BHAU LAXMAN DHOR Vs. BUDHA MANKU DHOR

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 coparcener in a joint Hindu family, if out of pofsession, should not be given joint possession with the other co- parceners but should be left to his remedy of a suit for partition : Balaji Anant V/s. Ganesh Janardan [1881] 5 Bom. 499; Pandu Vithoji V/s. Goma Ramji [1918] 43 Bom. 472 and Ishrappa V/s. Krishna A.I.R. 1922 Bom. 413. (2) On the other hand, a coparcener, 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 [1905] 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 coparceners : Babaji Lakshman V/s. Vasudev Vinayak [1876] 1 Bom. 95; Kallapa bin Girmallapa V/s. Venkatesh Vinayak [1878] 2 Bom. 676 and Dugappa Shetti V/s. Venkatramnaya [1880] 5 Bom. 493; cf Balaji Anant V/s. Ganesh Janardan [1881] 5 Bom. 499.

(2.) The question is, whether Rule (3) has been overruled by the Privy Council decisions in Deendyal Lal V/s. Jugdeep Narain Singh [1877] 3 Cal. 198 and Hardi Narain Sahu V/s. Ruder Perkash Misser [1883] 10 Cal. 626. In Pandu Vithoji V/s. Goma Ramji [1918] 5 Bom. 499, 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 joint Hindu family property (p. 475), so that it may be taken he disapproved of Rule (3). Similarly, in Naro Gopal V/s. Paragauda [1916] 41 Bom. 347 he held that a purchaser in possession had only acquired a right to partition not a right to possession prior to partition. In Hanmandas Ramdayal V/s. Valabhdas [1918] 43 Bom. 17 Kemp, J. says(p.27) 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 coparceners 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 coparcener against whom the decree has been passed.

(3.) 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 instanee of the coparceners who are not bound by the alienation: