1. This is an appeal preferred by defendant 3 from a decree for partition which was made by the CivilJudge in appeal. The material facts are these; Defendants 1 and 3 were brothers and belonged to a Hindu joint family. When defendant 1 was adjudged an in-solvent under the provisions of the Insolvency Act. his right title and interest in his share of the family properties was sold by the Official Receiver on April I, 1950 and that sale was confirmed. The purchaser at that sale was the plaintiff's father in whose favour a sale deed was executed by the Official Receiver on July 12, 1950.
2. The suit out of which this appeal arises was next brought on July 12. 1962 for delivery of possession to the plaintiff of the fifth share which had been purchased by his father. The plaintiff became entitled to a fifth share since the defendants' other brothers are not parties to this litigation.
3. The Civil Judge negatived the contention that the suit was barred by limitation and the plea of limitation was founded almost exclusively upon the fact that although the suit was brought within 12 years from the date of the execution of the sale deed in favour of the plaintiffs father, defendant 3 was impleaded as a party to the suit subsequently and after the expiry of 12 years from the date of the sale deed. But the Civil Judge was of the opinion that possession of defendant 3 was possession on behalf of the plaintiff's father who had purchased defendant 1's share in the family property and that there could be no bar of limitation.
4. The view taken by the Civil Judge receives full support from the enunciation made by the Supreme Court in Manikayala Rao v, Narasimhaswami, : 1SCR628 in which Sarkar, J. as he then was delivering the majority judgment of the Court paid this in the context of the right of a purchaser of an undivided share of a coparcener in. Hindu Joint family property:
'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 whose share he had purchased. His right to possession 'would date from the period when a specific allotment was made in his favour.' 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 Vyapuri v. Sonamma Boi 'Ammani, ILR 39 Mad 811 = (AIR 1916 Mad 890(2)) (FB)' (Page 473).
5. This elucidation makes it clear that adverse possession of defendant 3 could never have commenced against the plaintiff's father or after his death against the plaintiff until the plaintiff or his father became entitled to possession, and that right to possession could accrue to them only when specific property is allotted to them which is attributable to the share of defendant 1 which the plaintiff's father had purchased from the Official Receiver. If the right to possession could accrue to him only then, defendant 3 who was in possession until then would be in possession on behalf of defendant 1 if there had been no sale of his interest, and on behalf of the plaintiffs father and the plaintiff after that sale.
6. It is no doubt true that the suit brought by the plaintiff was not a suit for partition but was only a suit for possession. The reason why the suit was brought in that form was that the properties the right title and interest of the defendant in which were brought to sale by the Official Receiver, were the properties allotted to defendant 3 at a settlement between the members of the family, and so there was no substantial defect in the suit brought by the plaintiff.
7. I therefore, dismiss this appeal. But the direction by the Civil Judge in his decree that there should be an ascertainment of the past mesne profits claimable by the plaintiff cannot be sustained since until the date of the institution of the suit the possession of defendant 3 on the enunciation already made, is, the possession of the plaintiff, and so there can be no claim which could properly be made for past mesne profits, So, I delete the direction.
8. No costs. Decree modified.