1. The facts which it is necessary to set out for the purpose of our decision are these:--
There is a joint Hindoo family consisting, so far as the evidence in this case tells us, of one Vithoo and his son Pandu. Vithoo, the father, purported to sell to the plaintiffs a portion of the joint family property possessed by himself and his son as co-parceners. It does not appear from the judgment in the suit what proportion the property sold was of the entire joint family property. But it was certain specified fields and we understand that there is other joint family property also. The plaintiffs say that they obtained possession of the fields which they thought they had bought and they were afterwards dispossessed. So they brought this suit against Pandu and another person to recover possession. Amongst the defendants they did not include Vithoo the father and their vendor. It is found that, though the sale purported to be of the whole of these fields, it was not a sale for the benefit of the joint family. It cannot, therefore, operate as a sale of the entire property as it purported to be. As to that point there is in this case no doubt. But the question then arises as to whether the purchasers bought anything at all. The defendant Pandu says that they bought nothing. The plaintiffs say that at least they bought the vendor Vithoo's interest in the property sold. In certain parts of India the law of the Mitakshara, as it is there applied, is held to prohibit a sale of this kind. But here in Bombay, it is now a well-established legal fact that a co-parcener can sell his own interest in joint family property, provided there is valuable consideration for the sale. This fact is recognized by the Privy Council as appears from the cases of Suraj Bunsi Koer v. Sheo Persad Singh I.L.R (1879) Cal. 148, P.C. and Balgobind Das v. Narain Lal . We feel no doubt, therefore, that the purchasers did get whatever the father Vithoo could sell in the way adopted, unless, and this point also was argued by the defendant-appellant, seeing that the sale-deed purported to sell the whole, it is void for that reason. In other words it is argued that it is void, because it is a sale-deed of that which cannot be sold. We think, however, that there is really no doubt, that a co-parcener does sell his interest in the joint family property, even though the sale-deed takes the form, not of a sale of his interest but of a sale of the whole property which is described in the deed. There is clear authority for this in certain Madras cases: see Vadivelam v. Natesam I.L.R. (1912) Mad. 435 and Marappa Gaundan v. Rangasami Gaundan I.L.R.(1899) Mad. 89. Our attention has not been called to any cases of this Court in which this particular point was dealt with. But we think that it would be unreasonable to hold that though a coparcener can sell his own interest, such a sale becomes void by reason of the fact that the deed incorrectly describes that which is sold as the entire property instead of describing it as such interest as the vendor possessed. If objection can be taken to a sale of this kind it lies with the purchaser and not with the seller to take objection. The purchaser might indeed object that ho had been misled or that he has one thing palmed off on him whereas he paid for a very much better thing. Here, however, the purchaser does not take exception to the purchase, and it would be a curious deviation from one's ideas of justice to hold that an objection in this form could be taken not by but against him. We think therefore that the sale is good oven though the deed wrongly described what was sold. This is substantially the view taken by both the lower Courts and the view to which they give effect. But they give effect to it in a wrong form. The decree made by the first Court was 'plaintiffs granted joint possession of half of the plaint property, viz., Vithoo's share along with defendant No. 1. Parties to bear their own costs under the circumstances', and that decree was confirmed by the Court of first appeal. In this particular, I think, the decrees were wrong. To me personally, it is an extraordinary thing that any stranger should ever be placed in joint possession of joint Hindu family property, sharing the possession with the coparceners in the joint family. If one stranger can be so put in possession then another can. You may have a Mahomedan, a Parsi or a European put into joint possession with the members of a Hindu family of their joint family property. So great an anomaly or, as I should say, absurdity, as this, is not supported by the highest authority. The matter was dealt with by the Privy Council in Deendyal Lal v. Jugdeep Narain Singh I.L.R.(1877) Cal. 198. and their decision was afterwards followed in Hardi Narain Sahu v. Ruder Perkash Misser I.L.R.(1883) Cal 626 ., I think myself I cannot do better than follow the very words used in framing the decree of the Privy Council. The plaintiff obviously cannot obtain full possession of the property which is what he sues for, for he is not entitled to such possession. He ought not to be allowed to have joint possession for that as I have explained is contrary to reason and authority. The most that he can get is a declaration. We make the declaration in this form :--The respondents, as purchasers at the sale by Vithoo, have acquired the share and interest of the said Vithoo in the property sold and are entitled to take such proceedings as they may be advised, to have that share and interest ascertained by partition. Claim to recover possession is dismissed. Both parties should bear their own costs throughout.
2. I agree. It is settled law that a co-parcener can sell his undivided share in a joint family in the Presidency of Bombay. If authority be required for that proposition, reference should be made to the decision of the Privy Council in Balgobind Das v. Narain Lal . It would also be inequitable to permit the vendor to deny that he had sold his own share merely because he purported in his sale-deed also to sell the share belonging to another co-parcener. It is again well established that joint possession cannot be given in such a case to the purchaser but merely a declaration that he has acquired the interest of the vendor, whatever that may be in the particular property, and a direction that he be left to recover that interest by separate suit for partition in which all necessary parties and properties should be joined. If authority for that proposition be required reference should be made to the case of Hanmandas v. Valabhdas : (1918)20BOMLR472 decided by Sir Stanley Batchelor.