1. These four appeals can be disposed of by common judgment as they raise a common question of law. That question is regarding the interest of the purchaser from a widow in the joint Hindu family.
2. The property sold in the four appeals together with certain other lands, house property, moveables etc. belonged to one Deoobhau who died in the year 1954. He left behind two widows, one Malubai and the other Deokabai. Deoobhau had two sons by his wife Malubai named Dhananjaya and Zankarsingh who are appellants 1 and 2 in each of the appeals. Malubai, their mother is the third appellant. Deokabai had four daughters through Deoobhau by name Gangabai, Tulsabai, Jaiwantibai and Jamnabai who are party defendants as her heirs. The suit with which we are concerned in Second Appeal No. 434 of 1965 was brought by purchaser Gajrabai. The other suits were by the other three purchasers from Deokabai. Deokabai died on 11-7-1961. Prior to that but after the commencement of the Hindu Succession Act she had alienated different properties in favour of the respondents other than her heirs in the four appeals before us.
3. During the lifetime of Deokabai, Dhananjaya, Zankarsingh and Malubai had filed Civil Suit No. 17A of 1958 against Deokabai, purchasers Rameshwar-das Kanhaiyalal, Dadu Tukaram, Saji Motiram, Pito Lalji as also Gajrabai for possession of the property transferred by Deokabai. In that suit a compromise was arrived at between the parties on 5th of January 1960. According to the terms of the compromise, the plaintiffs in that suit, namely, minors Dhananjaya, Zankarsingh and Malubai were declared entitled to a decree for possession as claimed. However, the execution of such a decree was postponed for a period of 4 months, during which time the defendants excluding the third defendant who under the compromise decree was declared to have no interest were under the obligation to file a suit for general parti-lion and the execution of the decree in favour of the plaintiffs in their suit was to remain postponed as long as the suit for general partition was pending. In case of default of bringing a suit for general partition within four months, the plaintiffs could execute the decree for possession of the suit property. There was also a declaration that the purchasers defendants Nos. 2 and 4 to 6 in that suit were each owners of the respective undivided share purchased by them from Deokabai and they were at liberty to get their ownership rights ascertained by appropriate action. These purchasers also bound themselves for not transferring or alienating the properties purchased by them; they were to maintain the status quo. Accordingly Gajrabai wife of Hagaruji Kalar and the three purchasers Rameshwardas. Mst. Saji and Pitto son of Lalji filed suit? for general partition which came to be heard together.
4. Dhananjaya, Zankarsingh and Malubai were the first three defendants. On their behalf various contentions were raised opposing the relief claimed by the plaintiffs in each of the suits. Pending the suit Deokabai died and thereafter a contention was raised by amending the written statement that the interest of the deceased Deokabai had passed to Dhananjaya, Zankarsingh and Malubai by survivorship under Section 151 of the Madhya Pradesh Land Revenue Code.
As such the question of partitioning the property did not arise and that was on the basis that Deokabai could only transfer her life interest. The trial Court negatived this contention. The trial Court determined the share. However, it was not considered equitable to make an order for general partition and hence only a declaration in favour of the different plaintiffs maintaining their possession was granted.
5. Aggrieved heirs of Deokabai, Dhananjaya, Zankarsingh and Malubai filed appeals against that order. The Assistant Judge, Bhandara who tried these appeals confirmed the order passed by the lower Court by common judgment delivered on 5th of April 1965. Questions agitated related to the law of succession to be applied and the interest of Deokabai in the property, so that whether she had or had not become the absolute owner of the suit property since 17th of June 1956, the date on which the Hindu Succession Act, 1956 came into operation. It was contended that Deokabai, in the circumstances, remained a limited owner and as such, after her lifetime her vendees could not remain in possession.
6. A perusal of the judgment of the learned Assistant Judge shows that the contention that Deokabai had a limited interest was negatived on the interpretation of the various provisions of law. The learned Judge also felt that the plaintiffs who were appellants before him were bound by the consent decree which was the contract between the parties solemnly as entered into. While deciding Civil Suit No. 17A of 1958 the parties had legislated for themselves and under the compromise the vendees had become full owners. The learned Judge also held that the plaintiffs were estopped from saying that full interest did not pass to the purchasers.
7. Mr. Bobde appearing for the appellants Dhananjaya, Zankarsingh and Malubai, heirs of Deokabai, has toed the same line as in the lower appellate Court. He maintains that although under Section 14 of the Hindu Succession Act, 1956, the property of a female Hindu acquired before or after the commencement of the Act becomes her absolute property, the alienations made by Deokabai were in respect of agricultural lands and on the interpretation of Section 4(2) of the Hindu Succession Act, 1956 that Act did not apply to agricultural holdings. According to him, the matter was governed by Section 151 of the Madhya Pradesh Land Revenue Code, so that the interest on death of Deokabai would pass by inheritance, survivorship or bequest as the case may be but subject to the personal law. He contended that after the year 1951 proprietary rights in agricultural lands almost in any form came to be abolished and on the background of such abolition the word “tenure holder” appearing in Section 151 of the M. P. Land Revenue Code ought not to be given the restricted meaning, but ought to cover any type of tenancy inclusive of the holding by an individual from the State. By way of a further limb of his argument, he contends that where the Hindu Succession Act, 1956 does not apply, the personal law applicable to Deokabai would be the law other than the Hindu Succession Act, namely, the principles of Hindu Law, under which normally she would have inherited only the life estate and as such after her death the interest would devolve upon the heirs of the original owner.
8. As against this Mr. Masodkar for the respondent No. 1 has contended that by reason of Section 14 of the Hindu Succession Act, Deokabai became full owner. The sale deeds were passed after the Act was applicable. Section 4(2) of the Hindu Succession Act refers to the application of laws for the time being in force providing for the devolution of tenancy rights. As such on a reference to Section 151 of the Code, the personal law inclusive of the full effect of Section 14 would apply and hence on the date of the transfer, Deokabai was the full owner so that she could pass full title to the purchasers.
9. Alternatively he relied upon the terms of the compromise which according to him show the acceptance by the present appellants of the full interest remaining in the transferor Deokabai as well as the acceptance of the position that full interest passed on to the purchasers and hence according to him, the appeals ought to fail. As a branch of the same argument, he also stated that on the background of the compromise the case would fall under Section 14(1) of the Hindu Succession Act wherein Deokabai would be getting the full title to the property of which she could not be looked upon as a limited owner and hence the purchasers would be the full owners. 10. Section 4 of the Hindu Succession Act, 1956 deals with the overriding effect of the Act. Sub-section (1) provides for such overriding effect in spite of any text, rule or interpretation of Hindu Law Or any custom or usage as part of that law in force immediately before the commencement of this Act, namely, Hindu Succession Act, 1956. Sub-section (2), on which long discussion proceeded runs as follows :
“For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings.”
This Sub-section comes in the section which is providing an overriding effect of the Act and as the opening words show, it has been enacted “For the removal of doubts.” It apparently envisages “provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”
10. Section 151 of the Madhya Pra-desh Land Revenue Code, 1954 runs as follows :
“Subject to his personal law, the interest of a tenure-holder shall on his death pass by inheritance, survivorship or bequest, as the case may be.”
The’ question for consideration therefore arises whether this section embodies the law providing for devolution of tenancy rights in respect of agricultural holdings.
11. A reference must be made to the Division Bench Ruling reported in Smt Indubai v. Vyankati , where similar questions came for consideration. As per the facts of that case, the property holder Balaji died leaving two song as members of the joint family. One of them died leaving behind two sons who were defendants 1 and 2. The other died in 1941 leaving behind his widow Sarubai and daughter Indubai. That daughter was married. Sarubai had filed a suit for partition. She appears to have also executed a will in favour of her daughter. After her death her daughter Indubai claimed alternatively under the will as well as by reason of Section 15 of the Hindu Succession Act, 1956 looking upon Sarubai as having become the full owner of the suit property. Negativing the question of adverse possession by the other heirs on the interpretation of Section 4(2) of the Hindu Succession Act and the application of the M. P. Land Revenue Code, 1954, Section 151, the observations contained in placitum (c) are as follows : (At pp. 68 and 69 of AIR)
“In order that the exception created by Section 4(2) of the Hindu Succession Act, 1956 can apply, the legislation must provide for devolution of tenancies. The M. P. Land Revenue Act is not, however, a tenancy Legislation and consequently exception made in Section 4(2) cannot apply to it.
Section 151 of the M. P. Land Revenue Act merely defines the classes of tenures, their liabilities and privileges. The section prescribes the conditions under which a tenure holder occupies the land. It is clear from the section that the rights of the tenure holders are permanent and heritaable. However, no particular law of devolution in respect of tenancies is laid down in the section. The holdings of tenure holders are not tenancies. However, while Section 151 of M. P. Land Revenue Act provides that the holdings of tenure holders are heritable as per their personal law, there are no words in it to mean the personal law on a particular date. The normal rule of construction is that the language of a statute is generally extended to new things which are not known and could have been contemplated by the legislation when it was passed. The personal law contemplated by the section therefore only means the law as applicable to the tenure holder when the succession opened. It does mean the law prevailing at the time that the L. R. Act was enforced. Consequently, the question of Section 4(2) of the Hindu Succession Act saving the rights of survivors does not arise in such a case. There is no need to interpret the words “any law for the time being in force” in Section 14(2) of the Hindu Succession Act to mean “any law which -came into force” once it is held that Section 151 of the M. P. Land Revenue Act merely recognises that the tenure is heritable and will pass according to the law applicable to the tenure holder and it does not prescribe the law regarding devolution of tenancy rights in respect of agricultural holdings amongst the Hindus.”
The first proposition as obtained therein and discussed in more particulars in paragraph 14 of the judgment, shows that for the application of Section 4(2) of the Hindu Succession Act, the Legislation must provide for devolution of tenancies. In other words, the section is read as showing exception depending upon the existence of the local laws providing for devolution of tenancy rights.
12. The second proposition obtainable from the Division Bench ruling is that the M. P. Land Revenue Code, Section 151 in particular, is not a tenancy legislation. Mr. Bobde for the appellants is taking an exception to both these propositions. Deciding the matter as a Single Judge in normal circumstances the Division Bench ruling would be binding upon me. It is, however, necessary to appreciate the points made out by Mr. Bobde. Incidentally it may be noted that in an earlier ruling Sitabai v. Kothulal. (1958 Nag LJ 319) the Single Judge of this Court has held in similar circumstances that Section 151 of the M. P. Land Revenue Code, 1954 would apply, that being the law providing for the devolution of tenancies. That view stands superseded by Indubai’s case.
13. Initial objection of Mr. Bobde proceeds on the basis that the Central Government could not legislate on the subject of agricultural holdings. In that context, he wants to read in the opening words of Sub-section (2) of Section 4, namely, “For the removal of doubts” an emphasis that the Central Legislature could not intervene to legislate on the subject of agricultural holdings, the same is kept untouched and hence it is indicated that the succession to such lands would be governed by the local laws existing in each of the States. He relies upon the ruling reported in Premadevi v. Joint Director, Consolidation. where the matter was looked into in connection with the tenancy law, namely, U. P. Zamindari Abolition and Land Reforms Act, 1950 and the relevant observations are as follows:– (At p. 240 of AIR)
“In the first place, we are of the opin-ion that the Hindu Succession Act, 1956, cannot be made applicable to agricultural plots. This Act was passed by the Central Legislature in 1956 and the only entry under which the Central Legislature had the jurisdiction to pass the Act, was entry No. 5 in the third list of the Seventh Schedule of the Constitution. This entry is as follows :
"5. Marriage and divorce, infants and minors, adoption, wills, intestacy and succession, joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." This entry obviously relates only to personal law and laws passed under this entry do not apply to any particular property. They merely determine the personal law. In List 2, Entry No. 18 is as follows: "Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents, transfer and alienation of agricultural lands, land improvement and agricultural lands; colonization." The entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures if so provided in the State Law, but it cannot override State Legislation. It is noteworthy that in List 3 wherever the entry relates to rights in land 'agricultural land' has expressly been excluded. For instance, Entry No. 6 is as follows: "Transfer of property other than agricultural land." Entry No. 7 is as follows:-- Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural lands." No such exception was expressly mentioned in Entry No. 5 because this entry related only to matters personal to individuals and did not relate directly to any property. While legislating in respect of such general subject the Legislature must be assumed to pass law only affecting property which it had jurisdiction to legislate about. Gwyer, C. J. while delivering the judgment of the Federal Court in a reference on the Hindu Women's Rights to Property Act, 1937 reported in AIR 1941 FC 72 observed as follows:-- "There is a general presumption that a Legislature does not intend to exceed its jurisdiction. When a Legislature with limited and restricted powers makes use of a word of such wide and general import as "property," the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. ....." The Hindu Succession Act, 1956 was passed merely to alter the personal law of succession applicable to Hindus. It had no reference to any kind of property in particular and was not meant to govern rights in agricultural tenancies. Sub-section (2) of Section 4 of the Act runs as follows:--
“For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.” This Sub-section indicates that it was only for the removal of doubts that this provision, had been included. Even without this provision, the Act could not apply to agricultural holdings.
Under the U. P. Zamindari Abolition and Land Reforms Act which regulated the tenancy rights, there is no provision applying personal law to any of the tenures created under that Act and thus the provisions of the Hindu Succession Act are wholly inapplicable to the land tenures under the U. P. Zamindari Abolition and Land Reforms Act.”
In terms, therefore, it has been said that the Hindu Succession Act could be looked upon as having been passed under Entry No. 5 of the Third List of the Seventh Schedule giving power to regulate the personal law. But under Entry No. 18 of the Second List ‘agricultural holdings’ is exclusively the State subject. The Central Government, therefore, could not legislate on that subject. Hence what has been legislated cannot be made applicable to agricultural holdings. Mr. Bobde is thus making a valid point that Section 4(2) of the Hindu Succession Act has to be so read not as providing an exception to the general application of the Hindu Succession Act hut as enforcing the position that the Act could not at all have legislated on the subject of “agricultural holdings.” If that is so, the result would be that devolution to such holdings would be governed by the local laws. Incidentally, it may be noticed that whether on the interpretation put forward by Mr. Bobde or whether upon looking the Sub-clause as a conditional clause, wherever as in the State of Maharashtra local laws exist, the net result is that the devolution to agricultural lands is in accordance with such local laws. Therefore, there is only a subtle distinction in interpreting Sub-s. (2) of Section 4. Prom the practical aspect when the local laws exist, there will be no dif-ference.
14. The further question canvassed is regarding the Madhya Pradesh Land Revenue Code and in particular Section 151 thereof, on which reliance is placed being a piece of legislation providing for devolution of tenancy rights. Our Division Bench in Indubai v. Vyankati (Cit. sup). has held that it does not so regulate the devolution of the agricultural tenancies.
15. In this connection if we have a look at the M. P. Land Revenue Code. 1954, we find that Section 151 comes under Chapter XII dealing with ‘tenure-holders.’ Chapter XIII of that Code consisting of one Section 164, deals with Government lessees laying down that everv person who holds land from the State Government or to whom a right to occupy land is granted by the State Government or the Collector and who is not entitled to hold land as a tenure-holder shall be called a Government lessee in respect of such land. Quite a distinction is drawn, therefore, between tenure-holders and a oer-son not a tenure-holder. It is Chapter XIV which now stands repealed bv the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Areal Act. 1958. That provided for “Tenants” and Obviously the repealing Act elaborately provides for the status and the character of tenants. In this context if we refer to Sub-section (20) of Section 2, ‘tenure-holder’ is defined as follows :
” “Tenure-holder” means a person holding land from the State Government as a Bhumiswami or Bhumidhari.”
“Tenant” is defined in Sub-s. (19) of Section 2 as follows :
” “Tenant” means a person holding land from a tenure-holder as an ordinary or an occupancy tenant under Chapter XIV.”
Section 145 of the Code indicates the two types of tenure-holders namely, Bhumiswami and Bhumidhari and by reason of the definition contained in Sub-section (19) of Section 2, the tenant would be the person holding land from a tenure holder. The Act, therefore makes a clear distinction between the persons remaining on the land from the tenure-holders and those who are on the land as Bhumiswami or Bhumidhari by their relationship with State Government. Keeping probably this distinction in view apparently in all the States the phrase “devolution of tenancy rights in respect of agricultural holdings” as appearing in Section 4(2) of the Hindu Succession Act was incorporated to speak about the second class of cases where the persons were on land as tenants.
16. Mr. Bobde, however, takes exception to this line of interpretation. He in-viteg me to understand the background that after 1951 almost all proprietary rights in land were abolished and so-called tenure-holders in a sense became the tenants from Government. He is supporting his reasoning by adverting to this decision reported in Uma Shanker v. Deputy Director of Consolidation. . That was a case under the U. P. Zamindari Abolition and Land Reforms Act and the question was regarding the devolution in case of a Bhumidar under the provisions of the Hindu Succession Act. Section 4(2) of the Act came in for discussion and in paragraph 5 it is observed by the learned Judges that the Hindu Succession Act does not define the term “tenancy rights.” It was, therefore, said that it must be deemed to have been used in its ordinary meaning. After looking into the various meanings given in different Dictionaries, it was held that the terms “tenancy” and “tenure” were clearly interchangeable words and they connote one and the same thing.
17. For adopting this construction my attention was also invited to the earlier Supreme Court ruling reported in Indu Bhusan v. Rama Sundari Debi, where the occasion was to consider the scope and effect of Entry No. 3 in the matter of houses acquired, requisitioned or allotted for military purposes etc. Entry No. 18 in List II of the Seventh Schedule was also under discussion. That is in respect of the rights over the land, land tenures including the relationship of landlord and tenant and the collection of rents. In this context the observations are made in paragraph 12 as follows:
“…..the relation of landlord and tenant is mentioned as being included in land tenures and the expression “land tenures” would not, in our opinion, appropriately cover tenancy of buildings or of house accommodation. That expression is only used with reference to relationship between landlord and tenant in respect of vacant lands. …..”
No doubt the observations are made for comprising the land on which houses are put up, but the Interpretation on Entry No. 18, as it stood, is taken as inclusive of relationship between landlord and tenant including the land tenures. Obviously however the observations are made to recite the subject on which there could be Legislation; it includes undoubtedly ‘Land tenures’ and ought not to be of much assistance to Mr. Bobde, However, in support of the construction he has put forth regarding the initial interpretation of Sub-section (2) of Section 4 of the Hindu Succession Act and the interpretation of the words ‘devolution of tenancy rights in respect of agricultural holdings,’ Mr. Bobde relied upon a recent Full Bench decision of the Madhya Pradesh High Court reported in Nahar Hirasingh v. Mst. Dukalhin. (FB). The observation in this case has to be appreciated on the background that the Madhya Pradesh High Court had till then followed the Division Bench decision of the Bombay High Court in Indubai v. Vyankati . (cit. sup.) It has now been dissented from? the relevant observations can be taken from the brief note resting upon paragraph 22 of the judgment, which runs as follows. (At p. 149 of AIR).
“Provisions of the M. P. Land Revenue Code (1959) contemplate a tenure holder to mean not only a plot proprietor, but also a tenant, who previously was considered as such end on whom better rights are intended to be bestowed by this new enactment. The distinction is not very real but imaginary and that the Parliament while using the phrase ‘devolution of tenancy rights’ in Section 4(2) of the Hindu Succession Act, 1956, meant to use it in the broadest possible sense so as to include all rights of devolution in relation to agricultural lands not only confined to tenancy rights, but also to tenure holder’s rights. However, the actual effect of this would be that where a tenancy or a land tenure legislation makes a special provision for devolution of rights to lands, that provision will prevail and in that event Section 4(2) of the Hindu Succession Act, 1956, will make the provisions of the Hindu Succession Act, 1959, inapplicable to such devolutions provided by the tenancy or the land tenure legislations. But, if the land tenure legislation itself makes the personal law of the parties applicable, in that event certainly the Hindu Succession Act, 1956 or any other personal law will be applicable.”
In view of the discussion contained in Indu Bhusan’s case and the decision in Nahar Hiresingh’s case (FB)), it must be said that the two propositions made in the Division Bench ruling of our High Court in Smt. Indubai v. Vyan-kati , require reconsideration. I do not think, however, that I am called upon in these appeals to ask for any such directions because I feel that on consideration of the other material, the appellants must fail in their contention. Ultimately the points made on behalf of the appellants is the application of the personal law. Without Section 151 of the M. P. Land Revenue Code as considered in Smt, Indubai v. Vyan-kati or on its application by reason of the express words pointed out in Section 151 of the M. P. Land Revenue Code, 1954, it is the personal law which would govern the devolution of the land. I, however, cannot appreciate Mr. Bobde’s argument that the personal law is indicative of the personal law which was governing the parties before the enactment of the Hindu Succession Act, 1956. It is only if that proposition is accepted that Deokabai could be said to have had Women Estate or Widow’s estate and it is only then that the appellants would be able to non-suit the plaintiffs in the four appeals. If on the other hand, personal law as applicable on the date succession opened is to be applied, it will take in its full stride the effect of Section 14 of the Hindu Succession Act by virtue of its application as a canon of personal law and at the time the different alienations were made by Deokabai she would be taken as having passed on the full interest which she herself possessed by reason of her personal law to which she was subject, namely, under Section 14 of the Hindu Succession Act. The very decision of the Full Bench of the Madhya Pradesh High Court upon which reliance is placed does not support Mr. Bobde on the line he has chosen to canvass. The relevant observations are in paragraph 24 of that decision which runs as follows: (At p. 150 of AIR).
“This brings us to the other question as to which personal law would govern the matter of devolution. In this connection we would affirm the view of the Division Bench of this Court in (supra), which has followed the view of the Bombay High Court in (supra). In our opinion, the said two Division Bench cases had taken the correct view and the personal law applicable will be the law as amended from time to time upto the stage when the relevant question of devolution comes to be considered. If we were to accept the untenable view of Vyas J., it will imply as pointed out in one of the Single Bench decisions of this Court that the question of succession will have to be considered with reference to the point of time when a person is alive. That will clearly be absurd and such an interpretation cannot be permitted as was put on Section 151 of the M. P. Land Revenue Code, 1954 by Vyas J., of the Bombay High Court and by K. L. Pandey, J., of this Court.”
In fact on this aspect of the application of personal law the observations in paragraph 16 of the Division Bench decision in Indubai v. Vyankati, (sup.) would also provide an able guide.
“What Mr. Khare contends is that the words “subject to his personal law” meant the personal law as it existed when the statute was passed, that is, in 1954. He contends that Section 151 (of Land Revenue Code) is a reproduction of Section 11 of the Central Provinces Tenancy Act 1920, as amended in 1941, and the words “subject to his personal law” must be confined only to the law as then obtaining. The history of the legislation does not justify the contention. It may be that the Tenancy Act came to be repealed by the Code but that may be due to the very comprehensive recent tenancy legislation. Does it mean the personal law as in force in 1928, 1941 or the personal law as in force in 1954? The purpose of Section 151 was one of applying the law of succession by which a holder was governed. It can only mean personal law by which he was governed when the succession opened. There are no words in this section to mean personal law as applicable on a particular day. The normal rule of construction is that “the language of a statute is generally extended to new things which are not known and could have been contemplated by the legislation when it was passed. (Maxwell on Interpretation of Statutes pp. 76 and 262). Until 1956 the personal law of a Hindu was the ordinary law applicable to him. By the enactment of Hindu Succession Act, his personal law was changed in supersession of all his old law and therefore, on the date when the question arose this became his personal law.”
Consequently although there may be force in the contention regarding the interpretation of Section 4(2) of the Hindu Succession Act and the interpretation to be put on Section 151 of the Madhya Pradesh Land Revenue Code, the net result would work against the appellants, the purchasers from Deokabai would be having full interest and on that score the contention of the appellants ought to be negatived.
18. It is rather unnecessary on this conclusion to refer to Mr. Masodkar’s argument based on the interpretation of term No, 4 in the compromise precipe in Civil Suit No. 17-A of 1958 which runs as follows:
“Defendants 2 and 4 to 6 have become the owners of the undivided share they have purchased from the defendant No. 1 and they have the right to take action for ascertaining the ownership rights of each of them.”
Stress is laid by Mr. Masodkar on the words ‘ownership of undivided share’
vfoHkDr fgL;kps ekyhd –
He interprets this term as showing that full ownership was conceded by the opposing plaintiffs in that suit both in Deokabai and the vendees from her. The words, however, speak of the share and ownership. They do not say anything about the totality of the interest or otherwise. The words appear to me to be recognising only the alienations made by Deokabai and nothing more. It does not appear to be the acceptance of the enlarged interest. In view of it question of executing the terms of contract embodied, in the consent decree or of any estoppel does not arise.
19. I am also unable to appreciate his contention regarding Section 14(1) on the supposed interpretation of the term as giving the full rights of Deokabai under Section 14(1). Sub-section (1) of Section 14 makes the limited owner a full owner. It would have application only when the heir referred to therein is not having full ownership, but is having limited ownership, if on the basis of the consent decree Deokabai was the full owner, then on that supposition there would be nothing upon which Section 14(1) would act,
20. As said earlier, however the appellants ought to fail in opposing the alienations by saying that after the lifetime of Deokabai they had no interest.
21. The finding of both the courts on that aspect is maintained. However, I am unable to appreciate the ultimate passed by the trial Judge and confirmed by the first appellate Court. The decree refers to the maintenance of possession by the plaintiffs in different suits, namely, the alienees and asks them to wait till the suit for general partition is filed. True it is, that a purchaser would in normal circumstances not be able to enforce the general partition against the wish of the coparceners. He would have to wait his turn. The facts of the present case, however, are different. The term of general partition was embodied in the consent decreee, nay, there was risk of these plaintiffs losing their rights of ownership in case such a suit was not filed within four months. The coparceners thus had im-pliedly agreed for a suit for general partition, the result of which wag the filing of different suits with which we are concerned in second appeals. These suits themselves would have to be looked upon as a combined action for general partition. The shares appear to have been defined, if We look to paragraph 24 of the judgment of the learned trial Judge. But a glance at the written statement would show that some more property is stated to be the joint family property which ought to be put in hotchpot. On that there is no material to hold some way or the other. Hence the suits will have to be remanded to the trial Court for decision on the point regarding the totality of the property of which there would be partition. Of course at that time if the coparceners or some of them show their willingness to remain joint, the finding would be adjusted accordingly. As it stands, I cannot persuade myself to hold that the defendants fail on the question of general partition remaining open to the risk of not following the term of the contract end that they should wait indefinitely.
22. The appellants have virtually failed. I, therefore, feel that they will have tc bear the costs of these second appeals, I pass the following order.
The finding of the two courts below that Deokabai had full interest which passed on to the defendants vendees is maintained, but the various suits are remanded to the trial Court for passing an appropriate decree of general partition in the light of the observations made above. The appellants in second appeals to bear their own costs, and pay those of the respondents.
23. Order accordingly.