JUDGMENT
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 :
“Since the transferee only acquires an equity to compel a partition he has only a right in personam and not a right in rem and the transferor remains a member of the family and retains all the rights winch attach to membership, including the right to an increased share upon the death of another coparcener. An alienation by a co-parcener of a particular item of the family property, or of a specific share in such an item, differs in some respects from an alienation of the whole or a fraction of the interest of the transferor in the general assets of the family. Since a member of a joint family has no right to a specific share of any particular property of that family, an assignment by him of such a share to a stranger conveys no interest whatever to the transferee; if, however, the grantor should subsequently become entitled to the property included in the grant, then on a well settled principle of equity which is embodied in Section 43 of the Transfer of Property Act, 1882, he cannot deny the title of tha transferee and is bound to make the grant effectual.
The Courts have in this case also recognized the right of the transferee to stand in the shoes of the transferor and to enforce his equity by means of a suit for the general partition of the entire family property, and in order to do equity as between the transferor and transferee will endeavour to marshall the property in such a way as, if possible, to give! effect to the alienation; but this is in order to avoid! a fraud upon the transferee and this procedure will not be adopted to the prejudice of the other coparceners.”
The same view was expressed by the Patna High Court in Bhubneshwar Prasad v. Sidheshwar Mukher-jee, AIR 1949 Pat 309, and this decision was affirmed by the Supreme Court in Sidheshwar Mukherjee v. Bhubneshwar Prasad Narahi Singh, AIR 1953 SC 487. In that case it was observed by B. K. Mukherjee, J. that an alienee from the purchaser of an undivided interest of a coparcener of a Hindu family did not acquire any title to any defined share in the property and was not entitled to joint possession from the date of his purchase.
The only remedy of the purchaser in such a case was to work out his rights by a suit for partition and his right to possession would date from the period when a specific allotment was made and the purchaser’s right to mesne profits also would date from the dale of partition. In view of these authorities we hold that the decree given by the lower appellate Court is wrong and upon the findings of the lower appellate Court the plaintiff is not entitled to get a decree for joint possession with regard to his eight annas share along with defendants 1. to 4.
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 :
“Having regard to the provisions of the Civil Procedure Code which do not allow any wide rights of counter-claim, it is difficult to see how a suit by the plaintiff for possession and mesne profits can be
converted at the instance of the defendants into one for a general partition which would involve the presence of other parties and an enquiry into the debts and liabilities of the family. If the claim of the defendants is to be treated as a cross suit and if the written statement is to be stamped as a plaint in such cross suit claiming a general partition there is no reason why the defendants should not file their own suit for a general partition and worked out any decree which they may obtain in the decree in the suit by the coparceners.
There is no special advantage in the defendant’s doing in their written statement what they could easily do in a plaint filed by them. It is open to them, as soon as a co-parcener files a suit for possession, to file a suit for partition, and where proper grounds exist the Court would try the suits together so as to afford relief to all parties. On the point of view of hardship we think that the hardship would be greater if a simple suit for possession which the
co-parcener is in law entitled to file in cases of invalid alienations is converted into an elaborate enquiry as to a general partition of the family.”
4. In another Madras decision in Davud Beevi. Ammal v. Radha Krishna Aiyar 44 Mad LJ 309 : (AIR 1923 Mad 467) it was held :
“that a purchaser from one member of a joint Hindu family of property, which that member has no right to sell it being joint property, can enforce the sale only by partition of the entire family property; and if, in such partition, the properties sold can with due regard to the interests of the other sharers, to the debts due by the family, and to an equitable allocation of the various items of the family property to the shares of the several coparceners, be wholly allotted to the vendor’s share, the purchaser will be entitled to the whole of the property which the vendor-professed to convoy to him.”
The same view has been affirmed later by the Madras High Court in Kandasamy TJdayan v. Velayutha Uda-yan, ILR 50 Mad 320 : (AIR 1926 Mad 774). In view of the principle laid down in these authorities we are unable to accede to the prayer of learned Counsel for the respondent that the whole basis of the suit should be changed at this stage by an amend-
ment of the plaint.
5. For these reasons we hold that this appeal should be allowed, the judgment and decree of the lower appellate Cpurt should be set aside and the suit brought by the plaintiff should be dismissed. The parties will bear their costs throughout.
