B. Venkata Subbayya and Another vs N. Srirangam and Others

Subba Rao, C.J.—Whether a powers of a joint far relief in a suit of purchased by to the share of hi 2. If it be not p judgment-debtor him or even a part it-debtor to give h share in substitutic kjm?

In the proper by the Mitaks interest and unity 1 the members of

a proprietary in to lily property and n to or a right to I it of die joint family;

A coparcener has his share of the i Jusively allotted tally against the rig oily to dispose of hi pt family property members, excep 6-27-30.

Decisions of the J 1 century establish

be, the undivided ii sily property could so and sold in exec Mich cases, the pui Suitable claim" or '' crlbed in the deci the judgment-debt /a partition of the |ht of the purchase:

The Following questions have been referred to Full Bench:

II, Whether a purchaser in a court sale of a property belonging to the joint family held.

Section of a decree obtained against one of the - bars of a joint family is entitled to ask for equal relief in a suit for general partition that die property purchased by him should, if possible, be allot to the share of his judgment-debtor?

If it be not possible to allot to. the share of |judgment-debtor the entire property purchased " I or even a part of it, could he compel the judge debtor to give him toiler properties triad fell to Stare in sub stitution for the properties purchased

In the property of a joint Hindu family gov-" by the Mitakshara Law, there is community if crest and unity of title and possession between of members of the family. Each coparcener proprietary interest in the whole of the joint property and no coparcener has an exclusive I to or a right to the exclusive possession of any of the joint family properly.

A coparcener has a right to sue for partition and |his share of the family property separated and isively allotted to him. The Mitakshara was lily against the right of one member of a joint illy to dispose of his own share or any part of the '' family property without the consent of (he &JW members, except in the cases pointed out in f"27.30.

"IK. Decisions of the Judicial Committee given in the century established that even while the family is the undivided interest of a coparcener in joint property could be attached during his Iifc-gand sold in execution of a decree against him.

ich cases, the purchaser got a "right", "equity", (Mable claim" or "equitable right", as variously "jibed In the decisions, to stand in the shoes he Judgment-debtor and1 work out his rights , partition of the joint family properties. The of the purchaser to compel a partition Is "founded upon the equity which a purchaser for value has to be allowed to stand in his vendor s shoes, and to work out his rights by means of a partition" _ "Suraj Bunsi Koer v. Shoo Prasad Singh, 5 Cal 148 (PC) (A).

Under the Mitakshara Law as applied in Madras and Bombay, a coparcener is entitled to sell or mortgage his undivided interest in family property, and the purchaser or mortgagee, as the case may be, is entitled to equity to a partition. Since a co-larcener has only a share in the joint family property as a whole and not in any particular part of it and the exclusive right of the coparcener to _any part, could be established only as the result of a partition: and an allotment of that part to his share, the purchaser for value of the interest of a coparcener under a private sale or a court sale acquires an "equity" to stand in the shoes of the vendor or judgment-debtor as the case may be, and work out his rights by means of a partition.

If the partition is effected among the members themselves without reference to the purchaser, it might happen that no part of the property purchased by him is allotted to the share of the vendor or judgment-debtor cither by inadvertence or by design. In. order to enable the purchaser to meet this contingency and safeguard his interests, he is allowed either to institute a suit for a general partition or to get: himself imp leaded as a party to a suit for partition instituted by the coparceners themselves.

At such partition the equity of the purchaser enables him to claim that, eater is paribus, the share of the vendor or judgment-debtor should be so made up as to embrace wholly, or so far as possible, the property purchased by him. If this relief could be granted to the purchaser without injustice to the other coparceners, the Court will so marshall the properties as to allot the property sold or as much of it as possible, to the share of the vendor or judgment-debtor as the ease might be.

But there may be equities between the coparceners or liabilities attaching to the share of the vendor or judgment-debtor which may render it inequitable or impracticable to do so. In that case, the purchaser cannot insist upon the allotment of the property purchased by him to the share of his judg-ment-debtor. The purchaser''s right to an allotment of the very property purchased by him is therefore not absolute but must yield to the rights of the other coparceners to a fair and equitable partition of the family assets remaining after discharging all the family liabilities.

In - ''Ayyagari Vcnkataramayya v. Ayyagari Ramayya 25 Mad 690 (B), Bhashyam Ayyangar J. observed that the right of the purchaser "is no doubt an equitable claim in the sense that he must bo a transferee for value and in cases where the transfer relates to a specific portion of the family property, ho has no legal right, any more than the transferor himself, to insist on that specifics portion being allotted to the share of the vendor. Being a purchaser for value he will have an equity to have such portion or so much thereof as is practicable, so allotted, if that can be done without prejudice to the interests of the other sharers."

The right of the purchaser of a coparcener''s interest in a portion of the joint family property, either under a private sale or at a court sale, is to get an allotment of that portion or as much of it as pos-sible, to the share of the vendor or judgment-debtor;"t a partition if it could be conveniently done without injury, prejudice or unfairness to the rights of the other coparceners.

This right of the purchaser could be worked out in a suit filed by him for partition of the entire joint family properties imploding all the coparceners as parties to the suit. If a suit for general partition filed at the instance of llie coparceners is pending, the purchaser could get himself impleaded as a party to the suit and work out his rights.

If the purchaser happens to be impleaded as a Defendant in a general suit for partition filed by the coparceners either because! he is in possession of the property purchased by him or for other reasons, he can'' ask the Court to grant him equitable relief by allotting the property purchased by him or as much of it as possible, to the share of the vendor or judgment-debtor so far as it can be done without prejudice to the rights of the other coparceners. The answer to the first question referred to the Full Bench must therefore be in the affirmative.

The answer to the second question is not so easy in view of the conflict of authority. In a court sale, as in a private sale, either the undivided interest of a coparcener in the whole of the joint family property or his undivided share in certain specific family properties or the whole of a specific item of property might be sold.

If the sale is of the undivided interest of a coparcener in the whole of the joint family property, the purchaser would get whatever is allotted to the share of that coparcener in a suit for partition. In such a case, the purchaser gets all that he bargained for. Only the undivided share of the entire family property becomes crystallised and assumes a concrete shape- as a result of the partition. If, however, the sale is of a specified portion or a specific item of the family property, there is a risk that it might turn out that in a partition of the whole property, it might be impracticable or inequitable to'' allot to the share of the vendor or judgment-debtor as the case might be, the whole or part of the property sold to the purchaser.

If the property sold is not set apart for the share of the vendor or the judgment-debtor at the partition, has the purchaser a right to recover property of an equivalent value from other properties allotted to the vendor or judgment-debtor at the partition? Can the doctrine of substituted security applicable as between mortgagors and mortgagees be extended to the case of sales and particularly to the case of a court sale? Is there a difference between the rights of a purchaser at a court sale; and by a private sale?

The answer to these questions depends, in my opinion, not upon any principle peculiar to the Hindu Law but upon general principles governing the rights of -jwrchascrs under private sales and court sales-.

With regard to private sales effected by a coparcener of a specific item of joint family property, it was observed by Bhashyam Avyangar T. in 25 Mad 690 (13):

"If it be found impracticable or inequitable to allot to the transferor''s share the whole or any portion of the specific property transferred, the transfer will become inoperative either in whole or in part, as the case may be, and in that case the fmi feree can ''only'' (italics here in

have an equitable claim for compensation again pstice to the the alienor'' pity and the a By "compensation" the learned Judge meant danage lave the prop( or compensation in money, as might be seen froa fee was only: his reference to - ''Madho Pershad v. Mclithaj med Judge h Singh'', 18 Cal .157 (PC) (C) in this context. to "If such pro view of Bhashyam Ayyangar J. was accepted J Sa inco would be followed by Varadachariar j. sitting as a sir.jsi fch was allotte Judge in - Tlamanna Chettiar v. Mauickaui CuJi may not be the liar AIR 1935 Mad 1011 ( v. 22) (D). The leva iour. The prop Judge held that there was no scope for the appk property whic cation of the doctrine of substituted security u.''.irjShe is concern the sale was not of a share but of a specific ilt-i, c&se observatior joint family property by a coparcener as full has Ka of the case a thereof. jM Judge, I am u;

''Dhadha Sahib v. Mahomed Sultan Sahib'', Immt of the legal AIR Mad 384 ( v. 8) (E) was the decision of a the opinioi sion Bench in ''a case where there was a private HMB Mad 690 (B) of a specific item of joint family property by a m. (6) If the sa parcener and a second sale by the purchaser frflfjff coparcener! h the coparcener. The property sold was not alloted the share of the alienating coparcener at a PflBjor''s shar&ffo: tition in the family. lEhare take gfa The Court held that, assuming diat the fidKperty allotted purchaser had a right to recover from his veodnBa case, pfere property of an equivalent value out of the proper allotted to him at die partition, in substitution fljR The undiyide thef property sold, the vendee from the first pad ised into exclus chaser had no such right and his only remedy waj m and thattis t to get damages from his own vendor for breach d Mr can reduce warranty of title. The learned Judges observed: " chased by him "We are of opinion that if we were to b.M "kd sharesrof that the Plaintiff (second purchaser) is entitled ftt jerties, the St whatever land the first Defendant (first purclu"" ach he could is might have got in substitution for what he had pa| wied to have chased from his vendor, we would be giving fish sate on such r. property which he never bargained for." itted to the six I respectfully agree, but I would add thai (his up ml partition.; meut applies with equal force between the orujiMrf is tne undiy vendor and the immediate purchaser from lum. lit is inherent! fairness, however, to the learned Judges it must J"; &a necessary i) pointed out that they only assumed for the MIO "f ",ev the proper) argument and did not decide that the first puictaxf fbcen transform had a right to recover property of an einir.aki ''g right js v. value from his vendor. Jfoof''thc contrac According to these decisions, the renich purchaser is to recover damages from his the specific item of joint family proxies, him is not allotted to the vendor''s share at tV- jvaj-tilion.

I may now refer to the cases relied i; - H''.T the opposite view. In - ''Nanjaya Mudah v. muga Mudali AIR 1914 Mad 410 (2) ( v. 1) d .:1a actual decision was to the-effect that the pair under a private sale of the share of a cop in - it a specific item of joint family property v. a tenant-in-common of that property with coparceners and must sue for a general put ''. a I the entire joint "family properties to won rights. The purchaser''s suit for a partition -particular item of family property in which i.e. chased a share was dismissed.

In the course of his judgment, Sanker faif",: J. observed that the alienating coparcen-. l>'':""" had no interest in any specific property of the L; and the alienee could not acquire any such ir.ir but mast sue for a general partition at wiiicL the property so iption where r the propei (parcener puip y property. If what is sol of joint famied to the sha luso or movabl diat the prope intended to be family owns f ner sells A, bi aser cannot ir value than plation of< tl The dictum o jualified by. Iin ty of anemic to the vend'' accepting it l iple applicable �Ay sold might be allotted to the share of the ., if that could be done witliout prejudice or itico to the other coparceners. This was only an ily and tUr-alienee was not, as of right, entitled mag" live die property so allotted. So far, the learned frorij He was only restating well-established law. The hrbjH ned Judge however went on to observe:

''11"If s"ch property is not so set apart, then the I am ice would be entitled to recover that property siiJijU ch was allotted to his vendor for his share though (..''bet lay not be the property that was alienated in his aineti m. The property allotted will take the place of .tpplii property which has been alienated to him so far .vhc-i\\a ic is concerned."

in it so observations were not necessary for the of the case and with great respect to the learn-.) judge, I am unable to accept it as a correct state it of the legal rights of the purchaser. I prefer to ''JivtlBw the opinion of Bhashyam Ayyangar J. in are Mad 690 (B) already cited.

If the sale is of the undivided interest of coparcener in the whole family property, the aser will get whatever may be allotted to the ''s share in a suit for partition and the undivid-takes a concrete shape in the form of the irly allotted to. the vendor at the partition. In a case, there is really no question of the sub-ition of one property for another. The undivided share is quantified and crys-into exclusive property as a result of the par-and that is the only method by which the pur-w can reduce to physical possession the property teed by him. Where there is a sale of the unfiled shares of a coparcener in llie joint family .jellies, the sale is in respect of property to h lie could give a valid lille and the parties are ned to have contracted that the sale should ite on such properly as might siibsequenlly be ted to the share of the vendor at a fair and partition.

As the undivided share which is the subject ier is inherently and by its very nature mutable, necessary incident of the sale that it should y the property into which the undivided share been transformed. Whether in such eases, the lee''s right is viewed as arising from an implied of the contract of sale or from the very nature property sold, there is no room lor any such iption where the vendor is incompetent to:)r the property and lhat is the position where ipai''tener purports lo sell a specific ileiu of joint ly property.

If what is sold by a -coparcener is a specific of joint family agricultural land and what is:cd to the share of the vendor at a partition is luse or movables and outstandings, it cannot lie that the property so allotted was what was sold tended to be sold to the purchaser. Again, if a ily owns four villages A, B, C, D and a co-;er sells A, but is allotted B at the partition, the -er cannot recover B which might be of value than A. The sale of B was not in the iplation of the parties.

e dictum of Sankaran Nair J. would have to ilified by limiting the right of a purchaser to of an equivalent value from the allotment to the vendor at the partition assuming but icCepting it to be a correct statement of the of applicable to such cases.

The equity of the purchaser for value enables him to compel a partition of joint family property though he is not a member of the joint family. Though the alienating coparcener* had himself no interest in the specific item sold, the equity of the purchaser enables him to claim an allotment of the very property purchased or as much of it as possible, to the share of the alienor, if it could be done without prejudice to the rights oil the other coparceners. , This is in my opinion, the entire content or extent of the equity. If such an allotment is not .possible, the purchaser like every other purchaser, has a right to sue for damages for breach "f the covenant of title, The vendor has not covenanted for the substitution of another property for the property sold ill his title to the latter is found to be defective. Nor is such a covenant annexed to the sale by Section 55, Transfer of Property Act which specifies the rights-arid liabilities of vendors and purchasers.

If an equity to compel the vendor to substitute some other property for the property sold if his title-is found defective is conceded to the purchaser of a specific item of joint family property from a coparcener, there is no reason why it should be denied to other purchasers of property with a defective title. In either ease they are purchasers for value and that circumstance alone is the foundation of the equity of a purchaser from a coparcener.

Section 73, Contract Act read with Section 55 (2), Transfer of Property Act affords an adequate remedy in damages in the case of a defect in the vendor''s title and if the vendee from a coparcener is unable to secure a good title at a partition he like any oilier purchaser only a remedy in damages. for these, reasons and wilh great rosxect, 1 differ from die opinion of Sankarau Nair f. in J9.14 Mad 110 (2) (Alil v. .1) (F) already cited and the opinion to I ho same effect of Bhagwati and Dixit TJ.in - Mirvahedali Kadumiya and Others Vs. Rashidbeg Kadumiya, to which detailed reference will bo made .later in this judgment.

The doctrine of substituted security enunciated by the Judicial Committee in ,- ''Byjnathlall v. Ramoodeon Chowdry'', I. Ind App 100 (PC) (II) and recognised in - ''Mahomed Alzul Khan v. Abdul ttolmum AIR 1932 PC 235 ( v. 19) (I) lias been.

:1 on behalf of the purchaser of the interest mvok of a coparcener in joint family property. In both these cases, (lie mortgage was of (he undivided sha.ro ol a eosharor in some of llie prirpertics and it was held that the mortgagee of the undivided share must pursue his remedy against Uio properly allotted to his mortgagor at a partition between him and his cosharcrs and that as against the mortgagor, the mortgagee would have a charge on'' the whole of such lands.

In other words the mortgagee would take the subject of the pledge in the new form which it had assumed. At page 122 of the report in 1 Ind App 106 (PC) (II), the Judicial Committee adverted to the difficulty of determining which of the lands allotted to the mortgagor at the partition should be taken to represent the mortgaged properties where the mortgage does not cover, the undivided share of the mortgagor in the entire joint lands but only in some of them, but observed that on the facts of that-particular case Uiat difficulty did not arise.

In AIR 1932 PC 235 ( v. 19) (I), the Judicial Committee accepted the principle of 1 Ind App 10G PC in of and p the as a an In The held case to not was with his allotted mortgagor.exclusively belonged if property specific properties joint share undivided terms mortgage cases these both liability. partition sharers other immunity related however, decision, actual cosharers. jointly him some mortgaged cosharer where (H) it at from by> 9. In - Koru Issaku and Others Vs. Gottumukkala Seetharamaraju and Others, Rajamannar J. (with whom Gentle C. J. and Horwill J. agreed) was of the opinion that the doctrine of substituted security -enunciated in 1 Ind App 106 (PC) (II) was applicable to a case where a cosharer mortgagor mortgaged a specific property forming part of the properties field by him jointly with the other cosharers and at a partition among the cosharers, some property other than the mortgaged property was allotted to the share of the mortgagor. The earlier decisions of the Madras xvnd other High Courts were all reviewed by the learned Judge and he came to the conclusion that "it would be inequitable that it should be opeii to the mortgagor to hold the substituted lands free of the burden of mortgage which he has purported to create on a part of the joint property though he might not legally have been competent to alienate that part."

At the same time, the learned Judge recognized that die mortgage as such would not bind the substituted property and that the mortgagee was only entitled to an equitable charge thereon for realization of the mortgage money, such charge not being enforceable against a bona fide purchaser of the substituted property without notice of the charge.

Section 100, Transfer of Property Act refers to charges arising by operation of law, as for instance, where a co sharer pays arrears of revenue due on other portions of the joint property or discharges a mortgage on the joint property. The decision of Rajamannar J. requires my respectful consideration, and if there were no valid grounds of distinolions, I would feel bound to follow and apply the ruling to the present case.

Now, the relationship between a mortgagee and a mortgagor is that of a creditor and a debtor and the property mortgaged is only a security for payment of the debt. Under S. 68(l)(b), Transfer of Property Act, where the mortgaged property is wholly or partially destroyed or the security is rendered insufficient the mortgagor can be called upon by the mortgagee and die mortgagor has the right to ask die mortgagee to accept further security "nough to render die whole security sufficient.

If such further security is furnished, the mortgagee may not sue for the mortgage money u/s 68. In the case of a private sale of a properly, if it is found that the vendor has no title to a whole or a portion of the property sold, the remedy of the purchaser is, as already stated, only in damages for the breach of the covenant of title either expressed in the sale deed or annexed to it by Section 55 (2), Transfer of Property Act.

The seller cannot insist on the buyer accepting some odier property in view of the property sold but the title to which is found defective, nor can the buyer compel die seller to give some other propei ubstitution for the property sold with a delectivi in.

title. In the case of a court ale, neither the Coin nor the judgment-debtor gives the covenant of tide, and the sale being involuntary, there is no contrae'' relationship between the judgment-debtor and purchaser. The case of a seller and buyer is:

that of mortgagor and mortgagee.

In my opinion, therefore, it is not safe to cxteui the principle of the decision in Koru Issaku and Others Vs. Gottumukkala Seetharamaraju and Others, , recognising an equitable charge bi on the principle of substituted security to the of a sale of specific property by a member of a joint'' family, when some property other than the proputy sold is allotted to the share of the vendor at a parti, lion. A distinction must, however, be drawn between cases where the vendor purports to sell hb as-divided share generally in the family propertio, "r4 where he purports to sell a specific item of piper his share therein.

In the former case, he is alienating property which he has a good and present title. In tho lat case he is really selling property to which he has of title at the time, and it is only a kind of equity that f � the Courts allow the purchaser to claim at a partition between the vendor and his co-sharers, that be , in opinion, specific item of property sold to him might he uikfe doc,;fme of bused, wholly or as far as possible, to the share of to" of a SP(tm) 1 vendor. oparcener as if he If the allotment is so made, the purchaser get of "ionf jj S what he bargained for and the vendor would given him a good title though such title was ac"iuir(12) There is ever by him after the sale and as a result of the petit, lion. See Section 43, Transfer of Property Act. It property sold or any part of it is not allotted l-t i4t, share of the vendor at the partition, the remedy of the purchaser is by way of damages for bicach J covenant of title.

When analysed, the position miner this: A sells a particular piece of land if it were his own. It is found teat A has no to the land. Can it be said that B is endued ii compel A to convey to him some other land in place of what lie bought? When� thus statu!, claim of the vendee of a specific item of joint lug: property from a coparcener to the sub.-.titutinu some other property of die vendor for the pupatfj sold would be untenable.

If the vendor''s title to the land sold by u''m u feated by the superior or paramount title of lu; parceners, it will not make any difference to the''. Vendee''s rights and the only remedy open to vendee would be damages for breach of the swain of title. The relationship between a coparcener his vendee of a specific item of family property only that of a vendor and vendee under him Tress'''' of Property Act.

If there is a superior or paramount tide, remedy of the disappointed purchaser is damages for breach of the covenant of titi-. I item aware of no general principle of sa which requires that if a coparcener in asells a specific item of joint family pjs"a as his own and that property is allrt the other members of the family at a partition,'' vendor should be compelled to substitute ojne property, if the vendor''s title to the property " lost at the partition.

tWidiout a fresh "Bcult to seerh . acquire a tide or allotted td hii pe of an equijat TJW as in die case Such a chargjft d ;pr registrationffo jel the vendee i''titulion for that as a result of di< lee of his right t< covenant of tide? .. If die vendor rel equivalent value t ;chaser, is the lati of a contract c recovery of die: i title which has i difficulties will doctrine of subsi ikaran Nair.J. i should be taken in of the doctrii sale of the intc an of joint fam andavaraya Odt J, was the case of family lands at < ree against a a Subsequent to ll at which only ;

sale fell to th<

purchaser claim equivalent to lands allotted ir. The Court "

only to such c le certificate are of judgment-''de ,The learned "Ju<

being no privit l-debtor and tty of die ji sold in court ar'' applied;''an right to compel: odier lands f<

We to which wa;

Iris decision ;w�

imbay High Co lappa'', I Judges accej Tulasi Ammal Vs. Danalakshmi Ammal and Others, , were te Bombay Hjgl (G), which''.xel of joint fami ution of a?de t.) 1956 Andhr Without a fresh conveyance from the vendor, it culf to see how the disappointed purchaser acquire a title to some other property of the ir allotted to him at the partition. This is not of an equitable charge arising by operation as in the case of AIR 1948 Mad 1 ( v. 35) (FB) Such a charge does not, of course, require writer registration for its validity. Can the vendor 1 the vendee to accept another property in itution for that sold to the vendee and lost to as a result of the partition and thus deprive the ;e of his right to. sue for damages for breach of ''covenant of title?

If the vendor refuses to allow other property of I equivalent value to be taken by the disappointed Itkser, is the latter to sue for specific perform-Ij of a contract of sale which does not exist or recovery of the property itself on the strength title which has not been conveyed? These and let difficulties will have to be faced and solved if I doctrine of substituted security and the dictum fknkaran Nair J. in AIR 1914 Mad 440 (2) (Allt v. .1) gshould be taken as governing the case of a sale a specific item of joint family property by a co-tener.

In my opinion, it is not permissible to apply doctrine of substituted security to the case of lie of a specific item of joint family property by (parcener as if ho were the owner of that. 12. There is even less justification for the appli-m of the doctrine of substituted security to a s;ile of the interest of a coparcener in a spcei-ton of joint family property. ''Sabapathi Pillay jikndavaraya Odayar'', AIR 1920 Mad 316 ( v. 7) was the case of a purchaser of specific items of family lands at a court sale held in execution of reo against a coparcener.

Subsequent to the court sale, there was a parti-at which only some of the items purchased in sale fell to the share of the judgment-debtor, {purchaser claimed an allotment of an extent of equivalent to that which he lost, out of the rWttlands allotted to the share of the judgment-f. Sr. The Court held that the purchaser was only to such of tire items as were common to ''e certificate and the allotments made to the of judgment-debtor at the partition. ie learned Judges were of the opinion that being no privity of contract between the judg-lebtor and the auction purchaser and no try of the judgment-debtor''s title to the iold in court auction, the rule of ''caveat applied and the auction purchaser had jit to compel the judgment-debtor to sub-i other lands for those purchased by him but Ie to which was lost as a result of the partition, is decision was followed by a Division Bench ibay High Court in - ''Chidambaragauda v. lappa AIR 1934 Rom 329 ( v. 2.1) (L), the id Judges accepting its reasons as sound. Chidambargauda Ramchandragauda Desai Vs. Channappa Mahalingappa, "V 21) (L), were dissented from in a later decision " Bombay High Court in Vasudeo Dagadulal and Others Vs. Kankoochand Hirachand Visashrimali and Others, ( fSMMG), which related to the purchase of a specific riB"1 �f )oint family property at a court sale held ution of a decree against a coparcener.

195C Andhra D.F./13 The purchaser took possession of the property, which was a house. Thereafter he brought a suit for a declaration of his title to the house against the other members of the family without suing for a general partition. It was found by the''lower Courts -and this finding was accepted by the High Court-that having regard to the extent and value of the entire family properties and the number of coparceners, the house could be allotted to the share of the judgment-debtor if a general partition took place.

On this basis the learned Judges declared the title of the purchaser to the very property purchased by him in court sale in a suit filed by him against" the coparceners. There was no claim on the part O�J the purchaser in that ease for a general purtition. According to the learned Judges, the purchaser oi the interest of a coparcener in a specific item of joint family property becomes a tenaut-in-commou with the other coparceners and is entitled to joint jposses-sion with them.

This is not the law of this xwrt of the country and tiro view of the Madras High Court in AIR 1914 Mad 440 (2) ( v. 1) (F) and -- ''Raja Sahib of Robbili v. Venkatarainanujulu Naidu AIR 1915 Mad 453 (. v. 2) (M), is that the purchaser from a coparcener is not a tonant-in-common with the other coparceners and is not entitled to joint possession with them.

ri''he Madras view is in consonance with the decisions of 11io Judicial Committee in - ''Deoudayal v. Jugdeep Narain 3 Cal 198 (I''C) (N); 5 Cal 148 (I''C) (A) & - ''ilardi Narain v. Ruder Perkash Misser 10 Cal 626 (637) (PC) (O). This view has also been accepted as correct by the Supreme Court in -� Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, (491) ( v. 40) (P). Referring to the right of the purchaser of the interest of a coparcener in a portion of the joint family property, tire Supreme Court stated:

"''All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights ''only'' (italics mine here in '' '') by a suit for partition and his rightt to possession would date from the period when a specific allotment was made in his favour."

In Vasudeo Dagadulal and Others Vs. Kankoochand Hirachand Visashrimali and Others, (v. 38) (G), no question arose as regards the right of a purchaser of a specific item of joint family property from a coparcener or in execution a decree against the coparcener to recover soma other property of the vendor judgment-debtor as the case might be, in Substitution for the property purchased, if it was not allotted to tire share of the vendor or judgment-debtor at the partition.

Bhagwati J. observed that the purchaser of a specific item of property belonging to a joint family, cither under a private sale from one of the coparceners or at a court sale held in execution of a decree against him, has- an equitable right to have that property allotted to him at a general partition, it could be done without injustice to the other coparceners.

So far, it is a .statement of the accepted law of Madras and Bombay. If, however, the equities between the coparceners or the liabilities attaching to the share of the alienating coparcener render it in-equitable or impracticable to make such an allotment, the learned Judge held that "the alienee is entitled to recover from the alienor property or 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 tire sale."

For this proposition, the learned Judge relied on the well-known decision of the Bombay High Court in - ''Udaram Sitaram v. Ranu Panduji, which the principles and methods of working out the* equity of the purchaser of a coparcener''s interest in an item of joint family property were clearly and authoritatively formulated. This case, however, is not an authority for the proposition laid down by Bhagwati J. and quoted above. Indeed, the learned Judges (Westropp C. J. and West J.) expressly stated:

"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 parcener whoso share in the special portion had been mortgaged or sold, it is unnecessary now to give any opinion."

It is relying on this decision that Bhagwati J. in AIR 1951 Bom 220 ( v. 38) (G), dissented from the earlier decision of the Bombay High Court in Chidambargauda Ramchandragauda Desai Vs. Channappa Mahalingappa, ( v. 21) (L), whieh followed AIR 1920 Mad 316 ( v. 7) (K), & which declined to extend the doctrine of substituted security, applicable as between mortgagor and mortgagee, to the case of a purchaser of the interest of a coparcener at an execution sale. With great respect to Bhagwati J., I am unable to follow his opinion concurred in by Dixit J., in preference to the earlier decision of the Bombay High Court-in Chidambargauda Ramchandragauda Desai Vs. Channappa Mahalingappa, ( v. 21) (L), which followed the decision of the Madras High Court in AIR 1920 Mad 316 ( v. 7) (K). -(14) Referring to the reasons given by the learned Judges who decided AIR 1920 Mad 3.16 ( v. 7) (K), the learned Editor of Mayne''s Hindu Law (Edn. 11, page 489) observes:

"This would seem to be taking too narrow a view....... The equity depends upon the alienation being one for value and not upon any contractual nexus. The right to get properties which fall to an aileron at a partition is the primary and indeed the only right which an aliened 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." It is this passage that was accepted, be the learned Judges in Vasudeo Dagadulal and Others Vs. Kankoochand Hirachand Visashrimali and Others, ( v. 38) (G), as correctly representing the legal position. The learned Editor of Mulla''s Hindu Law (Edn. 11, page 321) after referring to the cases in AIR 1920 Mad 316 and Chidambargauda Ramchandragauda Desai Vs. Channappa Mahalingappa, ( v. 21) (L), observes:

"The view taken in these eases seems to be rather narrow......... The correct view, it seems'', has been recently taken by a Division Bench of the Bombay High Court in 1951 Bom 226 (AIR v. 38) (G), whieh has refused to follow the two eases mentioned above and held that there is no distinction in this respect between a private purchaser ami purchaser at a court sale."

Out of respect for the opinions of the leai; ed editors, I consider it necessary to examine at * length the legal position with regard to couit and the rights of purchasers at such sales. If p;i perty is sold by Court in execution of a deciee, proclamation of sale should "specify as iairly a accurately as possible the property to be sold", the sale certificate should specify the property by the court and purchased by the auction purch; As observed by the Judicial Committee in ''IT Barhama v. Jiban Ram 41 Cal 590 (PC) (11), "that which is sold in a judicial sale can be " ing but the property attached and that properly conclusively described in and by the schedule; which the attachment refers," that is to say, the schedule of attached property ming part of the proclamation of sale. What _ to a purchaser at a court sale in execution d..'' money decree is the right, title and inteiest of judgment-debtor in the property sold. If what put up for sale was a specific property, then what purchaser purchased is only that property.

If what was put up for sale was the umlivi share of a coparcener ja joint family property, purchaser acquired that share. If die intercit ( coparcener in properly A is sold in execution < decree and the sale is continued and a sale cate is issued in respect of A, the purchaser ask the Court to substitute property B or a j* of it if it is found later on that the judgment-i had no title to the whole, or part of A.

''To such a claim, the answer would be that Court never intended to sell and the purchaser not buy A or any portion of it. The Civil Pioci Code: of 1859 did not contain any provision fottl return of the purchase money to the auction pur* ser if it turned out that the judgment-debtor lud saleable interest. It was held that in such a case, purchaser was not entitled to a return of the j chase money even if the judgment-debtor lu-i saleable interest at all. See - ''D Qrab Ally v. Al Aziz 3 Cal 806 (PC) (S); - ''Hiralai v. -Kara.".-nissa 2 All 780 (t) and - ''Ram Narain v. \\U Bibi'', 2 All 828 (U).

The reason was that in judicial sales in euv-iB of decrees there was no warranty of title in I''.-ment-debtor and if the purchaser was evidcd hy title paramount, he had no remedy against tin- f m"nt-dcbtor or the officer conducting the court Order 21, Rule 93, Civil P. C. of 1908 give-. " to, the purchaser to refund of the purchase if a court sale is set aside under Order 21, Rule 92.

If the judgment-debtor had some saleable: rest, the purchaser cannot apply to set under Order 21, Rule 91 and the sale would taw be confirmed under Order 21, Rule 92, CPC It sale is confirmed, the right to a refund of the chase money is not available under Order 21, R If the judgment-debtor had no saleable all, the purchaser may apply to have the sale under Order 21, Rule 91 within the time prescrib -" Sc g refund of the purchase money under Order 21, K ;) 5 U sale is eoufinnod, Order 21, Rule 92 (3) debar-. I.''-. J chaser from bringing a suit to set aside the sJL-V There has been a difference of opinion the High Courts on the point whether,

Code of 1908, an auction purchaser is en-"d v. bring a suit for return of the purchase cy against the decree-holder where it turns out I the judgment-debtor had no saleable interest at ill the properly, and this defect is discovered alter confirmation of sale. One view is that the right a refund of the purchase money is a creation .0. 21,''R. 93, Civil P. C. and the only mode of dicing that right is that prescribed by that rule.

Ihe other view is that the right to return of the chase money from the decree-holder who reeeiv-it, exists apart from Order 21, Rule 93 which provides mode of enforcing that right in the course of the ution proceedings. A Full Bench of the Madras h Court has, however, upheld the right of the chaser to recover ''the purchase money from the ''ee-holder in such cases. See - ''Macha Goundan ottora Jvoundan AIR 1936 Mad 50 ( v. 23) (FB) It is significant that the Full Bench held that judgment-debtor''s connection with the court safe remote and he was under no liability to refund purchase money though it might be that it had a applied in reduction of his liability under the ree. Alt the Courts are however agreed that if judgment-debtor had some saleable interest in properly sold, though it is very much less than interest sold in court auction, the purchaser has right to a return of any portion of the purchase ay. Nor has he any right to damages against the reohoJder or the judgment-debtor.

file reason is that unlike a private sale where is a covenant of title, express or implied, the chew of which gives rise to a liability in damages, e is no such covenant in the case of a court sale en either by the decree-holder or the Court os:

judgment-debtor. The rule of "caveat emptor'' lies to court sales.

We are concerned in this case with the t of a purchaser of a specific item of joint family perty at a court sale held in execution of a decree st a coparcener, when it is found inequitable or acticable to allocate the whole or a portion of .property sold to the share of the judgment-tor at a partition among the members of the In such a case, is the purchaser entitled to re-er from the properties allotted at the partition the share of the judgment-debtor other property substitution for the property which he purchased the title to which was lost as a result of the parli-n? What was the real nature of the purchase at execution sale? What did the Court intend to , ? What did the purchaser buy? These are the want considerations. The purchaser acquires no "est in the specific property, for the judgment-debtor none. In Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, ( v. (P), the Supreme Court observed:

''"What the purchaser acquired at the execution ;was not any interest in a specified portion of joint property but the right of the judgment-tor to have his share defined and allotted by ''tion."

"acquires an "equity" to stand in the shoes of .judgment-debtor and work out his''rights by "S of partition and allotment, if possible, of the erty purchased, to the share of the judgment-"r. The court auction purchaser purchases with his eyes open. lie purchases subject to the risk or contingency of the property purchased not being allotted to his judgment-debtor at the partition. He rakes the chance of the property being allotted to (ho sli;ue of a coparcener other than the judgment-debtor at the partition.

The price; paid is not for a sale with a covenant of title but is commensurate with the risk taken by the purchaser of losing title to the property as a result of the paramount claims of other members of the joint family. The sale is held in invituni irrespective of the concurrence of the judgment-debtor & possibly against his wishes. There is no contract or warranty of title on the part of the judgment-debtor or the Court holding the sale. The purchaser takes the property with ail risks and subject to all defects in the judgment-debtor''s title.

The judgment-debtor makes no representation to the xmrchaser that lie has title to the property sold or that he would secure the consent of his coparceners to the sale. I find it difficult to see upon what general equity existing between the parties thus situated, ought the judgment-debtor be compelled to substitute other properties got by him at a partition for those which were purchased by the purchaser at the court sale and lost to him at the partition.

For these reasons, I am of the opinion that the decisions, in 25 Mad 690; AIR 1920 Mad 316 and Chidambargauda Ramchandragauda Desai Vs. Channappa Mahalingappa, (Allt v. 21) (L), Jay down the law correctly and that they should be followed in preference to the opinion expressed in Vasudeo Dagadulal and Others Vs. Kankoochand Hirachand Visashrimali and Others, ( v. 38) (G). The answer to the second question referred to the Full Bench should be in the negative.

Satyanarayana Raju, J.

I agree.

Subba Rao, C.J.

I have had the advantage of reading the judgment prepared by learned brother Viswauatha Sastri J. I agree with him and have nothing to add to it.