Kota Balabadra Patro vs Khetra Doss and Others

The question in this appeal is whether an alienee of a co-parcener in a joint Hindu family is entitled to possession of the alienor''s share as a

tenant-in-common. There can be no doubt that so far at least as this Presidency is concerned that he has no such right, It has been ruled in a series

of decisions that his only right is to obtain by a suit for partition, the share to which his alienor was entitled. He is allowed to stand in the shoes of

the co-parcener whose rights he has acquired and thus the equities are worked out between the parties. The point is covered by recent decisions

of this Court. In Maharaja of Bobbili v. Venkataramanujulu Naidu ILR (1914) M. 265. s.c. 27 M.L.J. 409, it was ruled by Wallis, Chief Justice

and Kumaraswami Sastri, J. that a purchaser of the undivided share of a member of a joint Hindu family does not thereby become a tenant-in-

common with the other members. Sankaran Nair, J. and Bakewell, J. in Nanjaya Mudali v. Shanmuga ILR (1914) M. 684. s.c. 26 M.L.J. 576,

also laid down the law to the same effect after careful review of the Privy Council decisions bearing on the subject. The Judicial Committee''s

rulings in Suraj Bunsi Koer v. Sheo Persad Singh ILR (1879) C. 148 and Hardi Narain Sahu v. Ruder Perkash Misser ILR (1883) c. 626, clearly

bear out this view of the Hindu law. The learned vakil for the respondents has referred to some rulings of the Bombay High Court but it is not

necessary to consider them here as there has been a uniform course of decisions in this Presidency laying down that an alienee from a Hindu co-

parcener does not thereby acquire the rights of a tenant-in-common, such as, to possession and to mesne profits. Reliance was also placed on

Section 44 of the Transfer of Property Act but the rule enunciated there does not override the Hindu Law.

The result will be the decree of the District Judge will be set aside and there will be a decree declaring that the plaintiffs have a valid mortgage

right to the extent of the share of the 3rd defendant and that they are entitled to enforce the same by a suit for partition. The respondents will pay

the costs in this Court as well as in the District Court.