ORDER
Raj Kishore Prasad, J.
1. This application in revision by the petitioners, who were objectors in the Court below in a proceeding under Order 21, Rule 97, C. P. C., is directed against an order of the Munsif at Katihar dated 27-7-55, allowing the application of the decree-holders opposite party under Order 21, Rule 97 of the Code and directing them to be put in possession of the property as against the petitioners.
2. The facts leading up to the present application are these: Opposite parties 1 to 3, and one Mctilal were own brothers. They were members of a joint Mitakshara Hindu family. The joint family owned holding No. 66. This holding has three blocks of houses. The middle block, which is the subject-matter of the present application, was in occupation of a tenant, named, Bai Mohan Dutt Kabiraj, who has a dispensary in the front portion of the house, and he resided with his family in the back portion thereof.
On 6-4-53 opposite parties 1 to 3 only, as Moti-lal, their youngest brother, had died earlier in March 1953. filed an application under Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for eviction of the tenant, Rai Mohan Dutt, and got an ex part-e order of eviction from the House Controller on 3-5-53. The Kabiraj tenant appealed to the Collector, which was dismissed on 26-6-53. He then filed a revision before the Commissioner against the order of the House Controller, which was ultimately rejected on 17-12-54.
Thereafter on 7-9-53 he filed a title suit, which was, however, dismissed on 17-3-55. In the suit he got an order of injunction against opposite parties 1 to 3, which was eventually dismissed on 7-11-53. An appeal against the order refusing injunction was also disallowed on 16-9-54. Meanwhile, opposite parties 1 to 3 executed the order of the Controller against KabiraJ tenant in the Court below.
The Court deputed its Nazir to deliver possession to opposite parties 1 to 3. The Nazir on 24-12-54 returned the writ unserved with a report that he could not give possession to the decree-holder opposite party, because of the resistance offered by the petitioner. The Nazir in his report mentioned that the judgment-debtor was not living in the house In question, and that he found petitioner 1 in occupation of the said house, and his brother, petitioner 2, was holding a dispensary in the house.
The Nazir stated that he asked them to vacate the house and give possession of the same to the decree-holders, but petitioners 1 and 2 refused to vacate the house and give possession to the decree-holders saying that petitioner 3, wife of petitioner 1, had purchased the house in question from Moti, the brother of the decree-holders some years back, and they were in possession of the house on her behalf.
On this, decree-holders opposite parties 1 to 3 filed an application under Order 21, Rule 97, on 1-2-50 which was allowed on 27-7-55, as stated before, against which the present application in revision has been made.
2a. It appears that on 21-9-49 Motilal mortgaged to one Nidhi Nath Jha some of his properties describing himself as separate and in separate possession of the properties. Later on 22-2-50 he sold the house in question standing on holding No. 61 along with other properties describing himself to be separate in mess and property from his brothers, opposite parties 1 tp 3 and describing the vended property, namely, the disputed house, as his own exclusive property, in which his brothers, opposite parties 1 to 3, had no right.
3. The petitioners’ case was that Motilal was separate from his brothers, and there had been a partition between the brothers by metes and bounds by virtue of which the disputed house fell to Moti’s share. The decree-holders, opposite parties, however, denied these allegations, and asserted that all the four brothers were joint, and there had been no partition at all.
4. The trial Judge found that there had been no partition between Motilal and his brothers, opposite parties 1 to 3. He further found that petitioner 4, namely, the purchaser from Motilal, could at best be regarded as a co-sharer with the decree-holders in respect of this block of house, but it could not be said that the present petitioners were in occupation of the house in good faith on their own account. He summarised his findings in the following words:
“In my opinion, even though the O. Ps. (namely, the present petitioners) are co-sharers in this house they cannot resist the dakhaldehani through Court in the House Control Execution case. They cannot claim to be in exclusive possession of the house, when there has been no partition. Their right, put at the highest, would be to claim possession as co-sharers. But they cannot exclude the applicants (namely, the decree-holders opposite parties 1 to 3) from coming into possession of the house through dakhaldehani….. But they cannot by collusively taking possession of the house, set at naught the decree, or order of the Court, which the applicants seek to enforce in this case.”
On the above findings, as stated before, the application of the decree-holders under Order 21, Rule 97 of , the Code was allowed.
5. Mr. H. P. Sinha, appearing for the petitioners, and, Mr. S. C. Mazumdar, appearing for the opposite party, have pressed their arguments before me on the above findings of the Court below for the purpose of the present application.
6. The facts, therefore, which emerge from the findings of the Court below, are that: (1) Opposite parties 1 to 3, and Moti were own brothers and members of a joint Mitakshara Hindu family, in which Motilal was the juniormost member, and not a karta or manager; (2) Motilal died unmarried in a state of jointness with his brothers, opposite parties 1 to 3; (3) Motilal alienated his undivided interest in the coparcenary property in the disputed house in favour of petitioner 4, wife of petitioner 1, without the consent of his brothers, opposite parties 1 to 3; (4) the petitioners so far have taken no steps to bring a suit for partition against opposite parties 1 to 3, who are the other members of the joint family of Motilal, to get their purchased interest separated; and (5) petitioners got into and were in possession of the disputed house on the day of the delivery of possession.
7. On the above findings, the question, which arises, is what is the effect of the purchase of petitioner 3 from Motilal of his undivided interest, and of the petitioners’ getting into possession of the disputed house on the strength of the purchase, without bringing a suit for partition thereof, against opposite parties 1 to 3 against their will? In order to answer this question posed by me, it is necessary to know what is the legal position of a purchaser of an undivided interest of a junior coparcener under the Mitakshara law as administered in the State of Bihar.
8. The essence of coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family, governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, and he, that particular member, has a certain definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on partition that he becomes entitled to a definite share.
No coparcener can dispose of his undivided interest in coparcenary property without the consent of the other coparceners. No coparcener can alienate even for valuable consideration, his undivided interest in the joint property without the consent of his coparceners, unless alienation be for legal necessity, or for payment by a father of antecedent debts. The consent of the other coparceners is necessary even if the alienation is made in favour of a coparcener.
Therefore, the alienation of a joint family property by a member, who is not the managing member of the family, may be binding on the family, only if alienation be for the joint family necessity. Any member of a joint family is entitled to deal with the family property and to incur debts binding upon it, provided the act is done in timea of distress, and for family necessity. Such an alienation is not void altogether, but is voidable.
But if the alienation is neither for legal necessity nor for the payment of an antecedent debt, the other coparceners are entitled to a declaration that the alienation is void in its entirety. According to the strict theory of the Mitakshara law, as I have said before, each coparcener has a proprietary interest in the whole of the coparcenary property; and it is for this reason that no coparcener can alienate his interest in the property without the consent of the other coparceners.
9. But the rigour of the above rule has been relaxed in favour of purchasers at an auction sale. A member of a Mitakshara Hindu family has an interest which is capable of being attached in execution of a decree as against him.
10. Therefore, although a coparcener is incompetent to alienate voluntarily his undivided coparcenary interest, it is open to the creditor, who has obtained a decree against him personally to attach and put up to sale his undivided interest, and after purchase to have the interest separated by a suit for partition.
But though a creditor can attach and purchase the interest of such a member it is not open to him to take possession of that interest. He only acquires a right to compel a partition. He is not entitled even to institute a suit against the other coparceners for recovery of a share of the income of the joint family properties from the date of his purchase. This position is clearly indicated in Sidheshwar Mukharjee v. Bhubneshwar Prasad Na-rain Singh, 1953 SC 487 (AIR V 40) (A) and Deen-dyal Lal v. Jugdeep Narain Singh, 4 Ind App 247 (PC) (B).
In the latter case, which is the leading case, their Lordships of the Privy Council pointed out the distinction between the rights of a purchaser under a voluntary conveyance and those of a purchaser under an execution sale. They said that just as a partner could not himself have sold his share so as to introduce a stranger into the firm without the consent of all the partners, although the purchaser at the execution sale could acquire the interest sold, with the light to have the partnership accounts taken in order to ascertain and realise its value, so also though a member of a joint Hindu family could not himself have sold his share so as to introduce a stranger into the joint family, the purchaser, by purchasing at an execution sale, acquires the right to compel the partition which his debtor might have compelled had he been so minded, before the alienation of his share took place.
11. No doubt the purchaser of the share of a member of a joint Mitakshara Hindu family acquires a right to compel a partition but he does not acquire a right to enter into joint possession with the other members of the joint family. He does not acquire title to any defined share in the property and is, therefore, not entitled to joint possession from the date of his purchase.
The right to compel a partition can only be enforced by a suit for a general partition to which all the coparceners must be joined as parties. He can as such work out his rights only by a suit for partition, and his right to possession would commence only from the period when a specific allotment is made in his favour.
Therefore, even in cases in which the auction purchaser purchases in the execution of a decree against a member of Hindu Mitakshara family just an undivided interest entitling him to compel a partition, in a sense, no property passes to him of which he can be put into immediate possession. If he does succeed in getting possession of the joint family estate having only purchased an undivided interest of a member of the joint Hindu Mitakshara family, he is liable to be ejected there from as being unlawfully in possession thereof.
The purchaser of the undivided share of a member of a joint Hindu family does not thereby become a tenant-in-common with the coparceners in the family (See Mayne’s Hindu Law, 11th Edition, para. 390), The principle of joint tenancy appears to be unknown to Hindu Law, except in
the case of coparcenary between the members of
an undivided family.
12. The distinction between “tenants-in-common”, “joint tenants” and “coparceners” should be clearly understood. In the case of ‘tenants-in-common’ the share of each will, on his death, pass to his heir by succession. In the case of ‘joint tenants’, the undivided interest of each will pass on his death by survivorship.
In the case of ‘coparceners’ the undivided coparcenary interest of each will pass on his death by survivorship, and further, the male issue of each will acquire an interest by birth in the property as if it were coparcenary property. But the question of persons taking as coparceners can only arise when they are members of a coparcenary.
The reason is that a coparcenary is purely a
creature of law; it cannot be created by an act of
parties. When a gift, for instance, is made to two
or more persons, who are not members of a co
parcenary without specification of shares, they take
as tenants-in-common, and not as joint tenants.
When, however, such a gift is made to persons who
are members of a coparcenary, they nevertheless
take as tenant-in-common, and not as joint te
nants or coparceners, unless a contrary intention
appears from the grant. I
13. Even a mortgage by a coparcener not for legal necessity and not binding on the other coparceners of his joint family on the ground of its being for an antecedent debt of their father, and not for the benefit of the family, is not binding upon the whole estate, and is, therefore, void even as against the undivided share of the coparcener who executed it.
13a. But, as I have said, such an alienation is not void, but voidable at the option of the other members of the family or any one of them, but cannot be impeached by the alienpr himself, or by any transferee, who has not acquired by transfer or prescription the interest of the entire joint family,
14. In the ‘case of Deendyal Lal’ (B) above-mentioned, their Lordships of the Judicial Committee declined to interfere with the decree under appeal before them, and observed as follows:
‘ “In the present case their Lordships are of opinion that they ought not to interfere with the decree under appeal so far as it directs the possession of the property, all of which appears to have been finally and properly found to be joint family property, to be restored to the Respondent.
But they think that the decree should be varied by adding a declaration that the Appellant as purchaser at the execution sale, has acquired the share and interest of Toofani Singh in that property, and is entitled to take such proceedings as he shall be advised to have that share and interest ascertained by partition.”
15. The above propositions of law are to be gathered from the above mentioned rase of 4 Ind App 247 (PC) (B), and also the following cases: ‘Appovier v. Rama Subba Aiyan’, 11 Moo Ind App 75 (PC) (C), ‘Suraj Bunsi Koer v. Sheo Persad Singh’, Ind App 88 (110) (PC) (D), ‘Hardi Narain Sahu v. Ruder Perkaah Misair’, 11 Ind App 26 (30) (PC) (E). ‘Ramkishore Kedarnath v. Jai Narayan Ramrachhpal’, 40 Ind App 213 (PC) (F), ‘1954 SC 487’ (AIR, V 41) (A), reversing the decision in ‘Bhubneshwar Pd. v. Sidheshwar’, 1949 Pat 309 (AIR V 36) (G), ‘Ramdas Singh v. Tanak Singh’, 1928 Pat 557 (AIR V 15) (H), ‘Medni Pd. Singh v. Hand Keshwar Pd. Singh’, 1923 Pat 451 (AIR V 10). (D, ‘Mathura Misra v. Rajkumar’, 1921 Pat 447 (AIR V 8) (PB) (J), ‘Sadabarat Pd. Sahu v. Foolbash Koer’, 3 Beng LR 31 (FB) (K), ‘Kharag Narain v. Janki Rai’, 1937 Pat 546 (AIR V 24) (L), and Mulla’s Hindu Law, 11th Edition (Sections 258, 260, 261, 269 and 400).
16. In my opinion, therefore, the position of a private purchaser cannot be better than that of an auction purchaser: His position is just like that of an auction purchaser. As such the possession of petitioner 3 as well as of the other petitioners on her behalf was unlawful in the eye of law.
17. It is true that when the interest of a co-tenant is purchased by a third person, such purchaser becomes a tenant-in-common with the other co-tenants, as held in ‘Bishwanath v. Rabija Kha-tun’, 1929 Cal 250 (AIR V 16) (M), cited by Mr. Sinha, but principles which apply to co-tenants or co-owners do not apply to coparceners, and, therefore, a purchaser of an undivided interest of a coparcener does not become a tenant-in-common with the other coparceners.
18. In view of this position in law, it is necessary to have the rights of the petitioners decided and determined in a properly constituted suit. The question, whether there had been partition between Motilal and his brothers, or whether Motilal died in a state of separation or jointness, and if he died joint, what was the nature of the interest acquired by petitioner 3 by the purchase from Motilal, are all questions, which will have to be decided in a properly constituted suit.
These questions cannot be decided in the present summary proceeding. The parties, therefore, have very rightly made their submissions on the assumption that the findings given by the Court below are correct, but they have accepted them only for the purpose of the present proceeding, and they are still at large as far as a future suit is concerned.
19. On the finding that the occupation of the petitioners was not in good faith on their own account, and that they collusively took possession of the house the Court below was perfectly justified in putting back the decree-holders opposite parties 1 to 3 in possession of the property.
20. The Court below may have committed an error of law, as contended by the petitioners, in deciding the question at issue, but there can be no justification for the High Court to interfere under Section 115, Civil P. C., with the order of the Court below even if it has committed an error of law, because it cannot correct even gross and palpable errors of subordinate Courts (see ‘Venkatagiri v. Hindu Religious Endowments Board, Madras’, 1949 PC 156 (AIR V 36) (N) and ‘Keshardeo v. Radha Kissen’, 1953 SC 23 (AIR V 40) (O).
21. The petitioners have another remedy open, namely, a remedy by a suit under Order 21, Rule 103, Civil P. C. It is the settled practice of this Court to interfere only in aid of justice. The petitioners have got into unlawful and collusive possession without getting their rights determined by a competent Court. The order of the Court below, in these circumstances, appears to me to be just and proper; and it needs no interference by this Court.
21a. In the result, the rule is discharged,
the application fails, and is dismissed with cost.
Hearing fee Rs. 32/-.