Ramachandra Naicker vs Seeyala Naicker

Nainar Sundaram, J.—The second defendant in O.S. No. 84 of 1974 originally on the file of the Additional Subordinate Judge,

Chengalpattu, now on the file of the District Munsif, Poonamallee, is the petitioner. The respondent is the plaintiff in the suit. The plaintiff laid the

suit for specific performance of an agreement of sale against one Chockalinga Naicker arrayed as the first defendant who is none else than the

brother of the second defendant, the petitioner herein. The trial court did not countenance the prayer for specific performance, but only granted a

money decree creating a charge on 2/3 share of the suit property which is a house. The decree was executed and the 2/3 share in the suit house

was sold and it was purchased by the plaintiff himself. The plaintiff sought delivery of the property purchased and it is admitted that he took

delivery of the entire house. Obviously, this was not in order. The second defendant took out an application for delivery of 1/3 share in the suit

house and that was ordered. Complaining that instead of taking symbolic delivery of 1/3 share of the suit house, possession of the entire suit house

has been taken, the plaintiff filed E.A. 1487 of 1982 for directing the second defendant to redeliver 2/3 portion of the suit house. The matter was

contested by the second defendant. However, the court below directed that the suit house should be divided and the 2/3 share should be allotted

to the plaintiff and gave liberty to the plaintiff to make the requisite application for appointment of a Commissioner in this behalf. The present

revision is directed against the orders of the court below.

Mr. T.V. Ramanujam, learned counsel for the second defendant, would submit that the plaintiff is a decree holder purchaser of only a 2/3 share

in the suit house and it is not permissible in law in execution to obtain either actual or symbolical delivery of this 2/3 share in the suit house. In

support of this submission learned counsel relies on the ratio of a Full Bench of the Court in Ramaganesan Pillai v. Raja Aiyar 1963-2-M.L.J.

1622=68 L.W. 166 (F.B.).

As against the above submission, Mr. V. Krishnan, learned counsel for the plaintiff would submit that the second defendant earlier only wanted

to take back symbolic delivery of 1/3 share in the suit house and instead of doing that he has taken possession of the entirety of the suit house and

hence, the present application taken out by the plaintiff for delivery of 2/3 share could be accorded at least recording delivery of 2/3 share of the

suit house in favour of the plaintiff.

The law on the subject does not permit countenancing the plea put forth on behalf of the plaintiff. The sale in favour of the plaintiff decree holder

is only of an undivided 2/3 share in the suit house. This is not in dispute. Under the Code of Civil Procedure, hereinafter referred to as the Code, in

respect of a purchase of an undivided share, in execution there is no provision which enables such a purchaser, be he so an independent court

auction purchaser or decree holder purchaser to apply for and obtain either joint possession or symbolic possession pursuant to such a sale.

Obviously, there could not be any actual delivery of an undivided share. O. 21, R. 35 contemplates delivery of joint possession where the decree

itself is for joint possession of immovable property and in such a case possession could be delivered by affixing a copy of the warrant in some

conspicuous place on the property and proclaiming by beat of drums or by other customary mode, at some convenient place, the substance of the

decree. This is the import of sub-R.(2) of R. 35 of O. 21 of the Code. This rule cannot be invoked in the instant case.

The other rule which speaks about delivery of property to a purchaser in execution is R. 95 of O. 21 of the Code and that also does not enable

the purchaser of an undivided share of a property to seek for either delivery of joint possession or symbolic delivery. O. 21 , R. 96 of the Code

serves a different contingency where the property is in the occupancy of a tenant. Even as early as Yelumalai Chetti v. Srinivasa Chetti ILR 1906

Mad. 294 , it was held that the executing court is not enabled to pass an order of delivery of possession at the instance of a purchaser of a share of

a joint family property alone. In Thahi Chettier v. Dakshinamurthi 1955-1-M.L.J. 414 68 L.W. 166, Rajamannar, C.J., speaking for the Bench,

pointed out that there could in law be neither symbolic nor actual delivery of possession in the case of a court auction purchase of an undivided

share of a member of a joint Hindu family, the remedy of the purchaser being only to sue for partition. The case law is settled by the Full Bench

relied upon by the learned counsel for the second defendant where the following observations are made:�

The CPC contains various provisions as to when actual, joint or symbolical possession can be given. There can also be cases, as in the case of a

purchaser of an undivided share of a member of a joint family in which none of these categories of possession can be appropriate or be given.

Coming to the facts of the present case as on date, admittedly the plaintiff is out of possession. As per the terms of the purchase by him in court

auction be is entitled to only 2/3 undivided share in the suit house. It is true that there were earlier proceedings which obviously did not fructify in

favour of the plaintiff. But in my view, such proceedings have no legal efficacy and they have to be ignored as having been taken without the

sanction of law. Hence, the plaintiff being a purchaser of an undivided 2/3 share in the suit house, has to work out his remedies by levying a suit for

partition armed with the sale certificate in his favour. The features of law discussed by me above, in the background of the facts of the case, oblige

me to interfere in revision, and accordingly the revision is allowed. There will be no order as to costs.