JUDGMENT
Bhagwati J.
1. This second appeal raises an important question with regard to the auction purchaser’s rights in respect of the undivided interest of a coparcener in specific property belonging to a coparcenery,
2. The plaintiff, the auction-purchaser, filed the suit against the five defendants who were the members of the coparcenary and defendant. 6 who was their mother, for a partition by metes and bounds of the moveable and immoveable properties of the defendants, for the ascertainment and separation of the one-fifth share of his judgment-debtor, defendant 8, in the moveable and immoveable properties of the family and for allotment to the share of defendant 3 of the property in suit which he had purchased at the auction sale and for a declaration in accordance with the partition that he had the right to maintain possession of the property in his capacity as absolute owner thereof, for costs and further and other reliefs Defendants 1 to 5 filed their written statement in which they; contended inter alia that the plaintiff was not entitled to the relief which be claimed in regard to the property in suit, that defendant 3 had only a one seventh undivided share in the joint family properties of the defendants and that the suit was not maintainable unless the liability of defendant 3 in respect of the joint family debts of the defendants was taken into consideration at the time of partition,
3. The trial Court dismissed the plaintiff’s suit with costs. The plaintiff filed as appeal in the District Court of West Khandesh at Dhulia the appellants being the heirs and legal representatives of the original plaintiff, who bad by then died, and the respondents being the hairs and legal representatives of the original defendant 1 the heirs and legal representatives of the original defendant 2 who had died pending
the disposal of the suit, defendants 3 to 5 the brothers, and defendant 6 the mother. The lower appellate Court allowed the appeal and declared that the plaintiff was entitled to remain the suit property as part of the share of defendant 3 in the family properties and awarded to the plaintiff the costs in both the Courts from the respondents. This second appeal has been filed by the legal representatives of the original defendants 1 and 2 and the original defendants 4, 5 and 6 from that judgment of the lower appellate Court. Defendant 3 did not join as an appellant but was joined in this appeal as respondent 3 respondents 1 and 2 being the heirs and legal representatives of the original plaintiff who had been the appellants in the lower appellate Court.
4. The facts which led to this litigation may be shortly stated as under. A joint family firm of Raghunath Mangalsa owned inter alia the suit property. A suit for dissolution of that joint family firm was filed, being suit No. 882 of 1928, and as a result of the partition effected in that suit the suit property came to the share of a member of the joint family firm by name Mathuradas. Mathuradas had five sons, the original defendants 1 to 5 in this suit and this property was thus acquired by Mathuradas as property belonging to the joint family constituted by himself, his wife defendant 6, and his five sons defendants 1 to 5, Hiralal defendant 3, was financially involved and a creditor of his by name Abdul Majid obtained against him a money decree in suit NO 330 of 1931. A darkhast was filed by the judgment creditor, being Darkhast no. 492 of 1933 and on 8-7-1933, the suit property wag attached in execution of that decree The suit property waa put up for auction sale through the Court on 28-4 1934, and the original plaintiff wag declared to be the highest bidder at that auction-sale. The suit property was knocked down to him and a certificate for sale was issued by the Court in his favour, declaring him to have been the auction-purchaser and the owner of the right, title and interest of defendant 3 Hiralal in the said property, Possession of the property wag given over by the Court to the original plaintiff on 29-6-1934, after removing the obstruction which had been raised to his obtaining possession of the said property. After possession of the suit property was obtained thus by the original plaintiff, Mathuradas the father and Mangaldas one of the brothers of Hiralal filed a suit being Suit No. 111 of 1934 for injunction against the original plaintiff, seeking to restrain him from obtaining possession of the suit property. It was realised that possession having already been obtained by the original plaintiff,
such suit could not lie. The plaint was, therefore amended and on the amendment of the plaint being made the suit was transferred to the Court of the First Glass Subordinate Judge at Dhulia and was numbered as Begular suit No. 689 of 1935. Before this suit came on for hearing and final disposal, the present suit, being Suit No. 95 of 1936, had been tiled by the original plaintiff impleading defendants 1 to 5 a3 defendants in this suit. The Regular suit No. 689 of 1935 came on for hearing on 19-11-1936, and a decree was passed by the Court in that suit to the following effect:
“It was declared that defendant 3 (therein, i.e., original plaintiff in this suit) bad acquired the right, title and interest of Hiralal in the suit property; that the sale was declared to be valid to the extant of the share of Hiralal therein, that the sale was not binding on any other members of the family except Hiralal and that the plaintiff suit was dismissed to the extent of the share of Hiralal. Tae suit was decreed as prayed for in the plaint in respect of the remaining shares of the other members of the family. It wag futher provided in the decree that if the original plaintiff herein prosecuted the present suit the claim for possession of Mathuradas and Maganlal was to be rejected. But if the original plaintiff withdrew the present suit without the written permission of Mathuradas or Maganlal, or if he failed to prosecute the present suit till the last with the object of causing loss to Matharadas and Maganlal, Mathuradas and Maganlal were to be at liberty to take possession of the suit house from the original plaintiff by executing that decree. The members of the family other than Hiralal were also to be similarly entitled to recover mesne profits as agreed in Ex. 58 in that suit.”
This was the decree obtained on 19-11-1936, The present suit had its own career and was decided by the trial Court as above indicated, and the whole litigation between the original plaintiff on the one hand and defendants 1 to 5 and defendant 6 who was thereafter impleaded as a party defendant to the suit on the other proceeded right up to the second appeal which has come on for hearing and final disposal before us,
5. the original plaintiff was the purchaser of the suit property at the auction-sale held by the Court in execution of the decree which had been obtained by Abdul Majid against his debtor Hiralal defendant 3. The application for execution and also the proclamation for sale referred to the property which was attached as the suit property and did not specifically mention there the right, title and interest of defendant 3 Hiralal in the suit property as the subject matter of the execution proceedings. The yadi or the memorandum of the auction-sale, however, which was prepared and which is Ex. 59 in the record, showed that what was being sold at the auction-sale which was held on that date 28-4 1934, was the right, title and interest (hakk samhandh) of defendant 3 Hiralal in the suit property. The
certificate of sale which was granted by the Court also mentioned the hakk sambandh, i-e., the right, title and interest of Hiralal defendant 3 as the subject-matter of the purchase by the original plaintiff at the said auction-sale. A point was raised as to whether under those circumstances it could be urged on behalf of the original plaintiff that what he purchased really was the whole of the suit property and not merely the right, title and interest of Hiralal defendant 3 in the suit property. Reliance was placed in this behalf on the passage occur, ring in Mulla’s Civil Procedure Code at p. 906 :
” It has been stated above that what passes to a purchaser at a court-sale in execution of a money-decree is ‘right, title and interest’ of the judgment-debtor in the property sold. To determine the nature and extent of the judgment debtor’s right, title and interest in the property sold, the test is as stated by Lord Watson in the course of the argument in Pettachi v. Chinnatambiar, 10 Mad. 241: (14 I. A., 84) what did the Court intend to sell, and what did the put-chaser understand that he bought. These are questions of fact or rather of mixed law and fact, and must be determined according to the evidence in the particular ease. ”
It may be noted that besides the documents which we have just referred to, there was no evidence led in the trial Court which would go to show what it was that the Court intended to sell and what it was that the purchaser understood that he bought. We are, however, of the opinion that this point is not of any particular significance in view of the conclusion which we have reached on the main points which have been discussed in this second appeal before us and which we shall now proceed to discuss.
6. The rights of a purchaser of an interest of a coparcener whether the sale be one by private contract or in execution of a decree are laid down as under in Mulla’s Hindu Law, Edn. 10, p. 307 et seq. The right of tbe purchaser to possession of the property purchased by him along with non-alienating coparceners is recognised, but not to the extent that he would ever be entitled to exclusive possession of the same as against the non-alienating coparceners. If the purchaser has obtained possession, the non-alienating coparceners would be entitled to joint possession with him, and if they sued for the same, the Court must decree joint possession to them. Further, if the purchaser has obtained possession, the non-alienating coparceners can sue for recovery of possession of the whole of the property sold to him, i. e., they may sue for exclusive possession. But the Court is not bound to eject the purchaser and decree exclusive possession to the non-alienating coparceners, and it may in its discretion declare that the purchaser is entitled to hold the property until partition, as a tenant-in-common with the
other coparoeners, in other words the Court may in a proper case allow the purchaser to remain in joint possession with the non-alienating coparceners. Each case as to the propriety or otherwise of allowing the purchaser joint possession should be decided on its own facts. We are not here concerned with any claim on behalf of the non-alienating coparceners to either joint possession or exclusive possession of the suit property. What we are concerned with here is the claim which has been put forward by the purchaser to exclusive possession of the suit property as against the non-alienating coparceners and that certainly is a relief which cannot be awarded to the plaintiff.
7. Coming to the right to partition which the purchaser of the undivided interest of a coparcener in a specific property belonging to the joint family has, it is laid down that in Bombay such a purchaser is not entitled to a partition of that property alone, for his vendor himself could not have claimed it, unless the other coparceners consented to the same. He can only enforce his rights by a suit for a general partition But even if a suit for a general partition is thus brought, the question may arise as to what are the rights of the purchaser of a specific property or of an undivided interest of a coparcener in such property on such general partition. In the case of an alienee by private contract it has been laid down that he has an equitable right to have that property or his alienor’s share in that property, as the case may be, assigned to him if it could be done without injustice to the other coparceners. But there may be equities between the coparceners or liabilities attaching to the alienor’s share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated In making adjustments, the Court will take the value of the properties at the time of the division and not at the time of the sale. This is the position as laid down in Mulla’s Hindu Law at p. 311 with reference to the alienee of a specific property or of the undivided interest of a coparcener in such property. A distinction is, however, made by Sir Dinshah Mulla in the case of a purchaser at a court-sale in regard to his rights in this behalf and it is laid down: “But a purchaser at a court-sale has no such right, there being no warranty of title at such a sale”; and this position has been taken by Sir Dinshah Mulla from the case decided by the Madras High Court and reported in Sabapathi Pillay v. Thandavaroya Odayar, 43 Mad. 809 : (A. I. R. (7) 1920 Mad. 316).
8. The case of Sabapathi Pillay v. Thandavaroya Odayar, 43 Mad. 309 : (A. I. R. (7) 1920 Mad. 316), was a case where a purchaser bought in court auction specific items of properties said to belong to a member of a joint Hindu family. Subsequently, there was a partition decree and only some of these items fell to the share of the judgment-debtor. It was held by the Court that the purchaser was entitled to only such of the items as were common to the sale-certificate and the share of the judgment-debtor under the decree, and that he could not compel the judgment-debtor to give him other properties in substitution for the remaining properties comprised in the sale certificate. It was a case where the purchaser at a court-sale in execution of a decree against a member of a joint Hindu family bought four specific properties A, B, C and D, alleged to belong to him, and at a subsequent partition the properties A, B, X and Y were allotted to that member. The purchaser claimed to be entitled to have the equivalent of properties G and D out of the properties X and Y and his claim in this behalf was negatived by the Court The learned Judges of the Madras High Court based their decision on the consideration that there was no privity of contract between the auction-purchaser and the judgment-debtor. They observed that under the old Civil P. C. if the purchaser had reason to believe that there was no saleable interest at all in the property sold, he had a right of action against the decree-holder for refund of money. The new Code had taken away that remedy, and limited the purchaser’s rights to an application for refund. There was no indication in the Code that the purchases had any remedy against the judgment-debtor. It was the decree-holder that brought the property to sale; he prepared the proclamation and to the best of his knowledge placed before the public all the available information in respect of the property to be sold. Although the judgment-debtor was expected to assist the Court in settling the proclamation, and although his failure to do so might entail some serious consequences, there was no provision of law which brought him into contact with the bidders at a sale. These persons were bound by the principle of caveat emptor. They took the risk of the property corresponding to the description given. If that failed, they could have no remedy against the judgment-debtor because there was no act, or representation, by him which had contributed to the result. They thus distinguished the case of an auction-purchaser from the cage of an alienee from a coparcener and held that the auction-purchaser had no equitable right on a general partition to have a particular proparty or his judgment-debtor’s
share in that property, as the ease may be, assigned to him even if it could be done without injustice to the other coparceners.
9. This decision in Sabapathi Pillay v. Thandavaroya Odayar, 43 Mad. 809 : (A. I. R. (7) 1920 Mad. 316) was followed by a Division Bench of our High Court in Chidambargauda v. Channappa, 36 Bom. L. B. 694 : (A. I. e. (21) 1934 Bom 329). The question which there arosa was with regard to the auction-purchaser’s rights to have a substitution of the properties by the judgment-debtor in the event of the properties, the subject-matter of the auction sale, not being identical with the properties which were allotted to the judgment-debtor on partition between him and the other members of the coparcenary. The decision in Sabapathi’s case (43 Mad. 309 : A. I. R. (7) 1920 Mad. 316) was cited before the learned Judges and they considered the ratio of that decision. Baker J. observed (p. 705) :
“These, however, are all oases of mortgagor and mortgagee, and the doctrine of substituted security on which they proceed cannot be extended to cover the case ot an auction-purchaser. There is direct authority for this in Sabapathi Pillay v. Thandavaroya Odayar, (43 Mad. 309 : A.I R. (7) 1920 Mad, 316).”
The learned Judge discussed the decision in that case and further observed (p. 705) :
“Although there has been considerable argument on this point, I do not see any reason to differ from the view of the Madras High Court, and (or the reasons which are given in that judgment, with which, with respect, I agree, I am of opinion that there is no justification for extending the theory ot substitution, which has been enunciated in respeet to persons standing in the relation of promisor and promisee, to persons who are strangers to each other, and therefore the plaintiffs are not entitled to any property other than that which they purchased at the court sale.”
To the same effect were the observations of Wadia J. at p. 717 of the judgment. Belying upoa the passage from Mulla’s Hindu Law above referred to and these two authorities, viz. Sabapathi’s case (43 Mad. 309 : A. I. R. (7) 1920 Mad. 316) and Chidambargauda’s case (36 BOm. L. R. 694 : A. I. R. (21) 1934 Bom. 329) Mr. E. B. Kotwal for the appellants urged that the original plaintiff being an auction-purchaser of the right, title and interest of Hiralal defendant 3 in the suit property, had, even though he had filed a suit for general partition of the joint family properties, no equity in his favour to have the suit property assigned to Hiralal defendant 3 even though it could be done without injustice to the other coparceners.
10. Mr. B. N. Gokhale, on the other hand, urged before us that even though normally the decision in Chidambargauda’s case (36 Bom. L. R. 694: A. I. R. (21) 1934 Bom. 329) being a decision of a Court of co-ordinate jurisdiction, would be binding on us, that decision was in
fact arrived at without considering the authorities of our own High Court of an earlier date as they bad not been cited before the learned Judges who decided that case, and that there, fore that decision was not binding on as. He particularly referred to the case reported in Pandurang Anandrav v. Bhuskar Sadashiv, 11 Bum H 0. R 72. In that case the suit had been brought by one Bhaskar as purchaser at an execution sale of the interest of one Nilo in 20 guntas of land. This land had formed part of a quantity mortgaged in 1848 by Nilo and Amritrav, and was sold in execution of a decree obtained on the mortgage in a suit against Nilo and Amrit. A certificate of sale was obtained relating to Nilo’s interest alone and Bhaskar brought this suit against a third member of the undivided family in whose possession the 20 guntas of land then were to recover the same from him, as being the property of the mortgagor, whose right and interest therein had been attached and sold. It was held by the appeal Court that the purchaser could take no more than the share of the co-parcener whose interest alone had been attached and sold though this share might be defined as it existed at the time of the mortgage made by him in 1848, that the share of a coparcener, being in the estate as a whole and not in any particular part of it, could be ascertained only by taking a general account of the whole estate, and making a distribution in accordance with the results of such account. In taking such account, however, and in making the consequent distribution, it would be only equitable that the share of the coparcener who affected to deal with a portion of the land as if empowered to mortgage it should ceteris pari-bus, if the purchaser takes his place, be so made up as to embrace wholly, or so has as possible, the land which the purchaser bought as belonging to such coparcener. The appeal Court further held that to obtain possession of the land purchased by himself, the purchaser must file against the other members of the family a partition suit for the ascertainment of the share of the coparcener whose interest he had purchased, as it stood in 1848, and for the allotment to himself of that share so far as it can legally and equitably be identified with the land purchased by himself In so far as the suit filed in the form it was by Bhaskar, was not in that form, it was held that the suit did not lie and the suit was dismissed. This judgment was delivered by the appeal bench consisting of West and Nanabhai Haridaa JJ. The case before the appeal Court was not that of an alienee by private contract from the alienating coparcener but was the case of a purchaser at an auction sale held at his instance in execution of a decree which he
had obtained against the coparcener and it is to be noted that no distinction was here made between the case of an alienee by a private contract and an auction purchaser at a sale held in execution of a decree. Both these cases were treated as on a par with each other. A similar case arose before oar appeal Court in the following year and the decision of the appeal Court there is also reported in Udaram Sitaram v. Ranu Panduji, 11 Bom. H. 0. H. 76. The appeal Court there consisted of Westropp C. J. and West 3. and they referred, with approval to the judgment which had been delivered earlier by the appeal Court in Pandurang Anandrav’s case (11 Bom. H. 0. B, 72). This was a case of a decree-holder who had attached in execution of a decree the right, title and interest of the father in a shop which had been owned by him along with his deceased son and in the plaint the plaintiffs alleged that the father and the son were equal coparceners in the ancestral shop and that although there had not been any partition of estate between the sou and the father, the son’s share therein was, after his death, liable in his father’s hands for the amount of the decree in the former suit, and prayed for a declaration to that effect against the father. While discussing the rights of the parties in this case the learned Judges made the following observations (p. 82):
”When a share in the undivided ancestral estate of a Hindu family is mortgaged or sold, either by the coparcener himself, or by way of execution, the mortgagee or purchaser takes such share subject to such prior charges Or incumbrances as may affect the family estate, or as may affect that particular share. If the mortgage or sale be of a special portion only of the family property, it may not always be possible, consistently with prior existing rights, for the Court, making the partition, to give possession of that portion to the mortgagee or purchaser. But generally it would be possible to do so, either wholly or partially, and, therefore, if without doing injustice either to prior incumbrancers or coparceners, such possession oan, on partition, be given, it would be the duty of the Court, making the partition, to endeavour to give effect to the mortgage or sale, and so to marshal the family property amongst the coparceners as to allot that portion of the family estate, or so much thereof as may be just to the mortgagee or purchaser. Such was the view expressed, as we think correctly, in Pandurang Anandrav v Bhaskar Sadashiv, 11 Bom. H. C. R. 72, decided 18-8-1874, and in which a review was refused on 9-12-1874, Whether, in the event of it being impossible, consistently with justice to others to give possession of the portion of the family property mortgaged or sold to the mortgagee or purchaser, he would be entitled to be recouped out of such other portion thereof as might, on partition, be allotted to the coparcener whose share in the special portion had been mortgaged or sold, it ia unnecessary now to give any opinion.”
This was a clear and categorical enunciation of the position in law as laying down the rights of a mortgagee or a purchaser, the purchaser being either a purchaser by reason of a contract with
the coparcener himself or by way of execution. Mr. R. B. Kotwal for the appellants tried to suggest that this point as to the property in possession of an alienee by private contract and the purchaser at the auction-sale was not argued
before the learned Judges of the appeal Court in the eases which are reported in Pandurang
Anandrav’s case, 11 Bom. H. C. R 72 and Udaram Sitaram’s case, 11 Bom H. C. R. 76 and that, therefore these authorities should not be considered as in any manner militating againat the view which was taken by the learned Judges art our appeal Court in Chidambargauda’s case 36 Bom. L. R. 694: (A. I. R (21) 1934 Bom. 329). We are, however, not inclined to agree with that contention. There was no distinction in principle which could be made between the two positions. As has been observed in Mayne’a Hindu Law and Usage, Edn. 11, p. 489, while discussing the position of an auction purchaser :
“The grounds of decision in Sabapathi v. Thandavaraya, 43 Mad. 309 : (A. I. R. (7) 1920 Mad. 316)
are that there is no warranty of title in a Court sale
and that there is no privity of contract between an
auction-purchaser and a judgment-debtor. This would Seem to be taking too narrow a view. In Abdul Azia v. Appayasam Naicker, 27 Mad. 131 : (31 I. A. I. P.C.), the Judicial Committee laid down that the rights of parties to a contract contained in the certificate of sale
are to fee judged of by that law by which they may be presumed to have bound themselves. Neither the purchaser at a Court sale nor a purchaser at a private sale acquires any interest in the specific property; both acquire only an equity which is the same in the one same as ia the other, that is, an equity to stand in their alinor’s shoes and to work out their rights by means of a partition the equity depends upon the alienation being one for value and not upon any contractual nexus. The right to get properties which fell to an alianor as a partition is the primary and indeed the only eight which an alienee has, though the Court may at a partition allot to him the properties which he purchased at a Court sale or at a private sale if it could
be conveniently done.”
This in our opinion, is the real ratio which should govarn the decision of cases of this type. The real question to consider while deciding whether there in any equity in favour of the alienee or the auction-purchaser is whether he has provided consideration for the same. Whether it is A transaction brought about as a result of a contract entered into between the alienor and the alienee or is the result of the party being an auction-purchaser at an auction sale held at the instance of the Court would not make the slightest difference to the position. If no consideration had passed from the purchaser, then. Certainly, according to the principles of equity, there would be no right in him to claim that equity The equity obtains only in favour of the person who comes within the description of a ‘purchaser’ at equity, and, therefore, the observations which are contained in Mayne’s Hindu
Law and Usage at p. 439, that both the purchaser at a court-sale and a purchaser at a private sale acquire the equity by reason of the alienation being one for value, correctly represent the legal position. We approve of that position in law and are, therefore of the opinion that there is no distinction which can be drawn as it was done in Sabapathi’s case, (43 Mad 309: A. I. R. (7 1920 Mad. 816) and Chidambargauda’s case. (36 Bom. L. R. 691: A. I. R. (21) 1934 Bom. 329) between an alienee by reason of a contract with the alienating coparsener and a purchaser at a court sale of the right, title and interest of a coparcener. No doubt the decision of the Division Bench in Chidambargauda’s case, (36 Bom L. B. 694 : &. I. B. (21) 1934 Bom. 329) is a decision of a Court of coordinate jurisdiction, and we would normally have been under an obligation to follow the same. The cases which are reported in Pandurang Anandrav v. Bhaskar Sadashiv, (11 Bom. H. 0. B. 72) and Udaram Sitaram v. Ranu Panduji, (11 Bom. H. C. R. 76) were, however, not brought to the attention of that bench, and in any event there being two conflicting decisions of Division Benches of this High Court, the one set reported in Pandurang Anandrav’s case, (il Bom. H. C. R. 72) and Udaram Sitaram’s case, (11 Bom. H. C. R. 76) on the one hand and the other reported in Chidambargauda’s case, (36 Bom. L. B. 694: A. I. R. (21) 1931 Bom. 329) on the other, we feel free to follow the one or the other in accordance with what we conceive to be the true position in law. That being the case, wa prefer to follow the decisions of the Division Benches in Pandurang Anandrao v. Bhaskar Sadashiv, (11 Bom. H. C. R. 72) and Udaram Sitaram v. Banu Panduji, (11 Bom. H. C. R. 76) and are of the opinion as above indicated. That being so, the criticism which was offered by Mr. B. B. Kotwal for the appellants against the judgment of the lower appellate Court loses its significance. The lower appellate Court had observed at p. 3 of the print:
“1 do not see why the position of a Court purchaser; should be different from that of a purchaser at a private sale. Both acquire only an equity which is to stand in the shoes of the alienating coparcener and to work out thair rights.”
These observations, in our opinion, are sub-stantiaily correct and the learned Judge in the appeal Court below was Eight in these observations which he made when he came to the conclusion adverse to the contesting defendants.
11. This leads us now to the question of what is the relief which the plaintiff is entitled to in the working out of this equity. The position of an alienee of a specific property or of the undivided interest of a coparcener in such
property on a general partition is laid down to be that he has an equitable right to have that property or the alienor’s share in that property as the case may be assigned to him if it could be done without injustice to the other coparceners. The same is the position of a purchaser at a court-sale according to what we have decided above. That this is the true position is also supported by a decision of the Madras High Court in Manjaya v. Shanmuga, 38 Mad. 684 : (A. I. R. (1) 1914 Mad. 440). The learned Judges of the Madras High Court there held 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. The cases which we have referred to above were also cited in support of this position as it was enunciated by the learned Judges there. The real question which comes up to be considered in this connection is what it is that the alienee or the purchaser obtains on the alienation or the auction sale. As is well-known, according to the true constitution of an undivided Hindu family, no individual member of the family, whilst it remains undivided, can predicate of the joint and undivided property, that he has a certain definite share therein. (Vide Appovier v. Rama Subba Aiyan, 11 M. I. A. 75: (8 W. B. 1 P. C.). Until a partition, notional or actual, takes place between the coparceners of a family, it could not be predicated by any coparcener that had a particular or aliquot share in the joint family properties. What the coparcener therefore en-joys while the coparcenary is subsisting and there is no severance of joint status between the members of the coparcenary is an undivided interest in all the joint family properties. In so far as he has an undivided interest in all the joint family properties, he has also an undivided share in a specific property belonging to the joint family; but that is alt. At no point of time could he ever Bay that he had a particular share in the specific property belonging to the joint family. What he could therefore alienate by private contract to an alienee or what could be the subject matter of a purchase by an auction purchaser at a court-sale held in execution of a decree against him would be only his undivided share, right, title and interest in the specific property which is thus alienated or sold. The alienee or the purchaser would not be therefore in a position to say that he bad acquired any particular share of his alienor or the judgment debtor in a specific property. He would merely acquire the right which hia alienor or his judgment-debtor had in the joint family properties or the specific property, but no more,
which would be an undivided share, right, title and interest therein coupled with the right which he has of effecting a partition between himself and the other coparceners of his. That this is the true position is laid down in Deendyal Lal v. Jugdeep Naran Singh, 4 I. A. 247 : (seal. 198 P. C.), where the Judicial Committee of the Privy Council observed (p. 255) :
“It seems to their Lordships that the same principle may and ought to ba applied to shares in a joint and undivided Hindu estate; and that it may be so applied. without unduly interfering with the peculiar status and rights of the coparceners in such an estate, if the right of the purchaser at the execution sale be limited to that of compelling the partition, which his debtor mights have compelled, had he been so minded, before the alienation of hia share took place.”
and in Hardi Narain Sahu v. Under Perkash Misser, 10 cal. 626 : (11 I. A. 26 p. 0.5, where, again their Lordships (p. 636):
“Therefore what was purchased on that occasion were the rights and interests of the father; and this is precisely like the case of Deendyal Lal v. Jugdeep Narain Singh, (4 I. A 247 : 3 Cal. 198 P. C.) where their Lordships held that the purchase being as it was here, by the person who had obtained the decree, only that passed which the father, the person against whom, the decree was obtained, had ”
and further (p. 636):
“The interest which is purchased is not, as Mr. Doyne argued, the share at that time in the property, but it is the right which the father, the debtor, would have to a partition, and what would come to him upon the partition being made.”
12. That being the position, what the purchaser at the court-sale also obtained was the right which Hiralal defendant 8 had to obtain what would come to his share on partition being effected between himself and the other coparceners and in regard to the specific property which was the subject-matter of the auction sale, it would not be correct to say that the plaintiff was the purchaser of a l/7th or any particular share of Hiralal defendant 3 in that property. He became the purchaser of the undivided share, right, title and interest of Hiralal defendant 8 in the suit property, but the only way to as certain that undivided share, right, title and interest of Hiralal defendant S in that property would be to file a general suit for partition which Hiralal defendant 3 could have filed against the other coparceners of his. When such a general suit for partition was filed, the equity, which we have defined above would operate in favour of the plaintiff, and in effecting that general partition, he standing in the shoes of; Hiralal defendant 3 his judgment-debtor would be entitled to tell the Court that the specific property, the undivided share, right, title and interest of Hiralal defendant 3 wherein he had purchased at the auction-sale should as far as possible and subject to the equities subsisting between Hiralal defendant 3 and the other coparceners of
his, be allotted to Hiralal defendant 3 on such partition. It was urged that so far as Hiralal defendant 3 was concerned, he bad no equity in him to have a particular or specific property being allotted to him on a general partition between himself and the other coparceners, and that therefore the plaintiff being the purchaser at the auction sale of Hiralal, defendant 3’s undivided share, right, title and interest in the suit property had no such right in his favour. This argument, however, ignores the position of the alienee or the auction-purchaser in whose favour the equity prevails even though he stands in the shoes of his alienor or the judgment debtor, by reason of the very nature of the transaction and the equity which has been declared to be available to him. He being a transferee for value, he has though his alienor or the judgment-debtor may not have it in himself, the right which has been recognised at equity to have assigned to him if it could be done without injustice to the other coparceners the specific property or his alieaor’s share in that property. No doubt that equity would not avail him where there is the other conflicting equity in favour of the other coparceners. Where there are equities as between coparceners or liabilities attaching to the alienor’s share which would render it impracticable to do so, this equity would certainly not operate in favour of the alienee or purchaser. But except in those exceptional circumstances, where equities conflict in this manner and the equity in favour of other coparcenara has of necessity to prevail, this equits avails to the alienee or purchaser and he is, so far as the case may be, entitled to have assigned to the share of his alienor or judgment-debtor the specific property or his share therein.
13. This being the position in law we have to consider whether the decree which was passed in favour of the plaintiff by the lower appellate Court was right. No doubt the right which the alienee or the pursbaser has in such cases is the right to have a general partition effected between his alienor or judgment-debtor on the one hand and the other coparceners on the other, and it would be only when in the working out of this general partition the specific property comes to be allotted to the share of hia alienor or the judgment-debtor that the purchaser would be entitled to have possession of the specific property which he claims. In this case, however, this position does not offer much difficulty. Both in the trial Court as well as the lower appellate Court the attention of the Court was directed to the working out of this position. The trial Court at p. 9 of the print observed after calculating all the figures of the value of the properties, the amount of the debts payable out of the properties as also the
accounts between Hiralal, defendant 3, and the other coparceners, that if the plaintiff was held to be entitled to the equitable relief he seeks, the suit property could be assigned conveniently to the share of defendant 3 in the general partition that would be effected hereafter in case any of the defendants paid the required stamp duty. The lower appellate Court also observed at p. 3 of the print that the plaintiff had satisfactorily proved that the value of Hiralal’s share was far larger than the value of the property purchased by him. The present litigation had started by the filing of the plaint by the original plaintiff in the year 1936. The suit had a long career, the decision in the suit was reached on 10-7-1944, and the lower appellate Court delivered its judgment on 31-3-1948. This appeal has come before us for hearing and final disposal in August 1960, and it ia high time that the litigation was brought to an end. We agree with the sentiment expressed by the lower appellate Court even in the year 1948 that this long drawn out litigation must now end. This sentiment is entertained by us with greater force in the year 1950, and we are of the opinion that the making of an order that a general partition should be effected and in that general partition it should be determined whether this property should fall to the share of Hiralal, defendant 3, would be an act of cruel kindness to the parties concerned and would not be in consonance with our notions of justice and fair play. We are, therefore, of opinion that having regard to the findings of fact arrived at by both the Judges in the Courts below in this behalf we should confirm the decree of the lower appellate Court allotting the suit property to the share of Hiralal, defendant 3.
14. The result, therefore, will be that the judgment of the lower appellate Court will be confirmed and this appeal will be dismissed. In regard to the costs, we think that having regard to the exceptional circumstances of the case, as also the question of law that was involved for decision, the fairest order would be that each party will bear and pay its respective costs of this appeal.