Full Judgment Text
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PETITIONER:
MAMIDI VENKATA SATYANARAYANA MANIKYALARAO AND ANOTHER
Vs.
RESPONDENT:
MANDELA NARASIMHASWAMI AND OTHERS
DATE OF JUDGMENT:
27/08/1965
BENCH:
SARKAR, A.K.
BENCH:
SARKAR, A.K.
DAYAL, RAGHUBAR
RAMASWAMI, V.
CITATION:
1966 AIR 470 1966 SCR (1) 628
CITATOR INFO :
F 1975 SC1767 (21)
D 1977 SC1123 (10)
ACT:
Indian Limitation Act, Arts 144 and 120-Alienation of share
of Hindu Joint family property-Possession of members of
family whether adverse to alienee-Period within which suit
for partition and possession by alienee must be brought.
HEADNOTE:
A decree was passed in a money suit against N and his four
sons who were members of a Mitakshara Hindu joint family.
In execution of that decree the shares of the four sons in
the joint family properties, described altogether as 4/5 th
share, were put up for auction in December, 1936 and
purchased by S. N’s interest was not put up for sale as it
was the subject matter of insolvency proceedings. The sale
to S was duty confirmed. S sold the properties to P. On
November 6, 1939 an order was made under 0. 21 rr. 33(2) and
96 of the Code of Civil Procedure for delivery of joint
possession of the properties purchase to P along with the
members of the joint family already in possession. This
order was carried out and possession was delivered to P by
publishing that fact by beat of drum as prescribed in the
rules. Subsequently P retransferred the properties to S. On
October 16, 1951 S filed a suit against the then members of
the joint family and various alienees asking for a partition
of the joint family properties into five equal shares and
thereafter for possession of four of such shares by removing
the defendants from possession. The trial court decreed the
suit but held that S was not entitled to a 4/5th share but
only to a 2/3rd share because before the decree a 5th son
had been born to N who had not been made a party to the suit
or the execution proceedings and whose share had
consequently not passed under the auction sale. Some of the
defendants filed an appeal to the High Court which allowed
the appeal holding that the suit was barred by limitation
under Art. 144 of Schedule 1 to the Limitation Act. S had
field a coss-objection in the High. Court on the ground
that he should have been held entitled to a 4/5th share of
the properties which was dismissed by the High Court without
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discussion of the merits in view of its decision on the
question of limitation. S having died the appellants as his
successors in interest appealed to this Court under Art. 133
of the Constitution. The two questions that arose for
decision were (1) whether the suit was barred by limitation
under Art. 144 or Art. 120 and (2) whether S was entitled to
a 4/5th share.
HELD : (Per Sarkar and Raghubar Dayal, JJ.) (i) (a) ’Me view
that the suit was barred under Art. 144 of the suit
presented great difficulties. The article obviously
contemplates a suit for possession of property where the
defendant might be in possession of it as against the
plaintiff. However, the purchaser of a copartner’s
undivided interest in joint family property is not entitled
to possession of what he has purchased. His only right is
to sue for partition of the property and ask for allotment
to him of that which an partition might be found to fall to
the share of the copartner whose share he has purchased.
His right to possession would date from the period when a
specific allotment is made in his favour.[632 H]
629
S was therefore not entitled to possession till a partition
had been made. As possession of the defendants could tie
adverse to him only if he was entitled to possession the
difficulty in applying Art. 144 arose. [633 B]
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain, [1954]
S.C.R. 177, relied on.
Vyapuri v. Sonamma Boi Ammani, (1916) I.L.R. 39 Mad. 81,
referred to.
Mahant Sudarsan Das v. Mahan Ram Kirpal Das, (1949) L.R. 77
I.A 42, distinguished.
(b) Even on the assumption that Art. 144 applied the suit
was not barred. In the present case the defendants were not
in uninterrupted possession for twelve years as required by
the Article. By the delivery of symbolical possession under
the order of November 6, 1939, the adverse possession of the
defendants was interrupted. Time had therefore to commence
to run from that date, and the suit having been brought
within twelve years of that date, it was not bared under
that article. [633 F-G]
Sri Radha Krishna Chanderji v. Ram Bahadur, A.I.R. (1917)
P.C. 197, relied on.
It could not be said that the order of delivery of
possession was a nullity though S and his transferee who had
purchased an undivided share in copartners property were not
entitled in law to any possession at all. In making the
order the learned Judge had gone wrong in law but he had
acted within his jurisdiction. Such an order has full
effect if it is not set aside. [634 A-B]
Yelumalai Chetti v. Srinivasa Chetti, (1906) I.L.R. 29 Mad.
294, distinguished.
Mahadev Sakharam Parkar v. janu Namji Hatle, (1912) I.L.R.
36 Bom. 373 and fang Bahadur Singh v. Hanwant Singh (1921)
I.L.R. 43 All. 520, held inapplicable.
(ii) Article 120 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. [636 D]
The right to sue accrues for the purpose of Art. 120 when
there is an accrual of the right asserted in the suit and an
unequivocal threat by the respondent to infringe it. In the
present case there was nothing to show that the right was
ever challenged in any way by the respondents. It was
impossible therefore to hold that the suit was barred under
Art. 120. [636 F]
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Mst. Rukhmabai v. Lala Laxminarayan, [1960] 2 S.C.R. 253
and C. Mohammad Yunus v. Syed Unnissa, A.I.R. 1961 S.C. 808,
relied on.
Bai Shevantibai v. Janardan R. Warick, A.I.R. 1939 Bom. 322
disapproved in so far as it held that the right to sue
accrued from the date of sale.
(iii) The cross objection had no merit. What S
purchased at the auction sale was the share of the sons of S
then bom, in the joint family Properties. At the date of
the auction sale that share which was originally 4/5th had
been reduced to 2/3rd by the birth of another son to N who
had not been made a party either to the suit or the
execution proceedings. What was purchased at the execution
sale was only the shares of the four elder sons of N and
their share at the date of sale was 2/3rd. That
630
being so S was not entitled to get the 1/6th share of the
fifth son also allotted to him in the partition suit. [637
B-C]
Per Ramaswami, J. : (i) The purchaser of a share of joint
Hindu family property doe-, not acquire any interest in the
property he cannot claim to be put. in possession of any
definite place of Property. A suit for partition filed by
the alienee from a is not, in a technical sense, a suit for
partition and such a suit have the necessary effect of
breaking up the joint ownership of the members of the family
in the joint family in the joint property nor the corporate
character of the family. Such being the rights of the
alienee his right to sue for partition cannot be said to be
a continuing right subject to no period of limitation for
enforcing it. [638 F-H]
Aiyyagari Venkataramayya v. Aivyagari Ramayya, I.L.R. 25
referred to.
(ii) Though the alienee of an undivided interest of a Hindu
is not entitled to joint possession with other copartners or
to separate possession of any part of the family property he
is entitled to obtain possession of that part of the family
property which might full to the share of his alienor at a
partition. [640 B]
In the present case the alienee instituted a suit for
general the prayer that he may be put in possession of that
part of the family property which may be allotted to his
share. It is not right to such a suit as a suit for mere
partition. The main relief sought by the plaintiff is the
relief of 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. Such a suit falls within the
of Art. 144 of the Limitation Act. [640 B-D]
Thani v. Dakshinamurthy. I.L.R. 1955 Mad. 1278, appoved
(iii) the possession of the non-alieniting members of
the family cannot be said to be possession on behalf of the
alienee also because the purchaser-alienee does not acquire
in interest in the property sold and does not become tenant-
in-common with the members of the family tier is he entitled
to joint possession with them. In the absence of clear
acknowledgement of the right of the alienee or participation
in the enjoyment of the family property by the alienee the
possession of his alienors share. The fact that the
alienee has purchased an undivided interest is not
inconsistent with the conception of adverse possession, of
that interest. [640 E-H]
Sudarsan Das v. Ram Kirpat Das, A.I.R. 1950 P.C. 44, reliel
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on.
According to the third column of Art. 144, time begins to
run from the date when the possession of the defendant
becomes adverse to the plaintiff. In the present case,
therefore, adverb possession bengon to run from the date of
purchase of the undivided share i.e. front December 21.
1936. [640 E; 641 FF]
(iv) However the grant of symbolic possession bv the court
in favour of P after notice to defendants 2 to 5 was
tantamount in law to delivery of actual possession and
therefore efficient to break up the continuity of adverse
"scion in favour of the defendants. Even assuming that the
grant of symbolic possible ought not to have been made and
that,
631
the executing court acted illegally in making such an order,
it could not be argued that the executing court had no
jurisdiction to make the order or that the act of symbolic
possession was a nullity in the eye of law. [642 B]
Yelumalai Chetti v. Srinivasa Chetti,I.L.R. 29 Mad. 294,
referred
Sri Radha Krishna’ Chanderii v. Ram Bahadur, A.I.R. 1917
P.C. 197, relied on.
According the suit of the plaintiff was no.t barred by
limitation under’ Art. 144 of the Limitation Act and the
view taken by the High Court on this part of the case was
not correct. [642 D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 420 of
1963.
Appeal from the judgment and decree dated September 9.
1960 of the Andhra Pradesh High Court in Appeal Suit No. 300
of 1955.
M. Suryanarayana Murti and T.V.R. Tatachari, for the
appellant.
K.R. Chaudhuri, for respondents 1 to 13.
The Judgment of Sarkar and Raghubar Dayal, JJ. was
delivered by Sarkar J. Ramaswami, J. delivered a separate
Opinion.
Sarkar, J. In a certain money suit, being Small Cause
Suit No. 9 of 1953. a decree had been passed against
Narasimhaswamy and his four sons who were members of a
Mitakshara Hindu joint family. In execution of that decree
the shares of the four sons in the joint family properties,
described altogether as 4/5th share, were put up to auction
on December 21, 1936 and purchased by one Sivayya whose
successors-in-interest are the appellants. The father
Narasimhaswamy’s share had not been put up for sale because=
an application fo.r his adjudication as insolvent was then
pending. The sale to Sivayya was duly confirmed.
Thereafter Sivayya sold the properties purchased by him at
the auction to one Prakasalingam. On November 6, 1939, an
order was made. under O. 21, rr. 35(2) and 96 of the Code of
Civil Procedure for delivery of joint possession of the
properties purchased to Prakasalingam along with the
members of the joint family in actual’ possession. This
order was duly carried out and possession was delivered to
Prakasalingam by publishing that fact by beat of drum as
prescribed in these rules. Subsequently, Prakasalingam re-
transferred the properties to Sivayya.
On October ’16, 1951, Sivayya filed the. suit out of
which this
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appeal arises, against the then members of the joint
family whose
Sup../65 12
632
number had by that time increased, and various other persons
holding as alienees from them, asking for a partition of the
joint family properties into five equal shares and
thereafter for possession of four of such shares by removing
the defendants from possession. The trial Court decreed the
suit but held that Sivayya was not entitled to a 4/5th share
but only to a 2/3rd share because before the decree a 5th
son had been bom to Narasimliaswamy who had not been made a
party to the suit or the execution proceedings and whose
share had not consequently passed under the auction sale.
Some of the defendants appealed to the High Court of Andhra
Pradesh from this judgment. The High Court allowed the
appeal on the ground that the suit was barred by limitation
under Art. 144 of Schedule 1 to the Limitation Act. Sivayya
had filed a cross-objection in the High Court on the -round
that he should have been held entitled to a 4/5th share of
the properties which was dismissed by the High Court without
a discussion of its merits in view of its decision on the
question of limitation. Sivayya having died pending the
appeal in the High Court, the appellants as his successors-
in-interest, have come up to this Court in further appeal
under Art. 133 of the Constitution.
Various questions had been raised in the trial Court but
only two survive after its decision. They are, whether the
suit was barred by limitation and whether Sivayya was
entitled to a 4/5th share.
On the question of limitation, two articles of the Act were
pressed for our consideration as applicable to the ease.
They are Arts. 144 and 120. We consider it unnecessary to
decide in this ,case which of the two articles applies for
in our view, the suit was not barred under either.
As earlier stated the High Court held that Art. 144 applied.
The application of this article seems to us to present great
difficulties to some of which we like to refer. That
article deals with a suit for possession of immovable
property or any interest therein not otherwise specially
provided for and prescribes a period of twelve years
commencing from the date when the possession of the
defendant becomes adverse to the, plaintiff. This article
obviously contemplates a suit for possession. of \property
where the defendant might be in adverse possession of it as
against the plaintiff. Now, it is well-settled that the
purchaser of a copartner’s undivided interest in joint
family property is not entitled to possession of what he has
purchased. His only right is to sue for partition of the
property and ask for allotment to him of that which on
partition might be found to fall to the share of the
coparcener
63 3
whose share he had purchased. His right to possession
"would date from the period when a specific allotment was
made in his favour": Sidheshwar Mukherjee v. Bhubneshwar
Prasad Narain (1) It would, therefore, appear that Sivayya
was not entitled to possession till a partition had been
made. That being so, it is arguable that the defendants in
the suit could never have been in adverse possession of the
properties as against him as possession could be adverse
against a person only when he was entitled to possession.
Support for this view may be found in some of the
observations in the Madras full bench case of Vyapur v.
Sonamm Boi Ammani (2).
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In the case in hand the learned Judges of the High Court
thought that the applicability of Art. 144 to a suit like
the present one was supported by the decision of the
Judicial Committee in Mahant Sudarsan Das v. Mahan Ram
Kirpal Das(3). We feel considerable doubt that the case
furnishes any assistance. It held that Art. 144 extends the
conception of adverse possession to include an interest in
immovable property as well as the property itself. In that
case a purchaser of an undivided share in a property which
was not coparcenery property, had obtained possession of
that share and he was held to have acquired title to it by
adverse possession. That was not a case of a person who was
not entitled to possession. We are not now concerned with
adverse possession of an interest in property.
Having expressed our difficulties on the matter let us
proceed on the assumption without deciding it, that Art. 144
is applicable. Even so, it seems to us that the suit is not
barred. It is not in dispute that in order that the suit
may be barred under the article the defendant must have been
uninterrupted possession for twelve years before the date of
the suit. Now, in. the present case that was not so. By
the delivery of symbolical possession under the order of
November 6, 1939, the adverse possession of the, defendants
was interrupted. Time has, therefore, to commence to run
from that date and so considered, the suit having been
brought within twelve years of that date, it was not barred
under that article. That would follow from the case of Sri
Radha Krishna Chanderji v. Ram Bahadur (4) where it was held
that delivery of formal possession also interrupted the
continuity of adverse possession.
It was however said that the order for delivery of
possession
(1) [1954] S.C.R. 177,188.
(3) (1949) L.R. 77 I.A. 42.
(2) (1916) I.L.R. 39 Mad. 811.
(4) A.I.R. 1917 P.C. 197.
634
made in the present case was a nullity because Sivayya and
his transferee who had purchased an undivided share in
coparcenery property were not entitled to any possession at
all. We agree that the order cannot be supported in law but
we do not see that it was for this reason a nullity. It is
not a case where the order was without jurisdiction. It was
a case where the learned Judge making the order had, while
acting within his jurisdiction, -one wrong in law. Such an
order has full effect if it is not set aside, as it was not
in this case. Yelumalai Chetti v. Srinivasa Chetti(1) to
which we were referred, does not support the contention that
the order was a nullity There a purchaser of an undivided
share in coparcenery property at an execution sale had
applied for possession under S. 318 of the Code of Civil
Procedure of 1882 which corresponds to 0 21, r. 95 of the
present Code. That application was dismissed as barred by
limitation. Later, the purchaser who had subsequently
acquired the interest of the other coparceners in the
property under a private sale, filed a suit for possession
of the whole. it was contended that the suit was barred
under S. 244 of the old Code (= s. 47 of the present Code)
as the purchaser could only proceed by way of execution. In
dealing with that contention it was said that though the
purchaser of an undivided share in coparcenery property was
only entitled to ask for a partition, it was not competent
to a court on a mere application for execution by a
purchaser of such a share at a court sale, to order a
partition and, therefore, the dismissal of the application
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under S. "II 8 of the old Code had no effect by way of yes
judicature on the second Suit for Possession. This case
said nothing about the legality of an order under 0. 21, rr.
35, 95 or 96.
It seems to us that the question of adverse possession is
one of fact. If the person against whom adverse possession
is set up, should that he had in fact obtained possession,
whether lawfully or not, that would interrupt any possession
held adversely against him. The question is whether there
was in fact an interruption of the adverse possession and
not whether that interruption was justifiable in law. Under
the order for delivery of symbolical possesSion, whether it
was legal or otherwise, Prakasalingam did obtain possession
and this was an interruption of the adverse possession by
the respondents. In respect of the present suit time under
Art. 144 must, therefore, commence from that interruption.
We wish to observe here that this aspect of the matter
exposes the anomaly that seems to arise from the application
of Art. 144 to this case. If Prakasalingam’s possession
under the order of
(1) (1906) I.L.R. 29 Mad. 294.
63 5
November 6, 1939 was no possession in law because, as is
contended, he was not entitled to possession at all, then it
would be difficult to hold that at that time somebody else
was holding the property adversely to him. Since
Prakasalingam or his successor Sivayya was not entitled to
possession till after the decree in a suit for partition
brought by him, Art. 144 would seem to be inapplicable to
that suit.
Learned counsel for the respondents referred us to Mahadev
Sakharam Parkar v. Janu Namji Hatle(1) and Jang Bahadur
Singh v. Hanwant Singh(1) to show that the delivery of
symbolical possession does not avail the appellants. On
behalf of the appellants it was said that these decisions
are no longer good law in view of the judgment of the
Judicial committee in Sri Radha Krishan Chanderji’s (3)
case. Apart however from the merits of this contention
which no doubt, deserve consideration, the principle of
these cases does rot seem to us to be applicable to the
present case. That principle was expressed in the case of
Jang Bahadur Singh (2 )-which also is clearly to be implied
from the decision in the case of Mahadev Sakharam Parkar(1)-
in these words, "If possession was delivered in accordance
with law that undoubtedly would, as between the parties to
the proceedings relating to delivery of possession, give a
new start for the computation of limitation and the
possession of the defendants would be deemed to be a fresh
invasion of the plaintiff’s right and a new trespass on the
property. But if possession was not delivered in the mode
provided by law, that delivery of possession cannot, in our
opinion, give a fresh start to the plaintiff for computing
limitation." By the words "in accordance with law" the
learned Judges meant, in accordance with the Code of Civil
Procedure and not any other law. These cases dealt with an
order for delivery of symbolical possession where an order
for actual possession could have been made under the Code.
Because of this, it was held that the order for delivery of
symbolical possession did not interrupt the adverse
possession of the defendant. That is not the case here.
The only order for delivery of possession that could
possibly be made under the Code in the present case was
under 0. 21 rr. 35(2) and 96 because the other members of
the family whose share had not been sold were certainly
entitled to remain in possession. The fact that ;,I view of
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the provisions of the Hindu law the order made is illegal,
is irrelevant for the present purpose. That would not bring
the case within the principle of either the Bombay case or
the Allahabad case.
(1) (1912) I.L.R. 36 Bom. 373.
(2) (1921) I.L.R. 43 All. 520.
(3) A.I.R. 1917 P.C. 197.
636
Learned counsel for the respondents however contended that
0. 21, r. 35(2) only applied where there was a decree for
joint possession and it did not apply to the present case
because here there was only an order for delivery of joint
possession and not a decree. This contention cannot be
accepted because under s. 36 of the Code the provisions
relating to the execution of decrees are applicable to
execution of orders. In any case, the order is clearly
within the terms of 0. 21, r. 96. The delivery of symboli-
cal possession made in this case was quite in terms of the
Code and so amounted to an interruption of the respondent’s
adverse possession and the period of limitation for the
purpose of the application of Art. 144 would start from the
date of such delivery. As the suit was brought within
twelve years from the date of that delivery of possession,
Art. 144 even if it applies, does not bar it.
We then turn to Art. 120. In Bai Shevantibai v. Janardan R.
warick(1) 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(1)
case that in a suit like the present one. the period of
limitation under Art. 120 commences to run from the date of
the sale. This the case 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 Mst. Rukhmabai v. Lala Laxminarayan (2
) and C. Mohammad Yunus v. Syed Unnissa(3) that the right to
sue accrues for the purpose of 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 right was ever challenged in any way by
the respondents. It is impossible, therefore, to hold that
his suit was barred under Art. 120.
The result is that the suit was not barred whether Art. 144
or Art. 120 applied to it.
It remains now to deal with the cross-objection. We do not
think that it has any merit. Both the courts below have
held that what Sivayya purchased at the auction sale was the
share of the four sons of Narasimhaswamy in the joint family
properties. At the date of the auction sale that share
which was originally
(1) A.I.R. 1939 Bom. 322.
(3) A.I.R. 1961 S.C. 808.
(2) [1960] 2 S.C.R. 253.
637
4/5th had been reduced to 2/3rd by the birth of another son,
Venugopal, to Narasinihaswamy who had not been made a party
either to the suit or the execution proceedings. It is
irrelevant to enquire whether after his birth the fifth
son’s share could be proceeded against in the execution of
the decree in suit No. 9 of 1933. It is enough to say that
was not in fact done. What was purchased at the execution
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sale was only the shares of Venugopal’s four brothers at the
date of the sale and this was 2/3rd. That being so, we
think Sivayya was not entitled to get Venugopal’s 1/6th
share also allotted to hi-in in the partition suit. The
crossobjection must fail. We may add that no claim has been
made against Narasimhaswamy’s share whose insolvency once
ordered, appears subsequently to have been annulled.
In the result we would allow the appeal, set aside the
judgment and decree of the High Court except as to the
dismissal of the cross-objection and restore that of the
learned trial Judge. The appellants will be entitled
to proportionate costs here and in the High Court.
Ramaswami, J. The question of law involved in this appeal is
what is the period of limitation applicable to a suit filed
by an alienee of a coparcener of an undivided share in the
joint family property for general partition. The appellants
are the legal representatives of the deceased plaintiff-
Mamidi China Venkata Sivayya. The suit was filed by him on
October 16, 1951 for partition and separate possession of
the 4/5th share in the joint family properties. It is
alleged that he purchased the undivided share of defendants
2 to 5 at a Court auction sale held on December 21, 1936 in
execution of a decree of the Court of Small Causes. The
sale was confirmed on February 23, 1937. Later on i.e., on
March 5, 1939 the purchaser Sivayya sold the right he had
purchased to one Prakasalingam who, it is alleged, obtained
symbolic delivery of possession of the undivided share of
the joint family properties on November 6, 1939. It appears
that Sivayya obtained a reconveyable of the right from
Prakasalingam on April 11, 1945. Sivayya brought the
present suit on October 16, 1951 against the other
coparceners and alienees from some of the coparceners. The
suit was filed by Sivayya for general partition. The main
defence of the contesting defendants was that the suit was
barred by limitation. The trial court held that the suit
was governed by Article 144 of the Limitation Act and
Article 120 did not apply. The trial court also found that
there was symbolic delivery of possession in favour of
Prakasalingam on November 6, 1939 and there was break up of
adverse
638
possession of defendants 1 to 5 and that the suit was,
therefore, brought within time. The trial court held that
the 1/6th share of the 6th defendant one of the coparceners
did not pass to the plaintiff as the 6th defendant was born
before the Court sale and he was not implement as a party in
the present case. The trial court accordingly gave a decree
for partition and separate possession to the plaintiff of
2/3rds share of the properties mentioned in Sch. ’A’ of the
plaint. The defendants preferred an appeal before the High
Court of Andhra Pradesh against the judgment and decree of
the trial court. The plaintiff also filed a Memorandum of
Cross Objections claiming the 1/6th share of the 6th
defendant also. The High Court held that Article 144 of the
Limitation Act applied to the suit and the adverse
possession of the defendants commenced from the date of the
auction sale and that the suit was barred by limitation as
it was filed on October 16, 1951 i.e., more than 12 years
after the auction sale. The High Court also held that the
symbolic delivery had no legal effect and did not break the
adverse possession of the defendants. Accordingly the High
Court allowed the appeal and the suit was dismissed with
costs throughout. The present appeal is presented on behalf
of the legal representatives of the deceased plaintiffs
against the judgment and decree of the High Court of Andhra
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Pradesh.
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
purchase shares of some of the coparceners of the Hindu
Joint Family. It is wellsettled 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).
639
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
Bhashyam Ayyangar, J. in Aiyyangari Venkataramayya v.
Aiyyagari Ramayya
"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 lifetime 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
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
(Gurulingappa 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
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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.
(1) I.L.R. 25 Mad. 690 at p. 717.
64 0
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 not right to consider
such a suit as a suit for more 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 Thai v. Dakshinamutthy(1).
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 nonalienating 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 joint family property is not inconsistent with
the conception of adverse possession of that
64 1
interest. As Lord Radcliffe observed in Sudarsan Das v. Ram
Kirpal Das(1) :
"Now it is the respondents’ case-it is in fact
their main contention on this issue-that the
appellant has never at any time had ’adverse’
possession against them because, the disputed
property being a fourteen undivided share, his
possession has been throughout no more than a
joint possession with them. And the joint
possession which coparceners enjoy in respect
of the undivided property involves that, prima
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facie, the exclusive possession of any one of
them is not adverse to the others. Their
Lordships have no doubt of the validity of
this general rule : but they are unable to
think that it will be in any way departed from
if they hold that in respect of the disputed
property itself the appellant’s possession has
been adverse to the owners of the other
shares. In truth there is some confusion
involved in the argument. What is in question
here is not adverse possession of the block of
property in which the various undivided
interests subsist but adverse possession of
one undivided interest. Article 144 certainly
extends the conception of adverse possession
to include an interest in immovable property
as well as the property itself nor was it
disputed in argument by the respondents that
there could be adverse possession of an
undivided share, given the appropriate
circumstances."
In the present case, therefore, adverse possession began to
run from the date of purchase of the undivided share i.e.,
from December 21, 1936 but it was submitted on behalf of the
appellants that Prakasalingam obtained symbolic delivery and
possession of the undivided share on November 6, 1939 after
notice to defendants 2 to 5 and there was a fresh cause of
action to Sustains the present suit for possession. It was
contended on behalf of the respondents that the symbolic
delivery was illegal and the executing court was not
competent to make an order of delivery of possession, either
symbolic or actual with regard to the sale of an undivided
interest of joint family property. In support of this
argument reliance was placed on the decision in Yelumalai
Chetti v. Srinivasa Chetti (2 ) in which it was held that
the purchaser at a Court sale of the share of an undivided
member of a joint Hindu family acquires only a right to sue
for partition and for delivery of what may be allotted as
the share of such undivided member
(1) A.I.R 1950 C.44at p. -47.
(2) I.L.R. 29 Mad. 294.
642
and the Court cannot, on a mere application for execution by
such purchaser, enforce his right by an order for partition.
It was further held that no such order can be made under
section 318 of the Code of Civil Procedure and the dismissal
by the Court of an application by the purchaser under S. 318
cannot be a bar to a suit by the purchaser for partition.
Even assuming that the ,grant of symbolic delivery of
possession ought not to have been made and that the
executing-court acted illegally in making such an order, it
cannot be argued that the executing court had no
jurisdiction to make the order or that the act of symbolic
possession was a nullity in the eye of law. I am,
therefore, of the opinion that the -rant of symbolic
possession by the court in favour of Prakasalingam after
notice to the defendants 2 to 5 was tantamount in law to
delivery of actual possession and, there fore, sufficient to
break up the continuity of adverse possession in favour of
the defendants. In Sri Radha Krishna Chanderji v. Ram
Bahadur(1) it was held by Lord Sumner that symbolic posses-
sion was available to dispossess a party sufficiently where
he was a party to the ’Proceedings in which it was ordered
and given. I am accordingly of the opinion that the suit of
the plaintiff is not barred by limitation under Article 144
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of the Limitation Act and the view taken by the High Court
on this part of the case is not correct and must be
overruled.
On behalf of the appellants it was also argued that a decree
for 5/6th share of the joint family properties and not
merely for 2/3rds share should have been granted. The claim
of the appellants was rejected by the trial court. It is
not disputed by the plaintiff that the 6th defendant was
born before the Court sale and it is also not disputed that
the execution case was taken out only against defendants 2
to 5. It is manifest that the plaintiff is not entitled to
recover the possession of the share of the 6th defendant in
execution proceedings and there is no merit in the cross-
objection filed on behalf of the plaintiff in the High
Court. am unable to accept the argument advanced by the
appellants’ on this point.
For these reasons I hold that the judgment and decree of the
High Court should be set aside and the judgment and decree
of the trial court should be restored and a preliminary
decree of partition of the properties should be -ranted as
mentioned in the trial court’s decree. The appeal is
accordingly allowed with costs,
Appeal allowed.
(1) A.I.R.1917 P.C. 197.
643