Patna High Court
Sheonandan Prasad Sao vs Ugrah Sao And Ors. on 31 August, 1959
Equivalent citations: AIR1960PAT66, AIR 1960 PATNA 66
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
1. The question to be determined on this appeal is whether the sale of undivided share of a coparcener of a joint Hindu family governed by the Mitakshara law operates to effect the severance of the joint status, so that the other coparceners will be deemed to be separate, and the remaining share of the alienating coparcener will pass not by survivorship to the coparceners but by succession to his heirs. The material facts out of which this question arises are the following :
2. Shyamlal Sao and Rangi Sao, both brothers, constituted a joint Hindu family governed by the Mitakshara law. The joint family possessed amongst others plot 1904 with a gola standing thereon situate in village Masaurhi Bazar in the district of Patna, The two brothers had created thereon several usufructurary mortgages. In execution of their money decree against Shyamlal, defendants 1 to 12 attached the entire gola with the land appurtenant thereto and advertised it for sale.
Rangi Sao raised objection that he was not bound by the decree and his share in the gola house was not liable to attachment and sale. By its order dated 31st January, 1931, the executing Court directed that only the right, title and interest of the judgment-debtor, Shyamlal Sao, will be sold. Accordingly, the sale proclamation advertising for sale of only the right, title and interest of Shyamlal, subject to the prior encumbrances, was issued, and it was purchased by the decree-holders themselves on 11th July, 1931.
In the sale certificate that was issued, however, the entire sixteen annas interest in the disputed plot 1904 was shown as conveyed to the auction purchasers. In view of the order of the executing Court and the writ of sale proclamation, only the right, title and interest of the judgment-debtor, Shyamlal, was sold, and the mention of sixteen annas interest in the sale certificate was demonstrably wrong. The decree-holders auction-purchasers obtained delivery of possession on 11th August, 1932, but they could not obtain khas possession due to pre-existing usufructuary mortgages.
The possession delivered to them was, therefore, symbolical possession. Rangi Sao died in 1938 in a state of jointness with the plaintiffs. He left behind him only a daughter. On 23rd August, 1941, the decree-holders auction purchasers conveyed plot 1904 to Sheonandan Prasad Sao, defendant 13, the appellant before this Court, by virtue of a registered deed of sale. By this sale deed they purported to transfer to him the entire sixteen annas interest in the said plot. Defendant 13 redeemed the usufructuary mortgages on 12th May, 1945.
On 4th July, 1945, Shyamlal commenced the present action for declaration of title and confirmation of possession or, in the alternative, recovery of possession of eight annas interest in the said plot. His case was that the auction purchasers had in fact purchased only eight annas interest in the said plot, that in the sale certificate sixteen annas interest was fraudulently entered as the subject of sale, that despite this fraudulent entry in the sale certificate the auction purchasers had acquired valid title, only to eight annas interest, that the sale deed (exhibit B) in favour of the appellant, though prima facie in respect of sixteen annas interest was legally operative in respect of eight annas only and did not confer valid title on the purchaser (defendant 13) in respect of the entire plot, that on the death of Rangi bis interest in disputed plot passed to him by survivorship and that he was totally ignorant of the fraudulent entry in tbe sale certificate and learnt of it only on 20th May, 1945.
3. Defendant 13 alone contested the suit. His defence in substance was that he was a bona fide purchaser for value of the entire sixteen annas interest in the disputed plot and, on the strength of the sale certificate, had acquired a good title. He pleaded further that he redeemed all the usufructuary mortgages on 18th May, 1942, and since then he was in khas possession of the suit land, and before him his vendors were in possession.
4. The learned Munsif held that the defendants had acquired only eight annas interest in the disputed plot and the remaining half share belonged to the plaintiffs. He further held that the part-portion of plot 1904 not covered by the gola was not in mortgage and, therefore, the plaintiffs were entitled to recover possession of the same. As regards the gola house, he held that the plaintiff was entitled to recover possession, but not until be redeemed the mortgages on payment of proportionate mortgage money.
5. On appeal by defendant 13, the learned Additional Subordinate Judge affirmed the findings of the learned Munsif with this modification that the plaintiffs were entitled only to half of the parti land and not to the whole, as held by the learned Munsif and that in absence of any prayer for partition he was entitled not to khas possession of the parti land but to joint possession with defendant 13. In his opinion, the share of Eangi which was cxcepted from attachment and sale passed on his death to the plaintiffs by virtue of survivorship.
6. Defendant 13 preferred a Second Appeal to this Court. Misra, J., sitting singly, overruled the contention that the auction sale per se operated as severance in status in respect of the property sold, and that, therefore, the share of Rangi passed to his daughter by succession and not to the plaintiffs by survivorship. The learned Judge held the view that despite the auction sale of the undivided share of Shyamlal in the disputed property, both he and Rangi continued to be joint with the right of survivorship between themselves and accordingly Rangi's share devolved upon the plaintiffs by survivorship.
He held further that the appellant had valid title to eight annas share only, and the plaintiffs had title to the other half. Disagreeing witli the Courts below he held that the entire plot 1904 including the parti portion was in ijara. He, however, set aside the decree of the Courts below granting possession to the plaintiffs on payment of the proportionate mortgage money and held that the plaintiffs must bring a regular suit for redemption and possession.
7. Now, defendant 13, has preferred this appeal under the Letters Patent.
8. Mr. Lalnarain Sinha appearing for the appellant contended, as was urged before the learned Judge, that the auction sale in respect of the share of the plaintiffs in the disputed plot operated to effect severance of the joint status with the result that thereafter both the brothers held the joint, property in defined shares and the rule of survivorship had no application, and the properties thereafter passed by succession to Rangi's daughter. In support of his contention learned counsel referral to the decisions of the Privy Council in Perumal Sethurayar v. Subbulakshmi Nachiar, AIR 1939 PC 95, of the Patna High Court in Jitendra Pratap Bahadur v. Rhagwati Prasad Singh, AIR 1956 Pat 457 and of the Calcutta High Court in Mt. Mune-swari v. Sm. Jugal Mohini Dasi, AIR 1952 Cal 368.
The first two cases need not detain us longer. They deal with impartible estates, and there is nothing in those decisions which lend even indirect support to tbe wide proposition of law enunciated by him. In the first case a Hindu held an impartible estate as ancestral property belonging to the joint family. He had a son from his first wife, another son M from the second and a third son U from the third wife. Before he took the third wife, being displeased with the conduct of his first son and, therefore, desiring to defeat his prospects of succeeding to the estate, he settled the entire impartible estate by a settlement deed on M. The settlor predeceased M and U. After the death of M, a dispute as to succession to the estate arose between his widow and his half-
brother U. It is a well settled law that the holder of an impartible estate has an unfettered right of alienation. He can dispose of the property in any way he likes. On his exercise of his absolute right of disposal, the property alienated by him ceases to be a joint family. The other members of the joint family cannot challenge the alienation since the right of partition does not exist in the case of an impartible estate.
The argument advanced on behalf of U, however, was that although the holder of an impartible estate has unquestioned power of alienation, it was not competent in law for him to advantage one member of the family by terminating the right which other members of the family had in the estate. In other words, the argument was that it was not competent for M to take the estate as self-acquired property. Their Lordships of the Privy Council rejected this contention and held that in excluding the elder son from succeeding to the estate and giving it absolutely to M, the settlor clearly intended that the estate should not continue to be joint family property.
M, who took a vested interest in the estate at the time when the elder son was alive and under a provision which was intended to defeat the ordinary course of succession to the estate, took the estate as his self-acquired property in spite of the fact that the transfer was voluntary and not for consideration and the interest transferred was in the whole zamindari estate. In this view of the law, their Lordships of the Privy Council held that M's widow was entitled to succeed to the estate to the exclusion of U. This principle does not govern the ordinary joint family of a Hindu. No member of a joint Hindu family has a right, of alienation except, if he happens to be a karta or manager, for justifying necessity. The only exception recognised is the sale of an undivided interest through legal process in execution of a decree. Truly, the power of the holder of an impartible estate to transfer by sale, gift, mortgage or otherwise is unfettered and undisputed, but the Privy Council has not said what will be the effect of transfer by him of a portion of the estate on the remainder.
This case does not support at all the contention of learned counsel. The Patna case has not laid down any new rule of law and is on the basis of the aforesaid Privy Council decision. The decision of the Calcutta High Court in the case of Mt. Muneswari, AIR 1952 Cal 368, is no doubt important, and Mr. Sinha strongly relied upon this decision. This case no doubt supports his contention. It was ruled therein that an attachment of the undivided share of a member of a Mitakshara joint family during his lifetime operates as a division of interest and causes a severance of status.
This decision is rested upon certain pronouncements of the Judicial Committee of the Privy Council in the cases of Deendyal Lal v. Jugdeep Narain Singh, 4 Ind App 247 (PC), Suraj Bunsi Koer v. Sheo Pershad Singh, 6 Ind App 88 (PC), Hardi Narain Sahu v. Ruder Perkasn Misser, 11 Ind App 26 (PC) and Madho Parshad v. Mehrban Singh, 17 Ind App 194 (PC). Unfortunately, the learned Judges have not considered the contrary decisions of the Madras High Court.
With the greatest deference to the learned Judges, I think, the authorities relied upon by them do not support the conclusion which they eventually reached. I shall presently discuss these cases. I may, however, say at once that nowhere the Privy Council has laid down that the attachment of an undivided share of a coparcener of a joint Hindu family governed by the Mitakshara law during his lifetime, or, for the matter of that, sale of such a share at auction pursuant to such attachment, has the effect of disrupting the joint status.
Nor is there anything in these decisions which suggest such an inference. In the well known case of Deendyal, 4 Ind App 247 (PC), the joint family consisted of father and son and was governed by the Mitakshara Law. A money decree was obtained against the father, and his right, title and interest in certain specific properties belonging to the joint family was sold in execution of the decree and was purchased by the decree-holder himself. The judgment-debtor unsuccessfully raised certain objections to the sale.
Eventually, the decree-holder succeeded in obtaining possession of the whole property which was in dispute. The son who was the respondent before the Privy Council instituted the suit for recovery of the whole property on the ground that being according to the law of the Mitakshara the joint estate of himself and his father, it could not be taken or sold in execution for the debt of the latter which had been incurred without any necessity recognised by law. The father was joined as a defendant.
In short, he pleaded that the auction sale was invalid and that it did not, according to the Mitakshara law, pass even the father's interest in the property as the father himself could not have sold his interest. On the other hand, it was contended for the purchaser that the debt was contracted for a justifying necessity and that he was entitled to the whole property including the son's interest. It was found in this case that the debt was incurred without legal necessity.
On the question whether under the law of the Mitakshara the share of a cosharer in a joint family estate can be taken and sold in execution of a decree against him alone and whether the auction purchaser acquired a good title, their Lordships of the Privy Council laid down :
"It is settled law that the right, title and interest of one cosharer in a joint estate may be attached and sold in execution to satisfy his personal debt; and that the purchaser under such an execution stands in the shoes of the judgment-debtor, and acquires the right as against the other cosharers to compel a partition."
They further held that the auction purchaser did not acquire the son's interest for what was attached and sold was the right, title and interest of the father only in the property. They accordingly granted the son a decree to recover possession of the entire family property from the purchaser. Their Lordships of the Calcutta High Court thought that a division of the status was hinted by the Privy Council in this case. They expressed themselves as follows :
"It is clear that although, under this explanation, the purchaser would only acquire a right to partition, a division is implied, since the right to partition would have to be exercised on the basis of a certain share and that share could only be the share purchased at the execution sale, already demarcated and defined. It could not be a share of the nature of an undivided share of a member of a joint family, inchoate and undefined, since the execution purchaser could not become a member of the co-parcenary by his purchase."
In my view, no such inference is deducible, even indirectly, from this decision. There are observations of their Lordships of the Privy Council which directly militate against such a view. Emphasising the distinction between voluntary and involuntary sales, they observed as follows :
"But however nice the distinction between the rights of a purchaser under a voluntary conveyance and those of a purchaser under an execution sale may be, it is clear that a distinction may, and in some cases does, exist between them. It is sufficient to instance the seizure and sale of a share in a trading partnership at the suit of a separate creditor of one of the partners. The partner could not himself have sold his share so as to introduce a stranger into the firm without the consent of his co-partners, but the purchaser at the execution sale acquires the interest sold, with the right to have the partnership accounts taken in order to ascertain and realise its value. It seems to their Lordships that the same principle may and ought to be applied to shares in a joint and undivided Hindu estate; and that it may be so applied without unduly interfering with the peculiar status and rights of the co-parceners in such an estate, if the right of the purchaser at the execution sale be limited to that of compelling the partition, which his debtor might have compelled, had he been so minded, before the alienation of his share took place."
They were anxious to preserve the integrity of the joint family and thought that limitation of the right of an auction purchaser to compel partition will effectively serve the purpose. The observation shows quite clearly that the execution sale does not involve separation and severance of the joint status. This position is made clearer still by the nature of the decree granted in that case. The lower Courts had directed possession of the entire family property to be delivered to the son. Their Lordships of the Judicial Committee affirmed this decree with a further direction as follows :
"In the present case their Lordships are of opinion that they ought not to interfere with the decree under appeal so far as it directs the possession of the property, all of which appears to have been finally and properly found to be joint family property, to be restored to the respondent. But they think that the decree should be varied by adding a declaration that the appellant, as purchaser at the execution sale, has acquired the share and interest of Toofani Singh (father) in that property, and is entitled to take such proceedings as he shall be advised to have that share and interest ascertained by partition."
If the execution sale operated to effect division in status, as held by the Calcutta High Court, then the auction purchaser and the son became tenants in common and not joint tenants as in the case of a coparcener. But this is countered by the fact that the auction purchaser was deprived of the possession altogether and the son was granted a decree for possession of the entire family property --a position explainable only on the hypothesis of joint tenancy. Had they been tenants in common, the auction purchaser in possession would not have been divested of possession, but rather the son would have been granted a decree for joint possession. To dispossess the purchaser and deliver the entire property to the son and subject the auction purchaser to a separate suit for partition is consistent only with the continued joint status of the family, notwithstanding the execution sale. The decision of the Privy Council is clear that by purchase of the undivided share the auction purchaser did not acquire any right to joint possession and joint enjoyment of the family property or a specific portion of it. The right which the auction purchaser had was only a right to partition and nothing more, and this right could be exercised only by a separate suit for partition. Until there was a partition it could not be ascertained what was the share of the alienating coparcener at the time of the auction sale and what specific property the auction purchaser was entitled to have. Therefore, the decision of the Privy Council in this case cannot be regarded as an authority for the broad proposition that the execution sale effected a severance of the joint status. On the contrary, the conclusion is just the other way.
9. The same principle has been reiterated by the Privy Council in the next case of Hardi Narain, 11 Ind App 26 (PC). In this case also a money decree had been passed against the father, and in execution of that decree only the right, title and interest of the father in the disputed property was sold. Following the authority of Deendyal's case, 4 Ind App 247 (PC), their Lordships of the Privy Council held that the auction purchaser became entitled only to one third, being the share of the father "treating it as if the sale was to operate as a partition at that time."
This observation seems to have influenced the decision of the Calcutta High Court. This inference, however, is not borne out by the decree that was granted in this case. In order to appreciate the significance of the decision of the Privy Couneil in this case it will be necessary, in my opinion, to reproduce their observations in full.
"The other question which has been raised before their Lordships is this : The High Court, when the case came before it on appeal, -- having satisfied itself that the present appellant by his purchase took only the interest which the father had, and if a partition had been made at the time of the sale the mother would have been entitled to a third, and the son, who was then living, would have been entitled to another third, -- directed that the mother should be made a party to the suit, it having been found that the rights of the parties were governed by the Mitakshara law. The mother having been made a party, the High Court then made what in effect is a partition of the property which was the subject of the suit, making a decree that the mother and the son should each recover one-third, leaving the remaining third in the appellant's possession. After that decree, and pending this appeal, the mother died, and, a second son having been born, the two sons are now parties to this appeal in respect of her share. The question which has been raised is whether the decree which has been made by the High Court ought to stand or not.
According to the judgment of their Lordships in Deendyal's Case, 4 Ind App 247 (PC), the decree, which ought properly to have been made would have been that the plaintiff, the first Respondent, should recover possession of the whole of the property, with a declaration that the appellant, as purchaser at the execution sale, had acquired the share and interest of Shib Perkash Misser, and was entitled to take proceedings to have it ascertained by partition. So that, in fact, the appellant has got a decree more favourable to himself than he was entitled to. He retains possession of one-third, instead of being turned out of the possession of the whole and left to demand a partition.
Their Lordships, therefore, think that there is no ground for altering the decree of the High Court, although it may have gone beyond what was necessary or proper. The decree is not strictly right, but the appellant does not suffer by that. He gets all that he would be entitled to if a partition were made."
According to their Lordships of the Privy Council, the proper decree to be passed was to deliver the entire property to the son, as was done in Deendayal's case, 4 Ind App 247 (PC). They observed that the decree was not strictly right. Since, however, that was an appeal by the auction purchaser and not by a coparcener, they allowed the decree to stand, as the appellant did not suffer by that. What is implied by this decision is that there was no severance of joint status until the share was ascertained and defined in an appropriate suit for partition.
10. The case of Suraj Bunsi Koer, 6 Ind App 88 (PC), is slightly different. The father had mortgaged certain family property and the creditor brought a suit against the father for the sale of the mortgaged property. The decree was put into execution, and the property was put up for sale and was purchased by a stranger. The sons preferred objection on the ground that the debt was tainted with immorality, but the execution Court referred them to a regular suit.
Pursuant to that direction the sons instituted a suit to set aside the execution sale. Unlike the aforesaid two cases, the purchaser has not entered into possession of the joint property. It was held in that case that the debt incurred by the father was for immoral purposes. Following the decision in Deendyai's case, 4 Ind App 247 (PC), their Lordships of the Privy Council held that the effect of the execution sale was to transfer to the purchaser the undivided share of the father in the disputed property and the auction-purchasers were entitled to work out the rights which they thus acquired by means of a partition. They further held that the proper decree to be passed was "to make an order declaring that by virtue of the execution sale to them the Respondents (auction purchasers) acquired only the one undivided third share in the eight-anna share of Mouzah Bissumbhurpore, in the pleadings mentioned, which formerly belonged to Adit Sahai (father), with such power of ascertaining the extent of such third part or share by means of a partition as Adit Sahai possessed in his lifetime; and ordering that the An-pellants (sons) be confirmed in the possession of the said eight-anna share of mouzah Bissumbhurpore, subject to such proceedings as the Respondents may take in order to enforce their rights above declared".
How can one reconcile such an order with the disruption of the joint status which would, in the eye of law, have the inevitable result of rendering thenceforth all the coparceners as tenants-in-common?
11. The other case which was strongly relied upon is the case of Madho Parshad, 17 Ind App 194 (PC). The following observation of Lord Watson who delivered the judgment of the Privy Council was especially stressed:
"Any one of several members of a joint family is entitled to require partition of ancestral property, and his demand to that effect, if it be not complied with, can be enforced by legal process. So long as his interest is indefinite, he is not in a position to dispose of it at his own hand, and for his own purposes; but, as soon as partition is made, he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property. Actual partition is not in all cases essential. An agreement by the members of an undivided family to hold the joint property individually in definite shares, or the attachment of a member's undivided share in execution of a decree at the instance of his creditor, will be regarded as sufficient to support the alienation of a member's interest in the estate, or a sale under the execution."
This was a case of private conveyance. The plaintiff in the suit and his paternal uncle Zalim Singh were the members of an undivided Hindu family, and, as such, were co-sharers of land in three villages. Zalim died childless. A few days before his death he and his wife executed and delivered three deeds of sale to Madho Pershad, the appellant before the Privy Council, of his undivided share and interest in each of these villages. These sales were made by the deceased for his own personal benefit without the consent of the plaintiff respondent, and without legal necessity. The respondent brought the suit for cancellation of these three deeds of sale. The two Courts below had unanimously held that the alienation by Zalim was void, according to the law of the Mitakshara, and decreed cancellation of the sale deeds. Before the Privy Council it was conceded that the sales by Zalim being without the consent of his coparcener, and not justified by legal necessity, were invalid. The argument advanced on behalf of the appellant purchaser was that the transactions being real and the prices actually paid, the plaintiff could only recover the shares sold, subject to an equitable charge in his favour for the purchase money which was received by Zalim, Their Lordships overruled this contention and held that the purchaser had no such equity in his favour and that the coparcener (plaintiff) was entitled to recover the entire family property conveyed to him unencumbered by any claim of the purchaser. In Deendyal's case, 4 Ind App 247 (PC), their Lordships of the Privy Council pointed out the distinction between the cases' of purchase by private bargain and at an execution sale and held that a member of a joint family governed by the Mitakshara cannot encumber his share in joint property without the consent, express or implied, of his co-partners. They laid down only one exception, and that is that the sale of a share in a joint estate under execution was valid and that the purchaser at the execution sale acquired lien upon the property to the extent of his debtor's share and interest.
In Madho Parshad's case, 17 Ind App 194 (PC), their Lordships of the Privy Council affirmed these principles and proceeded to point out how a sale of an undivided share can legally be brought about, and this is exactly what has been laid down in the passage quoted above and nothing more. An undivided member of a coparcenary has no right of disposal, since his interest in the coparcenary is indefinite. If he wants to transfer his interest, he can do so only when partition is made, because on partition he becomes the sole owner of his share.
But to enable him to transfer his interest, actual partition by metes and bounds is not in all cases essential. An agreement amongst the members to hold the joint property individually in definite shares will have the same effect This is the only way in which a valid vountary conveyance can be made. For an execution sale, partition is not necessary. An attachment of a member's undivided share in execution of a decree in his lifetime will be sufficient to support compulsory Court sales.
Their Lordships do not say that the attachment is an alternative to and substitute for partition, as held by their Lordships of the Calcutta High Court in the aforesaid case. If that were so, then the significance of voluntary sale and involuntary sale totally disappears. In my opinion, their Lordships of the Privy Council were not considering the effect of an execution sale of an undivided share on the coparcenary property.
They only emphasised that under the Mitak-shara law the undivided share of a coparcener cannot be alienated, except on partition or under execution sale. This case, therefore, is not an authority for the proposition that attachment of an undivided share effected severance of the joint status, as laid down by the Calcutta High Court in Mt. Muneshwari's, case, AIR 1952 Cal 368.
12. It will be seen that the aforesaid pronouncements of their Lordships of the Privy Council do not indicate any 'severance of joint status. There is another decision of the Privy Council, to which the attention of their Lordships of the Calcutta High Court was not drawn. It is the case of Ramkishore Kedarnath v. Jainarayan Ramrachpal, ILR 40 Cal 966 (PC), which shows that a voluntary or involuntary sale does not extinguish the joint status, nor does it defeat the right of survivorship. I cannot do better than reproduce here the comments on this case of the learned editor of Mayne's treatise on Hindu Law and Usage Eleventh Edition, at page 490:
"An alienation by a coparcener does not put an end to the coparcenary; whether he alienates the whole or part of his interest in family property he will continue to be an undivided member with rights of survivorship between himself and the others in respect of all the family property. This view receives support from the decision of the Privy Council in ILR 40 Cal 966 (PC), where it was held that it was open to the coparceners to recover possession of the property wrongfully alienated on the footing that they were entitled to the estate as a joint undivided estate."
13. It is thus clear that the Privy Council cases are not an authority for the proposition that an execution sale entails the legal consequence of division in status, as contended for, and with all deference to the learned Judges of the Calcutta High Court, I am compelled to dissent from their opinion, which, in my view, is not sound.
14. In this Court, the view that has prevailed is that the joint status of the family is not affected by an execution sale. In Medni Prasad Singh v. Nandkeshwar Prasad Singh, ILR 2 Pat 386: (AIR 1923 Pat 451), a Division Bench of this Court, relying upon the decision, of the Privy Council in Deendyal's case, 4 Ind App 247 (PC), as laid down that "the purchaser of the share of a member of a joint Mitakshara Hindu family under execution sale acquires the right to compel a partition but not a right to enter into joint possession with the other members of the joint family."
This observation is consistent only with the view that notwithstanding the auction sale the integrity of the joint family continues until it is broken up by partition. In the case of Sunder Lal v. Raghunandan Prasad, ILR 3 Patna 250: (AIR 1924 Pat 165), a Bench of this Court has laid down that an attachment before judgment does not defeat the right of a coparcener by survivorship. Very recently, a Division Bench of this Court has made the following significant observations in Bhubneshwar Prasad v. Sidheswar Mukherjee, ATR 1949 Pat 309.
"A purchaser of an undivided interest of a coparcener does not become substituted in the place of the coparcener whose interest he has purchased, and gets nothing more than the right to have the interest of the coparcener, whose interest he has purchased, defined and partitioned. He does not by his purchase become entitled to claim joint possession or by such sale of the interest of a coparcener the joint tenancy is not extinguished, and the purchaser does not become a tenant in common with the other coparceners. He is only entitled in equity to enforce his right in a suit for partition."
There is a clear pronouncement of the Madras High Court that an alienating coparcener continues undivided even in respect of the share of the other members in the property alienated so that on the death of any member he will succeed to his share by survivorship along with the other members. So far as Madras is concerned, it is settled by a long course of decisions that a member of an undivided Hindu family has a right to alienate his share of the family property, to which, it a partition took place, he will be individually entitled. In Krishnasami Ayyangar v. Rajagopala Ayyangar, ILR 18 Mad 73, a question arose about the nature and character of the proceeds of the sale of a coparcener's share left over after liquidation of his debt, and the answer was furnished by a Division Bench of the Madras High Court in the following terms:
"If a coparcener then sells his undivided interest for Rs. 40,000, of which a part only is applied to payment of his debts and the rest is either retained by him, or by some one else in trust for him, or laid out in the acquisition of other property, the right of survivorship attaches to the surplus so retained or to the property in which it has been invested.
For the sale, so far as it produces the surplus, was in excess of the requirements of the creditor's equity and amounts to a mere conversion of the coparcenary interest into money or other property, which when warranted neither by Hindu Law nor by the equity engrafted upon it, cannot operate to remove it from the domain of survivorship or to divest the surplus of its character of coparcenary property."
This point is settled by a Full Bench of the Madras High Court in Aiyyangarj Vcnkataramayya v. Aiyyangari Ramayya, ILR 25 Mad 690 at p. 717. In mat case Bashyam Ayyangar J., made the following weighty pronouncement:
"A partition in the technical sense, whether effected amicably or by decree of Court, breaks up not only the joint ownership of property, but also the family union, i. e., the corporate character of the family. Each member thereafter becomes a divided member with a separate line of heirs to himself. An undivided member of a family though he may alienate either the whole (Gurulingapa v. Nandapa, ILR 21 Bom 797), or any part of his undivided share will continue to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the family property other than what he has transferred."
This view of his is based upon the following observations of the learned Chief Justice of the Bombay High Court in ILR 21 Bom 797:
"It seems to follow from it that the sale of a coparcener's interest in joint family property cannot affect the position of such coparcener in the joint family or alter the right of the several coparceners inter-se ............... Basappa's (alienating coparcener's) rights to succeed to his brother's shares by survivorship were not therefore affected by the sale of bis interest in the last item of joint family property to Gurpadappa so long as the purchaser did not proceed to work out his rights by partition."
This principle was further reiterated by a Division Bench of the Madras High Court in Ramasubbaraya v. Appalanarasimharaju, AIR 1940 Mad 217. In this case it has been laid down that an alienation by a member of his share in the whole of the joint family property or in any part thereof would not sever his status from- the family and make him a divided member in respect of the property alienated, and further that he continues to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the joint family property other than what he has transferred.
Quite recently a Full Bench of the Madras High Court has affirmed the same principle in K. Peramanayakam Pillai v. Sivaraman, (1952) 1 Mad LJ 308: (AIR 1952 Mad 419) (FB). The Full Bench has laid down in clear terms that the alienation by a coparcener of his share has not the effect of dividing the status of the family. Nor does the status of the insolvency of a coparcener bring about a division in the status of the family.
15. There is thus a preponderance of Judicial opinion in favour of the view that alienation of an undivided share in a joint property whether by private treaty or under execution sale does not operate to cause severance in status and does not destroy the right of survivorship between the alienating member and the remaining members. The reason is not far to seek. As observed by the Judicial Committee in Suraj Bunsi Koer's case, 6 Ind App 88 (PC), referred to above.
"there can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family and the law as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has to be allowed to stand in his vendor's shoes and work out his rights by means of a partition."
This equitable principle was engrafted by judicial pronouncements on the Hindu law to safeguard the interest of the purchaser for value of an undivided share. So far as this part of the country is concerned, this is confined only to Court sales, but in Madras even private alienation of undivided share, as observed above, has been recognised by judicial authorities. This innovation in Hindu law for the limited object of protection pf a third person's interest should not be extended to disrupt the compactness of a joint family which is the foundation of Hindu society where Mitakshara law obtains.
It is for this reason that the right of a purchaser of an undivided share has been confined only to a partition. He has no right to joint possession and joint enjoyment. If he takes possession of the joint property by virtue of his sale, he is liable to be dispossessed, because until partition is effected the share of the alienating coparcener cannot be determined.
Now, partition, as is well known, can be effected either (1) by actual division by metes and bounds, or (2) by explicit and unequivocal declaration of intention to separate. Once a member has expressed his desire to enjoy his share in severally, the corporate life of a joint family is terminated, and thereafter the members hold their shares individually, though there is no partition by metes and bounds. In order to effect separation what is really essential under the Hindu law is not actual division of property. Division of right is equally effective, and after expression of intention to separate, division of right takes place.
If this be the position, can execution sale or, for the matter of that, private sale, as is in vogue in Bombay and Madras, be regarded either as partition or unambiguous expression of intention to separate? In my opinion, the answer is in the negative. Considered from this point of view, an execution sale cannot be deemed to be a substitute for partition Or even unequivocal expression of intention to separate and, therefore, by itself it is insufficient to bring about a disruption of the joint status.
Then, there is a further reason. If in fact the execution sale has the effect of causing severance in status, then what will be the position of a joint family if subsequently the execution sale is set aside, say, on an application under Order XXI, Rule 90 of the Code of Civil Procedure? Can it be urged that there was severance in status when the execution sale took place and after the reversal of the sale the family reverted to the position of joint-ness?
What will happen to the various transactions that might have taken place between the date of the execution sale and its reversal? Mr. Sinha contended that the decision of the Madras High Court was not correct, and at any rate it must be confined to voluntary alienations. I do not see any real distinction. If a private conveyance cannot bring about severance of the joint status, how can a compulsory Court sale achieve the same object?
In my opinion, the principle laid down by the Madras High Court should have greater force in places where involuntary sale and not voluntary sale is recognised, as in this State. Mr. Sinha also conceded quite frankly that the right of survivorship will operate in respect of the joint family property other than the alienated share. His contention is that in respect of the specific property transferred, the right of survivorship has no application.
I do not think there is any force in this contention, nor is there any valid reason for treating the specific portion sold differently from the remaining joint family property. When the right of the auction-purchaser is limited only to a suit for partition, it cannot be predicated that the specific property purchased by him will be allotted to him. It may be necessary in appropriate cases that in order to square up equities between the alienee and other coparceners the property may be allotted to the other coparceners, and in that case on the principle of substitution the alienee will be entitled to the property that will be allotted to the alienor or to compensation from him.
Therefore, this contention of Mr. Sinha cannot be accepted as correct. In my opinion the view expressed by Misra J., is perfectly correct and it must be held that the execution sale does not operate either to disrupt the joint status of the family or defeat the right of survivorship. Therefore, on the death of Rangi his share in the joint family property passed by survivorship to the plaintiffs and not by succession to his daughter.
16. Mr. Sinha next contended that the suit was barred by limitation. The question of limitation arises in the following manner. The disputed property was sold at auction on 11th July, 1931. The suit was brought on 4-7-1945, that is, more than twelve years from the date of sale. At its inception the suit was for a declaration of title to and possession of the suit property. The property was subject to usufructuary mortgages. The plaintiffs were granted a decree declaring their title, but were refused physical possession as they could not recover possession without redemption. The argument advanced by Mr. Sinha is that the suit must now be regarded as a suit for declaration of title, and, therefore, fell under Article 120 of the Limitation Act, which prescribes for such a suit a period of six years from the date when the right to sue accrues.
Mr, Sinha urged that the right to sue in this case accrued when the property was sold at auc-tion, that is, on 11-7-1931, and since this date is beyond six years from the date of suit, it was barred by time. I am unable to agree with this con-tention. There is no dispute that Article 120 governed this suit, but I do not agree that the starting point of limitation is the date of auction sale. As explained by their Lordships of the Privy Council in the case of Mt. Bolo v. Mt. Koklan, 57 Ind App 325: (AIR 1930 PC 270).
"there can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."
There is no direct invasion of the plaintiffs' right in this suit. According to Mr. Sinha, auction sale cast a cloud on their title. The question is whether, in the circumstances of the case, auction sale can be regarded as clear and unequivocal threat to infringe their right, and its solution depends upon whether the plaintiffs or their ancestors were aware of this threatened injury. As observed above, the executing Court ordered that only the right, title and interest of Shyamlal will be sold.
What was advertised for sale and what was actually sold at auction was the right, title and interest of Shyamlal alone. This is what the public or the plaintiffs knew or could know. But, by mistake or fraud, the entire sixteen annas interest was inserted in the sale certificate. The plaintiffs could hardly know of it nor could they reasonably suspect that such a gross mistake would occur in Court records.
The language of Article 120 makes, it is true, no reference to the knowledge of the plaintiffs, but there may conceivably be cases where the nature of the right imports knowledge of certain facts, and in such cases the right to sue cannot be said to arise until the plaintiffs have the necessary knowledge. There can be no apprehension of threat to right where due to mistake or fraud things are done in secrecy or at the back of the plaintiffs. The present is one of such cases.
Therefore, the sale certificate per se did not constitute clear and unequivocal threat to their title, which would afford them cause of action. According to the plaintiffs, they knew of this error in the certificate of sale on 26-5-1945. There is no assertion to the contrary. This date must, therefore, be regarded as the date when the right to sue accrued, in other words, cause of action arose. This date is within the period of limitation.
Taking the view most favourable to the defendant, the threat to their right may be apprehended when defendant 13 obtained possession. He redeemed the mortgages on 18-5-1942, and, thereafter obtained possession. There was no question of change in possession before this date, as it is common ground that the disputed property was in possession of usufructuary mortgagees. At best, their title was threatened or was clouded on this date. But, even computing the period of limitation from this date, the suit is not beyond time. Thus, taking any view of the matter, the suit is well within time. This contention also, therefore, fails.
17. In the result the appeal is dismissed with costs.
Ijamaswami, C.J.
18. The question presented for determination in this case is whether the attachment and sale of the undivided interest of Shyamlal Sao in plot No. 1904 of village Masaurhi Bazar in the District of Patna had the effect of severance of the joint status of Shyamlal Sao and his brother Rangi Sao and whether title to the unsold portion of that plot passed to the plaintiffs by survivorship or whether there was transmission of title to Rangi's daughter by succession.
19. According to the original Hindu law, all the property of a joint Hindu family is held in collective ownership by all the co-parceners and any portion of the family property is alienable only with the consent of all the co-parceners, at any rate, of all those who are in a position to consent. The textual authority of Mitakshara is clear on this point.
An alienation may be made by one co-parcener if the other coparceners are incapable of giving assent, as, for instance, by reason of their minority, and if the alienation is for purposes which are recognised as proper. In no other case is an alienation of family allowed, the idea being that no individual member of the family has an interest of his own to convey. The text of Mitakshara lays clown that the family property is held in trust for the members then living and thereafter to be born :
rLekRiSr`ds iSrkegs p nzO;s tUeuSo LoRoe~% rFkk·fi fi=qjko';ds"kq /keZÑR;s"kq okpfuds"kq izlkn nkudqVqEc ej.kkif}eks{kkfn"kq p LFkkoj O;frfjä nzO;fofu;ksxs LokrU=~;fefr fLFkre~ A LFkkojs f}ina pSo ;|fi Lo;eftZre~ A vlaHkw; lqrkUloZUUk nkua up foØ;% AA ;s tkrk ;s·I; tkrkõ ;s p xHksZ O;ofLFkrk% A o`fr p rs fHkdM+~{kfUr u nkua u p foØ;% AA** bR;kfn Lej.kkr~ A vL;kiokn(&&&^^,dk·fi LFkkojs dq;kZíkuk?keu foØ;e~ A vkiRdkys dqVqEckFksZ /kekZFksZ p fo'ks"kr% AA** bfr A vL;kFkZ%&&&vizkIrO;ogkjs"kq iq=s"kq ikS=s"kq ok vuqKk nkuknko leFksZ"kq Hkzkr`"kq o rFkkfo/ks"ofofiäsIofi ldy dqVqEc O;kfiU;kekifn rRiks"k.ks ok· o';a drZO;s"kq fir`Jk)kfn"kq LFkkojL; nkuk?keu foØ;esdks·fi leFkZ% dq;kZfnfr ;Ùkq opue~&&&^^foHkäk ok·foHkäk ok lfi.Mk LFkkojs lek% A ,dksáuh'k% loZ= nkuk?keu foØ;s AA** bfr rnI;foHkäs"kq nzo;L; e/;L;RoknsdL;kuhõjRokr~ lokZE;uqKk·o'kka dk;kZ A (Mitakshara I. 1. 27 to 30).
It is manifest that the undivided share of a coparcener cannot be voluntarily alienated, nor can-it be attached under a decree against a coparcener.
according to the strict doctrine of the Mitakshara. The reason is that a member of the Hindu joint family has no ascertained share in the joint family property which is capable of being conveyed or dealt with by him. The interest which he possesses in the property is a fluctuating interest and is liable to be diminished by births in the family and equally liable to be increased by deaths. There is a classic statement of the legal position by Lord Westbury in the well known case of Appovier v. Rama Subba Aiyan, 11 Moo Ind App 75 (PC), as follows:
"According to the true notion of an undivided family in Hindu Law, no individual member of that family whilst it remains undivided, can predicate of the joint and undivided property that he, that particular member has a certain definite share ..... .......... but when the members of an undivided family agree among themselves with regard to particular property, in certain definite shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided."
And later on Lord Westbury pointed out:
"There may be a division of right, and there may be a division of property."
20. But the doctrine of English equity was grafted on the strict theory of Mitakshara, and English lawyers like Colebrooke, Ellis and Strange applied the doctrine of equity with regard to a bona fide purchaser of an undivided property from a Hindu coparcener. Sir Thomas Strange, relying on Colebrooke's opinion, observed in his treatise as follows:
"In favour of a bona fide alienee of undivided property, where the sale or mortgage could not be sustained as against the family, such amends as it could afford would be done, out of the share of him, with whom he had dealt; and for this purpose, a Court would be warranted in enforcing a partition."
(Strangc's Hindu Law (1st Edition) Vol. 1 page 179). Colebrooke previously had said:
"Equity would require redress to be awarded to the purchaser by enforcing a partition of the whole or sufficient portion of (family property) so as to make amends to the purchaser out of the vendors share." (Strange's Hindu Law (1830), Vol. II, page 349).
This is the origin of the equity of the bona fide purchaser for value which is imported into the Hindu law. In 4 Ind App 247 (PC), it has established by the Judicial Committee for the first time that "a purchaser of an undivided share of property at an execution sale during the life of the debtor for his separate debt does acquire his share in such property with the power of ascertaining and realising it by partition."
The form of the decree granted by the Judicial Committee in that case was a declaration in favour of the purchaser at the execution sale, that he had acquired the share and interest of the judg-ment-debtor in the property and that he was entitled to take such proceedings as he should be advised to have that share and interest ascertained by partition. The next important case is the decision of the Judicial Committee in 6 Ind App 88 (PC).
It was a decision under the Mitakshara law as it obtained in the province of Bengal and arose out of a suit by the sons, members of a joint family, against an execution purchaser of property sold in execution of a decree against the father. The prayer in the suit was that the purchasers should be restrained from obtaining delivery of possession and that the possession of the sons should be confirmed.
The execution sale took place after the death of the father but by the time of the death of the father the property was attached and even an order for sale of the property was made in execution of the decree. After referring to the decision of the Madras and Bombay High Courts, Sir James Golvile, who delivered the judgment of the Judicial Committee, said that it was the settled law in Madras and Bombay that one coparcener may dispose of an ancestral undivided estate even by private contract or conveyance to the extent of his own share and that it followed that such a share may be seized and sold in execution for his separate debt.
It was recognised by Sir James Colvile in that decision that such alienations, voluntary or compulsory, were inconsistent with the strict theory of joint undivided Hindu family and that the law in the two Presidencies, Madras and Bombay, had been one of gradual growth. The rule was stated to have been "founded upon the equity which a purchaser for value has, to be allowed to stand in bis vendor's shoes and to work out his rights by means of partition."
But the question still remains -- what is the extent of the alienee's right? In Deendyal's case, 4 Ind App 247 (PC), the Judicial Committee observed that the right of the purchaser of the undivided share was a right to a declaration that he had acquired the interest of the judgment-debtor in the property at the execution sale and that he was enti-tled to take such proceedings as he may be advised to have that interest ascertained by partition.
There is a subsequent decision of the Bombay High Court in Pandurang Anandrav v. Bhaskar Shadashiv, 11 Bom HCR 72, which lays down the principles and the manner in which the rights of a purchaser have to be worked out and the equities adjusted. The decision of the Bombay High Court is by West and Nanabhai Haridas JJ., who were undoubted authorities on Hindu law. The facts of that case were as follows. In 1848 two members of an undivided Hindu family mortgaged a portion of the joint family property.
In due course, the mortgagee obtained a mortgage decree and brought to sale a portion of the mortgaged property on account of the right and interest of one of the mortgagors and the property was purchased by the plaintiff in the suit. The purchaser then instituted a suit against the third member of the undivided family for possession of the extent which he had purchased in the Court sale.
Notwithstanding the fact that the purchase in Court auction was of a specific extent of property, it was held that the right of the purchaser was to sue for partition and not for recovery of the extent purchased. West J., stated the position in the course of his judgment in these terms:
"Whether Nilo (the mortgagor whose interest was sold) had any interest at all in the land in 1848, and if he had, what was the extent of that interest, are questions which, as there was other family property do not admit of an answer without an inquiry into the extent and value of the joint property at large, the incumbrances resting on it, the members entitled to shares, and their respective aliquot portions.
Nilo's share was not supposing the family a united one, in any particular part of the estate, but in the estate as a whole, and could be ascertained only by taking a general account and making a distribution in accordance with its results.
In making such distribution without advertence to the claims or interest of any third party it might well happen that no part of the particular field now in dispute would be allotted to Nilo. But Nilo having affected to deal with this land as empowered to mortgage it, it would be only equitable that, 'ceteris paribus', his share should, if Bhaskar (the auction-purchaser) takes his place be so made up as to embrace wholly or so far as possible the 20 guntas which Baskar has bought as his."
It was pointed out that without prejudice to the rights of the other members of the family the 20 guntas purchased by Bhaskar may be allotted to him in the partition. In 6 Ind App 88 (PC), also the actual decree made was in favour of the plaintiffs confirming their possession with a declaration for the benefit of the auction-purchaser that he was entitled to the share of his judgment-debtor with a power of getting the extent of that share ascertained by means of a partition, the share which the judgment-debtor possessed in his lifetime.
The legal position was further clarified by Bashyam Ayyangar J., in his illuminating judgment in the Full Bench case in ILR 25 Mad 690. It arose out of a suit by a purchaser of an undivided moiety in two plots of land from one V, a member of an undivided family consisting of himself and his two nephews, brother's sons.
The suit was instituted after the death of V, against the nephews, for a general partition of the whole of the family properties and for an allotment of the alienor's share. half the interest in the property and to recover the half share in the two plots conveyed to him by V". In the course of his judgment Bashyam Ayyangar J., said:
"The law as now settled is that the purchaser can enforce the sale only by a partition of the entire family property and if in such a partition the property sold can, with due regard to the interest of the other shares, to the debts due by the family and to an equitable allocation of the various items of family property to the shares of the several coparceners be wholly allotted to the vendor's share, the purchaser will be entitled to the whole property which the vendor professed to convey to him.
21. At page 710 of the report Bashyam Ayyangar J., observed that the right of the transferee "is no doubt an equitable claim in the sense that he must be a transferee for value and in cases where the transfer relates to a specific portion of the family property, he has no legal right, any more than his transferor himself to insist on that specific portion being allotted to the share of the vendor. Being a purchaser for value he will have an equity to have such portion or so much thereof as is practicable so allotted, if that can be done without prejudice to the interest of the other sharers.
In any suit which may be brought by him to enforce the sale, all the members of the family should be joined as parties in a partition suit, the subject-matter of the suit being the family property as it existed at the date of transfer. Such a suit may, at the option of the members of the family assume the character of a family partition suit and a decree may be passed for partition among all the members of the entire family property."
It is therefore well established that an alienee of an undivided share does not become a tenant in common with the other coparceners of a Hindu joint family. The alienee has only an equity to stand in the vendor's shoes and to work out his rights by means of a partition. It is well established that the alienee is not entitled to joint possession with the non-alienating co-parcener and he is not entitled to mesne profits from the date of his purchase.
That is the proposition laid down by Sankaran Nair and Bakewell JJ., in Manjaya Mudali v. Shan-muga Mudali, ILR 38 Mad 684: (AIR 1914 Mad 440 (2)). It was held in that case by both the learned Judges that an alienee of an undivided share of a coparcener has no right to possession and no status as a ten ant-in-common although he might have obtained possession of the property in execution of the decree against one of the coparceners.
The reason is that there is no disruption of the joint status of the coparceners with regard to joint family properties even including the property alienated. That is the basis of the view that the alienee of the undivided share of a coparcener does not become a tenant-in-common with the non-alienating coparceners and there is no disruption of the joint family status of all the coparceners. That Us the view expressed by Bashyam Ayyangar J., in the Madras Full Bench case in ILR 25 Mad 690.
The same view has been taken by the Madras High Court in a much later case in ILR 1940 Mad 405: (AIR 1940 Mad 217). It was held by Ven-kataramana Rao and Abdur Rahman JJ., in that case that an alienation by a member of a joint Hindu family of his share in the whole of the joint family property or in any part thereof does not sever his status from the family and make him a divided member even in respect of the property alienated and the mere recovery by the other members of their shares therein will not alter the status of the family.
It rests on them to signify their intention unequivocally to hold the said shares separate from the alienor. In the absence of such expression of intention, the presumption will be that they intend to hold the shares as joint family property. This view is also borne out by other important authorities. In Venkatarayadu v. Sivaramakrishnayya, ILR 58 Mad 126: (AIR 1934 Mad 676), it was held that the effect of the insolvency of a coparcener was not to severe the joint family status and the purchaser from the Official Receiver would not become a tenant-in-common from the date of -his purchase.
This decision was followed by Wadsworth and Patanjali Sastri JJ., in Suryanarayanamurthy v. Veeraraju, ILR 1946 Mad 54: (AIR 1945 Mad 257). The same view was taken by Wadsworth and Rajamannar JJ., in Hanumantha Gowd v. Official Receiver, Bellary, ILR 1947 Mad 44: (AIR 1946 Mad 503), in which the question that arose for consideration was whether if after the adjudication of a member as an insolvent, another member dies and there is an increase in the share to which tho insolvent would be entitled, whether the increased share vested in the Official Receiver as after-acquired property under Section 28 (4) of the Provincial Insolvency Act.
It was held by the learned Judges that by reason of the insolvency the joint family status was not disrupted and that any addition to the share of the insolvent by survivorship would be after-acquired property within the meaning of Section 28 (4) of the Provincial Insolvency Act. The principle has been reiterated by a subsequent Full Bench of the Madras High Court in 1952-1 Mad L) 308: (AIR 1952 Mad 419), in which it was held by the Full Bench that an alienation by a coparcener of his share has not the effect of dividing the status of the family. Nor does the status of the insolvency of a coparcener bring about a division in the status of the family.
22. It is true that this branch, of Hindu law is illogical and anomalous. In an early case, ILR 21 Born 797 at p. 805, Farran C. J., observed:
"The position of the purchaser of the interests of a Hindu coparcener in part or the whole of a joint estate is very anomalous. It is impossible to work out his rights on an exact logical basis. As it is an equity, it must be worked out on equitable principles."
The reason is that you have to reconcile two principles -- the Mitakshara doctrine refusing absolutely to recognise an alienation of joint family property by a coparcener of his undivided share and the rule of English equity recognising the right of a bona fide purchaser for value. It is not a matter of surprise that in attempting to reconcile these two conflicting principles the law developed by the courts has not been logical or absolutely sym metrical.
But there is no reason why the equitable principle in favour of the alienee should be extended beyond the limited object of protecting the alienee's interest. There is no reason why the importation of the English doctrine should be extended so as to disrupt the status of the co-parceners in the Hindu joint family or to effect separation of the interest of the coparceners without any explicit or unequivocal intention to separate on the part of any of the coparceners.
That is the gist of the reasoning of the decisions in ILR 25 Mad 690 (FB); ILR 58 Mad 126; (AIR 1934 Mad 676); ILR 1946 Mad 54: (AIR 1945 Mad 257), and ILR 38 Mad 684 : (AIR 1914 Mad 440 (2)), where it is clearly laid down that the voluntary alienation by a coparcener of an undivided share or an involuntary vesting of the coparcener's share in the Official Receiver after the coparcener's adjudication under the Insolvency Act does not have the effect of separation of the joint status of the alienating coparcener or the breaking up of the corporate character of the Hindu undivided family.
23. For these reasons I agree with the judgment of my learned Brother and hold that the execution sale dated the 11th July, 1931, did not operate either to disrupt the joint status of the family or defeat the right by survivorship and, therefore, upon the death of Rangi Sao his share in the joint family property passed by survivorship to the plaintiffs and not by succession to his daughter. I accordingly agree that the appeal should be dismissed with costs.