Shiv Dayal, J.
1. This second appeal arises from a suit for partition instituted by the purchaser of the undivided interest of a member of a Hindu coparcenery.
2. Briefly stated, the material facts are that Ramtal appellant obtained a money decree against Manakchand (defendant No. 2). In execution of that decree, he purchased the undivided interest of Manakcband in the properly of Hindu coparcenery comprising of Manakcband, his father Kanhaiyalal and bis brother Ganeshilal. In the execution proceedings, objections were filed under Order 21, Rule 58, Civil Procedure Code, by Kanhaiyalal, Ganeshilal and Mst. Jasodabai, wife of Kanhaiyalal. The objections were dismissed. A suit under Order 21, Rule 63, Civil Procedure Code, was also instituted but it was dismissed. Sale certificate was issued to the plaintiff on March 15, 1955.
3. Ramlal then brought the present suit for partition of the house and separate possession of its 1/3rd share. He also claimed mesne profits, Rs. 60/-, and future mesne profits at Rs. 20/- per month from August 25, 1962.
4. Kanhaiyalal, Manakchand and Ganeshilal were joined as defendants. Kanhaiyalal and Ganeshilal (defendants 1 and 3) resisted the suit by filing a common written statement. Manakchand (defendant No. 2) also resisted the suit by a separate written statement.
5. The trial Court passed a preliminary decree in favour of the plaintiff, declaring that the plaintiff is entitled to 1/3rd share of Manakchand (defendant No. 2) in the suit house and directing appointment of a Commissioner to evaluate the aforesaid share of Manakchand in the suit house, after recording evidence on the point of valuation of that share. It was further directed hi thepreliminary decree that after fixation of the value of 1/3rd share of Manakchand, the other defendants would be given an option to deposit the amount representing the value of such 1/3rd share of Manakchand, in which even the plaintiff's right shall be transferred to such defendants and the plaintiff's claim for partition would be dismissed. He would merely get the value of Manakchand's 1/3rd share. It was further directed in the decree that in case the other defendants did not choose to pay the value of the 1/3rd share of Manakchand, then the 1/3rd share of Manakchand would be auctioned. It was further directed in the decree that, the marriage expenses of Ku. Basantibai, daughter of Manakchand, which the trial Court fixed at Rs. 1000/-, would be realised from the price of Manakchand's share.
6. Aggrieved by the preliminary decree, the plaintiff appealed. He contended that Manakchand's share, which had been purchased by him could not be saddled with the liability to pay the marriage expenses of Manakchand's daughter; secondly, the amount of Rs. 1,000/- was arbitrarily fixed by the trial Court; thirdly, the claim for deducting marriage expenses from Manakchand's share had already been waived and was barred on the principle of constructive res judicata, as that ground was not raised either in the objections under Order 21, Rule 58, or in the suit under Order 21, Rule 63, Civil Procedure Code. It was further contended that such a claim was barred by limitation. Alternatively, it was urged that the marriage expenses, if at all, had to be borne by the entire joint family property and not only the plaintiff's share in the suit house. Another ground taken in the appeal by the plaintiff was that as a Commissioner had been directed to be appointed, the most equitable method of effecting partition should have been found out and the direction as given in the preliminary decree should not have been given.
7. The defendants did not prefer any appeal, nor filed cross-objections.
8. The learned Judge of the first appellate court not only rejected the contentions raised by the plaintiff-appellant before him but went to the length of dismissing the entire suit. It is obyious enough that this could not be done on the plaintiff's appeal. The defendants did not prefer any appeal, nor did they attack the preliminary decree by filing cross-objections in the plaintiff's appeal. The plaintiff could not be put to a more disadvantageous position. Otherwise also, as I shall presently discuss, the first appellate court was in error in dismissing the entire suit on the ground that the plaintiff did not bring a suit for general partition.
9. The learned Judge of the first appellate Court says that the only right which an alienee or an auction-purchaser of the undivided interest of a coparcener gets is to bring a suit for general partition. As a proposition, this is right, but then he jumped to the conclusion that there must have been some property other than the suit house. Shri Padhye, learned counsel for the appellant, contends that there is no material on record to show that the joint Hindu family had any other property besides the suit house. It must, therefore, be said that it was merely a guess and surmise that the first appellate court thought the frame of the suit to be defective inasmuch as it was not a suit for general partition but was a suit merely for partition and separate possession of a house.
10. It is contended by the learned counsel for the appellant that both the Courts below have erred in holding that the marriage expenses, estimated at RS. 1000/-, would be a charge on the value of Manakchand's share which has been purchased by the plaintiff. The argument is that under no provision of the Hindu Law could such a charge be created; nor could it be held that the plaintiff is liable to pay the marriage expenses of Manakchand's daughter just because he has purchased Manakchand's undivided share in the joint Hindu family property.
11. In my opinion, the law is this. While determining what property is available for partitions, a provision has to be made, inter alia, for the marriage expenses of unmarried daughters. Originally the daughter had the right to a share in the co-parcenery property but later on that right Was superseded by her right to be maintained and to be married. Thus the obligation of maintaining and marrying a daughter by the family is a historical remnant of the daughter's original right. Where a joint family consists of the father and his sons and father's daughter (sister), the obligation is of the entire joint family and the marriage expenses form a charge on the entire joint family property. This is also the case where the joint family consists of brothers only and they have a sister. Her marriage expenses will also be a charge on the entire joint family property. But the marriage expenses of the sons' daughters form the liability of such son whose daughter she is and not of the whole joint family. In Mulla's Hindu Law (13th Edition) at page 359, the statement cf the law is as follows:--
'The case, however, of an unmarried daughter stands on a different footing. Her right to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition; provision should accordingly be made for her marriage expenses in the decree.
It is only for the marriage expenses of the father's daughters or sisters that provision should be made out of the joint family property. The marriage expenses of the son's daughters form only the liability of his branch and not of the whole joint family unlike the case of the father's daughter.'
This passage was approved in Rajagopala v. Venkataraman, AIR 1947 PC 122. See also Ramchandra v. R. Animal, AIR 1954 Mad 1011.
12. In Raghavachariar's Hindu Law (6th Edition) page 403 it is stated:--
'The obligation of maintaining and marrying the daughters of a family consisting of father and sons, being a historical remnant of the daughters' original right to share in the coparcenery property is created by the birth of the daughter and rests on the whole family and not on the father and through him the sons. Hence the share of a son who institutes a suit for partition against his father and brothers is liable to a share of the expenses of the marriage of his sister married after the institution of the suit and of other sisters still to be married. But after partition between father and sons, the claims of the sons' daughters for maintenance and marriage expenses are to be met out of the shares of the respective sons and not out of the shares of all those who were coparceners of the old family.'
The above statements in both the commentaries of Hindu Law relate to a case of partition between members of a joint Hindu family, or even to a case where a son brings a suit for partition against his father and brothers. On the same principle and for the same reasons, the same proposition must be applied to a case where an alienee or an auction-purchaser of the undivided interest of a coparcener brings a suit for partition.
13. It is then contended by Shri Padhye that the trial Court arbitrarily fixed Rs. 1,000/- as the marriage expenses. In my opinion, the first appellate Court was right in rejecting this objection on the ground that the defendants' witnesses themselves estimated the expenses between Rs. 1,200/- and Rs. 1,500/-. Therefore, if the trial Judge estimated the marriage expenses at Rs. 1000/-it cannot be said that the amount is excessive. This contention must, therefore, be rejected.
14. It is then urged for the appellant that the directions as regards actual partition of the property as given by the trial Court were just and right. Shri Padhey contends that partition by metes and bounds, that is, actually separating 1/3rd share of the appellant by drawing a line or by raising a wall, is not possible or at least not convenient. What is contended before me is that after the evaluation of 1/3rd share of Manakchand, the plaintiff also should have been given an option to purchase 2/3rds share of defendants 1 and 3, instead of a further auction being required. In my opinion, this contention must be accepted not only because it is reasonable but also because it is perhaps the only possible solution. What the learned trial Judge has directed is that after evaluating Manakchand's 1/3rd share, which now belongs to the plaintiff, the other defendants (Nos. 1 and 3) will have the option to deposit the value of that 1/3rd share inthe Court within one month of the amount having been thus fixed and if these defendants deposit such amount for payment to the plaintiff then they would acquire the plaintiff's right, title and interest, also and a sale certificate: may accordingly be issued. There can be no quarrel thus far because the Value of the 1/3rd share will be determined not only on the report of the Commissioner but also after hearing such objections as may be filed by the parties on the Commissioner's report. But the learned trial judge father directed that in case these defendants do not pay the value of 1/3rd share, 'the 1/3rd share will be auctioned'. It is difficult to appreciate these directions. There is no question of the plaintiff's 1/3rd share being auctioned. And, who will purchase it? As the plaintiff cannot bring a suit for separate possession of the 1/3rd share, such a purchaser in the auction as contemplated and directed in the preliminary decree will also not be able to get either joint possession or separate possession 'in respect of the 1/3rd share. Therefore, this direction is wholly misconceived. Shri Padhye is right in his contention that the preliminary decree should have given an option to the plaintiff to purchase the 2/3rds share of defendants 1 and 3 in case they do not purchase the 1/3rd share of the plaintiff in accordance with the direction given in the preliminary decree after assessment of the value of that 1/3rd share. This Contention must, therefore, be accepted and the preliminary decree must be modified accordingly.
15. No other point is raised.
16. In the result, the appeal is partly allowed. The judgment and decree of the first appellate court are set aside and the judgment and preliminary decree of the trial Court are modified to this extent that instead of the words 'otherwise the 1/3rd share will be auctioned', shall be substituted the words 'otherwise the plaintiff shall have the option to pay the value of 2/3rds share of defendants Nos. 1 and 3 and such value shall be exactly double the value of the 1/3rd share of the plaintiff as would be determined according to the preceding direction in the preliminary decree.' The rest of the judgment and preliminary decree of the trial Court is upheld. As the respondents did not enter appearance, there shall be no order for costs in this appeal.
37. I record my thanks to Shri H. S. Dabir who assisted me as amicus curiac.