Madras High Court
K.S.K.P. Subbayan Chettiar vs K. Ramu And Ors. on 8 March, 1996
Equivalent citations: (1996)2MLJ115
JUDGMENT S.S. Subramani, J.
1. Second Appeal No. 1374 of 1982 arises from O.S. No. 16 of 1981, on the file of the Subordinate Judge's Court, Periakulam, and Second Appeal No. 1375 of 1982 arises from O.S. No. 17 of 1981, of the same court.
2. The materiel averments which are necessary for the proper disposal of the second appeals are as follows:
The property originally belonged to one Perumal Chettiar under a registered sale deed dated 6.9.1940. He purchased it from Gandhimathi Chettiar. Plaintiff in O. S. No. 17 of 1981, which is the subject-matter of Second Appeal No. 1375 of 1982, is the son of the abovenamed Perumal Chettiar. Plaintiff, in his first wife has a son by name Bhagavathi Kalyani Chettiar, and through the second wife he has no issues. After the death of Perumal Chettiar, the suit property was inherited along with other properties as joint family, of which the plaintiff was the manager. Plaintiff is in possession and enjoyment of the plaint property also as manager. It is said that his son Bhavathi Kalyani Chettiar, after attaining majority, fell into evil company and was leading a wayward life, and some persons attempted to take sale deeds from him. Hence the plaintiff published a general notice in 'Dhina Thanthi' newspaper on 11.7.1962, informing the public about the wayward life of his son, and warning them against taking any documents from him.
3. Thereafter, there was partition on 1.2.1964, and in the said partition, the suit property was allotted to the plaintiff. The suit filed by him as O.S. No. 184 of 1968 is one for declaration of title and consequential injunction. The defendant there along with others seem to have purchased the plaint property from the plaintiffs son Bhagavathi Kalyani Chettiar, as per document dated 22.9.1963. According to the plaintiff, the said deed is sham, nominal and collusive, and has not come into effect. His son has only an undivided right and, therefore, not competent to alienate a specific share. In that sale deed, there is a reference regarding an oral partition, which is false. An attempt was made by the defendants to trespass into the property on the basis of the statements in the document. Therefore, the plaintiff initiated proceedings under Section 145, Crl.P.C. as M.C. No. 42 of 1965. In that proceeding, a finding was given that the defendants were in possession. It was therefore, the abovesaid suit O.S. No. 184 of 1968 was filed for declaration of his title over the suit property, for recovery of possession and for mesne profits. The defendants contested the suit. The suit was decreed as prayed for. The defendants took the matter in appeal before the Subordinate Judge, Dindigul, as A.S. No. 5 of 1970, but without success. The matter was taken to this Court in S.A. No. 1695 of 1972. This Court also confirmed the judgments of both the trial court and first appellate court, and accordingly dismissed the second appeal, on 24.1.1977. While disposing of the second appeal, this Court observed that the remedy of the defendants was to file a suit for general partition. It was also further observed that the partition between the plaintiff and his son was not binding on the purchaser. After disposal of the second appeal, plaintiff filed an execution petition and obtained physical possession of the property on 9.8.1978. The plaintiff continues to be in possession. It is said that since the defendants have no right over the property, they cannot disturb the possession. But the plaintiff apprehended that there was a possibility of trespass by the defendants and, therefore, filed a suit for declaration of title and injunction.
4. The first defendant, in his written statement, contended that the suit is not maintainable. The allegation that the property has been allotted to the plaintiff as per partition deed dated 1.2.1964 is not binding on him, especially when that property has been conveyed to the defendant as per sale deed executed by his son. It is said that Bhagavathi Kalyani Chettiar, on the date of the sale deed, was entitled to a specific share and that alone has been conveyed to him. He also contended that in view of the judgment in the second appeal, he is entitled to file a suit for general partition working out equity, seeking allotment of the plaint property towards the share of the plaintiffs son and, therefore, he has already filed a suit as O.S. No. 478 of 1978, on the file of the Subordinate Judge's Court, Dindigul.
5. It is further averred that the delivery list is sham and nominal and possession did not pass.
6. Even though other defendants have also filed written statements, they are not extracted, since they are not relevant for the purpose of disposal of these second appeals.
7. O.S. No. 478 of 1978 filed by the first defendant was transferred from Sub Court, Dindigul to Sub Court, Periakulam and re-numbered as O.S. No. 16 of 1981, from which the connected second appeal arises.
8. As stated above, plaintiff has filed O.S. No. 16 of 1981 for general partition of the family properties on the basis of the observations in S.A. No. 1695 of 1972. In that suit, plaintiff prayed that as far as possible, the property purchased by the plaintiff therein be allotted towards his share. The sale deed is Ex.A-1 in the suit.
9. In the written statement filed by the defendant who is the plaintiff in the connected suit, the main contention raised was regarding the question of limitation. Though he has raised various questions such as maintainability of the suit, quantum of share, right of the plaintiff to take the sale deed, and also the sham and nominal nature of the document, all those contentions are unnecessary since there is an endorsement by learned Counsel that he is only pursuing his remedy on the question of limitation.
10. Both the suits were clubbed together and evidence was taken in O.S. No. 16 of 1981. In paragraph 24 of the trial court judgment, learned Subordinate Judge has stated thus:
...That is why the learned Counsel appearing for the 1st defendant has not pressed the issue Nos. 1 to 5 and made endorsement to that effect on the plaint. The learned Counsel appearing for both sides have conceded that the only point to be decided in this suit is as to whether the suit is barred by limitation....
11. After taking both oral and documentary evidence in this case, the trail court came to the conclusion that the suit O.S. No. 16 of 1981 is barred by limitation and dismissed the suit. In the connected suit filed by the plaintiff in O.S. No. 17 of 1981, a decree was granted as prayed for, declaring the title and possession, and also granting a consequential injunction.
12. While disposing of the suit, the trial court was of the view that the Article that is applicable for such a suit is old Article 120 of the Limitation Act, 1908 (corresponding to Article 113 of the Limitation Act, 1963). The trial court was of the view that since the suit is one for general partition, the same cannot be equated as a suit for possession for which alone Article 144 (new Article 65) will apply. The trial court was of the further view that a coparcener who sells a property to a stranger is not entitled to possession without partition, and, therefore, the question of limitation under Article 144 of the Limitation Act will not apply. The trial court also took note of the decision of this Court reported in V. Thani Chettiar v. Dakshinamurthi Mudaliar where a contrary view has been taken. The trial court took guidance from the decision reported in Manikayala Rao v. Narasimhaswami , for the said purpose. The trial court was of the view that in view of the Supreme Court judgment, it was not bound by the Bench decision of this Court.
13. The matter was taken in appeal by the defendant in O.S. No. 17 of 1981, who is also the plaintiff in O.S. No. 16 of 1981. The lower appellate court took a contrary view. It came to the conclusion that the proper Article to be applied is Article 144 of the Limitation Act, 1908 (corresponding to Article 65 of the New Act). The lower appellate court was of the view that the majority judgment in Manikayala Rao v. Narasimhaswami , has not decided the point as to whether Article 144 or 120 of the Limitation Act will apply. But, in the minority judgment, the decision of this Court reported in Thani v. Dakshinamurthy . has been approved. In that view, the lower appellate court was of the view that the Bench decision of this Court still holds good. After holding that Article 144 alone will apply, the lower appellate court held that since the defendant was in possession on the basis of Ex.A-1 sale deed, and that he was dispossessed only in the year 1978 by decree of court, the question of adverse possession will not arise. The suit filed by the purchaser under Ex.A-1 was decreed. Consequently, the suit filed by the plaintiff as O.S. No. 17 of 1981 was dismissed.
14. It is against these decisions, these two second appeals have been filed.
15. The following (common) substantial question of law has been raised in both the second appeals:
Whether the suit O.S. No. 16 of 1981, on the file of Sub Court, Periakulam, is not barred by limitation inasmuch as the right to sue accrued as early as in 1963 and that the same has not been filed within the period of limitation prescribed under Article 113 of the Limitation Act?
16. As stated earlier, the only question that has to be considered is, which is the relevant Article of the Limitation Act that applies to the facts of this case.
17. Before considering the question of limitation, we have to consider what is the right of a purchaser from a coparcener who has sold his undivided interest.
18. In 'Hindu Law' by Sir Ernest John Trevelyan -Second Impression (1913) the learned Author says at pages 287 and 288 thus:
It is settled law in Madras and Bombay that a purchaser for value acquires the interest of his vendor, that is a right to a partition, and a right on partition to the share to which his vendor would have been entitled, but without partition he cannot acquire a right to any specific property or to a specific share. He is not entitled to possession, his right in that respect being the same as the right of a purchaser at a sale in execution of a decree.
The learned Author further says that the Judicial Committee has recognized this to be the law applicable in Madras and Bombay.
19. In 'Introduction to Modern Hindu Law', by J. Duncan M. Derrett - the learned Author has dealt with the subject at pages 303 and 304 and has stated that the law declared by the Madras and Andhra Pradesh High Court is the more attractive rule of limitation. The relevant passage reads thus:
We have seen that in South India the coparcener or owner of a coparcenary interest can create an equity in favour of an alienee against the whole family which can be worked out by the alienee stepping into the shoes of his alienor in a general partition of the joint family property. There is, therefore, no question of an actual transfer of an identifiable object, for the coparcener has no right to claim exclusive ownership of any object however trifling unless the manager, acting within his powers, confers this privilege upon him, or all the coparceners do the like. The alienee is not entitled to be put into possession of his purchase, he does not become a tenant-in -common with the coparceners, etc., nor does the transaction substitute him for his alienor in any respect whatever. If the coparceners put him into possession of the property, however, it is not possible for them to eject him, but he is liable to be ejected at the suit of minors or owners of coparcenary interests who did not authorize or participate in the act of putting him into possession. A rule confined to Maharashtra and Gujarat, that an alienee once put into possession cannot be ousted pending a partition suit and may hold as if he were a tenant-in -common with the coparceners, etc., is now supported by stare decisis only and appears to have been based on the special relationship of the alienee to the alienor in that very case as well as his long possession.
The alienee must pursue his remedy against the joint family within the period allowed by the Limitation Act. There is a difference of opinion both as to the moment when his cause of action arises and as to the period of time which may run against him. The Bombay High Court has held that the cause of action arises at the alienation (at the earlier) or on the death of the alienor, and, in the view of this High Court, there being no period specifically allotted by the Act the residual article (Article 120) applies and the alienee has only six years in which to sue for partition. If however the alienor was already separated in status and the property had remained undivided notwithstanding the severance, Article 144 applies and he must file his suit within twelve years from the date on which his title is actually denied. A more attractive rule is in force in Madras and Andhra Pradesh. There the view is taken that the alienee's cause of action arises at the time of the creating of the equity itself, that is, when he gives value to the coparcener- alienor, except in the rare cases where the coparceners put him into possession of the joint-family property, and that since his demand for partition is in substance a demand for possession of property (a view the Bombay High Court does not take) the appropriate articles of the Limitation Act are in every case those which relate to recovery of possession (Article 49 (it seems), and 144). Thus in all mortgages and sales of immovable property the period is twelve years, and it runs from the time when consideration passes.
20. In 'Hindu Law - Principles and Precedents' by N.R. Raghavachariar, 8th Edition (1987), at page 339, the learned author says:
Where the undivided interest of a coparcener has validly passed to a stranger either by operation of law as on the insolvency of a coparcener or by purchase either in execution of a decree or by private contract, he is entitled to claim a partition as against the other coparceners and to enforce it by a suit both during and after the lifetime of that coparcener....
Little down, the learned Author further says thus:
...Such an alienee of an unascertained share in a joint family property cannot claim mesne profits, nor can he insist upon the possession of any definite piece of property. His remedy is to have that share and interest ascertained by instituting a suit for general partition in which the whole of the joint family property should be included and all the necessary parties joined. He can sue for a general partition ignoring any private partition effected between the coparceners. In such a suit he may also pray for allotment to his alienor the items which he has purchased.
21. Mulla on the 'Principles of Hindu Law' 15th Edition (1982), at page 348 deals with the right of a purchaser of an undivided interest from a coparcener. The learned Author says thus:
The purchaser of the undivided interest of a coparcener in a specific property-
(i) at a private sale in execution in West Bengal and Uttar Pradesh, or
(ii) at a private sale or a sale in execution in Madras, does not acquire a right to joint possession with the other coparceners. Such a purchaser acquires merely the right to compel a partition which the coparcener whose interest he has purchased might have compelled, had he been so minded, before the sale of his interest took place. That right can only be enforced by a suit for a general partition to which all the coparceners must be joined as parties. The purchaser may in such a suit ask the court to allot to his vendor the specific property sold to him, and the court may allot that property to him if the interest of the other coparceners will not be prejudiced thereby.
22. S.V. Gupte on 'Hindu Law' - 3rd Edition (1981) (Volume 1), at pages 356 and 357 says thus:
It is well established that a purchaser - whether of the whole or any portion of the joint family property and whether at a sale in execution of a decree, in insolvency or by a voluntary transfer -may claim partition of the joint family property. The equitable right to sue for partition which is available to an alienee from a coparcener flows from the purchase made by him for valuable consideration. By such purchase, an alienee does not acquire any right in a specific property belonging to the coparcenary, but acquires the equitable right to step into the shoes of the alienating coparcener and sue for partition in the same way in which that coparcener could.
At page 392 of the same book, the learned Author deals with suits by purchasers and says that there is no distinction between an auction purchaser and a private purchaser. The learned Author has not given his own views as to the starting point of limitation, though he has noted the differences of opinion among the various High Courts in that regard.
23. In Mayne's 'Hindu Law and Usage' - 13th Edition (1991), at page 689, the learned Author deals with right of purchasers under Mitakshara Law. The learned Author says that under Mitakshara law, no member has a right, without express agreement, to say that any specific portion is exclusively his. Consequently, the purchaser at a court auction cannot claim to be put into possession of any definite piece of property. Accordingly, the Judicial Committee held that the proper decree to be passed in a suit in which the purchaser has not obtained possession would be an order declaring that the purchaser acquired the undivided share of the judgment- debtor in the property with such power of ascertaining the extent of such share by means of a partition as the judgment- debtor possessed in his lifetime and confirming the possession of the other coparceners subject to such proceedings to enforce his rights as the purchaser might take. And where the purchaser has obtained possession they held that the plaintiff coparcener should obtain possession of the whole of the family property with a declaration that the purchaser had acquired the interest of the co-sharer and was entitled to take proceedings to have that interest ascertained by partition. Regarding the equitable rights of an alienee, the learned Author says thus:
Where the transfer is of an undivided interest in the whole of the family property the transferee will get whatever may be allotted to the tranferor' s share in a suit for partition. A coparcener may alienate either his undivided share in the whole of the family property or His undivided share in certain specific family property or the whole of a specific item of the family property. In all these cases, the alienee does not acquire an interest in the property so as to become a tenant-in -common with the members of the family entitled to possession but only an equity to stand in his vendor's shoes and to work out his right by means of a partition. The vendee's suit to enforce the sale by partition is not technically a suit for partition in the sense of the Mitakshara Law: and the decree which he may obtain enforcing the transfer, either in whole or in part, by a partition of the family property will not by itself break up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. In dividing the family properties the court will, no doubt, set apart for the alienation coparcener's share the property alienated if that can be done without any injustice to the other coparceners and such property, if it is so set apart, may be given to the transferee of the interest of such coparcener. But this is only an equity and the alienee is not, as of right, entitled to have the property so allotted. If such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share, in substitution for the property that was alienated in his favour.
24. Such being the law declared by authors of various texts, let us now consider what is the starting point of limitation for a suit for partition by a purchaser of a undivided interest.
25. In V.C. Thani Chettiar v. Dakshinamurthi Mudaliar , there are two decisions, on this point. The first one is reported in Boologam Naidu v. Jagannath and Ors. . That is a case where an undivided share of a coparcener was sold in court auction and the question was, what is the period of limitation for filing a suit. Their Lordships took note of the decision reported in Shevantibai v. Janardhan A.I.R. 1939 Bom. 322 : 184 I.C. 23 and came to the conclusion that Article 120 of the old Limitation Act will not apply. In paragraph 8 of the judgment, their Lordships considered this question and held that either it must be Article 137 or 144 of the old Limitation Act, and, therefore, the period of 12 years is the rule. The learned Judges held thus:
Whether joint possession of a coparcener is "possession" as contemplated in Article 138 has next to be considered. A Bench of this Court in a case reported in Venkayya v. B. Ramakrishnamma 9 L C. 495 (Madras) (F) had to consider the meaning of the words "possession" in Article 136, and the learned Judges Abdur Rahim and Ayling, JJ. came to the conclusion that the word "possession" in Article 136 includes possession which a member of a joint Hindu family is presumed to have in the family property until excluded therefrom; and therefore when a suit is brought by a purchaser from a member of a joint Hindu family, who is alleged to have been out of possession at the time of sale, Article 136 applies. As authority for this proposition - Ram Lakhi v. Durgacharan Sen 11 Cal. 680 and Muthusami v. Ramakrishna 12 Mad 292 are cited.
In both these decisions, there is the assumption that every member of a joint Hindu family is in possession of the entire joint family property were of opinion that possession contemplated in Article 136 can be said to be the possession of such a joint family member. If the possession referred to in Article 136 can be that of a member of a joint Hindu family having joint possession, we fail to see why, when the Act deals with possession of judgment debtors and alienating coparceners, as in Articles 137 and 138, a different meaning should be given to the word "possession" in Articles 137 and 138. We are therefore definitely of opinion that the word "possession" in Article 138 should be deemed to take in, the possession which an undivided member of a joint Hindu family has in the joint family properties. This view of ours finds support in the recent edition (7th Edn.) of Mitra's Law of Limitation and Description, at page 751, where the authors say that a suit by an auction purchaser of the share of a member of a joint family, for partition and possession, would come either under Article 137 or Article 144. That Article 138 would apply to a case where the judgment- debtor was in possession at the date of the sale is clear from the observations of Best J. in Arumuga v. Chockalingam 15 Mad. 331 at 332, though the decision is that it would not apply to a purchaser from a court auction purchaser.
The later decision is reported in V. Thani Chettiar v. Dakshinamurthy Mudaliar , it is a case of private sale and the question was, what is the period of limitation for a suit by an alienee for a general partition. There also, their Lordships dissented from the judgment reported in Shevantibai v. Janardhan A.I.R. 1939 Bom. 322 : 184 I.C. 23. It may be mentioned that the Bench which decided the case reported in Boologam Naidu v. Jagannath , wanted to dispose of the later case . But since those appeals were not posted before them, they dealt with the earlier case separately. This is clear from paragraph 6 of the judgment . In both the decisions, this Court held that the period of limitation is either under Article 137 or Article 144 (corresponding to present Article 65 of the Limitation Act). Insofar as the first Bench decision is concerned, the matter was not referred before the Supreme Court. The decision rendered therein still holds good. In the latter decision, namely, , their Lordships held thus:
A person, who purchases an undivided share of a coparcener of a joint Hindu family, cannot claim to be put in possession of any definite piece of family property. He does not even acquire any interest in the property sold. He does not become a tenant-in- common with the members of the family. He is not entitled to joint possession with them. He has only an equity to work out his rights by means of a partition standing in his vendor's shoes. The alienee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in the family property. Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. A suit by an alienee of an undivided share from a coparcener of a Hindu joint family, will fall under Article 144, so long as property concerned is immovable property.
It cannot be contended that this is not a suit for possession of any particular item of immovable property as it was a suit for general partition. There cannot be a suit for partition simpliciter, that is to say, a suit for a mere division of joint property without more. Partition in the sense of division is only a step towards the ultimate goal, namely, separate possession of the share in the joint property to which the plaintiff is entitled. It is true that an alienee of an undivided interest of a Hindu coparcener is not entitled to joint possession with the other coparcener and he is also not entitled to separate possession of any part of the family property. But the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition. Therefore it is that he institutes a suit for general partition with the prayer that he may be put in possession of that part of the family property which may be allotted to his alienor. The suit is, therefore, a suit for possession of immovable property or on interest therein. Indeed, it is not a suit for anything else. It is wrong to consider his suit as a suit for mere partition. Mere partition will only result in division, but a mere division would not satisfy the plaintiff. What he wants is actual delivery of possession....
The possession of the non-alienating members of the family cannot be deemed to be possession on behalf of the alienee also.
26. Manlkayala Rao v. Narasimhaswami , is a case of court sale. There were five members in a joint family and 4/5th share was sold in court auction. 1/5th share which belonged to the father could not be sold since insolvency proceedings were pending against him. The purchaser filed a suit for partition. Before filing such a suit pursuant to the court sale, he filed execution petition and obtained symbolical delivery. The suit was filed within 12 years from the date of symbolical delivery. The court auction was on 21.12.1936 and the symbolical delivery was effected on 6.11.1939 and suit was filed on 16.10.1951. Their Lordships reversed the decision of Andhra Pradesh High Court (viz., Mandela Narasimhaswami and Ors. v. Mamidi China Venkata Sivayya and Ors. , on facts. The High Court had held that Article 144 applies to the facts of the case, and was of the view that symbolical delivery will not amount to an interruption in the claim of adverse possession and, therefore, the suit ought to have been filed within 12 years from the date of auction. Therefore, the suit was held to be barred by limitation and adverse possession. Before the Supreme Court, the question was, which is the relevant Article that is applicable and what is the effect of symbolical delivery. In paragraph 5 which is part of the majority judgment, learned Judges said that if Article 144 is to be applied, the suit must be one for possession, and since an alienee is not entitled to possession, that Article can be said as not applicable. But in paragraph 7 of the judgment, the learned Judges said thus:
Having expressed our difficulties on the matter let us proceed on the assumption without deciding it, that Article 144 is applicable. Even so, it seems to us that the suit is not barred....
[Italics supplied] Their Lordships said that in view of the symbolical delivery, there is an interpretation in the adverse possession. In paragraph 13 of the judgment, their Lordships again took note of Article 120 of the Limitation Act. The decision reported in Shevantibai v. Janardhan, A.I.R. 1939 Bom. 322 : 184 I.C. 23, was considered. Paragraphs 13 and 14 read thus:
We then turn to Article 120. In Bai Shevantibai v. Janardan R. Warik A.I.R. 1939 Bom. 322, it has been held that to a suit like the present, this is the article that applies. Learned Counsel for the respondents himself contended that this was the appropriate article to be applied. This article applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years commencing from the date when the right to sue accrues. Learned Counsel for the respondents relied on the observation in Shevantibai's case A.I.R. 1939 Bom. 322, that in a suit like the present one, the period Tlimitation under Article 120 commences to run from the date of the sale. This the Court no doubt held, but we think in that respect it did not lay down the law correctly. It has been held by this Court in Mt. Rukhmabai v. Laxminarayan and C. Mohammed Yunus v. Syed Unnissa , that the right to sue accrues for the purpose of Article 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it. Now whatever the nature of the plaintiff s right in the present case, there is nothing to show that that right was ever challenged in any way by the respondents. It is impossible, therefore, to hold that his suit was barred under Article 120.
The result is that the suit was not barred whether Article l44 or Article 120 applied to it.
Finally, the learned Judges said, whichever Article applied, whether Article 144 or 120, the suit is not barred.
27. In the separate judgment by Ramaswami, J., the learned Judge has held that Article 144 alone will apply, and since there was an interruption in the adverse possession by symbolical possession, the suit is in time. So, the result was, there was a unanimous judgment, reversing the judgment of the Andhra Pradesh High Court and the appeal was allowed, holding that the suit was not barred. In the minority judgment, the learned Judge has held in paragraphs 18, 19 and 20 thus:
Before dealing with the question as to which article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchased shares of some of the coparceners of the Hindu joint family. It is well settled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property. The purchaser acquires only an equity to stand in the alienor's shoes and work out his rights by means of a partition. The equity depends upon the alienation being one for value and not upon any contractual nexus. The purchaser does not become a tenant in common with the other members of the Joint family. He is not entitled to joint possession with them. The alienee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property. Such a suit, however will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. (Mayne's Hindu Law, eleventh edition, page 489). On behalf of the appellants learned Counsel put forward the argument that the right of the alienee to sue for partition is a continuing right and there is no period of limitation for enforcing such right. In my opinion, there is no warrant for this argument, A suit for partition filed by the alienee from a coparcener is not, in a technical sense, a suit for partition and, as already stated, such a suit will not have the necessary effect of breaking up the joint ownership of the members of the family in the joint property nor the corporate character of the family. As observed by Bashyam Ayyangar, J. in Ayyagan Venkataramayya v. Ayyagari Ramayya I.L.R. 25 Mad. 690 at 717 (F.B.):
The vendee's suit to enforce the sale by partition is not a suit for "partition', in the technical sense in which partition' or vibhaga' is used in the Hindu Law. A suit for partition, in the technical sense, can be brought only by an undivided member of the family. The right to such partition is personal to him and not transferable. Such a suit can be brought only in the life time of the coparcener and even if so brought, it will abate if he should die before final decree, without leaving male issue. A partition in the technical sense, whether effected amicably or by decree of court, breaks up not only 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 Gurlingappa v. Nandappa, I.L.R. 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.... The transferee, however, does not step into the shoes of the transferor as a member of the family and there will be no community of property between him and all or any of the members of the family in respect either of the property transferred to him or the rest of the family property.
In my opinion, a suit like the present one will fall within Article 144 of the Limitation Act. It is true that an alienee of an undivided interest of a Hindu coparcener is not entitled to joint possession with the other coparcener and he is also not entitled to separate possession of any part of the family property. But the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition. What the alienee acquires by a purchase is not any interest in specific family property but only an equity to enforce his right in a suit of partition and have the property alienated set apart for the alienor's share, if possible. In the present case the alienee has instituted a suit for general partition with the prayer that he may be put in possession of that part of the family property which may be allotted to his alienor. It is no right to consider such a suit as a suit for mere partition. The main relief sought by the plaintiff is the relief for possession of that part of the property which may be allotted to the alienor's share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor's share. What the plaintiff seeks is actual delivery of possession. In my opinion, such a suit falls within the purview of Article 144 of the Limitation Act and the law on this point is correctly stated in Thaniv. Dakshinamurthy, I.L.R. 1955 Mad. 1278 : A.I.R. 1955 Mad. 288.
If Article 144 is the proper article applicable, when does time commence to run? According to the third column of Article 144, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff. As I have already pointed out, the possession of the non-alienating members of the family cannot be deemed to be possession on behalf of the alienee also, because the purchaser-alienee does not acquire any interest in the property sold and does not become tenant-in -common with the members of the family nor is he entitled to joint possession with them. It is clear that in the absence of a clear acknowledgment of the right of the alienee or participation in the enjoyment of the family property by the alienee, the possession of the non-alienating coparceners would be adverse to the alienee, from the date on which he became entitled to sue for general partition and possession of his alienor's share. The fact that the alienee has purchased an undivided interest of the joint family property is not inconsistent with the conception of adverse possession of that interest.
28. From a reading of the judgment of the Supreme Court, it is clear that of the three Judges, two Judges expressed some doubt about the applicability of Article 144 and did not decide the same. But the minority judgment applied the principles of Article 144, and finally, on the basis of unanimous judgment, reversed the judgment of the Andhra Pradesh High Court. Now, the question to be considered is, what is the effect of the two separate judgments of the Supreme Court in the same case.
29. Article 141 of the Constitution of India says that the law declared by the Supreme Court shall be the law of the land. So, what is the law declared by the Supreme Court in Manikayala Rao v. Narasimhaswami ?
30. A similar question came for consideration by a Bench of this Court and the decision rendered thereon is reported in G.R.V. Rajan v. Tube Investments of India Limited represented by its Company Secretary, Madras-1 (1995) 1 L. W. 274. In that case, the question was regarding the interpretation of Section 27 of the Contract Act which deals with the restraint on trade. The learned Judge before whom the case initially came, held that the plaintiff is entitled to get injunction, following the decision reported in Niranjan Shankar Golikari v. Century Spinning and Manufacturing Company Limited . There was another decision of the Supreme Court more or less on the same point, reported in Superintendence Co. of India v. Krishnan Murgai . The latter decision was given' by three Judges, of whom two Judges did not give any opinion, and said that it is unnecessary to decide the point. But the third Judge held that the point is also necessary for the decision and gave the opinion. The question was, whether the opinion rendered by the third Judge is a law declared by court or whether it is only a minority judgment and, therefore, the earlier decision , still applies. While considering that question, in paragraph 35 (at page 293, and u paragraphs 36 and 37, the Bench held thus:
Thus, the learned Judge held, that no injunction can be granted against an employee after the termination of his employment restraining him from carrying on a competitive trade. After laying down the law thus, the learned Judge proceeded to consider the second question as formulated and referred to earlier. Thus, all the three learned Judges held that the judgment of the Delhi Bench was correct and dismissed the appeal. The judgment of A.P. Sen, J. was not one of dissent. It is a case in which two learned Judges of the Bench did not deal with she question, while the third learned Judge deall with it and also declared the law. The dictum of A.P. Sen, J. is undoubtedly the law declared by the Supreme Court, as contemplated by Article 141 of the Constitution of India, and it shall be binding on all courts within the territory of India. There is no escape from that conclusion. Unfortunately, the learned single Judge has erroneously thought that the judgment of A.P. Sen, J. runs counter to the judgment of the two learned Judges in Niranjan Shankar Golikari's case A.I.R. 1967 S.C. 1098 and, therefore, the earlier one would prevail. In fact, there is no conflict between the two judgments and it has been clearly laid down in the later judgment that the decision in the earlier case is not applicable to a case in which a situation has arisen after the expiry of contract of service between the employer and the employee. It is not open to the High Court to consider whether A.P. Sen, J. was right in distinguishing the earlier ruling and holding it to be inapplicable to a case arising after the expiry of the contract of service. The law as laid down by him on an interpretation of the earlier judgment is binding on the High Court.
In Mahendra Bhawanji Thakar v. S.P. Pande , a Division Bench of that court has held that "the law declared" referred to in Article 141 of the Constitution of India is the law to be gathered from any judgment in a case decided by the Supreme Court, whether it is the judgment of a Judge forming the majority or of a Judge in a minority and dissenting. The Bench had to consider the effect of the judgment of the Supreme Court in S.C. Prashar v. Vasantsen Dwarkdas . One of the learned Judges held that the second proviso to Section 34(3) of the Income-tax Act, 1922 was unconstitutional. The argument before the Division Bench was that only one learned Judge had expressed that view and the other learned Judges not having dealt with that point, it could not be considered to be the law laid down by the Supreme Court. That argument was rejected by the Division Bench. In that connection, the Bench said:
(23) We do not think that we can accede to the contention of Mr. Natu having regard to the provision of Article 145(5) read with Article 141 of the Constitution. Article 141 says that "The law declared by the Supreme Court shall be binding on all courts within the territory of India.
It is the law declared by the Supreme Court that binds this Court and not the judgments. This is made clearer when we consider Article 145(5). In Article 145(5) the words used are, "No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.
It is clear from Article 145 (5) that a judgment delivered by the Supreme Court is the one delivered by a majority of the judges where there is a difference of opinion, but in that case the Judge who does not concur also delivers a judgment albeit a dissenting judgment. Article 145(5) therefore uses the word 'judgment' both with regard to the final pronouncement of the court itself as well as for the dissenting pronouncement of an individual Judge who does not concur. There does not appear to be any warrant for reading the provision of Article 145(5) into the provisions of Article 141, and we do not think that the "law declared" can be approximated to the judgment delivered by the Supreme Court. On the other hand, having regard to the provisions of Article 145(5) that a Judge who does not concur may also deliver a judgment, it is clear that the law declared may as well be in a dissenting judgment as in a majority judgment. The argument, therefore, that the three Judges whose decision resulted in the allowing of the appeal in Purshottam's case, did not form a majority of those holding that Article 14 applied to the second proviso to Section 34(3) does not make that the law declared. On the other hand, as we have already shown three Judges out of the five who decided Civil Appeal No. 705 of 1957: S.C. Prashar v. Vasantsen Dwarkadas , had clearly agreed that Article 14 applied and the Proviso was ultra vires and we think that for the purpose of this Court that was "the law declared by the Supreme Court." We hold that "the law declared" referred to in Article 141 is the law to be gathered from any judgment in a case decided by the Supreme Court, whether it is the judgment of a Judge forming the majority or of a Judge in a minority and dissenting. The contention must, therefore, be negatived.
A similar question arose in Prem Prakash Gupta v. Union of India . The learned Judge referred to the judgment of the Supreme Court in State of Seraikella v. Union of India A.I.R. 1951 S.C. 255, in which the majority did not express any opinion on the question of maintainability of a suit without a notice under Section 80 of the Code of Civil Procedure against the Dominion of India and the Province of Bihar by a Ruler of an Orissa State filed in the Federal Court of India on 16th January, 1950. While the majority of the Judges did not express any opinion, Mahajan, J., examined the issue and answered it in the negative. That dictum was held to be binding by the learned Judge of the Allahabad High Court.
31. On the basis of the Bench judgment, it can safely be concluded that the view of Ramaswami, J. expressed in the decision reported in Manikayala Rao v. Narasimhaswami , is also a -law declared by the declared by the Supreme Court and, therefore, binding on this Court. If that be so, the decisions reported by this Court in Boologam Naidu v. Jagannath V. Thani Chettiarv. Dakshinamurthi Mualiar still hold the field, and the period of limitation can only be under Article 65 of the Indian Limitation Act.
32. Learned Counsel for the appellant brought to my notice certain passage in U.K. Mitra' s Limitation Act -10th Edition (1992) at pages 1698 and 1699, wherein the learned Author has stated that there is some confusion regarding the relevant Article that is applicable in such cases. The learned Author has stated thus in page 1699:
...It is well-settled that there can be no adverse possession against a person who is not entitled to immediate possession. It is also the law that the purchaser of a co-parcener's undivided interest is not entitled to the possession of what he has purchased. His only right is to sue for partition and ask for allotment of that which on partition might be found to fall to the share of the coparcener whose interest he has purchased. As pointed out in Sidheswar Mukherjee v. Bhubaneswar Prasad, his right to possession would date from the period when a specific allotment was made in his favour." In other words he would be entitled to possession only after the decree in a suit for partition brought by him and till then, therefore, there can be no question of adverse possession against him....
I am bound by the Bench decision of this Court cited supra, which according to me is the law declared by the Supreme Court also.
33. In this case, there cannot be any question of adverse possession or limitation. Immediately after the sale, the purchasers obtained physical possession of the property and when proceedings under Section 145 of the Criminal Procedure Code was initiated, it was declared by the Magistrate's Court that the purchasers are in physical possession. That position continued till 1978 when they were dispossessed through court pursuant to the dismissal of the second appeal preferred by them. Even before dispossession, the present suit was filed for partition. If that be so, there cannot be any question of adverse possession or limitation in this case. I find the substantial questions of law against the appellants. The second appeals are liable to be dismissed.
34. In the result, the second appeals are dismissed. In view of the importance of the question of law raised, direct the parties to suffer their respective costs in these appeals.
35. Memorandum of cross-objections: Respondents in S. A. No. 1375 of 1982 have filed the mermorandum of cross-objections, praying for declaration of title to the B Schedule property. The same cannot be granted when the relief prayed for in the suit is for general partition. Lower appellate court has rightly held that a final decree will have to be passed taking into consideration the equities. Only in case the B Schedule property is allotted to the plaintiff consequent to the general partition, they will be entitled to possession thereof. Therefore, as on date the question of declaration of title in respect of the suit property will not arise. The cross- objections which has no merits deserves no consideration, and accordingly it is dismissed but without costs.