1. The plaintiff sues, as purchaser of & bhag in a bhagdari village, to recover possession, with mesne profits, of the bhag and the houses appurtenant thereto, of which the defendants in this case and the defendants in two other cases are in joint possession under Court sales at which they severally purchased the interests of three of the four sharers in the bhdg. The present defendants purchased the undivided one-fourth share of Adam Bagas on the 27th April, 1871, and were put into possession in 1871 or 1872, and have remained in possession ever since, without any objection from the Collector, who has entered the whole bhag in the names of the defendants in the three cases as an. undivided bhag.
2. The plaintiff purchased the whole bhag from the four original sharers in 1878, and the suit was brought on the 26th April, 1883. The Assistant Judge has held that the sale to the defendants was void under Section 1 of Bombay Act V of 1882, and that the suit, regarded as one for possession and not as one to set aside the sale to the defendants, was not barred by time. He, however, rejected the claim, on the ground that the Collector had not taken action, under Section 2 of the Act, to set aside the sale, and that as he was the only person who, according to the ruling in The Collector of Broach v. Desai Raghunath I.L.R. 7 Bom. 546 could take any such action, the defendants could not be ousted by any one else. In the case referred to by the Assistant Judge, the point really ruled was that no law of limitation applied to proceedings taken by a Collector under Section 2. The further opinion expressed by Pinhey, J., in that case we are not prepared to adopt, inasmuch as Section 2 of the Act contains no provision bat ring the right of any person prejudicially affected by an illegal sale from suing to set it aside.
3. We think that the present suit is maintainable, and that the question really is whether the defendants' purchase is opposed to Section 1 of the Act. In the case of Ardesir Nasarvanji v. Muse Natha Ajmji I.L.R. 1 Bom. 601 where the present plaintiff's husband, Ardesir, was the purchaser at a nominal sale of a whole bhag, in which the judgment-debtor whose interest was sold had only an undivided share, Melvill and Kemball, JJ, declined to determine the question whether the attachment and sale of an undivided share in a bhag would be contrary to the letter or spirit of Bombay Act of 1862. They held it sufficient in that case to say that t even if such a sale were lawful, the purchaser would not be entitled to insist upon the possession of any particular portion of the bhag, house or gabhan, but could only sue for partition; and the question would then arise, whether, consistently with the provisions of Bombay Act V of 1862, such a partition could be made. In a previous case, Veribhai v. Raghabhai I.L.R. 1 Bom. 225 the same Judges had held that there was nothing in the Act which debarred a Civil Court from making a decree for the partition of narvadari land among narvadars. In Second Appeal No. 519 of 1882, the purchaser of an undivided share sought to enforce a division of the bhag. The Assistant Judge, Mr. Hammick, held that the purchase was not illegal, because the bhag still remained entire, but that the result of the partition which the plaintiff was attempting to enforce was rendered illegal by the Act. His decision against the plaintiff was confirmed by the High Court, but there is nothing to show whether his opinion as to the legality of the purchase by the plaintiff was concurred in.
4. In the present case, however, we must decide the question left undecided in Ardenir v. Muse Natha and we are of opinion that Section 1 of the Act does not prohibit the sale of an unascertained share of an undivided bhag. No doubt, the language of the section seems comprehensive enough to include such shares of bhags within the prescibed prohibition; for the section provides that no 'portion' of a bhag shall be liable to sale by the process of any Civil Court; and an undivided share is as strictly a portion of a bhag as a share actually divided off by metes and bounds; but any interference with the sale of undivided shares does not appear to be within the intended scope of the Act. The mischief at which the Act aims is the dismemberment of bhags,--that is, their physical dismemberment. This seems to us clear from the language of the preamble and of Section 3. The preamble sets forth the danger to the permanence of the bhagdari and narvadvi tenures arising from the increasing practice of attachment and sale by civil process of the homesteads and building-sites appertaining to constituted bhags or recognized Sub-divisions of 'such bhags or shares in thagari and narvaari villages. The 'danger referred to is that of separating tangible immoveable property from other property to which it has been appendant. One of the main objects of the Act is to prevent the sale of homesteads and building-sites apart from the bhags to which they are appendant, because such sales would necessarily effect a dismemberment of bhags. But the sale of an unascertained share would not necessarily lead to a dismemberment: for the purchaser of the share might be admitted by the other sharers to joint enjoyment. In the present case, there has as yet been no dismemberment of the bhag by the sales to the defendants. If the purchase by the defendants in the present case is legal, as we think it is and if they obtained peaceable possession under it of a whole bhag, as they did, there is no provision of the Act which would warrant their eviction by a purchaser of the whole bhag. The preamble shows the general scope and intention of the Act, and the view we have expressed regarding it is confirmed by a reference to the provisions of Section 3, which relates to private alienations of shares, and provides that whenever the Collect or other chief revenue officer of the district finds, upon duel inquiry, that any person is in possession of any portion of any hag, &c;, other than a recognized sub-division, it shall be lawful for him to summarily remove such person from such possession and to restore the possession to the person entitled thereto. This language could only apply to property of which it was possible to have physical possession, not to a share in undivided property; and it indicates very clearly the real intention of the Act.
5. We are of opinion, therefore, that the sale to the defendants cannot be set aside. If the plaintiff can induce the defendants in the three cases to give her joint possession with them, that is a matter for them to consider. Having regard to the Assistant. Judge's remarks as to the nature of the plaintiff's purchase, which seems to have been of a speculative character, we are not disposed to allow her now to amend her plaint and ask for joint possession, even if it were open to us to permit such a course. We confirm the decree of the Assistant Judge with costs.
6. This appeal and appeals Nos. 145 and 146 may be considered together. The facts are undisputed. Four brothers--Adam, Baji, Asmal, and Hasan--were joint owners of a bhag in the village of Sankvad, in the Broach Collectorate, In execution of decrees obtained against the brothers the bhag was attached and the right, title and interest of Adam, Asmal, and Hasan respectively therein was sold in 1871 by the Collector acting under the orders of the Civil Court and purchased by the defendants. The defendants were place! in possession of the whole bhag, and it was entered in their names in the revenue books. The plaintiff in 1878 purchased the whole bhag from the three brothers aforesaid and the widow of the fourth, Baji, and in 1883 brought this suit to oust the defendants and obtain possession. Her allegation is that, as the sale to the defendants is illegal and null and void under Section 1 of Bombay Act V of 1862 as being a sale of' a portion of a bhag, her purchase alone is legal as a purchase of the whole bhag. It has to be considered, therefore, whether the sale to the defendants is void under section I of the Act, and whether plaintiff can rely on her purchase to oust them from their present possession of the whole bhag.
7. The object and intention of the Act, as stated in the Act itself (Section 5, is to prevent the dismemberment of bhags or recognized sub-divisions thereof. The dismemberment to be avoided is, I think, a physical dismemberment, and not a mere increase or decrease in the number of the persons who may from time to time be owners of the bhag. For instance, in a case in which there are joint owners of a bhag, the action of any of them in admitting partners or in selling their shares could not be said in itself to dismember the bhag, for the bhag would remain as before; the number even of its owners might be the same though it might be increased or decreased. But if the owners separated off a portion of the bhag and sold it, and placed the purchaser in possession, then by the sale of that portion the bhag would be dismembered, for it would be split up into two distinct holdings. In the same way, I must hold that a portion of a bhag must, for the purposes of the Act, be construed to mean a separated portion of a bhag,--that is, a visibly separate portion capable of distinct and separate possession,--and that a sale of a portion must be a sale of such a separated portion and not a sale which merely effects a change in the position, status or number of those who own the bhag, and leaves the bhag in exactly the same whole condition as it was before the sale. This is clear as well from the object of the Act as from the provision in Section 3, which allows the Collector summarily to remove any person in possession of a portion of a bhag.
8. Now in this case four persons jointly owned the bhag; it could not, therefore, be said of any one of them that he owned a distinct portion. When the right, title, and interest of three of the sharers was sold to the two defendants, the bhag, in place of being owned by four persons, was owned by three. There was thus a change in the number of the owners. Still, however, the condition of the bhag itself remained the same, for no one of the three could say that he owned any distinct portion. As with the four owners, so with the three, each would have an interest in the whole, but no one would have the right to any specific portion. I do not think, therefore, that the alienation of the right, title, and interest of three out of the four co-sharers is contrary either to the spirit or the letter of the Act; it would not in any way dismember the bhag; it would not convey to any one any distinct 'portion of the bhag, and it would not place any person in possession of any such portion.
9. It is noteworthy that this is the first case of its kind that has come before this Court. La all the other reported cases--Ardesir Nasarvanji v. Muse Natha Amiji I.L.R. 1 Bom. 601 The Collector of Broach v. Rajaram Laddas I.L.R. 77 Bom. 542 The Collector of Broach v. Desai Raghunath I.L.R. 7 Bom. 546 and Gulab Narotam v. The Secretary of State for India in Council I.L.R. 8 Bom. 596 --the alienation was of a separated share of which there had been separate possession. In the earliest of the cases cited, however, the possibility of the legality of the alienation of an undivided 'share was hinted at, and I am of opinion that such an alienation is legal. The Legislature may well have enacted that it shall be unlawful to split up an estate, such as a bhag, into innumerable small separate holdings, just as it has enacted that ordinary land shall not be divided into survey numbers of a less extent than a certain mininum (Bombay Land Revenue Code, 1879, Sections 113, 98): but very express words would be needed to enable me to hold that it intended in the case of a bhag held by several joint sharers to prohibit any of those sharers from alienating his undefined interest therein. There are no such words in the Act itself, and since such an alienation would in no way defeat the object or intention of the Act, I cannot hold that it is prohibited by the Act.
10. It has been argued that the purchaser in such a case would acquire nothing but a right to sue for partition, which right could not be enforced under the Act; but the Courts have nothing to do with that, as has been held in Veribhai v. Raghabhai I.L.R. 1 Bom. 225. The bhag, moreover, might be one with recognized sub-divisions, and a partition might be capable of being so carried out as to give one to each sharer, so that no provision of the Act would be infringed. It might also happen that the purchaser might be allowed by the other sharer or sharers to obtain possession of the whole bhag as 'was done in the present case, so that his possession under the Act would be legal. I hold, therefore, that the sale, in 1871, of the title of the three brothers in the joint bhag was not a sale of a portion of a bhag such as would be void under Section 1 of the Act. Clearly, then, the plaintiff cannot rely on her purchase to oust the defendants from the possession of the whole bhag. In the undivided three-fourths of the bhag she has no title at all, since the right, title and interest therein of her vendors had been sold long prior to her purchase. In any claim she may have under her purchase to the remaining one-fourth I am not disposed in this suit to assist her, if I could, by allowing any amendment of the plaint or otherwise, seeing that the sale to the defendants took place in 1871, that they have been in possession of the whole bhag ever since that time, that the Collector has not moved to have the sale set aside, but has entered the names of the defendants in his register, and that according to the findings of the lower Courts the plaintiff has taken the sale-deed from the three brothers and the widow of the fourth, not for any consideration, but with a view to raise up litigation and to defraud the defendants by depriving them of the property they have purchased. I concur, therefore, in confirming the decree of the lower appellate Court with costs.