D.A. Desai, J.
1. A question of considerable importance has been raised in this appeal arising from execution proceedings initiated by respondents Nos. I to 3 while executing the decree in Regular Civil Suit No. 152 of 1965. The appellant and respondents Nos. 4 are original judgment debtors and respondents Nos. 1, 2, 3 and 5 are original decree holders.
2. Facts relevant to the discussion of the point raised herein lie within a narrow compass. Decree holders (referred to as landlords) filed Regular Civil Suit No. 152 of 1961 for recovering possession of the property situate in village Anklav in Borsad taluka of Kaira District from the judgment-debtor (referred to as tenant). Amongst the property which was the subject matter of suit there were premises consisting of a house and two rooms (for short suit premises) which were in possession of the tenant. This suit ended in a consent decree, by which defendant tenant agreed to vacate and hand over peaceful possession of the suit premises on or before 30th September 1972. As the defendant tenant failed to comply with the decree, the landlords field Regular Darkhast No. 69 of 1972 of 3rd October 1972 requesting the Court to evict that tenant from the suit premises and to hand over vacant possession of the same to the landlords. The tenant resisted execution as per his written statement Exh. 16 and by an amendment application Exh. 27 he put forth further objections to the execution of the decree. It is not necessary to refer to all the contentions raised by the defendant in Exhs. 16 and 27. One of the contentions taken by the tenant was that the tenant had purchased one third undivided share in the suit premises belonging to Respondent No. 5, Narottam Motibhai, brother of plaintiffs Nos. 1 and 2, and that he has become a co-owner of the suit premises with the original plaintiffs Nos. 1 and 2 and, therefore, decree for eviction cannot be executed against him. This contention found favour with the executing Court and Darkhast was dismissed. Original Plaintiff decree holder preferred Civil Appeal No. 51 of 1975 in the District Court at Kaira, The learned District Judge who heard the appeal, was of the opinion that as sale in favour of the tenant was during the pendency of the proceedings, sale would be covered by doctrine of Us pendens as enacted in Section 52 of the Transfer of Property Act and, therefore, the tenant has not become co-owner. He also overruled other objections raised on behalf of the tenant and allowed the appeal and directed that the execution application do proceed further. The tenant judgment-debtor has questioned the correctness of the decision of the learned District Judge in this Second Appeal preferred by him.
3. Mr. C.K. Patel, learned Advocate, who appeared for respondents Nos. 1, 2 and 3 original plaintiffs urged that sale by Narottam Motibhai in favour of the original defendant appellant in this appeal is hit by Section 52 of the Transfer of Property Act and it cannot, therefore, affect the rights of the original plaintiffs to obtain vacant possession of the premises under the decree which is binding on the defendant tenant. This contention is upheld by the learned District Judge but it has no merits.
4. Four plaintiffs namely Rami Narottam Motibhai, Rami Jagjivan Motibhai, Rami Bhailal Motibhai and Bai Narmada, widow of Motibhai Ramdas filed Regular Civil Suit No. 152 of 1961 against the present appellant and one Dahyabhai Babarbhai Patel for recovering possession of different properties including the suit premises. In this suit it was specifically alleged that the present appellant was tenant of the suit premises. The decree holders including Narottam Motibhai the first three plaintiffs are the sons of Motibhai Ramdas and fourth plaintiff was the widow Motibhai Ramdas and mother of plaintiffs Nos. 1, 2 and 3. They claimed their title to the suit premises by inheritance from Motibhai Ramdas. In resolution of dispute with regard to share in properties amongst four plaintiffs, it was decided that Narottam had undivided one third share in all the properties including the suit premises. The present appellant was tenant of the suit premises. All the co-owners had filed a suit against the present appellant for possession and this suit ended in a decree. After the suit ended in a decree and to be specific after the execution application was filed, first plaintiff Narottam Motibhai sold his undivided one third share on 21st January 1974 to the defendant tenant. Validity of the sale may be kept out of consideration and I would proceed on the assumption that the sale is valid, legal and binding. By this sale, defendant tenant became the co-owner of suit premises having undivided one third share in the same.
5. Mr. Patel contends that as this sale was during the pendency of the Darkhast, it is hit by Section 52 of the Transfer of Property Act and the Court should not take any notice of the sale. Section 52 enacts the well known doctrine of Us pendens. In its application to the State of Gujarat, Section 52 as amended by Bombay Act 4 of 1939 reads as under:
52.(1) During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, if a notice of the pendency of such suit or proceeding is registered under Section 18 of the Indian Registration Act, 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
(2) Every notice of pendency of a suit or proceeding referred to in Sub-section (1) shall contain the following particulars, namely,
x x x x xExplanation: For the purposes of this section; the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court or competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
By this amendment, law was brought on par with that in England. The amendment envisages registration of the notice of the pendency of the suit and unless it is so done, transfer of property which is the subject matter of the suit would not be affected. A notice of the pendency of such suit is to be registered. But Section 2 of the Amending Act (14 of 1939) clearly specifies that amended section applies to immovable properties situate wholly or partly in Greater Bombay, simultaneously empowering the State Government to extend its application to other areas by notification. Mr. Patel could not give me any information whether any such notification is or is not issued by the State Government. Therefore, it is not clear whether amended section would apply, or unamended section would apply. If amended section were to apply, contention of Mr. Patel must be negatived on the short ground that precondition for attracting application of amended Section 52 namely, registration of the pendency of the suit or proceeding is neither alleged nor proved.
6. Assuming that amended section does not apply, the question is whether a transfer of undivided one third share of a co-owner during the pendency of the suit for recovering possession of property of which he is a co-owner from a tenant would attract the application of Section 52. For attracting Section 52, it must be shown that (i) the suit is pending in one of the Courts as envisaged in Section 52, (ii) suit is not collusive; (iii) that is a suit in which any right to immovable property is directly and specifically in question; and (iv) property is transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under any decree or order which may be made therein. Explanation to Section 52 makes it clear that the suit would be said to be pending, till complete satisfaction or discharge of such decree or order has been obtained. In this suit therefore, on 21st January 1974 when original plaintiff transferred his undivided one third share to the tenant, there was a suit pending in a Court. Obviously, the suit was not collusive. It was a suit in which right to immovable property was directly and specifically in question, namely recovering possession of the Suit premises by the landlord from the tenant. Property was then undivided. Share in that property by co-owner was transferred during this pendency of the suit The question is whether it was done so as to affect the right of any other party thereto under any decree that may be made in such a suit. I would presently point out when I examine the contentions raised on behalf of the judgment-debtor appellant that this was not a transfer so as to affect the rights of any party thereto. The attempt is to invoke doctrine of lis pendens inter se plaintiffs. Ordinarily, such a contention cannot be countenanced. There was no inter se dispute between the plaintiffs. They claim that they were co-owners of the property, each having a specified share. There was no dispute inter se between plaintiffs nor the suit did involve any question which was in dispute inter se plaintiffs and on which a decision was to be recorded. One can envisage a question or dispute inter se defendants; but where the plaintiffs gather together having right to sue and obtain relief each having interest in the dispute, a conflict inter se is unthinkable. Transfer of the undivided one third share by the first plaintiff would in no way affect the right of the other parties to the suit. At any rate, it would in no way affect the right of the other plaintiffs to proceed with the suit. Every transfer of a property, in respect of which a suit is pending, cannot be turned down under Section 52. Transfer must be such so as to affect rights of any other partly other than transferror under any decree that may be passed in the suit. I would presently point out that transfer was not with a view to affecting the rights of other parties to the suit. Therefore, Section 52 would not be attracted in any case.
7. Mr. S.N. Shelat, learned Advocate who appeared for the appellant contended that once the tenant became the co-owner, as co-owner he is also entitled to joint possession and as he is already in possession, he cannot be evicted and therefore, decree cannot be executed against him.
8. Section 44 of the Transfer of Property Act enacts a well-known principle of subrogation or substitution. When one of the several co-owners transfers his share, transferee stands in the shoes of the transferor. Once he stands in the shoes of transferor, he acquires a right to joint possession or other common or part enjoyment of the properly, including-the right to enforce partition. This right is, however, subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Section 44 reads as under:
44. Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him-to joint possession or other common or part enjoyment of the house.' Second para of Section 44 makes it clear that where transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in Section 44 shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
9. Plaintiffs Nos. I to 4 were co-owners of the house, having inherited the same from the father of plaintiffs Nos. 1 to 3 and husband of plaintiff No. 4. One of the co-owners, namely, plaintiff No. 1 transferred his undivided one third share to the tenant in possession, and the tenant thus stood in the shoes of the transferor, namely, plaintiff No. 1. He became the co-owner. He would be entitled to joint possession. That Would be the effect of the first para of Section 44. But first para of Section 44 is subject to second para, which clearly carves out an exception. Where transfer is of undivided share in a dwelling house belonging to an undivided family, first para of Section 44 cannot be given effect to so as to entitle such a stranger to the joint family to the relief of joint possession of of the common or part enjoyment of the house. Section undoubtedly applies to Hindus; but it does not alter any rule of Hindu law.
10. In this case, the property involved is a dwelling house. It belonged to the undivided Hindu family. One of the joint owners, namely, plaintiff No. I transferred his undivided share to the tenant. The tenant is a stanget to this undivided Hindu family. This is a transfer of an undivided share in a property belonging to joint Hindu Family, by a member of such family in favour of a stranger. If second para of Section 44 were not to be there, while giving effect to first para even, such a stranger would be entitled to joint possession or other common or part enjoyment of the proper. But this position would have stood in direct conflict with the rules of Hindu law and, therefore, second para of Section 44 clearly carves out an exception in the case of transfer of an undivided share ii a dwelling house belonging to undivided Hindu family. Section 44 with regard to joint possession, cannot be given effect to in such a case.
11. The question then is what is the position of a purchaser of undivided share of a member of joint Hindu family in a dwelling house belonging to such a family. If in such a case first para of Section 44 is not to be given effect to, is such a purchaser who is a stranger to Hindu family without remedy, or his only remedy is by way of a partition?
12. Coparcener, according to Mitakshara law as applied in Bombay, may alienate his undivided interest in a specific property forming part of joint family properties. And if he does alienate his undivided share, alienation is valid to the extent of his interest in the alienated property. The rule is slightly different in its application to West Bengal and Uttar Pradesh, where no co-parcener can alienate his undivided interest in the co-parcenery properly without the consent of other co-parceners. At any rate under the Mitakshara law in its application to Bombay, it is crystal clear that a co-parcener may alienate his undivided interest either in the entire joint family property or undivided interest in a specific property forming part of joint family properties. But this enabling provision led to a further controversy about the right of the purchaser of the undivided interest of a co-parcener qua the property. Now, all co-parceners are entitled to joint possession and joint enjoyment of the joint family properties. If a co-parcener does alienate his undivided share in a co-parcenery property, whole or any specific property, is the stranger purchaser of such undivided property entitled to the same right as a coparcener, meaning thereby, could he claim right to joint possession with non-alienating coparceners? Further dimension of the controversy was what is the right of a purchaser of an undivided share in coparcencry property or specific property belonging to coparcencry qua non-alienating co-parceners inter vivos or a purchaser of such share at sale in execution of a decree obtained against this alienating coparcener? In West Bengal and Uttar Pradesh, purchaser of the undivided interest of a co-parcenery specific property or sale inexecution, does not acquire right to joint possession with other co-parceners. The view is that it merely confers upon him equity to compel the partition in the same manner as a transferor co-parcener whose interest he has purchased could have compelled the parties bad he been so minded, before the sale of his interest took place. But we should be more concerned with the position of a purchaser of an undivided share of a joint family property, whole or specific property in Bombay State. In Bhau Laxman Dhor v. Rudha Manka Dhor : AIR1926Bom399 , following principles have been taken to be well established with regard to the rights and remedies of the purchaser vis-a-vis non-alienating co-parcener, whether sale be by private contract or in execution of a decree:
(1) A stranger purchaser of the undivided share of a co-parcener in a joint Hindu family, if out of possession, should not be given joint possession with the other co-perceners but should be left to his remedy of a suit for partition (vide Balaji Anant v. Ganesh Janardan (1881)5 Born. 499, Panda Vithoji v. Goma Ramji Born. L.R. 213 and Ishrappa v. Krishna A.I.R. 1922 Born. 413)
(2) On the other hand, a coparcener, who has been excluded, may obtain joint possession with such a purchaser, who has obtained possession of the joint family property (vide Bhiku v. Puttu (1905) 7 Born L.R. 99).
(3) The purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded co-parcener, but can be declared to be entitled to hold (pending a partition) as a tenant-in-common with the other coparceners (vide Babaji Lakihman v. Vasudev Vinayak (1876) 1 Bom. Kallppa bin Girmallapa v. Venktesh Vinayak (1878) 2 Bom. 676, and Dugappa Shetti v. Venkatramnaya (1880) 5 Bom. 493). These earlier decisions were quoted in Balaji Anant v. Ganesh Janardan (supra).
13. In Bhau Laxman's case controversy was raised whether the third rule has been overruled by a decision in Deendyal Lal v. Jugdeep Naroin Singh 4 I.A. 247 and Hardi Narain Sahu v. Rudder Perkash Misser 11 I. A.26. After referring to Panda Vithoji's case (supra) it was held that stranger should never be placed in joint possession of joint Hindu family properties with non-alienating co-parceners. Now, it must be remembered that the origin of the dispute in the Privy Council Cases was in West Bengal, where view has always been consistently held that co-parcener cannot alienate even his own undivided interest in the co-parcenery property without consent of other co-parceners, while the rule in Bombay State consistently followed is that a coparcener may alienate his undivided share in the whole of the joint family property or specific joint family property and sale is valid to the extent of his share. If such is the rule, as far as Bombay State is concerned two Privy Council decisions could not be said to have questioned the correctness of Rule (3) mentioned above.
14. Therefore, the question really is what are the rights of a purchaser of undivided share of a co-parcener in an undivided property. Rule (3) envisages a situation where purchaser has obtained possession In such a situation, non-alienating co-parceners are entitled to sue for recovery of possession of the whole of the property sold to the purchaser. Mulla in Principles of Hindu Law Fourteenth Edition has observed at p, 324 that if the purchaser has obtained possession, the non-alienating coparceners' may sue for recovery of possession of the whole of the property sold to him, in other words, they may sue for exclusive possession. But the Court is not bound, as in Madras, to eject the purchaser and decree exclusive possession to the plaintiffs, and it may in its discretion declare that the purchaser is entitled to hold the property until partition, as a tenant-in-common with the other coparceners; in other words, the Court may in a proper case allow the purchaser to remain in joint possession with the plaintiffs. Each case as to the property or other wise of allowing the purchaser joint possession should be decided on its own facts. Difference between the Bombay view and Madras view would clearly emerge from this discussion and we should be more concerned with the Bombay view, or the view of the Mitakshara law in its application to the Bombay State.
15. Ordinarily, each co-parcener is entitled to joint possession and enjoyment of the family property and it follows as a corollary that any coparcener is excluded from joint possession whose enjoyment he is entitled to he can enforce his right by a suit and he is not bound to sue for partition. In Bombay State, a co-parcener can transfer his undivided interest and the purchaser of undivided interest stands in the shoes of transferor. Is be entitled to joint possession? If he files a suit for joint possession, certainly rules of Hindu Law frowned upon a stranger being admitted to the joint possession and joint enjoyment of the family property. Second para of Section 44 in the case of a dwelling house specifically denies the right of joint possession to the purchaser of undivided share of a co-owner. It must be in the very nature of things in a dwelling house because a runic stranger cannot be put with non-alienating co-parceners in joint possession of the property. But where a transferee of the undivided share already obtained possession, what are the rights of non-alienating co-parceners? In Bombay State, it would still be open to the non-alienating co-parceners to sue for recovery of possession of the whole of the property wide to him. This becomes clear from Bhau Laxman's case (supra). The Court has also a discretion in such matters either to allow alienee joint possession with non-alienating co-parceners or to leave him upon his remedy to file a suit for partition. The Division Bench has observed as under:
Each case (as to the propriety or otherwise of allowing the purchaser to retain possession) should be decided on its own facts must as the Court in Naranbhai v. Ranchod left to be decided 'on the merits' whether the plaintiff co-parcener in that case should be decreed joint possession under Rule (2).
When such is the discretion, which way the Court's discretion should be exercised. In this case there was a decree for possession in favour of the plaintiff. One of the plaintiff was co-owner, transferred his share to the defendant tenant. Should other plaintiffs be denied right, to execute the decree which when made was legal and valid, or should the nonalienating co-parceners be forced to file a suit for partition? Mr. Shelal said that the Court should award joint possession. That would run counter to the spirit of Hindu law where a stranger is not put in joint possession Of a property which is a dwelling house. Now, if decree for possession is allowed to be executed, the purchaser, who is already in possession would have to fend for himself by filing suit for partition. The court has discretion in this matter. The proper course to be adopted in such a situation would be to permit the landlord to execute the decree for possession. In the meantime, the defendant tenant who is purchaser of the undivided one third share should be given six months time, within which, be must file suit for partition and obtain appropriate interim relief in such a suit. Such an approach does not call for any authority, but if one is needed, one can profitably refer to Hanumandas Ramdayal v. Vallabhdas I.L.R. 43 Born. 17. This was a case in which the purchaser a at Court auction obtained possession of property in which the transferor had an undivided share. The suit was brought by co-parcener for declaration that his undivided share did not pass to the purchaser at the Court auction and claimed possession and mesne profits. The suit was decreed. While confirming this decree, the Division Bench of the Bombay High Court farther directed that execution application which would be made by the decree holder should be stayed for a period of three months during which period the purchaser at Court auction should file a suit for partition against the plaintiffs and that stay of the decree should last until disposal of purchaser's said suit of partition. I would also like to protect the present purchaser and, therefore add a direction that execution-of the decree so far as it directs the present judgment-debtor to deliver possession to the original plaintiffs be stayed for a period of six months fraud if before expiry of that period, the purchaser brings the suit for joint partition against non-alierating co-parceners stay would continue until 'disposal of the suit.
16. Accordingly, this appeal is allowed and the order of the first appellate Court and the order made by the executing Court both are set aside and the matter remanded to the executing Court with a direction that decree for possession be executed subject to the following conditions. It is directed that the appellant, original Judgment debtor be given six months's time from the date of the receipt of the record to deliver possession to the respondents Nos. 2 and 3 original plaintiff decree holders with this further direction that if within a period of six months the present appellant judgment debtor files the suit for partition against the respondents Nos. 1, 2 and 3 stay of the execution of the decree should continue until disposal of that suit in the trial Court But if he does not bring the suit within the period specified, execution proceeding should be further proceeded with and possession warrant should be issued. In the circumstances of this case there should be no order as costs.