1. The plaintiff is the appellant. He purchased the one-fourth share belonging to defendants 1 and 2 in the properties described in Schedule-A belonging to the joint family of which they were members, from one Abdul Rahiman Rowther. This Abdul Rahiman Rowther purchased the one-fourth share belonging to defendants 1 and 2 in the Court auction sale on 20-11-1944, and he took symbolical delivery of the properties on 19-9-1947. On' 10-12-1958, the plaintiff purchased the suit properties. It appears that subsequently there has been a partition in the family of the defendants, under which the B Schedule properties were allotted to the share of defendants 1 and 2. The plaintiff filed the suit out of which the present appeal arises for partition and possession of one-fourth share in the A Schedule properties, or, in the alternative for the 'B' Schedule properties being allotted to him on 14-7-1959. The trial Court held that the symbolical delivery obtained by the plaintiff's vendor was not valid in law and that therefore it would not interrupt the adverse possession of the defendants. Following the decision in Thani Chettiar v. Dakshinamurthi Mudaliar, (1955) 1 MLJ 414 it held that the period of limitation began to run from 23-12-1944, that is, the date of confirmation of the Court-auction sale in favour of the plaintiff's vendor. The Appellate Court agreed with the view of the trial Court, and holding that the plaintiff's suit was barred by limitation, dismissed the plaintiff's appeal. The plaintiff has therefore preferred the present appeal.
2. In (1955) 1 MLJ 414, a Bench of this Court held that in a case of this kind, it is not competent for a Court, on a mere application for execution by the purchaser of an undivided share to pass an order directing delivery of possession and that such a purchaser cannot have the benefit of a fresh cause of action by any symbolical delivery, which in law could not have been made. This Court held that the case of a purchaser of an undivided share in joint family property was one where there can be no delivery, either symbolical or actual. This view was approved by a subsequent Full Bench of this Court and the decision is reported in Ramaganesan Pillai v. Rajah Ayyar, (1963) 2 MLJ 162.
3. The view taken in these two decisions is no longer good law in view of the decision of, the Supreme Court In Manikayala Rao v. Narasimhaswami, : 1SCR628 . That was also a case where a purchaser of the undivided interest of a joint family member applied for delivery of possession under Order XXI, Rule 35 (2), C. P. C. and obtained joint possession. Their Lordships held in discussing the question whether this symbolical delivery would interrupt the adverse possession, as follows:--
'It seems to us that the question of adverse possession is one of fact. If the person against whom adverse possession is set up, shows that he had in fact obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him. The question is whether there was in fact an interruption of the adverse possession and not whether that interruption was justifiable in law. Under the order for delivery of symbolical possession, whether it was legal or otherwise, Prakasalingam did obtain possession and this was an interruption of the adverse possession by the respondent. In respect of the present suit, time under Article 144 must, therefore, commence from that interruption.'
It was however sought to be argued by Mr. Ramamurthi Iyer, for the respondent, that, in that case, the court-auction purchaser had actually obtained possession and that is not the case here. But I do not think Mr. Ramamurthi Iyer's contention is correct. It is specifically referred to in the judgment that the order for delivery was one under Order XXI, Rule 35 (2), C. P. C. and in paragraph 11, their Lordships again stress the fact that the only order for delivery of possession that could possibly be made under the Code in the case was one under Order XXI, Rule 35 (2), C. P. C., because the other members of the family, whose share had not been sold, were entitled to remain in possession. They further remark that the fact that under the provisions of the Hindu Law, the order made is illegal is irrelevant for their purpose. It would thus be seen that the present case is exactly on all fours with the facts in the decision of the Supreme Court. In this case also, Ex. A-2 shows that the court-auction purchaser obtained symbolical possession and that possession would only be under Order XXI, Rule 35 (2), C. P. C. Ex. A-2 shows that the exact provisions of Order XXI, Rule 39 (2), C. P. C., have been complied with, It is clear beyond doubt that the delivery in the present case was also one under Order XXI, Rule 35 (2), C. P. C, and the decision of the Supreme Court will govern the facts of this case.
4. It follows therefore that the view of the Courts below that limitation began to run from the date of the confirmation of the court sale in favour of the plaintiff's vendor and that the symbolical delivery obtained by him would not interrupt the adverse possession of the defendants, because no order for symbolical delivery could have been made under the provisions of the Hindu Law, is not correct, and the suit should be held to be in time.
5. It is not necessary to say anything more except that whatever questions might arise in a suit by an alienee of a joint family property for partition and possession of the share alienated to him would have to be considered before the suit is disposed of, the f&ct; that subsequent to the court-auction purchase by the plaintiff's vendor, there has been a partition in the family and the B Schedule properties were allotted to the share of the defendants 1 and 2, whose undivided share in the joint family properties it was that the plaintiff's vendor purchased in the court-auction, or the fact, as it appears, that defendants 1 and 2 have disposed of either the whole or part of the B Schedule properties to other persons, are all matters which should be taken into consideration in the decree for partition to be passed by the trial Court.
6. The appeal is therefore allowed. The trial Court will take the suit on file and dispose it of in the light of the observations above. The costs of the plaintiff before the lower Appellate Court and this Court will abide by and be provided for in the fresh decree to be passed. The plaintiff will get a refund of the Court-fee paid in this Court and in the lower Appellate Court.