Karnataka High Court
Mallamma vs B.S. Venkataram on 30 August, 1990
Equivalent citations: ILR1991KAR2761, 1991(4)KARLJ526
JUDGMENT K.A. Swami, J.
1. This Appeal is preferred against the Judgment and decree dated 14-2-1990 passed by the 5th Additional City Civil Judge, Bangalore in O.S.No. 1908/1983.
2. The appellant is the second defendant in the suit. Sri B.S. Venkataram who was the sole plaintiff in the suit died during the pendency of the suit, therefore, respondents 1 (i) to 1 (vii) were brought on record in the trial Court as plaintiffs 1 to 7. Respondent-2 is the first defendant in the suit. The first defendant and second defendant are the husband and wife.
3. At the stage of admission, the records of the Appeal are received. Therefore, the Appeal is admitted and it is heard for final disposal on the request of both the sides.
4. Sri B.S. Venkataram filed the aforesaid suit for a declaration that the defendant 'Kambaiah' has no right to/over the schedule premises and has no right to occupy the same and also a decree for possession by ejectment of Kambaiah requiring him to physically move out and assure full vacant possession of the schedule property to the plaintiff. He also further prayed for enquiry into the mesne profits and for payment of the same from the date of suit till the date of actual delivery of possession and for costs and such other reliefs as may be deemed fit in the facts and circumstances of the case.
5. Suit schedule property as described in the schedule to the plaint is as follows:
"All the piece and parcel of land together with the building constructed thereon situate at junction of the fourth Main Road and fifth Cross Road, Chamarajpet, measuring about 22 (twenty two) feet East to West and about 60 (sixty) feet, North to South, with the partly filed and terraced house built thereon and bearing Old Municipal No. 158/1 (one fifty eight/one), then numbered as 176 (one seventy six) and now as No. 2 (two), bounded on the East by Smt. Sudha's house old No. 159 (one hundred fifty nine) and present New No. 194/1 (one hundred ninety four/one) West by V Cross Road, North by Conservancy Lane and South by the House No. Old 158 (one fifty eight) and present No. 193 (one ninety three) belonging to the plaintiff B.S. Venkataram."
6. In the suit Kambaiah remained absent even though he was served by substituted service. Mallamma the appellant herein who is the wife of Kambaiah got herself impleaded in the suit on the ground that Kambaiah was unheard of for five to six years and she was in actual possession of the suit premises along with her children. That application was allowed on 22-9-1984. She also filed the written statement.
7. The plaintiff claimed that the suit schedule premises is the property of the joint family consisting of B.S. Venkataram, B.S. Rama Rao, B.S. Narayana Rao and their children. He further averred that B.V. Subba Rao the father of B.S. Venkataram, B.S. Rama Rao and B.S. Narayana Rao had alienated the suit schedule premises along with other premises and that alienation was declared as null and void in O.S.No. 34/49-50 and therefore the property continued to be the joint family property; that there was a suit filed by him and his children in O.S.No. 18/1965 for partition and separate possession of their share; that during the pendency of that suit B.S. Rama Rao and his son Nagaraj alienated the suit schedule premises in favour of Jayamma on 20-4-1967 and pursuant to the sale, Jayamma was put in possession of the suit schedule premises; that Jayamma in turn sold the suit schedule premises to Kambaiah on 21-9-1970 and put the suit schedule premises in possession of Kambaiah; that the sale effected in favour of Jayamma and Kambaiah are null and void and as such Kambaiah has no right to remain in possession. Hence, the plaintiff prayed for the aforesaid reliefs.
8. As already pointed out Kambaiah did not appear in the suit. It was only Mallamma the wife of Kambaiah who got herself impleaded as second defendant filed the written statement. She set up the title to the suit property in favour of her husband as well as adverse possession. The title set up in favour of her husband was the sale deed executed by Jayamma in favour of Kambaiah. It was also pleaded that in equity the suit schedule premises in a final decree proceedings that would take place pursuant to the preliminary decree in O.S.No. 18/1965 be allotted to the share of B.S. Rama Rao and his son Nagaraj. Therefore, she pleaded that the plaintiff was not entitled to be granted the reliefs prayed for.
9. On the basis of the pleadings of the parties, the trial Court framed the following issues:
1. Whether the plaintiff proves that the suit property is his joint family property?
2. Whether the second defendant proves that the proceedings in O.S.34/49-50, O.S.18/65 and R.F.A.49/71 were collusive and the results therein are not binding on her?
3. Whether the 2nd defendant has perfected her title to the suit property by adverse possession?
4. Whether the 2nd defendant proves that the plaintiff is estopped from questioning her title for the reasons stated in para-8 of her written statement?
5. Whether the Court fee paid on the plaint is not proper?
6. What order?
10. Issue No. 1 was answered in the affirmative, Issues 2 to 4 were answered in the negative and Issue No. 5 which related to sufficiency of Court fee was separately recorded and it was held that the Court fee paid was proper. Accordingly it passed a decree as follows:
"ORDER The suit of the plaintiff is decreed.
It is hereby declared that the defendants have no right over the suit schedule premises and they have no right to occupy the same.
The plaintiff be put in possession of the suit property by evicting the defendants.
The plaintiff is directed to take a separate proceedings for determination of mesne profits as per Order 20 Rule 12 C.P.C. from the date of suit till he is put in possession of the suit property.
Under the circumstances, I order both the parties to bear their own costs."
11. Hence, the second defendant has come up in appeal.
12. Having regard to the contentions urged on both sides the following points arise for consideration:
1. As it is not proved that the first defendant, on the date when the appellant filed an application for impleading herself was unheard of, and his whereabouts were not known, for a period of seven years, whether the appellant could have been impleaded as second defendant and whether she could maintain the appeal?
2. Whether the second defendant could resist the suit?
3. Having regard to the fact that the alienation in favour of Jayamma has taken place during the pendency of the suit for partition, whether Kambaiah and second defendant who are the subsequent purchasers from Jayamma are entitled to resist the suit for possession and whether they are entitled to claim equity and continue in possession until the final decree proceeding is completed?
4. Whether the decree as passed does not affect the right of the alienee to work out his right in a final decree proceeding in O.S.No. 18/65?
5. What order?
13, Point No. 1:- As per the plaint averments the suit schedule premises was sold by B.S. Rama Rao and his son Nagaraj in favour of Jayamma on 20-4-1967, during the pendency of the suit O.S.No. 18/65 filed by B.S. Venkataram and his children for partition and separate possession of their share which also included the suit schedule premises. It is also not in dispute that to that suit Smt. Jayamma was a party and Kambaiah came to be impleaded as a party in the appeal preferred against the preliminary decree passed in O.S.No. 18/65. In O.S.No. 18/65, H.S. Venkataram and his children have been awarded 2/7th share in the suit schedule premises. It may also be mentioned that in O.S.No. 18/65 apart from the suit schedule premises there are several other properties in respect of which a preliminary decree for partition is passed. The alienation effected in favour of Jayamma has not been set aside in that decree. Kambaiah stepped into the shoes of Jayamma because Jayamma as already pointed out sold the suit schedule premises to Kambaiah on 21-9-1970. The fact that the sale in favour of Kambaiah took place after the preliminary decree was passed did not alter the position because whatever right Jayamma was entitled to, Kambaiah became entitled to it on the alienation made in his favour by Jayamma. It is also not in dispute that second defendant along with her children has been in possession of the suit schedule premises from 21-9-1970, and prior to that Jayamma was in possession of the suit schedule premises from 20-4-1967. Thus, this is a case in which the alienees have been in possession since 20-4-1967. No doubt the alienation is in favour of Kambaiah, but the second defendant can claim interest in the suit schedule premises being in possession as well as being the wife of Kambaiah. Legally during the life time of Kambaiah second defendant cannot claim any interest except the right of residence and maintenance. Apart from the right to residence and maintenance she can also claim in the absence of Kambaiah possessionary title. On the basis of these two rights she can resist the suit of the plaintiffs that the plaintiffs are not entitled to a decree for possession. The person in possession of an immovable property against whom a suit for possession is filed, is entitled to plead and prove that the plaintiff is not entitled to a decree for possession, For that purpose the person in possession need not have a title to the property in himself or herself. It is sufficient if he/she is able to show that the plaintiff has no title to the property and he is not entitled to possession. Further, as per Section 110 of the Evidence Act, when the question arises as to whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Therefore, irrespective of the fact that it has not been pleaded and proved by the second defendant that on the date she made an application for impleading herself in the suit, her husband was unheard of and his whereabouts were not known for a period of seven years she can still resist the suit for possession filed by the plaintiffs. It is not possible to hold in the facts and circumstances of the case that second defendant has had no interest at all in the suit schedule premises. Possessionary title is sufficient to resist the suit for possession. Therefore, we are of the view that the contention urged by Sri Janardhan, learned Counsel appearing for some of the contesting respondents that the appellant in the presence of first defendant could not come on record as second defendant and could not have been permitted to resist the suit, cannot be accepted. Accordingly, Point No. 1 is answered as follows:
"The appellant has interest in the suit schedule premises being the wife of Kambaiah and also being the person in actual possession of the suit schedule premises. Hence, she has been rightly brought on record though at her instance as second defendant. Consequently, she is also entitled to maintain the appeal."
14. Point No. 2:- The finding recorded on Point No. 1 is sufficient to dispose of Point No. 2. We have already pointed out that the second defendant has interest in the suit schedule premises which is sufficient to entitle her to resist the suit. Hence, Point No. 2 is answered accordingly.
15. Point No. 3:- While narrating the facts we have pointed out that alienation in favour of Jayamma took place during the pendency of the suit for partition. The suit schedule premises is the property of the joint family consisting of the plaintiffs, B.S. Rama Rao and his children and B.S. Narayana Rao and his children. Normally, whenever an alienation of a joint family property takes place by one of the coparceners, even though such alienation is in respect of specific property of the joint family, the alienee is required to file a suit for general partition and obtain possession of the same. In a case where the alienated property is put into the possession of the alienee the settled position of law as stated by MULLA, HINDU LAW, 15TH EDITION is as follows:
"If the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole of the property for the benefit of the joint family including the vendor. The purchaser is not entitled in such suit to an order for partition either of the specific property sold to him or of the joint family properties in general; he must, if he wants to realize his vendor's interest, bring a suit of his own for a general partition, Where a suit therefore is brought by the non-alienating coparceners for possession, the proper decree to be passed would be an order directing the purchaser to deliver possession to the plaintiffs of the whole property, and declaring that the purchaser is entitled to a declaration that he has acquired the undivided interest of his vendor in the property and that he is entitled to take proceedings to have that interest ascertained by partition. But to protect the purchaser a further direction is added that the execution of the decree, so far as it directs the purchaser to deliver possession to the plaintiffs, be stayed for a specified period, and if before the expiry of that period the purchaser brings a suit for a general partition against the plaintiffs then the stay should continue until the disposal of that suit, but if no such suit is brought within that period, then the stay of execution will stand cancelled."
16. MITRA'S CO-OWNERSHIP AND PARTITION, FIFTH EDITION, also notes this position: But in the facts and circumstances of this case as there was already a suit for partition filed by the plaintiffs including the suit schedule premises and during the pendency of that suit the alienation in favour of Jayamma took place and to that suit for partition Jayamma and Kambaiah both were the parties the necessity of directing the purchaser to file a suit for general partition does not arise because there cannot be two suits for general partition between the same parties in respect of the very same property. Whatever the decree that is passed in O.S.18/65, Jayamma, Kambaiah and also the present appellant are bound by it. The relevant portion of the Judgment passed in O.S.18/65 is as follows:
"Issue No. 11:- (a) In view of my findings on the several issues above, the properties available and liable for partition are:-
1) the entire 17 items of plaint 'A' Schedule;
2) the entire items 1 to 4 of the 'B' Schedule including the properties comprised in the sale deeds Exts. P-79 and P-80;
3) Item No. 1 of the 'C' Schedule and the value of the other 'C' Schedule to the extent of Rs. 500/-;
4) Item 1 of the 'D' Schedule.
(b) It is undisputed that the mortgage debt of S.M.S.A. Bank and the Bank of Mysore were discharged and only subsisting on the date of suit was the mortgage decree of the Indian Bank and which debt is binding on all the properties that were mortgaged and the said debt is binding on all the coparceners including B.V. Subbarao. As already discussed above the said mortgage debt of Indian Bank were discharged by the 1st plaintiff to the extent of Rs. 4,000/- and odd and by the second defendant to the extent of Rs. 40,000/-. Since this debt is binding on all the coperceners the said decree debt is to be apportioned among all the coparceners including B.V. Subbarao - The other coparceners and the heirs of B.V. Subbarao, to the extent of their share of liability, except the second defendant who has paid Rs. 40,000/- have to deposit the same into Court before they are entitled to their share of the coparcenary property and the second defendant is entitled to the extent, he has paid in excess of his share of liability, is entitled to reimbursement out of the amounts deposited in Court by the said other coparceners and heirs of B.V. Subbarao.
The 1st defendant in the course of his statement due to frustration or dejection in life, has made a statement that he is not interested in the coparcenery property, but the said statement cannot be considered as a relinquishment of his rights in the coparcenery property.
(c) Let us consider the share to which each of the coparceners and the heirs of the deceased B.V. Subbarao are entitled to in the coparcenery properties. The father manager of the coparcenery property namely B.V. Subbarao died on 29-5-1964 long after the Hindu Succession Act 1956 came into force, and hence Section 6 read with Sections 8 and 9 of the Hindu Succession Act is to be applied. Of the three Sections it is necessary to consider Section 6 of the Hindu Succession Act it reads as follows:
"When male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative the interest of the deceased in the Mitakshara coparcenery property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1: For the purpose of this Section the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation II: Nothing contained in the proviso to this Section shall be construed as enabling a person who had separated himself from the coparcenery before the death of the deceased or any of his heirs to claim on interstacy a share in the interest referred to therein." .
The initial part of the Section stresses that the Act does not interfere with the special rights of those who are members of a mitakshara coparcenery except to the extent that it seeks to ensure the female heirs and daughter's son specified in Class I of the schedule, a share - in the interest of a coparcener in the event of his death by introducing the concept of a notional partition immediately before his death and the carving out of his alliquot share in the coparcenery property as of that date. The Act does not abolish the doctrine of acquisition of right by birth and the right of survivorship which are the invariable concomitants of the Mitakshara coparcenery. The Section proceeds first by making provision for the retention of the right by survivorship and then engrafts on that rule the important qualification enacted by the proviso. The proviso operates only where the deceased has left him surviving a daughter's son or any female heir specified in Class I of the Schedule.
The proviso to the Section confers new rights upon the specified female heirs and the predeceased daughter's son of a deceased coparcener and superimposes upon the integrated structure of the law relating to Mitakshara coparcenery a rule intended to be remedial and beneficial. In cases falling under the proviso the interest of the deceased coparcener, if he died without making a testamentary disposition of the same, devolves by intestate succession upon the persons who are among the 12 preferential heirs specified in Class I of the schedule. They inherit that interest simultaneously and take it as tenants-in-common and not joint tenants. The other heirs specified in Class I include the widow of the deceased intestate and persons related to the intestate by blood.
Under Section 8 read with Section 9 of the said Act the heirs specified in Class I of the schedule the Class II and take simultaneously.
Applying the said principles in the present case a notional partition just prior to the death of B.V. Subbarao, his three sons and himself as coparceners of joint family would be entitled to 1/4th share each. Thus the 1st plaintiff, defendants 1 and 2 and their father B.V. Subbarao would each entitled to 1/4th share in the plaint schedule property.
- The 1/4th share of the deceased B.V. Subbarao according to the said provision of Hindu Succession Act devolves by intestate succession in favour of all the sons, 1st plaintiff, defendants 1 and 2 daughters 3 to 10 and wife 11th defendant of the deceased B.V. Subbarao and they take simultaneously and thus each would be entitled 1/7 or 1/4th share which will be equal to 1/28th share. Thus the 1st plaintiff defendants 1 and 2 would each be entitled to 1/4 plus 1/28, 8/28th share in the plaint schedule properties:
Mesne profits:- The plaintiff has claimed mesne profits under Order 20 Rule 12 C.P.C. from date of suit till the date of possession of his share. But as already discussed above, it is undisputed that the plaintiff as a coparcener has been in possession of certain properties by way of some arrangements between the coparceners to enjoy the coparcenery properties for the maintenance of his family and which enjoyment is not disturbed and hence he will not be entitled to mesne profits as claimed by him.
In the light of the findings of the several issues above, and in compliance with the observations made under Issue No. 11, the plaintiff is entitled to a decree.
ORDER In the result, the suit is decreed, declaring that the plaintiffs are together entitled to 8/28th share in the plaint schedule 'A', 'B' plus item-1 of 'C' plus the articles valued at Rs. 500/- and Item I of 'D' schedule.
They are entitled to partition and possession of their share subject to the observations regarding the discharge of mortgage decree debt in favour of Indian Bank.
The plaintiffs are not entitled to mesne profits.
The plaintiffs are entitled to costs from the contesting defendants. Pleaders fee Rs. 25/-. Draw a preliminary decree accordingly."
Therefore, it is clear that the vendors of Jayamma have been declared to have a share in the properties.
17. In addition to this, the alienation effected during the pendency of the suit is not void ab initio. It is subject to the decree that may be passed in the suit. Section 52 of the Transfer of Property Act specifically provides that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Therefore, the validity of such alienation would depend upon the decree that may be passed in the suit during the pendency of which the property concerned in that suit is alienated. From the relevant portion of the Judgment in O.S. 18/65 reproduced above, it is clear that the alienation made in favour of Jayamma has not been set aside nor it has been declared as null and void. In addition to this, it is also relevant to notice a Decision of the Supreme Court in KHEMCHAND SHANKAR CHOUDHARY AND ANR. v. VISHNU HARI PATIL AND ORS. That was a case in which during the pendency of the suit for partition specific immovable properties concerned in the partition suit were alienated. The alienees filed the applications during the final decree proceedings seeking the relief that in equity the properties alienated to them be put to the share of the alienating co-parcener. The Revenue Authorities to whom the decree was sent for partition under Section 54 of the G.P.C. did not entertain the claim, The Supreme Court held that they were not justified in doing so. The Supreme Court also considered the effect of Section 52 of the Transfer of Property Act and held thus:
"Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Civil P.C. clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate Court where he is not already brought on record. The position of a person on whom any interest had devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the Court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under Section 54 of the Civil P.C. has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the Civil Court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the official receiver may be allotted the share of the interest. In the case of transferees pendete lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Civil P.C. advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the Civil Court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out 'in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares.' In view of the foregoing, the orders of the High Court, the State Government and the Commissioner holding that the appellants had no locus standi to ask the Collector to effect an equitable partition have got to be set aside and they are accordingly set aside. The partition effected by the Collector is also set aside."
18. Therefore, we are of the view that though the alienation has taken place during the pendency of the suit for partition without the authority of the Court as the alienation has been made by some of the co-owners the alienee is entitled to exercise all the rights of alienating coparcener. The alienation made in favour of Jayamma cannot be declared to have no effect in the eye of law. Similarly, Kambaiah who has acquired title from Jayamma, and his wife are entitled to claim during the final decree proceeding that the suit schedule premises be allotted to the share of B.S. Rama Rao and his son Nagaraj. However, it is open to the Court to consider and adjudicate, such a claim on taking into consideration all the facts and circumstances of the case. Accordingly, Point No. 3 is answered against the plaintiffs and in favour of the defendants.
19. Point No. 4:- We have already reproduced the decree as passed by the trial Court. It is not possible to appreciate the reasoning of the trial Court. The trial Court has mainly proceeded on the basis that in O.S.No. 18/65 and also in O.S.No. 34/49-50 the alienations made by B.V. Subbarao was declared as null and void. The trial Court has not adverted to the alienations made by B.S. Rama Rao and his son Nagaraj in favour of Jayamma during the pendency of the suit and as to whether such alienation is valid or not; but without considering these aspects, it has passed a decree which takes away the right, title and interest which Jayamma and her alienees are entitled to claim. Therefore, if the decree as passed by the trial Court is maintained it would not be open to Jayamma or her alienees to put forth their claim in a final decree proceeding and plead that suit schedule premises in the facts and circumstances of the case be allotted to the share of B.S. Rama Rao and his son Nagaraj. Therefore, it is not possible to agree with the contention of Sri Janardhan, learned Counsel for the contesting respondents that the decree under appeal does not take away the right of Jayamma and her alienee to participate in the final decree proceeding in O.S.No. 18/1965 and to have the suit schedule premises allotted to the share of alienated coparceners. If the decree passed by the trial Court declaring that defendants (Kambaiah and Mallamma) have no right, title and interest in the suit schedule premises and they have to hand over possession of the same to the plaintiffs, is maintained they will have no basis to claim equity in the final decree proceedings because they will not be having any right, title and interest in the suit schedule premises. Hence, the contention is negatived. However, Sri Janardhan, learned Counsel appearing for the contesting respondents further contended that to the decree passed by the trial Court, a further clause may be added declaring that the defendants would be entitled to put forth their claim for allotting the suit schedule premises to the share of the alienating coparceners. If the decree as passed by the trial Court is retained, it will not be possible to add the additional clause as submitted by Sri Janardhan, because both cannot exist together. One is contradictory to another. Therefore, it is not possible to accept the contention. Accordingly on Point No. 4 it is held as follows:
"If the decree as passed by the trial Court is retained it would take away the right of the defendants to claim in the final decree proceeding that the suit schedule premises be put to the share of the alienating coparceners. Therefore, the decree as passed cannot be retained or sustained as it would affect the right of the alienee to work out his right in the final decree proceeding in O.S.No. 18/65."
20. In the light of the findings recorded on Points 1 to 4, the decree passed by the trial Court cannot be sustained. However, the suit also cannot be dismissed in its entirety as the plaintiffs have prayed for a larger relief, they can be granted smaller relief in conformity with the preliminary decree passed in O.S.No. 18/65. Therefore, the decree of the trial Court has to be modified keeping intact the rights of defendants to seek equity in the final decree proceedings by requesting the Court to have the suit schedule premises allotted to the share of the alienating coparceners and further in the event the suit schedule premises is not allotted to the share of the alienating coparceners, defendants have to hand over possession to whose share the suit premises would be allotted. Until then, the defendants are not liable to be dispossessed from the suit schedule premises.
21. For the reasons stated above, the appeal is allowed. The Judgment and decree of the trial Court are set aside and the following decree is passed:
The defendants and the plaintiffs are entitled to work out their right in a final decree proceeding in O.S.No. 18/65 in respect of the suit schedule premises. If the suit schedule premises in the final decree proceeding in O.S.No. 18/65 is allotted to the Share of the plaintiffs, they will be entitled to possession of the Suit schedule premises and in that event the defendants and their children have to hand over vacant possession of the suit schedule premises to them. Until then the defendants and their children are not liable to be dispossessed from the suit schedule premises.
In the final decree proceedings, the defendants in the present suit are entitled to be notified and they are entitled to put forth their claim that they being the alienees of some of the coparceners, in equity the suit schedule premises be put to the share of the alienating coparceners. If the defendants put forth such a plea on the notice being served on them the Court seized of the final decree proceeding shall also afford an opportunity to the plaintiffs to put forth their say in the matter and decide the issue as to whether the defendants herein, in equity are entitled to have the suit schedule premises allotted to the share of the alienating coparceners. In the event the Court allots the suit schedule premises to the alienating coparceners the plaintiffs will not be entitled to the possession of the suit schedule premises.
The contention of the plaintiffs that the suit schedule premises is a dwelling house therefore, the alienees are not entitled to have the same allotted to the share of the alienating coparceners is kept open to be decided in the final decree proceeding in O.S.No. 18/65.
In the facts and circumstances of the case, there will be no order as to costs.
After we pronounced the aforesaid Judgment, the learned Counsel appearing for the 7th respondent made an oral application for grant of a Certificate under Article 133 of the Constitution. We are of the view that the Appeal does not involve a substantial question of law of general importance which needs to be decided by the Supreme Court. Therefore, we refuse to grant the Certificate as prayed for.