R.J. Bhave, J.
1. The defendant had purchased a house from the plaintiff's father and was put in possession thereof. The plaintiff filed a suit on the ground that the sale in favour of the defendant was without legal necessity. The plaintiff, therefore, claimed possession of the house. Both the Courts below came to the conclusion that the property in question being coparcenary property and there being no legal necessity, the sale was not binding on the plaintiff. A decree for possession of the suit property was. therefore, granted in favour of theplaintiff. The defendant thereupon preferred this appeal. When the case came before a learned Single Judge (Bishambhar Dayal, C. J.) it was urged that the defendant being a bona fide purchaser for value from ostensible owner, the sale should have been upheld and that, in any case, the Courts below should have given a direction to the effect that
'the execution of the decree in so far as it directs the purchaser to deliver possession of the property to the plaintiff be stayed for a fixed period and if before the expiry of that period the purchaser brings a suit for general partition against the plaintiff, then the stay should continue until the disposal of the suit but if no such suit is brought within that period, then the stay of execution will stand cancelled'.
On the first point, it was held by learned Single Judge that the said plea was not raised in the lower Court and that, in any case a karta of a family could not be equated with an ostensible owner and hence the contention had no force. In support of the second contention, reliance was placed on the decision of a Division Bench of this Court in Shriram v. Baboo F. A. No. 36 of 1961. D/-9-3-1965 (Madh Pra). wherein similar direction was given in the decree. Learned Single Judge doubted the propriety of adding such a rider in the decree and hence directed that this case should be placed before a Full Bench for reconsideration of the propriety of adding such a rider.
2. The reasoning of learned Single Judge for doubting the propriety of such a direction is to the following effect:--
'Admittedly, according to the law administered in this State a non-alienating coparcener has a right to bring a suit for possession and to retain possession of the property till the purchaser from a coparcener brings a suit for partition and realization of his share of property which he has purchased from the alienating coparcener. Therefore, as long as such a suit is not filed and decreed. the non-alienating coparcener has a right to remain in possession of the property. There is absolutely no equity in favour of a purchaser from one of the coparceners to remain in possession of the whole property as long as his suit for realization of his share is not decided. The alienee being the plaintiff in that suit may indefinitely delay the decision of that suit and remain in possession of the whole property although at the best under his sale deed he is entitled to a fractional share of his alienor.'
3. According to the Mitakshara law as administered In Bombay. Madrasand Madhya Pradesh a coparcener may sell mortgage or otherwise alienate for value his undivided interest in coparcenary property without the consent of the other coparceners. But he has no right to alienate, as his interest any specific property belonging to the coparcenary, for no coparcener can before partition claim any such property as his own; and if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. The question that arises for our consideration is as to what are the rights of the purchaser from a coparcener of a specific property when he has been put in possession thereof. It is now well settled that if the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the property for the benefit of the joint family, including the vendor. It is also further held in some of the cases that the purchaser is not entitled in such a suit to an order for partition either of the specific property sold to him or of the joint family properties in general, end his remedy is to file a suit for general partition. It has. however, been held by the Madras High Court and the Bombay High Court that to protect the purchaser a further direction should be added that the execution of the decree, so far as it directs the purchaser to deliver possession to the plaintiffs, be stayed for a specified period, and if before the expiry of that period the purchaser brings a suit for a general partition against the plaintiffs, then the stay should continue until the disposal of that suit, but if no such suit is brought within that period, then the stay of execution will stand cancelled. (See Kandaswamy v. Velayutha, ILR 50 Mad 320 = (AIR (1926 Mad 774) and Hanmandas v. Valabhdas. ILR 43 Bom 17 = (AIR 1918 Bom 101). In F. A. No. 36 of 1961, D/- 9-3-1965 (Madh Pra) (supra) their Lordships have not given any reasons while giving the direction in terms of the decisions of the Madras and Bombay High Courts, presumably because no decision taking a contrary view has been noted by Mulla in his Commentary on Hindu Law, 12th Edn.. Section 261, where the views of the Bombay and Madras High Courts have been considered and quoted, and also because the law as to the right of the coparcener of transferring his share without the consent of the other coparceners is the same in Madhya Pradesh as was applicable in the erstwhile Madras and Bombay Presidencies.
4. At this stage we may note a Privy Council decision in Ramkishore Kedarnath v. Jainarayan Ramrachhpal, (1913) ILR 40 Cal 966 (981) (PC) in whichwhile remanding the case their Lordships had granted the following declaration:
'It is competent for the Court, in the event of the respondent Jainarayan failing in his other defences, to make the whole or any part of the relief granted to the plaintiffs conditional on their assenting to a partition so far as regards the father's interest in the estate, so as to give effect to any right to which the first respondent might be entitled claiming through his assignor.'
This decision clearly indicates that even in the suit filed by the coparceners for possession of the property transferred by one of the coparceners, the alienee of the property may be entitled to ask for general partition of the coparcenary property in the same suit. This decision was followed by the Madras High Court in Ramasami Aiyar v. Venkatarama Ayyar, ILR 46 Mad 815 = (AIR 1924 Mad 81), It was held, in that case that when relief by way of general partition can be conveniently given to the purchaser in a coparceners' suit for possession, as where all the coparceners are parties to the suit and the Court is seized of the whole matter, the purchaser should not be driven to a separate suit. This Court has, however, held that any cases (sic) that such a course cannot be followed in the suit filed for setting aside the alienation end that the purchaser should be left to work out his equity by filing a suit for partition. We are not called upon to decide in this case the correctness or otherwise of these decisions. But if the Privy Council thought it proper to allow the alienee to enforce partition of the coparcenary property in a suit filed by non-alienating coparceners, we do not see any reason why the status quo ante should not be maintained for a certain time so as to enable the purchaser to work out his equities by filing a suit for partition. It must be noted that this direction is discretionary with the Court and can be given only in suitable circumstances. It is obvious that the purchaser from a coparcener has a right over only that much! share of the property which can fall to the share of his vendor and only that much share or part of it can be allotted to the purchaser in the suit for partition filed by him. It. therefore, follows that where the coparcener has alienated property in excess of his own share and has put the alienee in possession thereof the alienee cannot claim that whole of the property should be allotted to the share of his alienor and consequently to him. In such a case no equity requires that the purchaser should be allowed to retain possession of the property till his right is worked out in a partition suit.The fear expressed by learned Single Judge (The Chief Justice) that the alienee may delay the conduct of the partition suit and may remain in enjoyment of the property for a very long time without any justification is real where the transfer of the property by a coparcener is in excess of his share in the whole coparcenary property; but where the property transferred by the coparcener, of which the purchaser has obtained possession is less than or almost equivalent to the share of the alienating coparcener, no such difficulty can arise. When it is conceded that a purchaser from a coparcener has a right to ask for general partition, it is obvious that his right in the joint family property is recognised, though he may not claim enjoyment jointly of the coparcenary property. The fact, however, remains that he acquires interest immediately on the purchase ejected by him and as such, the possession of the property purchased by him. if it is not in excess of the share of his transferor in the coparcenary property, cannot be said to be unjust or inequitable.
5. Under the circumstances, we are of the opinion that the direction of staying the execution proceedings for a certain period enabling the purchaser from a coparcener to file a partition suit and, if the suit is filed within that period, to stay the execution till the decree in the partition suit, can be legally given where the property in possession of the purchaser from a coparcener is not in excess of the share of the coparcener. In other cases such a direction may be said to be inequitable.
6. In this particular case, from the material on record it appears that the property purchased by the appellant is less than the share of his vendor or approximately equals it. Under the circumstances, the appeal is allowed only to this extent that a further direction be added to the decree passed by the Courts below to the effect--
'The execution of the decree in so far as it directs the purchaser to deliver possession of the property to the plaintiff be stayed for a period of six months and if before the expiry of that period the purchaser brings a suit for general partition, then the stay should continue until the disposal of the suit but if no such suit is brought within that period, then the stay of execution will stand cancelled.'
In the circumstances of the case, the parties shall bear costs of this Court.