M. Madhavan Nair, J.
1. The suit property belonged to the coparcenary of two Hindu brothers, defendants T and 2. The 3rd defendant obtained a money decree, Ext. B-6, against the 1st defendant as the manager of the family, proceeded against the suit property, which was the only property of the joint family at the time, purchased it in court sale for Rs. 215/- on August 17, 1953, and took possession thereof on April 9, 1954. Ext. B 1 is the relative sale certificate, and Ext. B 2 the delivery report. The plaintiff h^ obtained an assignment of the undivided moiety of the property from the and defendant under Ext. A 1 dated January 30, 1951. He asserts that the court-sale and delivery cannot affect his interests in the property, and claims partition of his moiety thereof. The Munsiff held Ext, A 1 affected by an attachment in execution and therefore not available against the decree-holder, the 3rd defendant, and dismissed the suit. The attachment in execution that subsisted on the date ofExt. A 1 having terminated without further proceedings thereon, the District Judge held Ext. A 1 unaffected by any attachment, and decreed the suit.. Hence this second appeal by the 3rd defendant.
2. As to any attachment affecting Ext. A 1, the position taken by the District Judge is unexceptionable. In Small Cause No. 624 of 1950, the 3rd defendant obtained decree against the 1st defendant described as 'family manager' -- Ext. B 6 being a copy of that decree dated August 18, 1950 -- and filed the first execution-petition (Ext. 6-4) on November 21, 1950. The present suit property was attached on December 11, 1950; but as the decree-holder did not care to produce draft proclamation for sale, the Court, on January 29, 1951, ordered on that execution petition: 'Not further pressed. Dismissed. Attachment will subsist for two months'. The next execution-petition in that case was E. P. No. 313 of 1952, under which the suit property came to be sold in 1953. Obviously, the attachment that subsisted on the date of Ext. A 1 ceased on March 29, 1951; and, as it ceased, the assignment became freed from its trammels. The next motion for attachment and sale of the property was made in 1952 only, long after the assignment to the plaintiff.
2a. Though a case of the assignment being a fraudulent transfer to defeat the judgment-creditor has been set up in the written statement, it does not appear to have been pressed at the trial and has been held not proved by the court below. It rests there.
3. Here, counsel for the appellant, the 3rd defendant, has put the case on a different line. He argued that, by the assignment of the 2nd defendant an undivided coparcener, the plaintiff did not get any interest in the property as such, but only an equity to institute a suit for its partition; that the decree, Ext, B-6, obtained against the joint family, entitled the 3rd defendant to proceed against the property in execution as he did and that therefore court-purchase of the property cannot be challenged by the plaintiff. Counsel for the respondent-plaintiff contended that the court-sale was only of the interests of the 1st defendant in the property and not of the joint family, wherefore no conflict of interests arose between the plaintiff and the 3rd defendant, each of whom had obtained only a moiety therein; and that, by virtue of Ext. A 1, the plaintiff had obtained a vested right to the share of the 2nd defendant as on the date of that assignment, which right could not be defeated by proceedings to which he was no party.
4. Ext. B 6 decree is against the 1st defendant described as 'family manager', for Rs. 200add, to be paid 'by the defendant personally andout of the family properties'. Admittedly, the suit property belonged to the joint family, and was its only property on the date of that decree. The execution petition under which its court-sale took; place is not before Court. Counsel for the plaintiff pointed out that in the prior execution petition, copy of which is Ext. B 4, wherein also relief was sought by attachment and sale of this suit property, the property was proceeded against as property of the defendant, and that Ext. B 1, the sale certificate, describes the right sold as the absolute right of thedefendant, in order to support his contention that the court-sale was only of the 1st defendant's interests in the property. Ext. B 1 describes the property sold as the entirety of the suit property.
When the defendant has been described in the decree as the 'family manager', it has to be assumed, in the absence of any positive statement to the contrary, that the description 'property of the defendant' meant property of the family-manager and' that the proceedings had in execution of such decree-in respect of a property of the joint family was in regard to the interests of the family and not of the individual. There is no warrant in the contents of' Ext. B 1 or Ext. B 4 for the contention that the court-sale was only of the share of the 1st defendant. The contention is overruled; and the entire suit property is found to have been the subject of court-sale' under Ext. B-1.
5. The question then is, whether on account of the assignment by the 2nd defendant, who was then an 'undivided coparcener', the plaintiff had obtained an interest in the property before its attachment and court-sale.
6. Counsel for the appellant read paragraphs 386 and 390 in Mayne's Hindu Law, which run, thus:
'386 .... A coparcener may alienate either his undivided share in the whole of the family property or his undivided share in certain, specific family property or the whole of a specific item of the family property. In all these cases the alienee does not acquire an interest in the property so as to become a tenant-in-common with the members of the family entitled to possession but only an equity to stand in his vendor's shoes and to workout his rights by means of a partition............
390. The view taken by the Madras High Court that as the purchaser from a coparcener is not a, tenant-in-common with the coparceners in the family, lie is not entitled to joint possession or to mesne profits from the date of the alienation appears so far as the principles of Hindu law are concerned to be the sounder view and is in consonance with the Privy Council decisions in Deen Dyal's case, (4 Ind App 247 P C) Suraj Bunsi's case (6 Ind App 88 PC) and Hardi Narain's case (11 Ind App 26 P C) and also with the decision in Ramkishore v. Jainarayan, (ILR 40 Cal 966 PC).'
The decisions cited by Mayne, excepting the last, relate to court-purchases of undivided interests of a Hindu coparcener. The above quoted as also the judicial pronouncements on the matter (See Nanjaya Mudali v. Shanmuga Mudali, ILR 38 Mad 684 at p. 689: (AIR 1914 Mad 440 (2) at p. 442); Subbaiya Pandaram v. Mahomed Mustafa Maracayar, 50 Ind-App 295 at p. 300: (AIR 1923 PC 175 at pp. 177-178 etc.)) assume that there is little difference in principle between a transfer under an adverse execution and a voluntary assignment when permitted by law, in the States of North India, an assignment by an undivided coparcener of his interest in joint family property is not recognised and is held void' (See Principles of Hindu Law by Mulla, par. 260; Deen Dyal's case, (4 Ind App 247 P C) Suraj Bunsi's case (6 Ind App 88 PC) and Hardi Narain's case (11 Ind App 26 P C) and also with the decision in Ramkishore v. Jainarayan, (ILR 40 Cal 966 PCNanjaya Mudali v. Shanmuga Mudali, ILR 38 Mad 684 at p. 689: (AIR 1914 Mad 440 Mt. Muneswari v. Sm. Jugal Mohine Dasi, AIR 1952 Cal 368; but a court-sale of suck interests recognised valid (See Principled of Hindu Law by Mulla, par. 261;. Sidheshwar Mukherjee v. Bhubaneshwar PrasadAIR 1953 SC 487. In South India, assignments of undivided interests of a coparcener are recognised by law; and all authorities treat them as of the same effect as court-sales; and some decisions put them even at of greater effect. Sabapathi Pillai v. Thandavaroya Odayar, ILR 43 Mad 309: (AIR 1920 Mad 316) Chidambargauda Ramchandragauda v.Channappa Mahalingappa, AIR 1934 Bom 329; Venkata Sabhayya v. Srirangam, (S) AIR 1956 Andhra 188 (FB), Sitamahalakshmi v. Ramachandra Rao,. (S) AIR 1957 Andh Pra 572 etc.
7. The Judicial Committee of the Privy Council once observed;
'There can be little doubt that all suchalienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided 'Hindu family.' Suraj Bansi v. Sheo Pershad, 6 Ind App 88 (PC). But that need not have worried anybody, as the Hindu sages themselves did not conceive Hindu law as an immutable code. Brihaspati has directed in his Smrithi, and that has been cited in Vyavahara Nirnaya) which is regarded as a work of authority in the 'Madras School, dsoya 'kkL=ekfJR; u dkZO;ksfg fu..kZ;% ;qfDrghusfopkjsrq /keZgkfu% iztk;rsA (Decisions are not to be based on Sasthras '(Codes) only. In trials without imagination miscarriage of justice arises.)
The Hindu law, having been largely dependent on customs and usages and therefore, flexible to certain extent, had been the subject of gradual development at the hands of discerning Judges. But its growth has not always been quite healthy. Judges of the calibre of Bhashyam Ayyangar, J, (compare his observations in Aiyyagari Venkataramayya v. Aiyyagari Ramayya, ILR 25 Mad 690 (FB)) were few; and most Judges were mindful of the current law and unmindful of its logic -- not a bad virtue for a Judge.
8. The rights of purchasers of undivided shares in a joint Hindu family estate came up for consideration before the Privy Council in Deendyal Lal v. Jugdeep Narain Singh, 4 Ind App 247 (PC); 6 Ind App 88 (PC) and Hardi Narain Sahu v. Ruder Perkash Misser, 11 Ind App 26 (PC) and the pronouncements of the Judicial Committee in those cases are taken to have settled the position largely.
In 4 Ind App 247: ILR 3 Cal 198 (PC), the suit was by a Mithakshara son to recover joint family property sold and delivered in execution of a decree against his father. The High Court decreed it in full. On appeal, the Privy Council held,
'In the present case their Lordships are of opinion that they ought not to interfere with the decree under appeal......... But they think that the,decree should be varied by adding a declaration that the Appellant, as purchaser at the execution sale, has acquired the share and interest of Toofani Singh (the judgment-debtor) in that property, and is entitled to take, such proceedings as he shall beadvised to have that share and interest ascertained by partition.'
This pronouncement categorically declares that the purchaser 'has acquired the share and interest' of the undivided coparcener in the joint family property. The consequence of that acquisition is not a right of joint possession; but only a right; 'of compelling the partition, which his debtor might have compelled, had he been so minded, before the alienation of his share took place.'
When we remember that, in the case of co-owners or co-tenants, a purchaser of the share and interest of one co-owner cannot compel joint possession with the other co-owners but has to sue in partition to have his share demarcated and given to him, (See 8 Cochin LR 273; 23 Cochin LR 309, Sivasankaran v. State 1952 Ker LT 195 : (AIR 1952 Trav-Co. 208); Kalakutty Pillai v. D. Sivariyaraduma Nadar ILR 1954 Trav-Co. 075 etc.) and that a court purchaser of an undivided share cannot claim, under the Code of Civil Procedure, delivery of possession, actual or even symbolical, (See Velumalai Chetty v. Srinivasa Chetty, ILK 2-1 Mad 204; Ramaganesan Pillai v. Rajah Ayyar, AIR 1964 Mad 53 (FB) etc.) there is nothing strange in holding that an assignee of an undivided coparcener cannot claim joint possession but must obtain partition.
In 6 IA 88: ILR 5 Cal 148 (PC), the Privy Council declared:
'the question......... whether, under a decreeagainst one coparcener in his lifetime, his share of joint property might be seized and sold in execution...... must be taken to have been set at restby the recent decision of this tribunal in 4 Ind App 247 (PC)...... that the purchaser of undivided property at an execution sale during the life of the debtor for his separate debt does acquire his share in such property with the power of ascertaining and realizing it by a partition'; and added that where, in execution, the judgment-debtor's undivided share and interest in the joint family property , had been 'attached and ordered to be sold' it constituted 'a valid charge upon the land' in favour of the judgment creditor which could not be defeated by his death before the actual sale. ....If this beso, the effect of the execution sale 'was to transfer to the respondents the undivided share in 'eight annas of mouzah Bissumbhurpore, which had formerly belonged to Adit Sahai (the judgment-debtor) in his lifetime; and their Lordships are of opinion that, notwithstanding his death, the respondents are entitled to work out the rights which they have thus acquired by means of a partition.' Here, the declaration is quite categorical that what the purchaser 'does acquire' is the coparcener's share in such property, with the power of ascertaining and realizing it by a partition'. The word 'ascertainin.tr', in the context, means 'ascertaining in mete? and bounds', for their Lordships themselves said 'ascertaining the extent of such third part or share by means of a partition'. (See page no of the report).
In 11 Ind App 26: ILR 10 Cal 626 (PC), the Privy Council clarified further; 'What the father (judgment-debtor) was entitled to and what the purchaser became entitled to waswhat the father would get if a partition had been made; which was only a third of the eight annas share. According, therefore, to the authority of 4 Ind App 247 (PC) the present Appellant became entitled only to the one-third, treating it as if the Bale was to operate as a partition at that time'. This involves a legal fiction, as observed by a Full Bench -- Chagla C. J., Gajendragadkar, J. (as he then was) and Dixit, J. -- in Parappa Ningappa v. Mallappa Kallappa, (S) AIR 1956 Bom 332 (FB), in the determination of the interest of the alienee, that 'there was a partition when 'the alienation took place'.
9. It is unfortunate that, in spite of these clear pronouncements of the Privy Council, the Courts in India have been adjudging the rights of a purchaser of undivided interests in a coparcenary in their own way.
In Bombay: In Gurulingappa v. Nandapa, ILR 21 Bom 797, Sir Charles Farran C. J., sitting with Candy J., held that the purchaser 'is liable to have; his share diminished before partition by the birth of other coparceners'. This observation can be justified only if the share remained with the vendor-coparcener till partition or the purchaser became a coparcener in the family both assumptions would be clearly wrong,
No wonder therefore that in Naro Gopal v. Paragouda Basagowda, ILR 41; Bom 347 : (AIR 1916 Bom 130) Sir Basil Scott C. J. and Heaton, J. did not care to follow the above dictum and held the interest that passed to the purchaser was the share in the alienated property to which the vendor was entitled at the date of the alienation. This ruling was followed by another Bench (Broomfield J. and Sen, J.) in Shantaya v. Mallappa, AIR 1938Bom 500.
A Full Bench was constituted by Chagla, C. J., Gajendragadkar, J. (as he then was) and Tendolkar J., in Sakarchand Satidas v. Narayan Savla, AIR 1951 Bom 10 (FB), to settle the conflict between ILR 21 Bom 797 and ILR 41 Bom 347: (AIR 1916 Bom 130), when the learned Chief Justice, delivering the opinion of the Full Bench, held:
'......the share of the alienee is to be determined at the date of the alienation and not at the time when the alienee asks for an equitable partition.'
This rule was affirmed by another Full Bench in ((S) AIR 1956 Bom 332 (FB) Para 6).
10. In Madras: In Rangasami v. Krishnayyan, ILR 14 Mad 408 (FB), a unanimous Full Bench of four learned Judges held:
'......the purchaser...... must be taken to purchase an uncertain and fluctuating interest with the right of converting it at any moment after the purchase by partition into definite separate property...... We answer the question referred to usby saying that the share to be awarded to the purchaser is to be computed with reference to the state of the joint family at the date of the present suit (for partition).'
In ILR 25 Mad 690 (FB), a Full' Bench held the death of the coparcener, who had made the alienation, did not divest the interest of the alienee'. On the farther question as to the rights of thealienee, Sir Arnold White C. J. and Moore J. left it to be dealt with by the Court of trial under; the order of remand; Bhashyam Ayyangar, J. expressed his dissent to the dictum in ILR 14 Mad 408 (FB) and gave a lucid exposition on the matter, in the course of which his Lordship observed:
'..... According to the theory of an undivided Hindu family, each member has a present vested interest, which, by a partition at his will and) pleasure, can be converted into a separate interest. The judicial decisions have recognised that such interest is transferable, either in whole or in part, for value and that the transferee therefore takes a vested present interest. What is transferred to him is thus a present vested interest and not a future contingent interest, uncertain and fluctuating, until the transferee actually effects a partition --even assuming that such a contingent and possible future interest could legally be transferred (vide Section 6(a) of the Transfer of Property Act). The transfer in question operates upon the vested interest which the transferor had in the family property just before the alienation and the same if converted for the benefit of the transferee into the separate share and interest of the transferor by a partition of the family property at the time of such alienation.
The estate that is transferred to and vested in the alienee is not an 'equitable interest' as understood in the English law, but a 'legal estate' which has to be reduced into possession by that alienee standing in the shoes of the transferor and effecting a partition on the footing on which the family and the property both stood at the time of the transfer. No subsequent alienations made for purposes binding upon the family or by the vendor himself can affect the interest that has passed to the prior transferee, nor will such interest be enlarged or diminished by fluctuations in the number of coparceners in the family.'
The above note caused the question to be placed again before another Full Beach of four learned Judges in Chjnnu Pillai v. Kalimuthu Chetti, 35 Mad 47 (FB), when Sir Arnold White C. J. accepted the observations of Bhashyam Avyangar, J. in full. Though the other three learned Judges made no reference to them, they also held 'the quantum of interest which vests in the alienee is not affected by subsequent changes in the number of coparceners.'
A different note was, however, struck by Jackson, J., in Muthukumara v. Sivanarayana, ILR 56 Mad 534: (AIR 1933 Mad 158) preferring the decision of the four Judges in ILR 14 Mad 408 (FB) to the decision of the four Judges in ILR 35 Mad 47 (FB) and observing:
'I find no basis for the proposition that when he does compel partition that alienee's right to the property must be worked out as from the date of the alienation. And even if I agreed with ILR 35 Mad 47 (FB) that the share ceases to fluctuate from the date of alienation, I should not be prepared to go further and say that there must be a hotchpot hooked to the same date...... I therefore hold that the appellant is entitled to take the family property as existing on the date of his suit.'
Mockett, J. agreed with him.
When the question came again before a Full Bench of five learned Judges in Peramanayakam Pillai v. Sivararaan, AIR 1952 Mad 419 (FB), Satyanarayana Rao J., delivering the leading judgment in that case, with which, the other four learned Judges agreed substantially, held:.
'The share or in other words the fraction of the share which the alienee acquires is unalterably fixed on the date of the alienation and is not subject to fluctuation either by subsequent births or deaths in the family and in all respects his rights must be determined and equities worked out as on the date of the alienation,'
11. In the light of the categorical pronouncement of the Judicial Committee of the Privy Council in the decisions cited above that 'the purchaser of undivided property* 'does acquire' the share in, the joint property which the alienating coparcener 'would get if the sale was to operate as a partition at that time', one wonders why so much learning was spent by learned Judges in the decisions cited above. In certain decisions it is even held ---and counsel for the appellant laid great emphasis on them -- that what a purchaser of undivided share in a coparcenary property gets is no interest in the property but only a right of suit in partition. Counsel read the following observations:
of Sankaran Wair J., concurred in by Bakewell J., in ILR 38 Mad 684: (AIR 1914 Mad 440 (2)):
'When a coparcener alienates his share in certain specific family property, the alienee does not acquire any interest in that property. He can only enforce his rights in a suit for partition'; of Satyanarayana Rao J. in AIR 1952 Mad 419 (FB)
'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 of Rajamanriar C. J., sitting with Rajagopala. Ayyangar J., in Thanj Chettiar v. Dakshinamurthy Mudaliar, AIR 1955 Mad 288.
'The purchaser...... does not even acquire anyinterest in the property sold...... He has only anequity to work out his rights by means of a partition standing in his vendor's shoes.'
In answer to the above, I need only point out the pronouncement of the Judicial Committee in Suraj Bunsi's case, 6 Ind App 88 (PC) and Hard! Narain's case, 11 Ind App 26 (PC) quoted in paragraph 8 supra, and summarised by me at the beginning of this very paragraph. However, as counsel pressed into service those observations (quoted' above) with great stress, I will add my own reply thereto.
It is now agreed on all hands that the undivided interest in a Hindu joint family estate, till its alienation, was a right fluctuating with the strength of the family; but is a definite right, unaffected by events in the family, after its alienation. So long as the right is with the coparcener it is bound to fluctuate. The cessation of fluctuation is clear proof that it has left the coparcener to vest in the alienee. It is just like an incorporeal property, just like an equity of redemption, quitecapable of transfer from one person to another. The fact that it can crystallize into corporeal property only by a partition has nothing to do with its vesting. Assignees of most incorporeal right in property have to resort to suits of one kind or other to get possession of the concerned property. Thus the assignee of an equity of redemption may have to work out his rights in a suit in redemption of the mortgage; the assignee of a simple mortgage has to work out his rights by a suit to enforce the mortgage; and the assignee of the share of a co-tenant has to sue for partition to ascertain his portion of the property and to get possession thereof. It is incorrect to say that the alienee does not get a present right in the property on the making of the alienation but will get such right only on the making of a partition. The title, that is to say, the event that divests the coparcener of his right and invests the same in the alienee, is the alienation, and not the partition. This is why the Privy Council has said that the purchaser of the undivided interest 'has acquired the share and interest and is entitled to take proceedings to have that share and interest ascertained by partition'. 4 Ind App 247 (PC).
12. Much stress, was sought to be laid on the observation of Satyanarayana Rao, J. in AIR 1952 Mad 419 (FB) : 'This (the interest of the alienee), it is emphasised, is only 'an equity' and not a 'right' ', and of Rajamannar C. J. in (S) AIR 1955 Mad 288: 'He has only an equity to work out his rights by means of a partition standing in his vendor's shoes'. I do not think that in. those observations the learned Judges were using the word 'equity' as a variant of 'right' in a jurisprudential sense. All legal interests are 'rights' in its general sense; and jurists classify them as rights (strictosensu), liberties, powers and immunities. I am certain that when Satyanarayana Rao, J. said of the alienee's interest as 'an equity and not a right' his Lordship was only summarising -- I am afraid in an inartistic way -- what Sankaran Nair, J. has said in ILR 38 Mad 684: (AIR 1914 Mad 440 (2)).
'In dividing the family properties the Court will, no doubt, set apart for the alienating coparcener's share the property alienated if that can be done without any injustice to the other coparceners, and such property, if it is so set apart, may be given to the alienee as the transferee of such coparcener. But this is only an equity and the, alienee is not, as of right, entitled to have the property so allotted.'
When the Privy Council has declared categorically that the alienee 'does acquire' the alienating coparcener's share in the joint property, it is uncharitable to think that Satyanarayana Rao, J. has characterised what the alienee gets as no right at all but an equity only. No exception can be taken to the observation of Rajamannar C. J. that the alience has to work out his rights by a partition in equity. Perhaps Vishwanatha Sastri, J. has explained the content of the 'equity' in this context more clearly as he observed:
'The equity of the purchaser for value enables him to compel a partition of joint family propertythough he is not a member of the joint family. Though the alienating coparcener had himself no interest in the specific item sold, the equity of the purchaser enables him to claim an allotment of the very property purchased or as much of it as possible, to the share of the alienor, if it could be done without prejudice to the rights of the other coparceners.
This is, in my opinion, the entire content or extent of the equity.' (S) AIR 1956 Andhra 188 at p. 191 (FB).
It then follows that the alienee may have both a right and an equity -- the right of the undivided coparcener in the family property which vests in him on the execution of the alienation, and the equity to a preferential allocation of the alienated portion of the family property -- if a definite portion has been the subject of transfer to him -- to the share of his alienor.
13. Sankaran Nair J,, with the concurrence of Bakewell, J. has observed;
'If such property (the property alienated) is not) EO set apart (for the alienating coparcener's share), then the alienee would be entitled to recover that property which was allotted to his vendor for his share, though it may not be the property that was alienated in his favour. The property allotted will take the place of the property which has been alienated to him so far as he is concerned.' ILR 38 Mad 684: (AIR 1914 Mad 440 (2)).
The above observation has been approved andfollowed by Bhagwati J., sitting with Dixit J., inVasudeo Dagadulal v. Kankoochand Hirachand,AIR 1951 Bom 226, and by Chandra Reddy, J.and Umamaheswarani. J. in AIR 1957 Andh Pra572 and has been expressed to be the proper viewby the authors of Mayne's Hindu Law and Usage,nth edition (page 489) and Mulla's Principles ofHindu Law, 12th edition (page 394). But, ithas been expressed to be limited to assignees anddenied to court-purchasers by Seshagiri Ayyar, J.and Moore, J. in ILR 43 Mad 309: (AIR 1920Mad 316) and by Subba Rao C. J., ViswanathaSastri, J. and Satyanarayana Raju, J. in (S) AIR1956 Andhra 188 (FB) on the ground that there isno warranty of title in court-sales.
I am afraid that the latter decisions have; overlooked a fundamental fact about partition. Every partition involves an exchange of interests in properties. Every coparcener, as every co-sharer, is entitled to a share in every inch and in every particle of the joint properties. So when a definite property or a definite portion of a property is allotted to one coparcener exclusively, it involves an equitable exchange of the other coparcener's right to share therein with the equal right of the allottee coparcener in other properties or portions of the property in order that each may get something rid of the claims of the other. When a purchaser has acquired an undivided share in one item of joint property, the right to make such an exchange in respect of that share rests in him, and not in his vendor.
It is then obvious that he must be entitled td sue for partition, in his own right, of the property in which he is interested; and even if he institutes a suit for general partition he must be deemed toclaim in conjunction with his alienor the full share of the latter in all the joint properties, -- in either case he must be entitled to have the property involved in his purchase, or property equivalent in value thereto out of the properties allocated to him and his vendor. I am afraid this aspect of the matter is fundamental and it is an unfortunate oversight thereof that has led to the diverse views on the right of the alienee to substitution of property from the alienor's share at general partition,
14. The metaphor of the alienor's shoes, seems to me, confusing. When there are several properties of the family and the undivided share of one item' alone is transferred, voluntarily or involuntarily, does the alienee get the vendor's shoes -- or even one of his shoes? ' Has not the coparcener who retains his interest in all the other properties the right to keep his shoes to himself? Once it is conceded that the alienee 'has acquired' -- that is what the Privy Council said in unequivocal terms -- an undivided share in a property, why should he borrow another's shoes to realize what is his own? In Kashjnathsa Yamosa v. Narsingasa Bhaskarasa, AIR 1961 SC 1077, the Supreme Court has held:
'It is always open to the members of a joint Hindu family to divide some properties of the family and to keep the remaining undivided.' If that be allowed to a coparcener why should it be denied to the alienee who is interested in only one or some of the items of the joint family property?
It is conceded that by the alienation, voluntary or involuntary, of the interest of a coparcener in one item of joint properties, he does not become divided out from the family.- (Jagdish Pandey v. Rameshwar Pandey, AIR 1960 Pat 54; ILR 38 Mad 684 at p. 692: AIR 1914 Mad 440 (2) at p. 444). In fact
'the existence of joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint.' (Mulla's Principles of Hindu Law, 12th Edn., pp. 313-314).
If the coparcener in spite of the alienation continues joint in the family, which may be possessed of other items of property, and does not desire to divide out from it, what is the equity or right of a transferee of his undivided interest in one item of property only, to compel him to separate from the family and thereby to deprive him of his right of survivorship in the joint family? The Privy Council has held in Suraj Bunsi's case, 6 Ind App 88 (PC) that the death of the coparcener, subsequent to an attachment and order for sale of his interest, will not defeat the right of the creditor to put up to sale and purchase that interest and then realize it by a suit in partition. Can that be a suit for partition in the name of the vendor who is no more, or in the exercise of the vendor's personal right to partition which cannot survive him? The fact seems to me that the alienee's suit is not a suit for partition of the joint family Bhashyam Ayyangar, J. has pointed out:
'The vendee's suit to enforce the sale by partition is not a suit for 'partition', in the technical sense in which 'partition' or 'vibhaga' is used inthe Hindu law. A suit for partition, in the technical sense, can be brought only by an undivided member of the family. The right to such partition is personal to him and not transferable.............
......A partition in the technical sense, whethereffected amicably or by decree of Court, breaks up not only the joint ownership of property, but also the family union,' i.e., the corporate character of the family.' (ILR 25 Mad 690 at p. 717. See also Mayne's Hindu Law and Usage, nth, Edn., p. 488.) If the alienee is not entitled to sue for partition of the joint family, why should he be compelled to sue 'for a general partition? The Privy Council has said that to determine the alienee's right the alienation must be deemed to operate as a partition. That partition, notional though, cannot be of all the properties of the joint family. The words used by the Privy Council arc 'as if the sale was to operate as a partition at that time', (11 Ind App 26 (PC)). If the suit of the alienee is only to materialise that fictional partition, how can its scope be enlarged? I would therefore hold that the alienee, by virtue of his right acquired under the assignment or the court-sale, is entitled to sue for partition in his own right, of the joint property in which he is interested; and it requires no borrowing of the shoes of his vendor to enforce his rights.
15. However,, all such considerations, which would materially arise in a case where the undivided share in part only of the joint family estate was the subject of alienation, do not arise in this case where the share in the entire joint family estate has been assigned. No question of the controversial 'equity' arises when the entire undivided interest of a coparcener has been alienated by him to the plaintiff seeking partition. The present plaintiff has obtained a vested right in a moiety of the suit property on the very execution of the assignment, Ext. A-1, by the 2nd defendant. There being no other landed property to the family, his right to the share needs no equitable accommodation by any other coparceners. It is absolute and indefeasible. All that it needs is its ascertainment in metes and bounds. That the plaintiff is entitled to.
16. But, there is one other consideration to weigh in this case. At the time of the assignment, to the plaintiff the entire family property, and therefore the share of the 2nd defendant therein, was subject to the liability under the decree, Ex. B-6. The plaintiff can get his share only subject to that liability as has been held in AIR 1952 Mad 419 (FB). Though that liability has culminated in a court-sale of the entire property to the 3rd defendant, it was only after the plaintiff had acquired the and defendant's share in the property; and he has not been made a party to the proceedings that led to the court-sale. It follows that the court-sale as such cannot bind the plaintiff or his interests in the property. In the circumstances, the decree of the Court below upholding the plaintiff's right to a moiety of the suit property has to be upheld; subject to the condition that the plaintiff can recover it from the 3rd defendant only on payment of the portion of the sale amount that he was, bound to have discharged, namely, one-half of Rs. 215/-.
17. In the result, in modification of the decree of the Court below, the plaintiff is given a preliminary decree to recover a moiety of the suit property on payment of Rupees 107 Paise 50. He is not entitled to a share of the profits of the property till he deposits the amount in Court for payment to the 3rd defendant and gives notice thereof to the latter; and thereafter he will be entitled to half the profits of the suit property. In the circumstances of this case, the parties shall bear their respective costs here.