1. This case has been referred to a Bench by our learned brother Bhimasankaram, J., because he felt that the case raised an important and difficult question of law of limitation. One Mamidi China Venkata Siviah purchased the undivided share to which defendants 2 to 5 in the suit were entitled at a court-auction held on 2Ist December, 1936, in execution of a decree passed by the Court of Small Causes. This sale was confirmed on 23rd February, 19S7. Later on, on 5-3-1939 the purchaser Sivaiah sold the right he had purchased to one Prakasalingam and this purchaser, it is stated, obtained symbolic delivery of the undivided share on 6-11-1939. But it happened that subsequently the same Sivaiah obtained a reconveyance of the right from Prakasalingam on 11-4-1945.
2. Sivaiah brought the present suit on 16th October, 1951, for partition and separate possession of the 4/5th share in the joint family properties. The suit was filed against the other coparceners and alienees from some of the coparceners. The suit was filed for a general partition. The defendants contended that the suit was barred by limitation. They relied upon Article 144 of the Limitation Act and urged that the possession of the alienee namely defendants 2 to 5 became adverse to the plaintiff from 21-12-1936, the date on which there was a sale in favour of Sivaiah and as such the suit filed in 1951 was beyond time. It was further urged that the date of the alleged symbolic delivery which was on 6-11-1939, could not give a fresh starting point of limitation. The trial court held the question of limitation in favour of the plaintiff and decreed the suit and passed a preliminary decree for partition. The defendants have come up in appeal.
3. With regard to the question as to the period of limitation for a suit by a purchaser of an undivided share of a coparcener in the joint family property, different views have been taken. The Bombay High Court held tEat the appropriate Article in a case of this kind was Article 120 of the Limitation Act while the Madras High Court took the view that the suit by such purchaser could be regarded only as a suit for partition and separate possession and as such was governed by Article 144 of the Limitation Act. The learned Judge. Bhimasankaram, J., was of the opinion that much could be said in favour of the view taken by the learned Judges of the Bombay High Court and inasmuch as there was no authoritative pronouncement of this Court in this regard, he preferred to refer the case to a Bench.
4. The question now before us is as to whether the suit filed by the plaintiff could be regarded as being within time. The suit was brought by Sivaiah on 16th October, 1951, on the basis of his title to the property obtained under auction sale. As has been already stated this Sivaiah sold the right which he purchased to one Prakasalingam who, it is stated, obtained symbolic delivery on 6-11-1939; and the same Sivaiah obtained a reconveyance from Prakasalingam in April 1945. It is contended on behalf of the learned counsel for the appellant that the possession of the alienors namely, defendants 2 to 5 become adverse to the plaintiff from 21-12-9936 and inasmuch as the suit was filed in 1951 it must be clearly out of time. The symbolic delivery could not give a fresh starting point of limitation.
5. According to the doctrine of Hindu Law as expounded in the Mitakshara, a coparcener could not alienate his undivided interest in the joint family property because it could not be said at any time that he has a definite share in it until partition. But this strict rule of Hindu Law has undergone a change and has been gradually relaxed, and it is now well settled that a coparcener could sell or otherwise alienate his undivided interest in the joint family property or his undivided interest in a specific property which forms part of the joint family property for valuable consideration.
The only restriction placed upon his right of alienation is that he cannot dispose of the interest by a will. This is the law in so far as the right of a coparcener to, alienate his undivided share in a joint family is concerned. The position of an alienee from such an undivided coparcener has been well summed up in Mayne's Hindu Law as follows :-
'The alienee of a specific property or of the undivided interest of coparcener in such property has on a general partition an equitable right to have that property or his alienor's share in that property, as the case may be, assigned to him if it could be done without injustice to the other coparcener.'
Therefore, an alienee from a coparcener has a right to file a suit for partition and work out his equities in such a suit. It therefore follows that the remedy of the alienee from an undivided coparcener is only to file a suit for partition and pray that the property sold to him be allotted to his vendor-coparcener on a partition between the coparceners. The question then arises as to which Article of the Limitation Act would apply to a case of this kind.
Although (sic) there is a specific Article (Article 136) in the Limitation Act for a case where the alieneo from a coparcener wants to recover possession of property, where his alienor happens to be out of possession. This contingency is covered by Article 136 of the Limitation Act and time would begin to run from the date when the vendor namely the coparcener was first entitled to possession. That this is so is well established by the decision in Venkayya v. Ramakrishnamma, 9 Mad LT 397.
But with regard to a suit by an alinee from an undivided coparcener where the coparceners are in possession of the property there not having been a partition, there is no specific Article of the Limitation Act governing such a suit. Therefore where there is no specific Article with regard to a particular suit, the residuary Article would apply and the residuary Article with regard to suits for immoveable property is Article 144 of the Limitation Act. The learned counsel for the respondent urged that Article 144 could have no application for the reason that an alienee from an undivided coparcener of the joint family cannot ask for possession.
His right under the law is only to file a suit for partition and pray for working out the equities in the case, that is to say to ask for a relief that a property alienated in his favour be allotted to the share of his vendor. The learned counsel urged that he could never ask for possession. Where, therefore, he could not ask for possession, the suit could not be said to be one for possession and as such governed by Article 144 of the Limitation Act.
In this connection, it is just as well to refer to a decision of the Bombay High Court which takes the view that it is not Article 144 of the Limitation Act that would apply, but Article 120 alone. This was what was decided by the Chief Justice Beaumont and Wadia J. in the case of Shevantibai v. Janardan, AIR 1939 Bom 322. The facts of this case briefly were that there were two brothers Jagannath and Harischandra who were members of a joint Hindu family.
They effected a mortgage of their interest in the property namely, 1/3rd of the whole estate to favour of the predecessor in interest of one Shevantibai. Subsequently one of the two brothers Jagannath sold his share to the mortgagee absolutely. Jagannath died and later Harischandra also died and none of them left any male issue. Therefore, after their death there was no coparcener left in the family. The plaintiff as the successor-in-interest of the original alienee filed a suit for partition of the joint family properties and prayed that the property which he purchased from Jagannath be allotted to her.
The trial Court held that the suit was barred by limitation. In considering as to the appropriate Article of the Limitation Act applicable to the case, the learned Chief Judge (sic) (Justice?) observed that inasmuch as the plaintiff in that case was not entitled to the possession of the joint family property, the possession of the other co-owners could not help her. Secondly that the possession of the other coparceners could not be held to be adverse to the plaintiff because adverse possession implied exclusion of somebody entitled to possession and in a case where the plaintiff was not entitled to possession, she could not be said to have been excluded.
In that view of the matter, the learned Judge held that Article 144 could have no application. Following up that reasoning, the learned Chief Justice observed that if no Article relating to adverse possession of immoveable property applied, then the residuary Article (article 120) alone would apply and as on the date of the suit more than 6 years had elapsed since the date of the sale and the death of the vendor also the suit was barred by limitation.
The other learned Judge Wadia J. adopted the same reasoning and said that neither Article 142 nor 144 could apply because these Articles related to suits for possession and admittedly an alienee of an undivided interest of a Hindu coparcener was not entitled to possession and there could be no question of adverse possession where a person was not entitled to possession.
We must say with respect that the view adopted by the learned Judges could not be said to be in consonance with what their Lordships of the Privy Council said in the case of Sudarsan Das v. Ram Kirpal Das, ILR 29 Pat 279 : (AIR 1950 PC 44). Their Lordships of the Privy Council, while accepting the principle that the exclusive possession of any one of the coparceners in a joint family would not be adverse to the other coparceners, observed as follows:-
'Their Lordships have no doubt of the validity of this general rule, but they are unable to think that it will be in any way departed from if they hold that in respect of the disputed property itself the appellant's possession has been adverse to the owners of the other shares..... what is in question here is not adverse possession of the block of property in which the various undivided interests subsist but adverse possession of one undivided interest.'
They further observed that Article 144 extended the conception of adverse possession to include an interest in immoveable property as well as the property itself. They also said that there could be adverse possession of an undivided share given the- appropriate circumstances. The principle that the possession of one coparcener is the possession of all could have no application when a purchaser from an undivided coparcener intervenes. This has been settled as early as in the case of Muttusami v. Ramakrishna, ILR 12 Mad 292. It was held therein that cossession of the non-alienating coparceners would be adverse to the alienee. Therefore, the argument that there will be no question of adverse possession in so far as the alienee is concerned, cannot be accepted.
6. The other argument for the learned counsel was that the purchaser of an undivided interest could not claim to be put in possession of any definite piece of family property and therefore where he had no right to possession, no question of Limitation would arise and Article 144 could have no. application. Although an alienee from an undivided coparcener is not entitled to joint possession with the other coparcener nor is he entitled to separate possession of any portion of the family property, nevertheless, he is entitled to obtain possession of that part of the family property which might fall to the share of the alienor at a partition.
The suit that he files therefore would be a suit for a general partition praying that he be put in possession of that portion of the family property which may be allotted to his vendor. Looked at from that point of view he must be regarded as one entitled to possession (no doubt of the property that may be allotted to his vendor's share) in effect the suit is one for possession of immoveable property or an interest therein, which would be governed by Article 144 of the Limitation Act. We cannot imagine a suit for a mere partition simpliciter without asking at the same time that the plaintiff be put in possession of the property separated by partition.
That Article 144 alone would apply to a case of this kind has been held by the decision of the Madras High Court in the case of Thani Chettiar v. Dakshinamurthy Mudaliar, ILR (1955) Mad 1278 : ((S) AIR 1935 Mad 288) wherein the learned Chief Justice Rajammanner who delivered the judgment of the Bench, after reviewing the relevant case law, observed that the suit by an alinee from an undivided coparcener for partition is in essence a suit for partition and delivery of the property sold to him by allotting it to his vendor and further that there would be adverse possession as against the alienee if the property continued in the possession of the alienor or of the other coparceners.
We are in respectful agreement with the observations of the Bench of the Madras High Court. These observations have been approved and followed by a Bench of this Court in Sitamahalakshmi v. Ramachandra Rao (1957) I Andh WR 87 : ((S) AIR 1957 Andh Pra 57.2) and the Bench held that the appropriate Article for a suit of this kind was Article 144 following the decision in : AIR1955Mad288 .
7. It is further difficult to understand that, while the possession of an alienee would be adverse to that of the coparceners, the possession of his vendor or the other coparceners, would not be adverse to the alienee if he does not get into possession within the period of 12 years. It would not be open to an alienee from a member of a joint family to say that the possession of the non-alienating members is his possession, so as to avoid the bar of limitation.
It would lead to absurd results if it could be said that an alinee from an undivided coparcener could wait till such time as a partition suit is filed by any of the coparceners. Could it be said than limitation would be held in abeyance? It may be that the alienee is not entitled to immediate possession, but that does not prevent his filing a suit for partition and asking for possession and such possession could be given by the allotment of that piece of property to the alienor coparcener. Our attention was drawn to the decision of the Supreme Court in Sidheshwar Mukherjee v. Bhubaneshwar Prasad, : 1SCR177 . We do not think that case can help the respondent.
What their Lordships laid down was that the purchaser at an execution sale of the undivided interest of the coparcener in the joint family did not acquire any title to any defined share in the property, that he was not entitled to joint possession but his remedy was only to get his rights worked out. They observed that his right to possession would be only when a specific allotment was made of the share to his vendor. They were only considering as to whether he was entitled to joint possession with the other coparceners.
They negatived the contention that the alienee was entitled to joint possession on and from the date of his purchase. We are, therefore, of the opinion that the Article of Limitation Act that would apply to suit brought by an alienee from an undivided coparcener would be Article 141 and inasmuch as the present suit was brought beyond the period of 12 years of the date of the purchase, the suit is clearly barred.
8. The result will be that this appeal will be allowed; the judgment and decree of the lower Court set aside and the plaintiff's suit dismissed with costs here and in the court below.