1. This appeal arises out of a suit filed by the plaintiff as the alienee from one of tie coparceners against the coparceners and the members of the joint Hindu family for general partition. The material tacts are set out below: Govinda nad a wife Kashibai and four sons, saknaram, Namdeo, Hanmant and Bhanuaas. On 20-3-1940, Govinda passed a sale- deed in respect of house No. 101 in favour of the plaintiff tor a sum of Rs. 795/-. Tne four sons of Govinda filed a suit, (Civil Suit No. 94-A of 1951), against the original plaintiff for possession of the sun house alter setting aside the alienation effected by the father. Govinda was a party to the suit. The suit was decreed on 3-5-1951 and the plaintiff preferred civil appeal No. 51-A of 1951. Tne appeal came to be dismissed on 6-9-1952. Exhibit P-1 is a copy of tha judgment in that appeal. While dismissing the appeal am appellate court allowed four months time to the plaintiff for vacating the premises. The appellate Court suggested that, in tne meantime, the plaintiff may the a suit tor general partition which was the only way of obtaining the property purchased from one of the coparceners. Accordingly, on 3-11-53 the plaintiff filed a suit tor general partition which has given rise to this appeal. It may be mentioned that Govinda died on 8-11-1952, that is to say, prior to the institution of tne suit tor general partition. Sakharam, the eldest son, had predeceased Govlnda, tie having died on 21-3-1952. The remaining three sons were added as defendants Nos. 1, 2 and 3 and the mother Kashibai was added as defendant No. 4 to the suit. Defendant No. 5 was a purchaser or another item of the joint family property, that is, house Ho. 33. Defendant No. 6 is a transferee from defendant No. 4 in respect of the suit house, that is, house No. 101, sold by Govinda to the plaintiff. The sale deed in favour of defendant No. 6 was executed on 24-1955 pending the suit and defendant No. 6 Laxman was added as a party after his purchase; The plaintiff had prayed that the entire suit house should be allotted to the share of Govinda in me general partition and tne defendants be compensated by being awarded other items of joint family property. It is on that issue that the plaintiff asked tar possession or the suit house in its entirety although the plaintiff would be entitled to a fraction of interest in the property, that is to say, the share which belonged to Govinda which would have to be determined in the present litigation.
2. The defendants resisted the plaintiff's claim for the allotment of the house to the share of Govinda in the general partition as an equitable measure. This was, in fact, the principal defence raised by the defendant. The second defence put forward on behalf of the defendant was that the plaintiff was entitled to 1/5th share. Finally they suggested that since the plaintiff has been in enjoyment or tne property for about 14 years, no equities arise in her favour and, therefore she should not be awarded the retire of partition even in respect of 1/5th share of Govinda.
3. The trial Court came to the conclusion that it was necessary for adjusting the equities between the parties to allot the entire house to the share of sovinoa. it further held that since the house could be allotted to the share of Govinda, the plaintiff would be entitled to claim'possession of the entire house. Consequently, it decreed tne plaintiff's suit and awarded possession of the same to her. It is against that judgment that defendants Nos. 1 to 3 have come up in appeal.
4. The first point to be considered in this appeal is whether, in the course of the general partition, any snare could be allotted to Govinda who was not alive at tne time of the institution of the present suit. It is true that the plaintiff was entitled to Govinda's share in tha sun property, that is, house No. 101, and that her right to claim partition and possession of the share transferred to her by Govinda cannot be defeated by the death of Govinda. It is also true that the only way in which the plaintiff coma get a relief of partition and separate possession of the specific item of property transferred to her by one of the coparceners is to the a suit for general partition. But me point to be considered is whether after the death of tne alienating coparcener any share could be allotted to mm, so that, as an equitable measure, ihe alienee could be awarded a specific item of the property which was south to her. Such a position is impossible on general principles of Hindu Law. At the time of the general partition, only such ot tne copartners, who are alive, are entitled to be awarded their respective shares in the joint family property. It is nobody's case that the joint family status ot Govinda end his sons had been disrupted at any time before the institution of the suit for partition, even in the suit filed by the four sons for setting aside the alienation passed by Govinda in favour of the plaintiff, that is, Civil Suit Ho. 49-A of 1951, there was no claim made for partition ot the joint family property. It is quite elementary that the shares of the coparceners in a joint Hindu family are fluctuating and, when any coparcener aies, the shares of the remaining coparceners are augmented to that extent. After Govinda's death, his interest in the coparcenary property became vested in the surviving bedy OT the coparceners. That being the case, at the time of the general partition, there was no question of awarding any share to Govinda who was already dead. The question OT adjusting the equities can arise only when it is possible to award a share, to the alienating coparcener and, in doing so, the Court may allot to his share the specific property in respect of which he has entered into an alienation. After the death of the coparcener, we cannot set up a fiction that the alienating coparcener should be treated as alive for the purpose ot receiving a share, so that certain equities may be adjusted in favour of the purchaser from him.
5. Mr. Qazi, learned Advocate for the responcent, drew my attention to Sub-section (2) of section Zbl or, Mulla's Hindu Law, page 392, 12th Edition, wherein it is stated:
'In Bombay and Maoras, tha purchaser of the undivided interest of a coparcener in a specific properly belonging to the joint family is not entitled to a partition of that property alone. . . . .'
Sub-section 4 of Section 261 provioes:
'The purchaser of the interest of a coparcener is not bound to sue for partition in the life time of the coparcener. be may sue after his death. The right which ha has to a partition is not lost by the death of the coparcener.'
I am unable to understand how this exposition of law helps Mr. Qazi in the argument as advanced by him. for the purpose of securing the share of the alienating coparcener, the death of that coparcener is entirely immaterial, The right of the purchaser survives and he is still entitled to ask tor partition and separate possession of tne share to which the alienating coparcener would have been entitled so far as the specific item of the property sold to him is concerned. It floes not follow from the above enunciation tion that the share of tne dead coparcener in the entire joint family property can still be carved rut in the course ot the general partition and kept earmarked for being made available to the coparcener for the adjustment of the so called equities. Equities can never prevail against the well establish-ed principles of law. Mulla has discussed the quittance rights of the purchaser in Sub-section (3) of the same section. This is how he has explained the 'position in that regard:
'The alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition an equitable right to have that prcpeny, or his alienor's share in that property, as the case may be, assigned to him if it could be done without injustice to tne other coparceners. But there may be equities between tne coparceners or liabilities attaching to the atienor's ware which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value out of the properties allotted to the alienor for his share in substitution ot the property alienated.'
the principle of equitable adjustments assumes that the coparcener is alive at the time of We general partition. When the coparcener is dead before the suit for general partition is filed, the question of allotting any particular item of joint family property to him can badly tall to be considered. This aspect of the matter has unfortunately been completely lost sight of by tne trial Court.
6. In view of the position of law discussed above, it is not necessary to consider the merits of the case in greater detail. It is, however, sufficient to observe that even on merits that plaintiff is not. entitled to anv kind or equitable adjustment for the following reasons; The joint family held two houses and two lands. Houses Nos. 101 and 33 and Survey Nos. 45 and 58. House Ho. 101 was sole by Govinda to tne plaintiff in 1940. House No. 33 was mortgaged by him in favour of one Gopaldas for a sum of Rs. 5000/-. Again Govinda passed another mortgage deed in favour of one Vishwanath for a sum of Rs. 8000/-Govinda took Rs. 2100/- in cash under the second mortgage and the remaining amount was to be paid by Vishwanath lor the satisfaction of the mortgage of Gopamas.
On 29-10-1953 Govinda and defendants Nos. 1 to 3 jointly passed a sale deed in favour of defendant No. 5 for a consideration of Rs. 14000/-. The purchaser was to satisfy the debts under the two mortgages. At the time of the sale deed, the members of the coparcenary obtained a sum of Rs. 1500/- for satisfying another mortgage in favour of Laxman Sitaram Rajote. They also look a sum of Rs. 600/- towards the payment of Municipal taxes. It will thus be seen that the sale deed in favour of defendant Ho. 5 was not only executed by all the members or the joint Hindu family but was also for legal necessity. The sale, therefore, was evidently valid. That means that House Ho. 33 had left the joint family and ceased to be the property belonging to the joint family.
Out of the two lands. Survey No. 45 was transferred by Govinda in favour of one Namdeo Govinda for a sum or Rs. 12000/- on 4-11-194/. The four sons of Govinda the a suit for setting aside the alienation (Civil Suit No. 20-A of 1950). That suit came to be decreed on 10-1-1955. Exhibit 1 D-1 is a copy of the judgment, me attenuation was set aside on condition that the sum of Rs. 2250/-was paid by Govinda's sons to the purchaser. Whatever that may be, it is clear that so far as Govinda was concerned, he was completely divested of Survey No. 45. It appears that Govinda sold away Survey No. 58 in the year 1958. The sane brought a suit for setting aside the alienation That suit was compromised and defendants Nos. 1 to 3 got 7 acres and 12 gunthas out of this land for their share, that means that Govinda's share in Survey No. 58 alsowas transferred.
The net result of the alienations affected by Govindiais that at the time of the general partition, Govinda hadno interest whatsoever in any items of the Joint family.The properties in ail the items of the joint family hadbecome vested in defendants Nos. 1 to 3 who were thesurviving coparceners after the death of Govmda. There was,therefore, no question of allotting any share to Govindain any item of the joint family property. Unfortunately tnetrial Court has not considered this very elementary anasimple aspect of the case.
Furthermore the learned trial Judge has not applied his mind to the question as to whether by assigning the suitproperty to the share of Govinda, any injustice was being done to the remaining coparceners nor nas he considered the values of the properties in that connection. In my view, there are no equities to be adjusted In favour of the plaintiff. It is equally necessary to remember that although the plaintiff obtained a fraction of the share In the suit property she was put in possession on the date of the sale aeed, that is, 20-3-1940, and continued to remain in possession till September 1954. It is in evidence that tne monthly rent of the house was Rs. 28/-. That means that the plaintiff has derived profits from cut of the suit house at tne rate of more than Rs. 300/- per year for a corneous period of 14 years. As pointed out above, she nas purchased the house for a sum of Rs. 795/-. That sum nas been more than satisfied by the usufruct received by the plaintiff from out of the suit house. Considering the question from any point of view, the decree of the that COURT is not only illegal but also most inequitable and, therefore, cannot be allowed to stand.
7. The last question to be considered is what is the share to which the plaintiff is entitled. Mr. Chandurkar contended that although Govinda's wife Kashiraj was not entitled to file a suit for general partition, but it a suit for partition is filed by the sons, then she is entitled to receive her share in that partition. In that connection he drew my attention to the Full Bench decision of the Bombay High Court in Parappa v. Mattappa, : AIR1956Bom332 . Chief Justice Chagla, who delivered the judgment of the FUN Bench, observed in the above case as follows:
'If there is an unauthorised alienation of joint family property, only a coparcener can challenge the attenuation and the wife not being a coparcener has no right to challenge it. in a suit by a Hindu son for partition end separate possession of his share after setting aside the alienation or joint family property made By his father, me mother who is a party is entitled to a share if the court comes to the conclusion that the alienation is not for a purpose Binding upon the family consisting of the father, mother and sons.
The alienation is upheld to the extent that the a reason affects the interests of the alienor father.' It is, therefore, clear from the above that the father's interest in the property to which the plaintiff would be entitled wag 1/5th as the position stood at the date of the alienation, namely, 8-11-1952.
8. The appeal, therefore, substantially succeeds, thedecree of the trial court is set aside, the plaintiff in get1/5th Share in the suit house, that is, house No. 101, afterpartition subject to the provisions of the indian partitionAct. me executing Court may consider how tar the provi-provisions of the Indian Partition Act apply to the facts ofthis case and, if so, what direction to be given in thematter. The plaintiff to pay proportionate costs to thedefendants in both the Courts.Order accordingly.