Dhanalakshmi and 4 others vs S. Palanivelu and 4 others

Arunachalam, J.—Decree-holder/court auction purchaser (1st respondent) has been driven from pillar to post for several years by the petitioners, who, at every stage, lost in their litigations up to this Court. First respondent, court auction purchaser, did not have a right in species and necessarily, as ordained in law, he is constrained to file a suit for partition and get preliminary and final decrees, wherein equivalent in species, got allotted to him. In this Civil Revision Petition, Mr. K. Doraisami, learned senior counsel, contended that Art. 134 of the Limitation Act would apply and the first respondent ought to have filed the execution petition within one year from the date of final decree. He then argued that even a suit for partition was barred by limitation, for auction was confirmed on 7.8.1979 while the suit was filed on 22.10.1980 after a period of one year. The principle that has to be applied in cases of this nature has been clearly stated by a Division Bench of this Court in V.C. Thani Chettiar and Another Vs. Dakshinamurthy Mudaliar and Others, . The following observations of Rajamannar, C.J. will be relevant.

A person, who purchases an undivided share of a coparcener of a joint Hindu family, cannot claim to be put in possession of any definite piece of family property. He does not even acquire any interest in the property sold. He does not become a tenant-in-common with the members of the family He is not entitled to joint possession with them. He has only equity to work out his rights by means of a partition standing in his vendor''s shoes. The Aileen''s suit for partition must he one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property. Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. A suit by an Aileen''s of an undivided share from a coparcener of a Hindu joint family, will fall under Art. 144 (Art. 65 of the present Limitation Act) so long as property concerned is immovable property....There can be no delivery, either symbolical or actual, in pursuance of the sale of an undivided interest in joint family property. It is not competent to a court on a mere application for execution by a purchaser of such an undivided share to pass an order directing delivery of possession.

The principle laid down in V.C. Thani Chettiar and Another Vs. Dakshinamurthy Mudaliar and Others, ) was approved by the Supreme Court in V.C. Thani Chettiar and Another Vs. Dakshinamurthy Mudaliar and Others, These are the observations of the Supreme Court:

In my opinion, such a suit falls within the purview of Art. 144 of the Limitation Act, and the law on this point is correctly stated in V.C. Thani Chettiar and Another Vs. Dakshinamurthy Mudaliar and Others,

Mr. Doraisami; on becoming aware of the legal position, submitted that execution will still be barred by limitation on application of Art. 134 of the Limitation Act. Even if it is assumed that Art. 134 of the Limitation Act will stand attracted (which, of course, is not), even then the execution petition has been filed in time. Final decree was passed on 31.10.1988 and the execution petition was filed on 31.12.1988 within two months. There can be no escape from the conclusion that all that is contemplated in Art. 134 of the Limitation Act is that the person concerned must be capable of or be in a position to take delivery of the property. Since the property was joint family property, the only remedy available for the first respondent was to file a suit for partition. It is not disputed that the suit for partition was filed even when the petition under O. 21 R. 95, C.P.C. was pending. The impugned order does not suffer from any infirmity and the legal position has been correctly stated. Neither in law nor on facts, are petitioners entitled to any remedy. This Civil Revision Petition, which has no merit, shall stand dismissed.