so far as this Presidency is concerned: (1) A stranger-purchaser of the undivided share of a co-parcener in a joint Hindu family, if out of possession, should not be given joint possession with the other coparceners, but should be left to his remedy of a suit for partition: Balaji Anant Rajddiksha V/s. Ganeh Janardan Kamati 5 B. 499 at p. 504 : 3 Ind. Dec. (N.S.) 330, Pandu Vithoji Ladke V/s. Goma Ramji Marwadi 50 Ind. Cas. 765 : 43 B. 472 : 21 Bom. L.R. 213, Ishrappa Ganap Hegde V/s. Krishna Putta Shankar Hegde 67 Ind. Cas. 833 : 46 B. 925 : 24 Bom. L.R. 428 : A.I.R. 1922 Bom. 413. (2) On the other hand, a co-parcener, who has been excluded, may obtain joint possession with such a purchaser, who has obtained possession of the joint family property: Bhiku V/s. Puttu 8 Bom. L.R. 99 and the prior rulings there cited. (3) The purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener, but can be declared to be entitled to hold (pending a partition) as a tenant-in- common with the other co-parceners: Babaji Lakshman V/s. Vasudev Vinayak 1 B. 95 : 10 Mad. Jur. 344 : 11 Mad. Jur. 344 : 1 Ind. Dec. (N.S.) 63, Kallapa V/s. Vinkatesh Vinayak 2 B. 676 : 1 Ind. Dec. (N.S.) 873, Dugappa Sheti V/s. Venkataramaya 5 B. 493 : 3 Ind. Dec. (N.S.) 325; cf. Balaji Anant Rajadiksha V/s. Ganssh Janardan Kamati 5 B. 499 at p. 504 : 3 Ind. Dec. (N.S.) 330.

(2.) The question is whether Rule (3) has been overruled by the Privy Council decisions in Deendyal Lal V/s. Jugdeep Narain Singh 3 C. 198 : 4 I.A. 247 : 1 C.L.R. 49 : 3 Sar. P.C.J. 730 : 3 Suth. P.C.J. 468 : 1 Ind. Jur. 604 : Ind. Dec. (N.S.) 715 (P.C.), and Hardi Narain Sahu V/s. Puder Perkash Misser 10 C. 626 : 11 I.A. 26 : 8 Ind. Jur. 211 : 4 Sar. P.C.J. 510 : 5 Ind. Dec. (N.S.) 420 (P.C.). In Pandu Vithaji Ladke V/s. Goma Ramji Marwadi 50 Ind. Cas. 765 : 43 B. 472 : 21 Bom. L.R. 213, the point did not really arise, because the purchaser was there suing for possession, so that the case fell under Rule (1). But Heaton, J., in his judgment refers to these two Privy Council cases, and says he does not think that "any stranger should ever be placed in joint possession of jointHindu family property" (page 475 Page of 43 B.--[Ed.]), so that it may be taken he disapproved of Rule (3). Similarly, in Naro Gopal Kulkarni V/s. Paragowda Basagowda 39 Ind. Cas. 23 : 41 B. 347 at p. 356 : 19 Bom. L.R. 69 he held that a purchaser in possession had only acquired a right to partition, not a right to possession prior to partition. In Hammandas Ramdayal V/s. Valabhdas Shankardas 46 Ind. Cas. 133 : 43 B. 17 at p. 27 : 20 Bom. L.R. 472 Kemp, J. says "It has been held by the Privy Council in the cases referred to by my Lord the Chief Justice (viz., the two already mentioned) that where he (an auction-purchaser)...obtains possession, the other co-parceners are entitled to sue to eject him and that all that the auction- purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the co-parcener against whom the decree has been passed." These remarks are also obiter dicta but show that the question of the validity of Rule (3) has been raised in this Court. In Madras it has been definitely held that "The Privy Council has decided that the alienee in possession is liable to be ejected at the instance of the co-parceners who are not bound by the alienation": Maharaja of Bobbili V/s. Venkataramanjulu Naidu 25 Ind. Cas. 585 : 39 M. 265 at p. 269 : 16 M.L.T. 181 : 27 M.L.J. 409.

(3.) I have carefully considered the two Privy Council cases in question, as also the similar case of Suraj Bunsi Koer V/s. Sheo Persad Singh 5 C. 148 : 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L.R. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 705 (P.C.). They are all cases of Court-sales of a co-parcener's share in Bengal, where the law as to the right of a co-parcenar to alienate his undivided share is different from that in Bombay and Madras, as pointed out in Suraj Bunsi Koer V/s. Sheo Perzad Singh 5 C. 148 : 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L.R. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 705 (P.C.), pages 166 Page of 5 C.--[Ed.] and 167 Page of 5 C.--[Ed.]. In Bengal one co-parcener has not authority, without the consent of his co-sharers, to mortgage or sell his undivided share in a portion of the joint family estate, in order to raise money on his own account, and not for the benefit of the family. In such a case the principle applicable to the seizure and sale of a share in a trading partnership at the suit of a separate creditor of one of the partners, viz., "that the partner could not himself have sold his share so as to introduce a stranger into the firm without the consent of his co-partners, but the purchaser at the execution-sale acquires the interest sold, with the right to have the partnership accounts taken in order to ascertain and realize its value", which their Lordships in Deendyal Lal's case 3 C. 198 : 4 I.A. 247 : 1 C.L.R. 49 : 3 Sar. P.C.J. 730 : 3 Suth. P.C.J. 468 : 1 Ind. Jur. 604 : Ind. Dec. (N.S.) 715 (P.C.), (at page 209 Page of 3 C.--Ed.) held " ought to be applied to shares in a joint and undivided Hindu estate", was one which obviously could properly be applied. But does it follow that it applies equally to the case of a co-parcener in Bombay, who can alienate his undivided share without the consent of his co parceners? In such a case the analogy of a partnership-firm, where one partner cannot introduce a stranger into the firm without the consent, of his co- parceners, does not operate, at any rate, to anything like the same extent, Accordingly, I venture to doubt whether [if the question directly arose with reference to the decision on which Rule (3) is based] the Privy Council would apply the principle with the same strictness to Bombay. Again in Deendyal Lal's case 3 C. 198 : 4 I.A. 247 : 1 C.L.R. 49 : 3 Sar. P.C.J. 730 : 3 Suth. P.C.J. 468 : 1 Ind. Jur. 604 : Ind. Dec. (N.S.) 715 (P.C.) their Lordships only decided that, on the above principle, they " ought not to interfere with" a decree giving the excluded co- parcener possession of the whole property; and it may legitimately be doubted whether, if the decree had been one leaving the purchaser in possession of a half- share, they would have interfered, apart from the doubt whether the plaintiffs mother was entitled to a, share. It should be noted that in Suraj Bunsi's case 5 C. 148 : 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L.R. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 705 (P.C.) (at pages 167-169 Page of 5 C.--[Ed.] ) their Lordship;; re furred with approval to Sir Michael Westropp's judgment in Udaram Sitaram V/s. Ranu Panduji 11 B.H.C.R. 76, showing inter alia how she remedy against an undivided share is to be worked out by the holder of a decree in the debtor's life-time and this covers the observation of Sir Michael Westropp J. page 83 Page of 11 Bom. H.C.R.--[Ed.] that the sale should be conducted on the same principle as the attachment, unless by arrangement with the co-parcenors, which would often be advantageous to everybody concerned, the sale were confined to a particular portion of the family estate." A stranger-purchaser might get possession with the consent of the then co-parceners: surely the Privy Council would not say that, on the suit of a co-parcener, subsequenlty born, the purchaser should be, ejected, and merely be given a declaration of his right to obtain a partition. Equitable considerations may come into play against ejecting him ; and it must be remembered that he is not in "unlawful possession" and so liable to pay mesne profits, cf. Bhirgee Nath Chaube V/s. Nardingh Tevjari 35 Ind. Caa. 475 : 39 A. 61 : 14 A.L.J. 1161, Banwari Lal V/s. Mahesh 49 Ind. Cas. 510 : 41 A. 63 at p. 68 : 21 O.C. 328 : 23 C.W.N. 577 : 6 C.L.J. 168 : (1919) M.W.N. 490 : 45 I.A. 284 (P.C.), Gangabisan Jeevanram Marwadi V/s. Vellubhdas Shankarlal 87 Ind. Cas. 703 : 48 B. 428 : 26 Bom. L.R. 464 : A.I.R. 1924 Bom. 433. The Privy Council decision does not, in my opinion, amount to saying that in no case can the Court properly allow a stranger-purchaser to remain in possession, nor to an implied overruling of the view taken in Balaji Anant Rajadiksha V/s. Ganesh Janardan Kamati 5 B. 499 at p. 504 : 3 Ind. Dec. (N.S.) 330 that Rule (3) can be given effect-to by this Court and those subordinate to it though it is "as far as it can go with prudence." There are no decisions [as opposed to obiter diets in which Balaji's case 5 B. 499 at p. 504 : 3 Ind. Dec. (N.S.) 330 is not considered] binding us to take the contrary view, and I do not, therefore, think it necessary to refer the question to a Full Bench. The principle of the Privy Council decision should be given effect to in proper cases; but, in the view we take, it is not necessarily applicable to all cases and the Court has a discretion to allow the alienee to have joint possession with the plaintiff-co- parcener. Bach case (as to the propriety or otherwise of allowing the purchaser to retain possession) should, I think, be decided on its own facts, just as the Court in Karanbhai V/s. Ranchhod 26 B. 141 at p. 145 : 3 Bom. L.R. 568 left it to be decided "on the merits" whether the plaintiff-coparcener in that case should be decreed joint possession under Rule (2). In the present case, I agree with my learned colleague, that there are no sufficient grounds for evicting the defendant No. 5, who is a bhauband and has been in long possession, supported by a Civil Court decree against some of the co-parceners.