Gulab Narain vs Smt. Banshi Devi and Another

N.C. Sharma, J.—Heard, Shri O.P. Garg, learned Counsel for the appellant.

Plaintiff-appellant Gulab Narain instituted Civil Suit No. 45/1982, against Smt Bhonri, Gopal Soni and Smt. Banshi for partition, which has been partly decreed by the Additional District Judge No. 5, Jaipur City by his judgment and decree dated December 22, 1988, declaring that the plaintiff-appellant is entitled to get the suit property partitioned in which be is one of the co-sharers. Against this preliminary decree, the plaintiff has filed this first appeal.

The dispute relates to a house property bearing Municipal No. 1051 (situated in Chokari Top Khana Desh, Baba Harish Chandra Marg, Jaipur. One of the co-sharers in this property named Sita Ram had mortgaged some portion in this property in favour of Gopal Soni. On the basis of the mortgage, Gopal Soni obtained a decree for sale of the mortgaged property and in execution thereof got one-third undivided share in the above-mentioned property auctioned through court, which was purchased by the plaintiff-appellant and, the court-auction in his favour was confirmed on November 4, 1980 and the symbolic possession of the undivided share was given to him on May 4, 1982.

It may be mentioned that apart from the property bearing Municipal No. 1051, situated in Baba Harish Chandra Marg, Jaipur there was one more house situated in Rasta Tehviadaran, near Tikkamal-Ka-Chouraha, Jaipur, which was also joint family properly and in which the said, Sita Ram had also got a share. A Civil Suit No. 21/1971 was filed by the other co-sharer, namely, Gopal Soni, respondent No. 2, against Sita Ram, Smt. Banshi Devi and Sundar Devi for partition The suit for partition filed by Gopal Soni was decreed by the trial Court on May 31, 1971 and, it was held by the trial Court that Gopal Soni had one-half share in both the above house properties and the other half was of Sita Ram, Banshi Devi and Sundar Devi, each having the sixth share in both the houses. This preliminary decree in Civil Suit No. 21/1971 was appealed against before the High Court and ultimately in D. B. Civil Special Appeal No. 80/1973, it was finally decreed that Sita Ram had only one-fourth share in the said house properties

Relying upon the shares declared by the High Court in partition suit No. 21/1971, the Additional District Judge held that as Sita Ram''s share, whose right, title and interest the plaintiff had purchased as auction purchaser in the sale effected in pursuance of the mortgage decree for sale obtained by Gopal, was declared to be one fourth only, the plaintiff could get partitioned house No. 1051 by metes and bounds of his one-fourth share in it. This preliminary decree has been appealed against by the plaintiff, Gulab Narain, who was the auction-purchaser.

it was argued by the learned Counsel for the plaintiff appellant that it is an admitted fact that there was one more joint family property situated in Rasta Tehvildaran, Tikkarmal-ka-Chouraha, Jaipur apart from the property bearing Municipal No. 1051 situated in Baba Harish Chandra Marg, Jaipur and that in the house property situated in Rasta Tehvildaran near Tikkerma-ka-Chouraha, Jaipur also, Sita Ram had one fourth share. On this basis, it was urged that equities must be adjusted in favour of the plaintiff-appellant and in the suit filed by him, the appellant should be declared to be entitled to one-third share in the property No. 1051 or share equivalent to one fourth in both She properties. The learned Counsel for the appellant placed reliance on the decisions in Ganesh Babu and Another Vs. K.S. Radhakrishnan and Others, and in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, I have gone through both these decisions and they are not at all applicable to the facts of the case. In Ganesh Babu''s case (supra), the first respondent had attached 1/4th undivided interest of the Fourth respondent in the property of the joint family, and he had himself purchased the said one-fourth undivided interest in the court auction. The first respondent instituted a suit for partition in which he had only claimed one-fourth share which had been purchased. A defence was put up by the defendants that though the first respondent purported to bring to sale and purchase the one fourth undivided interest of the fourth respondent in the property in question, still, on the date of the sale the first respondent had two minor sons, namely defendants Nos. 6 and 7, and therefore, the interest of the fourth respondent acquired by sale was not one fourth interest, but only one twelfth interest. It was found as a fact that defendants Nos. 6 and 7 were born subsequent to the adjudication of the fourth respondent as an insolvent, and the taw is clear that they did not acquire any interest in their father''s undivided share in the Hindu joint family property which prior to their birth vested in the Official Receiver. Therefore, the contention of the appellant that the first respondent had acquired only 1/12th share in the property was rejected. In the instant cases it has been found by the High Court in the partition suit No. 21 of 1971 which was in relation to both the properties, that Sita Ram got one-fourth share. There is no, therefore, question of adjusting any equities The auction purchaser got what be had purchased. In the instant case, the plaintiff-appellant is claiming more than what Sita Ram, whose interest was sold in auction had in the property which had been sold in court-auction. In other decision in Sideshwar Mukherjee v. Bhubaneshwar Prasad (supra) relied upon by the learned Counsel for the appellant, it was only laid down that purchaser at the execution sale of undivided interest of the coparceners in the joint property 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 by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.

The learned Counsel for the appellant next urged that mesne profits should have been awarded to him. On this point also, it is well settled by the decision in Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, that the purchaser of a coparcener''s undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose soars he had purchased. His might to possession "would date back from the period when specific allotment was made in his favour."

It is clear that the appellant was not entitled to that, share in any other property except in property bearing Municipal No. 1051 situated in Baba Harish Chandra Marg, Jaipur and that also to the extent of one fourth as held by the Additional District Judge No. 5, Jaipur City. The appellant was also not entitled to any mesne property.

This first appeal has no merit what so ever in it and the same in here by dismissed in limine.