S. Obul Reddi, C.J.
1. This Letters Patent Appeal is directed against the judgment of Venkatarama Sastry, J, allowing the Second Appeal preferred by the plaintiff.
2. Defendants 1 and 2 are the appellants before us. They resisted the action of the plaintiff for a perpetual injunction restraining them from interfering with his possession of the suit land situate in Karpamulu village in Mahaboobnagar district. The plaintiff agreed to purchase the suit land from one Balanarayana (P.W. 4) who is the brother of defendants 1 and 2 for Rs. 500 under Ex. A-1 dated 6-12-1960. P.W. 4 executed Ex. A-1 in his capacity as the manager of the Hindu joint family consisting of himself and his two brothers, defendants 1 and 2. Consequent on the execution of Ex. A-1, the plaintiff was put in possession of the land and since then, the plaintiff has been paying the land revenue. On 9-8-1970 when the plaintiff went to suit land to plough, the defendants objected to his cultivation and did not allow him to plough, the land. The plaintiff claimed possession under Section 53-A of the Transfer of Property Act and sought the relief referred to above.
3. The case of the defendants 1 and 2 (appellants) throughout has been that the plaintiff had not purchased the land from their brother (P.W. 4) and that, even otherwise, he has no authority to sell the suit land, which is an ancestral property. There are several other pleas viz., that there was no legal necessity; that the plaintiff colluded with their brother; and that the plaintiff never cultivated the land nor was he is in possession thereof. The jurisdiction of the Civil Court also was questioned on the ground that, consequent on the abolition of inams, the inam lands vested in the Government and as such, they cannot be alienated.
4. The suit was dismissed by the District Munsif determining the issues in favour of the defendants. The only finding recorded in favour of the plaintiff was that he was in possession of the suit property at the date of the suit. The first appellate Court agreed with the findings recorded by the trial Court and dismissed the appeal. In so dismissing the appeal it also held that the plaintiff is not entitled to the benefit of Section 53-A of the Transfer of Property Act, as he was only a purchaser of an undivided interest of a coparcener in a Hindu joint family.
5. The learned single Judge, Venkatrama Sastry, J, reversed the judgment and decree of the first appellate Court holding that, under Section 53-A of the Transfer of Property Act, the plaintiff is entitled to protect his possession till a general suit for partition is filed. He also expressed the view that the plaintiff is the alienee from one of the coparceners in respect of a specific item of the joint family property (not an individual share, but the whole of it) and can maintain his possession so long as there is no attempt made by non-alienating coparceners to recover possession of the property from him in due course of law.
6. Mr. Mahipathi Rao, the learned counsel appearing for the appellants (defendants 1 and 2) assailed the judgment of the learned single Judge in second appeal on the ground that the view expressed by him runs counter to settled law that a purchaser of an individual interest of the coparcenary or joint family property could only work out his rights by way of a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.
7. Let us first refer to the decisions relied upon by the learned single Judge in support of the view taken by him. The case of Kandaswamy Udayan v. Velayutha Udayan, ILR 50 Md 320 = (AIR 1926 Mad 774) was one where there was an alienation by a coparcener. The suit was filed by another coparcener to recover the property alienated or his share therein. What is held by the learned Judges in that case is that in a suit instituted by a coparcener of a joint Hindu family against a vendee for setting aside an alienation of a certain item of family property by another coparcener and recovering his share in it, it is not competent to the court to direct a general partition of all the family properties at the instance of the alienee-defendant. When a suit is instituted by a coparcener to recover his share in the alienated property, the proper course to be followed by the alienee is to institute a separate suit for general partition so that the two suits may be tried together and the court may be in a position to consider whether the property alienated to him should be allotted to the alienor's share or not. Expressing that view, the learned Judges permitted the alienee to be in possession for three months to enable him to file a suit for partition, in default of which the stay granted by them would stand vacated.
8. Another decision on which reliance is placed is the one reported in ILR 50 Bom 204 = (AIR 1926 Bom 399), (Bhau v Budha Manaku). That was also a case of an alienation by a coparcener of an undivided share. The suit was filed by another coparcener for possession. The learned Judges held that the purchaser in possession can hold the property as tenant-in-common with other coparceners pending partition suit. The learned Judges also opined that, if such a purchaser is out of possession, he should not be given joint possession with the other coparceners, but should be left to his remedy of a suit for partition; and that, if however, he is already in possession and a suit for recovery of possession is brought by an excluded coparcener, the purchaser need not necessarily be ejected, but the Court has discretion to declare him entitled to hold (pending a partition) as a tenant-in-common with the other coparceners.
9. In neither of the two cases referred to above was there a prayer by the purchaser for a permanent injunction restraining the non-alienee coparceners from interfering with his possession nor was such a prayer granted by the Court. In the instant case, the learned single Judge while allowing the second appeal, held.
'I am satisfied that the plaintiff is entitled to an injunction as prayed for against the defendants. The suit for the plaintiff has therefore to be decreed with costs throughout.'
10. A Full Bench of five judges of the Madras High Court in Permanayakam v. Sivaraman, : AIR1952Mad419 (FB) had occasion to consider the rights of a alienee in respect of the coparcenary property alienated to him and referred to the detention in Kandaswami Udayan v. Velayutha Udayan, (AIR 1926 Mad 774) (supra) in paragraph 60 of its judgment and observed that an alienee from a coparcener does not become a tenant-in-common with other copareceners. That is the opinion later expressed by the Supreme Court in Sidheshwar Mukherjee v. Bhubneswar Prasad Narain Singh, : 1SCR177 and Manikayala Rao v. Narasimhaswami, : 1SCR628 . We have therefore necessarily to hold, in view of what the Supreme Court said, that the decision of the Bombay High Court in Bhau v. Budha Manaku, ILR 50 Bom 204 = (AIR 1926 Bom 399) that a purchaser in possession of an undivided share in a joint Hindu family property can hold the property as tenant-in-common with the other coparceners is no longer good law. The learned single Judge was, therefore, wrong in observing 'But we do not find the point arising in this case defend his possession so long as he was in possession, has arisen in that case (Permanayakam v. Sivaraman), nor was it considered.' The Full Bench further proceeded to observe :
'At the same time, a right of action has been conceded to the non-alienating coparceners to recover only their share of the alienated property in decisions too numerous to be now upset. The position is no doubt illogical but a court need not throw up its hands in despair and leave the alienee helpless.'
The Full Bench categorically ruled after an exhaustive review of all the cases, that :
'A coparcener of a joint Hindu family governed by Mitakshara obtaining in the State of Madras is entitled to alienate his undivided share either in the whole of the e or in a certain specific item of the property or even the whole of a specific item. In all such cases the only right which the alienee acquires is to stand in the shoes of his vendor and to work out his rights by a suit for partition and in such, a suit, if without prejudice to the rights of the other members of the family, it is possible to have the share alienated allotted to the alienor, it may be allotted to the alienee in the right of the alienor. The alienee has to bear the proportionate share of the common burden of the family proportionate to the value of the share alienated to him.'
11. The Supreme Court in Sidheswar Mukherjee v. Bhubneswar Prasad Narain Sing (AIR 1953 SC 457), in unequivocal terms stated its view thus :
'All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtray, who appeared in support of the appeals could not satisfy us that in law his client was entitled to joint possession on and from the date of purchase.'
12. The question of rights of an alienee vis--vis non-alienee coparceners was again considered by the Supreme Court in Manikayala Rao v. Narasimhaswami, : 1SCR628 and expressed its view in the following terms :
'Purchaser of shares of coparceners in joint Hindu family 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.'
13. It does not appear that this decision was brought to the notice of the learned single Judge.
14. Section 53-A of the Transfer of Property Act, relied upon by the learned counsel for the respondent-plaintiff cannot be invoked against non-alienee coparceners. Section 53-A does not confer any title on a person who has been put in possession under an agreement of sale. The right, which Section 53-A confers, is available only as a defence to protect possession against the transferor. It imposes a bar on the transferor from enforcing any right other than that expressly provided under the contract. This right cannot be enforced against non-alienee coparceners, who are not parties to an agreement of sale. As has been pointed out by Subba Rao, C.J, in Achayya v. Venkata Subba Rao (AIR 1957 Andh Pra 854), doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield. What the transferee did in this case was to use his right as a sword against the non-alienee coparceners by seeking a permanent injunction against the from interfering with his possession in any manner. A transferee put in possession pursuant to an agreement f sale even assuming that, in this case, the plaintiff was put in possession under Ex. A-1 does not stand in any better position than a transferee put in possession under a registered sale deed.
15. In view of the authoritative pronouncements of the Supreme Court in Sidheswar Mukherjee's case : 1SCR177 and Manikayala Rao v. Narasimhaswai : 1SCR628 and of the Full Bench of the Madras High Court in Paramanaykam v. Sivaraman, : AIR1952Mad419 (FB) and of this Court in Achayya v. Venkata Subba Rao (AIR 1957 Andh Pra 854), the judgment and decree of the learned single Judge are set aside. The appeal is allowed and the suit is dismissed. The parties will bear their own costs throughout. This judgment will not preclude the respondent-plaintiff from filing a suit for appropriate reliefs in accordance with our decision. The appellants will be entitled to withdraw the amount of Rs. 100 deposited by the plaintiff in the lower Court.
16. Appeal allowed.