There are, therefore, in our view, substantial and good reasons for holding that a suit by the non-alienating coparceners for partition of a specific property out of the joint family properties is maintainable, whereas such suit by a stranger purchaser is not maintainable. The law that the non-alienating coparcener is entitled in Bombay to file a suit for partition of the alienated property without bringing a suit for a general partition, following the decisions in Hanmandas v. Valabhdas and Naro Gopal v. Paragovda, is, in our view, the correct law and we expressly declare it to be so. We, however, add that such a suit is competent only if all the non-alienating coparceners join in filing the suit thus showing their consent to partial partition which is the consequence of such a suit, the consent of the alienating coparcener being presumed from his act of the alienation. We also add that while decreeing the suit of the non-alienating coparceners for partition of the specific property, where it is necessary that equities in favour of the purchaser will have to be worked out in a general suit for partition of all the joint family property, a direction should be added that the execution of the decree in favour of the non-alienating coparceners should remain stayed for a specific period during which period the purchaser may file a suit for general partition and if such a suit is filed within the prescribed period, the stay of the execution of the decree should last until the disposal of the purchaser's suit for partition, but if such a suit for general partition is not brought by the purchaser within the specified period, then the decree in favour of the non-alienating coparceners should be executed.
IN THE HIGH COURT OF BOMBAY
Second Appeal No. 808 of 1967
Decided On: 08.07.1975
Patilbua Pandu Landge Vs. Sadashiv Vithoba Kamble and others
Hon'ble Judges/Coram:
Balkrishna Narhar Deshmukh and B.M. Sapre, JJ.
1. This second appeal has been referred to a Division Bench by a learned Single Judge of this Court as raising an important question of Hindu Law on being persuaded to do so on the ground that a certain view of the Hindu Law. which has held the field in Bombay for the last over 50 years following two decisions of a Division Bench of this Court, needs reconsideration. That question is as follows :
2. When a co-parcener of a joint Hindu family alienates a specific item of the joint family property and puts the stranger purchaser in possession, if the non-alienating co-parceners bring a suit for partition of their undivided interest in that specific property on the ground that the alienation does not bind their interest, if the alienation is held to be not binding on the non-alienating coparceners, can an objection by the purchaser to such a suit prevail on the ground that the non-alienating co-parceners must bring a general suit for partition comprising all the property of the joint family and a suit by them for partition of the specific property alone is not maintainable.
3. The question arises on the following facts;
4. The following genealogy shows the relationship between the two plaintiffs and defendant No. 3 :
Vithoba with his wife Sundrabai and his two sons Tukaram and Sadashiv formed a joint Hindu family. On 5th August 1953, Vithoba and defendant No. 4 Rambhau Ravji Kamble jointly purchased the suit land, namely, Survey No. 164/1 at Arangaon, District Ahmednagar. Vithoba and defendant No. 4 Rambhau each had an undivided half share in that land. Vithoba died in about the year 1954. On his death, the two plaintiffs and defendant No. 3 became owners of the half undivided share of Vithoba in the suit land. Each of the two plaintiffs had thus one-third undivided share in the half undivided share of Vithoba in the said land, or they together had two-third undivided share in the half undivided share of Vithoba in the land. On 22nd May 1957, defendants Nos. 3 and 4 sold the whole land to defendants Nos. 1 and 2 for Rs. 2,500. By this sale, defendant No. 3 Tukaram purported to sell the whole of the half undivided share of Vithoba in the land to defendants Nos. 1 and 2. The case of the plaintiffs was that the sale was not for legal necessity and defendant No. 3 Tukaram had no right to sell more than his one-third undivided share in the half share of Vithoba in the suit land. They, therefore, brought the suit for partition and separate possession of their two-third share in the half undivided share of Vithoba or one-third share in the entire suit land Survey No. 164/1. It may be noted that there is no dispute that besides the half share in Survey No. 164/1, the joint family of the plaintiffs and defendant No. 3 owns two more lands, one at Khandala and another at Arangaon, and also a house at Arangaon.
5. The main persons to contest the suit were defendants Nos. 1 and 2. One of the contentions raised by them was that the sale dated 22nd May 1957 by defendant No. 3 was for legal necessity and binds the whole family, including the plaintiffs. The other contention was that since, admittedly, there was other property belonging to the joint family, the suit by the plaintiffs for partition of their share in one item of the property was not maintainable.
6. The trial Court as well as the lower appellate Court held that the sale was not justified by legal necessity and it does not bind the share of the two plaintiffs. That finding now stands concluded. On the other contention raised by defendants Nos. 1 and 2, the trial Court held that it was not necessary for the plaintiffs to file a general suit for partition comprising all the joint family property and that a suit by the plaintiffs for partition and separate possession of their share in Survey No. 164/1 was maintainable. This view was confirmed by the lower appellate Court. The trial Court had passed a decree in favour of the plaintiffs for partition and separate possession of their one-third share in the suit land. That decree was confirmed by the tower appellate Court.
7. When the second appeal came up for hearing before the learned single Judge of this Court, it was pointed out to him that the trial Court as well as the lower appellate Court had relied upon a passage from Mulla's Hindu Law, paragraph 261, to the effect that the non-alienating co-parceners are entitled in Bombay to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. For this statement of the law, Mulla had relied upon two Division Bench decisions of this Court in Hanmandas v. Valabhdas 20 Bom. L R 472, and Naro Gopal v. Paragonda Indian Appeals 247. It was urged before the learned single Judge that in neither of these two decisions the point had been specifically decided that the non-alienating co-parceners can sue the purchaser for partition of the alienated property without bringing a suit for a general partition. Even assuming that that point can be said to have been decided in these cases by implication, that was on the assumption that the Privy Council had already decided the point in Deenoyal Lal v. Jugdeep Narain Singh 4 Indian Appeals 247. But, in fact, the Privy Council had also not decided the point. The law in Bombay, however, had all along been, as stated by Mulla, that the non-alienating co-parceners are entitled to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. This view of the law needed reconsideration. This is how the learned Single Judge seems to have been persuaded to refer this matter to a Division Bench.
8. Before we deal with the submissions made by Mr. Pendse for the appellant-defendant No. 1, we may state the following position of law existing in Bombay about which there is no dispute:
9. According to the Mitakshara law as administered in Bombay, a coparcener may sell for value his undivided interest in co-parcenary property without the consent of the other coparceners. [See paragraph 259 of Mulla's Hindu Law and the cases collected in footnote (u) at page 321. fourteenth edition]. As a further extension of this law, a coparcener may alienate his undivided interest in the entire joint family property, or his undivided interest in a specific property forming part of the joint family properties. But he has no right to alienate, as his interest any specific property belonging to the coparcenary, for no coparcener can before partition claim any such property as his own; if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. (See paragraph 261 of Mulla's Hindu Law at page 322).
10. Having regard to this position of law, in the present case, defendant No. 3 Tukaram was competent to sell for value his undivided interest in the coparcenary property without the consent of the other coparceners. In the present case, he had sold a specific property belonging to the coparcenary and, therefore, the alienation is valid to the extent only of his own interest in that property. In other words, the sale is valid to the extent of his own one-third interest in the half share which the family owned in the suit land and is not valid in respect of the remaining two-third share. If defendants 1 and 2 as purchasers from defendant No. 3 were to bring a suit for partition and separate possession of the share in the land which they had purchased from defendant No. 3, the settled law is that they cannot do so and their remedy is to bring a general suit for partition of the entire joint family property in which they may urge that in the partition amongst the plaintiffs and defendant No. 3, the half share in the suit land owned by the family may be allotted to the share of defendant No 3, so that they as purchasers of the said share of defendant No 3 can retain it with them. That the stranger purchaser cannot sue for partition of a specific item of a joint family property and his remedy is to bring a suit for a general partition is the settled law in Bombay. [See Udaram Sitaram v. Ramu Panduji B H C R 76, Ishrappa v Krishna A I R 1922 Bom. 413 and other cases collected by Mulla in foot-note (b) under the heading "Right to partition" at page 325, Fourteenth Edition].
11. Mr. Pendse has, therefore, submitted before us that a suit by a stranger purchaser for partition of a specific item of the joint family property in which he has acquired an interest from a coparcener has been consistently held to be barred and it has been laid down that his remedy is to bring a general suit for partition. But what is the principle on which this bar is Based. The main principle, Mr. Pendse has submitted, is that no coparcener can before partition claim any specific property as his own or any interest in that specific property which he can sell as his interest to the alienee. But this principle is equally operative when the non-alienating coparceners file a limited suit for partition and separate possession of their interest in the specific alienated property, forming part of the joint family properties. In the present case, for example, the two plaintiffs seek partition of their two-third undivided interest in the half share in the suit land which belonged to the joint Hindu family. For this they assume that they together have two-third undivided interest and defendant No. 3 has one-third undivided interest in half the share in the land. But before partition, no coparcener can say what share, if at all, he has in a specific item out of the entire joint family properties. Mr. Pendse has, therefore, submitted that if a suit by a purchaser is barred for partition of a specific item forming part of the joint family properties, having regard to the principle on which such suit is held to be barred, since the same principle also extends to a similar suit by the non-alienating coparceners for partition and separate possession of their share in a specific property forming part of the joint family properties, such suit should also be barred.
12. Mr. Pendse has conceded that the law that the non-alienating coparceners are entitled to sue the stranger purchaser for partition of the specific alienated property without bringing a suit for a general partition has held the field in Bombay for over 50 years, but he has argued that this is so because it was assumed that such a law had been laid down in the decisions in Hanmandas v. Valabhdas and Naro Gopal v. Paragowda. The above proposition of law, however, was not laid down, nor the question was decided in Hanmandas v. Valabhdas. The Division Bench which decided that case had held that the point was already decided and the proposition of law flowed from the Privy Council decision in Deendyal Lal v. Jugdeep Narain Singh. But, in fact, the Privy Council had not decided that point. In Naro Gopal v. Paragowda, the point did not at all arise on the facts of the case and the question about the competency of the non-alienating coparceners to sue the stranger purchaser for partition of the alienated property without bringing a suit for a general partition, could not be said to have been decided in that case. Mr. Pendse conceded that in both those decisions the decree passed by the lower Court in favour of the non-alienating coparcener was affirmed, which impliedly meant that the maintainability of the suit by the non-alienating coparcener for partition of a specific property forming part of the joint family properties was not questioned, but he argued that no reasons appear from those decisions why when a suit by a purchaser for partition of a specific property forming put of the joint family properties cannot be maintained, a similar suit by the non-alienating coparcener can be maintained. Mr. Pendse has contended that there is absolutely no reason why the non-alienating coparceners should be able to bring a suit for partition in similar circumstances in which the purchaser cannot bring such a suit. The law in respect of the non-alienating coparceners should, therefore, be brought in line with the law relating to the purchaser and the former should also be held not entitled to sue the purchaser for partition of the specific alienated property without bringing a suit for a general partition.
13. There is force in the submission of Mr. Pendse that the decision in Hanmandas v. Valabhdas does not decide the question, whether the non-alienating coparcener is entitled to sue the stranger purchaser for partition of the specific alienated property without bringing a suit for a general partition, and further that the assumption in that case that the point was concluded by the decision in Deendyal Lal v. Jugdeep Narain Singh, is not correct. In that case, defendants 6 and 7 had obtained a decree against the father (5th defendant in the suit) and in execution of that decree, two of the properties belonging to the joint family of the father and the son were sold at a Court sale and were purchased by defendants 1 to 4. The suit was brought by the son for a declaration that he had half share in the properties and that share did not pass to defendants 1 to 4 as purchasers at the Court sale. The trial Court declared that the plaintiff's half share in the two properties was never sold to defendants 1 to 4 at the Court sale and it ordered the plaintiff to recover by partition his half share in those properties. There was no dispute that there were other properties belonging to the joint family. It was contended on behalf of defendants 1 to 4 in the appeal in the High Court that the suit by the son for a partition of only some items of the joint family properties was not maintainable and the Court should direct the plaintiff, if so advised, to amend his plaint so as to convert the suit into one for general partition so that on such general partition, if made, the equities between the parties might be adjusted. Batchelor Ag. C. J. in his judgment said that it was unnecessary to consider what the Court's view would be upon the above argument if the point were res Integra, open to determination without reference to pronouncements by a higher Court. But Their Lordships of the Privy Council in the care of Deendyal lal had indicated their preference for another course of procedure in such litigation. That course was not to interfere with the decree under appeal but to add a declaration that the purchaser had acquired the share and interest of the alienating coparcener in the properties and he was entitled to take such proceedings as he was advised to have that share and interest ascertained by partition. In the above Division Bench decision, therefore, no decision was given whether the suit by the non-alienating coparcener for partition of a specific property was maintainable or whether his remedy was only to file a general suit for partition.
14. In Deendyal Lal v. Jugdeep Narain Singh, which was a case from Bengal, the facts were these. One Toofani Singh and his son Jugdeep Narain formed a joint Hindu family. Deendyal obtained a money decree against Toofani Singh and, in execution of the decree put up for sale certain properties belonging to the joint family and he himself became the purchaser of those properties. The son brought a suit, which gave rise to the appeal before the Privy Council, contending that the properties being the joint family properties of himself and his father, could not be taken and sold in execution for the debt of the father which had been incurred without any legal necessity. The main question that was canvassed before their Lordships of the Privy Council was whether the purchaser acquired a good title even to the right, title and interest of the father and whether under the law of the Mitakshara the share of one coparcener in the joint family estate can be taken and sold in execution of the decree against him alone. After deciding this question, without being required to decide the questions which arises in the present case, Their Lordships expressed an opinion that they ought not to interfere with the decree under appeal so far as it directed the possession of the properties to the respondent, but they thought that the decree should be varied by adding a declaration that the purchaser had acquired the share and interest of Toofani Singh in the properties, and was entitled to take such proceedings as he may be advised to have that share and interest ascertained by partition.
15 In Naro Gopal v. Paragowda, the facts were these. The father (2nd defendant in the suit) sold a certain family land in favour of defendant No. 1. Plaintiff No. 1 as the son of defendant No. 2 and plaintiff No. 2 as the son born to defendant No. 2 after the alienation brought the suit against defendant No. 1, to which the father was added as defendant No. 2, to recover possession of the land from defendant No. 1 or, in the alternative, to get their two-third share by partition of the land. It was the contention of the plaintiffs that the sale-deed was taken by defendant No. 1 from defendant No. 2 by undue influence and it was for no consideration. It is not necessary to state the other facts, except that the Court of the first instance had dismissed the suit, but, in appeal, the lower appellate Court had ordered the land to be restored to the plaintiffs. Defendant No. 1 ultimately came in appeal to the High Court. It was in the High Court, for the first time, that a submission was made on behalf of defendant No. 1 appellant that the suit ought to be dismissed because the plaintiffs could not claim to recover a share in a particular property in the suit and their proper remedy was by way of a suit for partition. This submission was made by the counsel for the plaintiffs-respondents by pointing out that the objection was being taken for the first time in second appeal. That objection presupposed a number of things, for example, that there was other family property. That question could not be gone into at that late stage. It was, therefore, a case where it was neither admitted nor proved that there was some other property belonging to the joint family and the land in question was only one item of the joint family properties. The question, which arises in the present case, therefore, could not arise in that case and was not, naturally, decided in that case. The plaintiffs had claimed recovery of possession of the land or, in the alternative, their two-third share in the land by partition on the assumption that this was the only property of the joint family. There was no difficulty on these facts to decree the plaintiff's claim for partition.
16. There is, therefore, force in the submission of Mr. Pendse that although in the two Bombay decisions mentioned above the law had not been specifically laid down that the non-alienating coparceners are entitled to sue the stranger purchaser for partition of the specific alienated property without bringing a suit for a general partition, that had been assumed to be the law in Bombay flowing from the results arrived at in those cases, namely, the decrees directing reliefs to the non-alienating coparceners of partition and separate possession of their share in the specific property forming part of the joint family properties. But, in our view, the position of law that has been followed on the decisions in those cases is the correct law applicable in Bombay. That law is that the non-alienating coparcener is entitled to sue the stranger purchaser far partition and separate possession of his share in the specific alienated property without bringing a suit for a general partition. That law has stood ground for the last over 50 years and we find it difficult to hold that it is not the correct law.
17. Mr. Pendse is not right when he says that there is no reason for making a distinction between the case of a purchaser and that of a non-alienating coparcener in the matter of filing a suit for partition only of a specific item out of the joint family property. In our view, there are substantial and good reasons for holding that a limited suit by a non-alienating coparcener for partition of a specific property forming part of the joint family properties is maintainable when a similar suit brought by the purchaser is not maintainable. The first reason is that when a non-alienating coparcener brings such a suit, he is seeking a partial partition of the joint family property, which is permissible in law. (See paragraph 328 of Mulla's Hindu Law). The only requirement of a valid partial partition is that all the coparceners must consent to it. When one or more of the non-alienating coparceners bring a suit for partition of a specific item of the joint family properties, they clearly declare their consent to partial partition of that property. So far as the alienating coparcener is concerned, his consent must be presumed because he has alienated his undivided interest in the specific item of the property, which conduct means that he is willing to have his undivided interest in the property separated for the purposes of being given to the alienee. In order to satisfy the requirement that all the coparceners must consent to the partial partition, the only further qualification required for the validity of a suit by the non-alienating coparceners for partition of only one specific property forming part of the joint family properties is that all the coparceners must be made parties to the suit and they must all consent to partial partition. When all the non-alienating coparceners join in filing a suit, their consent to partial partition is necessarily there. As for the alienating coparcener, his consent has to be presumed by his conduct, as we have already stated. When, therefore, all the non-alienating coparceners file a suit for partition and separate possession of their share in one specific property, it is a case of a partial partition being brought about, which is otherwise permissible under the Hindu Law But the same cannot be said when a purchaser brings a suit for partition and separate possession of the share of his alienor in a specific property. Although the consent to such partial partition of the alienating coparcener may be presumed to be there, there is no consent of the non-alienating coparceners to such partial partition. The right of a coparcener to alienate for value his undivided interest in the coparcenary property is there even without the consent of the other coparceners. Ordinarily, therefore, when one of the coparceners sells for value his undivided interest in the coparcenery property, that is without the consent of the other coparceners. When the purchaser, therefore, brings a suit for partition, it does not satisfy the requirement of Hindu Law that all the coparceners must consent to partial partition.
18. Mr. Pendse submitted that on the date of the alienation, the alienation may be without the consent of the other coparceners, but the non alienating coparceners subsequently could give their consent to the alienation and agree to a partition giving to the alienee his separate share which he had purchased from the alienating coparcener. But if, on the basis of this compromise arrived at between the purchaser and the non-alienating coparceners, the purchaser were to bring a suit to have the compromise reflected in the Court's decree, that suit will still be thrown out as not maintainable because it seeks partition of only one specific property from the joint family properties. Theoretically speaking, this situation could arise, but, in practice, a purchaser is hardly likely to go to Court if he is able to get the share in the property which he had purchased from his alienor after reaching an agreement with the non-alienating coparceners. A subsequent agreement arrived at between the non-alienating coparceners and the purchaser after the suit by the purchaser is filed is of no avail because the question of the maintainability of the suit by the purchaser will have to be decided as on the date of the institution of the suit and on that date, when the purchaser goes to Court, that is for the reason that the non alienating coparceners were not consenting to partial partition.
19. The second reason for holding that a suit by the non-alienating coparcener for partition of a specific property is maintainable is, as pointed out in Subramanya Chettyar v. Padmanabha Chettyar (1896) I L R 19 Mad. 267, that it is possible in such a suit to throw out a stranger by giving him the share in a specific property which he had purchased from the alienating coparcener and thereafter to retain the character and status of the joint family and the joint family property. This is, of course, possible where the alienating coparcener sells his undivided interest in the specific property and does not sell the whole of the specific property. Where the purchaser purchases the undivided interest of his alienor in the specific property, by virtue of the kind of suit which is under our contemplation, the separate share of the purchaser in the specific property can be given to him and, not only the remaining portion of the specific property but the remaining joint family property and the character of the joint family can be retained. It is true that in a given case, what is sold is not the undivided interest of the alienating coparcener in the specific property, but the sale is of the entire specific property. It may not be possible in such a case to throw out the stranger completely by recourse to a simple suit for partition of the specific property because, if the purchaser wants to work out equities against the specific property, that will have to be done in a separate suit for general partition in which he can urge that the specific property may be allotted to the share of his alienor so that he can retain it as having purchased it from the alienor. But at least in some cases, is indicated above, it is possible to throw out the stranger, in a suit of the kird we are contemplating, and retain the joint family status and character of the remaining property. That again is never possible when the purchaser brings a suit for partition of a specific property. When the alienation has been without the consent of the other coparceners, they are likely to start with the contention that the family being joint, the alienating coparcener cannot say that he has any interest in the specific property before the actual partition takes place and, therefore, the purchaser by merely asking the Court to separate his share in the specific property which he had purchased from the alienating coparcener cannot serve any purpose.
20. The third reason why the suit by the non-alienating coparcener for partition of a specific property can lie and a similar suit by the purchaser cannot lie is that the non-alienating coparcener never wants any equities to be worked out in his favour which can be worked out only in a suit for general partition. On the other hand, the purchaser will always be wanting equities to be worked out in his favour even if he brings a suit for partition of only one item of the joint family properties. The non-alienating coparcener resigns himself to the position that the alienating coparcener has a right to sell his undivided interest in that property without his (non-alienating coparcener's) consent and, therefore, he has to part with that portion of the property which the alienating coparcener has sold in the specific property. All that he wants in his suit is to give to the purchaser his share which he had purchased from the alienating coparcener. On the other hand, the purchaser in a similar suit cannot claim as of right the undivided interest of his alienor in the specific property should be given to him on the ground that the alienor was the owner of that interest. It is only on partition that it can be seen whether the alienor is the owner of the interest in the property which he had sold to the purchaser. The purchaser must, therefore, necessarily bring a suit for general partition of all the joint family property and, at the time of that partition, urge that the property which is the subject-matter of the alienation may be allotted to his alienor, so that he may be able to retain it.
21. There are, therefore, in our view, substantial and good reasons for holding that a suit by the non-alienating coparceners for partition of a specific property out of the joint family properties is maintainable, whereas such suit by a stranger purchaser is not maintainable. The law that the non-alienating coparcener is entitled in Bombay to file a suit for partition of the alienated property without bringing a suit for a general partition, following the decisions in Hanmandas v. Valabhdas and Naro Gopal v. Paragovda, is, in our view, the correct law and we expressly declare it to be so. We, however, add that such a suit is competent only if all the non-alienating coparceners join in filing the suit thus showing their consent to partial partition which is the consequence of such a suit, the consent of the alienating coparcener being presumed from his act of the alienation. We also add that while decreeing the suit of the non-alienating coparceners for partition of the specific property, where it is necessary that equities in favour of the purchaser will have to be worked out in a general suit for partition of all the joint family property, a direction should be added that the execution of the decree in favour of the non-alienating coparceners should remain stayed for a specific period during which period the purchaser may file a suit for general partition and if such a suit is filed within the prescribed period, the stay of the execution of the decree should last until the disposal of the purchaser's suit for partition, but if such a suit for general partition is not brought by the purchaser within the specified period, then the decree in favour of the non-alienating coparceners should be executed.
22. In the result, the decree under appeal stands confirmed subject to the following modifications:
23. As defendants 1 and 2 had purchased the whole of the land (half share in S. No. 164/1) from defendant No. 3 Tukaram and as we have held that Tukaram has only one-third interest if that land, if defendants 1 and 2 want equities to be worked out in their favour by contending that in a family partition amongst the plaintiffs and defendant No. 3 the whole of the land should fall to the share of defendant No. 3 so that defendants I and 2 as purchasers of the land are able to retain it, defendants 1 and 2 are hereby declared entitled to file a suit for general partition in which the said equities can be worked out in their favour. The execution of the present decree shall remain stayed for a period of six months from today during which period defendants Nos. 1 and 2 may file a suit for general partition and if such a suit is filed within the prescribed period, the stay of the present decree shall last until the disposal of that suit and the present decree will also be governed by the decision in that suit. But if such a suit for partition is not filed by defendants Nos. 1 and 2 within the period allowed, then the decree shall be executed as passed in the present suit.
24. Subject to the above modifications, the appeal fails and is dismissed with costs.
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