Delo Singh vs Jagdip Singh and Others

Beevor, J.—This is an appeal by the defendant in a suit for partition. The plaintiffs brought a suit against Phalli Singh, his sons and grandsons on the basis of a hand note and obtained a decree, and on 3-1-42 in execution of that decree they brought to sale and purchased an eight anna share in one property as representing the share of Phalli, his sons and grandsons. The decree in the suit was dated 23-4-40 and the eight anna share, had been attached before judgment on 22-4-39. The defendant appellant was of the same family as Phalli Singh, and the plaintiffs sued for partition of the eight anna share purchased by them as against the defendant appellant.

The defendant appellant contested the suit on various grounds, the main allegation of fact on his behalf being the allegation that there had been a prior partition in the family of himself and Phalli Singh whereby the 16 annas of the property in suit had been allotted to him. On this question of fact, however, the decision of the lower Courts was against the appellant and that decision could not be challenged in second appeal.

Five contentions have been raised on behalf of the appellant first, that the suit was not maintainable as the plaintiffs had made no prayer for possession; secondly, that the suit was not maintainable as the plaintiffs had not included in their partition suit the entire properties which belonged to the joint family of the appellant and Phalli his sons and grandsons; thirdly, it was contended that Phalli, his sons and grandsons were necessary parties to the suit; fourthly, it was contended that the plaintiffs in execution of their decree could only purchase the right, title and interest of Phalli with or without the interest of his sons and grandsons, and that they could not themselves in their execution proceedings determine the share at eight annas, and that the share must be determined in a suit brought against the family of Phalli and the appellant; and fifthly, it was contended that as the property is in possession of sudharnadars the plaintiffs'' suit is not maintainable.

It will be convenient to deal first with the fourth of these contentions. From the time in Deendyal Lall v. Jugdeep Narain Singh (77) 4 I.A. 247 it has been settled that in the Mitakshara as administered in this province the right, title, and interest or share of a member of a Mitakshara joint family may be sold in execution of a decree against him even though he may not dispose of his share in the joint estate by voluntary conveyance without the concurrence of his coparceners. It was also stated in that case that the right of the purchaser at the execution sale must be limited to that of compelling the partition which his debtor might have compelled had he been so minded before the alienation of his share took place. It is thus obvious that the decree-holder cannot by specifying a share in his execution proceedings as being that to which his judgment-debtor is entitled to give himself or any other auction-purchaser a right to obtain by partition any greater share from that which his judgment-debtor could have obtained by partition as stated by the Judicial Committee of the Privy Council.

In the present case, however, it could not be urged after the finding of the lower Courts that there had been no previous partition that the share in the joint family property or in the village, in which the plaintiffs made their purchase, was at any material time either greater or less than eight annas. It was suggested that the plaintiffs might have purchased merely the right, title and interest of Phalli excluding that of his sons and grandsons, and such a share would certainly be less than eight annas. But the interest of the eons and grandsons can be sold in execution of a decree against the father unless the debt is an immoral one. This is a defence which can be raised by the sons and grandsons, and it appears that Phalli''s sons and grandsons were parties to the suit against Phalli as well as the execution proceedings. I, therefore, hold that by their auction purchase the plaintiffs acquired exactly the same rights as they would have done had they in their execution proceedings put up for sale and purchased "the share or right, title and interest of Phalli, his sons and grandsons" in the village without at that time specifying exactly what that share was.

I now turn to the first of the appellant''s contentions. This is based on the proviso to Section 42, Specific Relief Act which runs as follows:

Provided that no Court shall make any such declaration where the plaints, being able to seek further relief than a mere declaration of title, omits to do so. 7. Now in the above cited case Deendyal Lall v. Jugdeep Narayin Singh (77) 4 I.A. 247 and the later decision of the Judicial Committee in Hardi Narain Sahu v. Ruder Perkash Misser (84) 11 I.A. 26 even though the purchaser of the right, title and interest of one member of the joint family had obtained possession, the Judicial Committee held that the joint family was entitled to recover possession of the entire property purchased subject to the rights of the purchaser to work out his rights by means of a partition. It seems to me quite impossible in the face of these decisions to suggest that the purchaser at such an auction sale can in a subsequent suit sue for possession otherwise than by means of partition. The plaintiffs have claimed partition and in the circumstances I do not think they could claim any further relief. It may well be that the lower appellate Court was right in requiring the plaintiffs to pay ad valorem court-fee instead of the fixed court-fee for partition on the ground that they were out of possession, but that does not affect the question with which we are now Concerned.

It was certainly held by James J., Nand Kishore Kumar Vs. Achambit Kumar and Others, that the Court should be astute to see that the plaintiffs should not avoid the liability to pay court-fee under: Section 7(iv)(C) or (7)(v), Court-fees Act, merely by omitting to assert a prayer for possession in what was essentially a title suit in the guise of a partition suit. The lower appellate Court has really applied this principle in requiring the plaintiffs to pay ad valorem court-fees. We were referred to the case Rewati Raman Basak v. Harish Chandra Basak AIR 1920 Cal. 991, a case in which the Court refused to allow a plaint in a partition suit to be amended by adding a prayer for possession, but that was clearly a case in which the plaintiff could have sued for joint possession.

I now come to the second point. It is argued on behalf of the appellant that, as the plaintiffs'' right to partition would at most be the right which was possessed by his judgment debtor to obtain partition, the plaintiffs in their suit must include all the joint family properties because had Phalli himself sued for partition he would certainly have had to do so. The appellant has referred to para. 368 of Mayne''s Hindu Law, Edn. 10, page 500 where it is stated that

the alienecs suit for partition must be one for the partition of the entire property and not for partition of any specific interest for he acquires no interest therein and the coparcener who alienated had himself no such interest. He cannot sue for ''partition and allotment to him of his share of the property so alienated, nor is he entitled to any mesne profits in respect of his share between the date of his purchase and the date of his suit for partition. 10. The corresponding remarks in Edn. 9, para. 594 at page 716 were, however, not followed by in Nasim Ali J. Tarini Charan v. Debendra Lal (35) 62 Cal. 655. The learned Judge in that case held that the purchaser of a small portion of the joint family property is entitled under the law to get a partition only of the land purchased by him, and that in such cases a suit for a partial partition will lie, for to give effect to the contrary view would be to affirm the principle that a plaintiff can institute a suit for partition in respect of property in which he has no interest at all He also pointed out that although the ordinary rule is that a suit for partition must embrace all properties owned by the parties thereto, there is also the complementary rule that the suit for partition cannot include properties in which each of the parties does not claim an interest. The latter proposition was set out in an earlier case of the Calcutta High Court: Sris Chandra v. Mahima Chandra AIR 1916 Cal. 891 decided by Sir Asutosh Mukherji later Chief Justice of Calcutta, and Roe J., who subsequently became one of the original Judges of this Court. Applying that principle they held that where two properties A and B were jointly owned by x and Y and by mutual agreement X held possession of A while Y of B but no final and definite partition was effected between the parties, and Y, though in possession of B, transferred to z his one half share in A, z was entitled to claim partition as against X. There are two earlier decisions of the Allahabad High Court Ram Mohan Lal v. Mul Chandra (06) 28 All. 39 and Ram Charan v. Ajudhia Prasad (06) 28 All. 50 which have a bearing on this question. In the first of those cases it was held that it was competent to the purchaser of a share in two joint family properties to bring a suit for partition of one of those properties without including the other in his suit. This goes much further than the claim of the plaintiffs in the present instance.

In the second of those Allahabad decisions, where two brothers formed a joint Hindu family and one of them sold his interest in a portion of the joint family property, it was held that it was competent to the other brother to sue for partition of his share in the property so dealt with without asking also for partition of the remainder of the joint family properties. The facts of that case are really complementary to those now before us. The first of those Allahabad decisions relied on the earlier decision of Phear J. of the Calcutta High Court Srimati Padmamani Dasi v. Srimati Jagadamba Dasi (71) 6 Beng. L.R. 134. It seems to me that he has laid down the true principle to be applied in his judgment in that case in the following words:

I think that the plaintiffs may confine his application to the Court to that particular part of the property which he is desirous of having divided; but then it follows from the view which I have already endeavoured to express so that in a suit so brought, it will always be open to the other parties to show that that part of the property ought not to be divided, or could not fairly be divided without taking into consideration the rest of the property and dividing it also, 12. The appellant relied on the decision Koer Hasmat Raj Sunder Das (1985) 11 Cal. 396 for the proposition that in a suit for partition the objection that the whole of the joint family property is not included in it is by no means a technical one. The facts of that case involved special questions, but even if the proposition is treated as of general application, it seems to me to be quite consistent with the view that the present plaintiffs might bring their suit in respect of the one property in which they had purchased a share though it would have been open to the defendant to object that partition should not be allowed unless other properties were also brought into partition. No such objection was taken in the written statement in the present suit. It was urged also on behalf of the appellant that the transferee of a share in only one of the joint family properties cannot as against the members of the joint family compel a partition of that property alone. Again I think that this proposition is quite consistent with the view that the plaintiffs may bring their suit in respect of the one property subject to the possibility that the defendant may claim that other properties also be brought into the partition. The result of the principle expressed by Phear J., and quoted above will also have the reasonable result that the choice whether the plaintiff shall be restricted to the particular property in which he has purchased a share, or whether a general partition should be demanded, will lie with the members of the joint family and not with the plaintiff who is a stranger purchaser. In my opinion, therefore, the present suit for partition is maintainable though all the properties of the joint family have not been included.

Turning now to the third point, I think it is quite clear that so long as the suit is restricted to the property in which the share of Phali, his sons and grand-sons has passed to the plaintiffs, those persons are not necessary parties to the suit.

As regards the fifth point, the partition cannot be effective in possession until the sudhbharna is redeemed and the shares allotted on partition must clearly remain subject to the sudh. bharna. But as it is not proposed to evict the sudbharnadar or to do anything in the present partition suit which would have the effect of requiring any substitution of property as security for his mortgage does, I do not think that the existence of this sudbharna or usufructuary mortgage is either a bar to the partition suit or requires that the sudbharnadar should be made a party to the suit. A reference was made on behalf of the appellant in this connection to the decision in Harnandan Das and Others Vs. Muhammad Kalim and Others, a decision to which I was a party. That was a case in which the holder of an equity of redemption of a usufructuary mortgage, which mortgage overact an undivided share in zamindari property, brought a partition suit against his co-owners. It was found that although he claimed possession through his mortgagees, the mortgagees were not in possession, and it was held that the possession of the co-owners was not his possession so as to entitle him to bring a simple suit for partition. That decision has, to my mind no bearing on the facts of the case now before us.

In my view, therefore, all the contentions of the appellant fail, and I would dismiss this appeal with costs.

Bennett, J.

I agree.