1. Defendants are the appellants. This appeal arises out of a suit filed by the plaintiffs to recover possession of the properties claimed in the plaint on the ground that the sale of the properties by then- father to the defendants is not valid and binding on the plaintiffs and for the recovery of past and future mesne profits. The case for the plaintiffs was that the land specified in the plaint and other properties belonged to their grandfather that on a family partition the plaint properties fell to the share of then- father, that he without any necessity sold the plaint properties to the defendants or a low price 'that the sale was not binding on them and that they are 17 Hindu law entitled to recover possession of the Properties from he purchasers. The defendants put the plaintiff to the proof that he was born at the date of the sale and contended that the sale by the plaintiff's father was to discharge antecedent debts and for other family purposes, that the consideration adequate that the lands were subsequently improved by them and that the suit filed for a declaration alone without asking for setting aside the sale was not maintainable, nor was the suit claiming possession without requiring a general partition and without implazading the other co-parceners it was pleaded that the suit was barred by limitation, that the plaintiffs were not entitled to mesne profits and that the mesne profits claimed were excessive. Various issues, seven in number, were settled on these pleadings and the District Munsif in an exhaustive judgment has dealt with the several issues. He found that the plaintiff was born at the date of the alienation, that the alienation was for valid purposes and was binding on the plaintiffs, that the plaintiffs were not entitled to any mesne profits, that the suit was not barred by limitation, that the claim for improvements was exaggerated, that the only amount which the defendants would be entitled to was Rs. 40 that the suit as framed was maintainable as the plaintiffs were not bound to set aside the sale-deed and that as regards possession they were entitled to recover possession of the properties sold leaving it to the purchasers to file a Suit for partition in respect of the plaintiffs' father's share if so minded. In the result the District Munsif dismissed the plaintiffs' suit. On appeal the Subordinate Judge stated that the only points for decision were:
(1) Was the plaint mentioned alienation binding on the plaintiffs and to what extent ?
(2) What mesne profits if any were the plaintiffs entitled to, and
(3) Were the defendants entitled to any and what compensation for improvements ?
2. No objection seems to have been taken before him as regards the legal questions as to the maintainability of the suit or to the bar of limitation; and he held that the sale was not binding on the plaintiffs so far as their share of the plaint properties was-concerned and that the defendants would have to bring a separate suit for partition, the plaintiffs being on the authorities entitled to recover possession of the entire property. As regards mesne profits he held that the plaintiffs were entitled to mesne profits and that the suit would have to go back to the District Munsif for ascertaining the amount due to them. As regards improvements he confirmed the finding of the District Munsif that only a sum of Rs. 40 was due to the defendants for improvements. He allowed the appeal with costs, reversed the decree of the District Munsif and remanded the suit to the District Munsif's Court for ascertaining the amount of mesne profits due to the plaintiffs and directed the District Munsif to pass a decree in favour of the plaintiffs in the light of the above findings. Against this decree the defendants appeal.
3. A preliminary objection is taken that no appeal lies as the order of remand was not passed under Order 41, Rule 23 but was passed by virtue of the inherent power of the court to order a remand apart from the provisions of that rule. There can be little doubt that if the order was simply an order of remand not falling within Order 41, Rule 23, it is not appealable under Order 43 as Sub-clause (u) only refers to an order under Rule 23 of Order 41 remanding a case. It is contended for the appellants that the decree of the Subordinate Judge is in effect a preliminary decree and that consequently although it is inform a decree remanding the suit it is appealable as a preliminary decree We think that as the Subordinate judge has deeded that he alienation is not binding on the plaintiffs there was nothing for the District Munsif to do on remand and the decree in effect is a preliminary decree which has been wrongly drawn up as a decree remanding the whole suit. We think that the Subordinate Judge was wrong in reversing the decree of the District Munsif and remanding the entire suit for disposal, it is clear that the present case does not fall within Order 4.1 R 23 of the Civil Procedure Code which provides for the remand of cases by the Appellate Court. This rule provides hat where the Court from whose decree an appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case and may further direct what issue or issues shall be tried in the case so remanded. In the present case the District Munsif did not dispose of the suit on a preliminary point but fried all the issues and has given findings on all of them The only thing he did not do was to ascertain the amount of mesne profits which would be due to the plaintiffs. In cases of suits to recover possession of immovable property R 12 of Order 20 provide, that where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree (a) for the possession of the property (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits (c) directing an enquiry as to rent or mesne profits from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree whichever event first occurs. It provides that where an enquiry is directed under clause (b) or clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such enquiry. This rule therefore clearly contemplates the passing of a final decree as regards possession of the property and the amount which is payable as mesne profits or the passing of a preliminary decree for possession of the property and directing an account to be taken of the mesne profits and the passing of a final decree as regards mesne profits after the ascertainment. Turning to definition of decree in the Civil Procedure Code, Section 2 Clause (2) defines a decree as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The explanation to that section is to the effect that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. Having regard to the definition of decree and to the provisions of Order 20, Rule 12, it seems to us that the proper course which ought to have been adopted by the Subordinate Judge when he found that the plaintiffs were entitled to possession of the properties was to have passed a preliminary decree directing the defendants to deliver possession to the plaintiffs and to have directed the District Munsif to make the necessary enquiries as regards mesne profits provided for by Order 20, Rule 12.
4. It has been argued by the respondents that the powers of remand conferred by the Code are not confined to the provisions of Order 41, Rule 23 and that apart from the Code the Court has inherent power to remand a suit and that the Subordinate Judge having exercised that inherent power the High Court has no power to interfere. There can be little doubt that, so far as the powers of remand are concerned, the powers conferred by Order 41, Rule 23 are not exhaustive. There are cases where, though the suit is not disposed of on a preliminary point, yet owing to an improper or defective enquiry in the lower Court where for example relevant documents are not admitted or material witnesses have not been examined and the Appellate Court is not in a position to adjudicate finally upon the matters in dispute, the inherent jurisdiction to do justice between the parties has been invoked. The Civil Procedure Code of 1908 has expressly enacted Section 151 in order to help the Court in doing justice to the parties in cases where there is no express provision in the Code; but the inherent power under Section 151 can only be exercised in cases where, to use the words of the section, it is necessary to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. A remand to a Lower Court implies that something has to be done by the Lower Court in relation to the matter remanded to it, In the present case it is difficult to see what the Lower Court can do as regards possession of the property. The finding of the lower Appellate Court has left nothing to be done as regards the claim for possession and it is idle to remand the case, in so far as the claim to possession is concerned, to the Lower Court as all that it can do is to pass a decree for possession, a step which was/within the competence of the Appellate Court to take. In cases falling within Order 20, Rule 12 we think the proper course for the Appellate Court to take is not to remand the suit where it finds that a person is entitled to possession but to pass a preliminary decree so far as possession is concerned and direct an enquiry as to the mesne profits in cases where the lower Court has not dealt with the question,. The course adopted by the Subordinate Judge leads to the anomaly that there will be a fresh decree passed by the lower Court and that it will be necessary to appeal against that decree including the decree for possession again to the Subordinate Judge who would be precluded on previous findings from going into the question of possession and to compel the party if he wants to appeal from the decree giving' possession to file an infructuous appeal to the Lower Appellate Court before the question can be agitated in the High Court in Second Appeal. This we think is a procedure which apart from its cumbrousness and expense is not warranted by the provisions of the Code.' We think that where an Appellate Court can pass a preliminary decree it is its duty to do so and that a ramand as to matters which can be the subject matter of the preliminary decree is not warranted. It is contended by Mr. T. M. Krishnaswami Ayyar for the respondent that where several items of immovable properties are concerned, difficulty would arise where the Subordinate Judge deals with only one or two items and that in such cases it would lead to difficulties if a preliminary decree is passed as regards those items and the suit remanded as regards the rest. In such cases we are of opinion that the various items of immovable properties should for the purposes of Order 20, Rule 12 be regarded as one subject matter for adjudication and that the Courts is not bound to pass a preliminary decree for possession as regards each item. In Kamini Debi v. Promotho Nath (1914) 20 C.L.J. 476 it was held that if a decision of the Appellate Court in reality amounts to a preliminary decree within the meaning of the definition of decree in the Civil Procedure Code and in cases falling within Order 20, Rules 12 to 18 of the Civil Procedure Code, the mere omission on the Part of the Court to embody its effect in a formal expression in the form of a preliminary decree will not negative the right of the party affected to prefer an appeal. A similar view was taken in Kumud Lal v. Ramani Mohan (1913) 20 C.L.J. 346. In Sidhanath Dhonddev v. Ganesh Govind I.L.R(1912) . 37 Bom. 60 it was held that where the decision of a Court on certain issues conclusively determined the rights of the parties regarding some matters in controversy so far as that Court was concerned, it was the duty of the Court to draw up a preliminary decree so as to enable the party aggrieved to appeal. Sir Basil Scott, C. J. and Beaman, J, held that the Subordinate Judge, in declining to draw up a preliminary decree committed a material irregularity in the exercise of his jurisdiction entitling the High Court to interfere under Section 115, C.P. C, and observed. 'The decision of the issues to which we have referred conclusively determined the rights of parties regarding some matters in controversy so far as his Court was concerned, the decision on each of those issues, therefore, was sufficient to constitute a preliminary decree. The defendant has a right to appeal from a decision of the Court amounting to a preliminary decree but he can only appeal if the decree is existent in a formal shape. This we decided in Bai Divali v. Shah Vishnur Manor das I.L.R.(1909) 34 Bom. 182 . It is the duty of the Court, where it is applied to after the passing of a preliminary decree, to have the decree drawn up so as to enable the party aggrieved to appeal.' The High Court directed the lower Court to draw up a preliminary decree upon the questions decided. We do not think that in the present case it is necessary to send the case down for the Subordinate Judge, to draw up a proper decree and to put the parties to the delay and expense involved in what we consider to be a purely formal matter. Now that the second appeal has been filed we think following the views taken in Dorasami Iyar v. Venkatarama Iyar (1921) 13 L.W. 618 , Kumud Lal v. Ramani Mohan (1913) 19 C.L.J. 346 and Kamini Debi v. Pro motho Nath (1914) 20 C.L.J. 476(1914) 20 C.L.J. 476 it is open to us to treat the decree of the lower Court as a decree which in substance is a preliminary one and to allow the appellants to argue their appeal on the footing that though the form of the decree of the Appellate Court is wrong, it is in substance a decree adjudicating finally the rights of the parties as regards the immovable properties and is thus appealable as a preliminary decree. We over rule the preliminary objection of the respondents.
5. Turning to the merits of the appeal, three points have been taken before us; (I) that the Subordinate Judge was wrong in holding that the alienation was not binding on the plaintiffs (2) that, as the alienation was good to the extent of the father's share, the lower Court, instead of decreeing possession and leaving the defendants, to a separate suit for partition, should, in this suit at their instance, have decreed a partition and put the plaintiffs in possession of half the share and the defendants in possession of the remaining half and (3) that mesne profits ought not have been awarded.
6. As regards the first point we think that the finding of the Subordinate Judge is conclusive and that it is not open to us in Second Appeal to go behind it. The Subordinate Judge finds that there was no necessity for the alienation and that there were no bona-fide enquiries made by the defendants. There is therefore a clear finding of fact.
7. As regards the second contention it is argued by Mr. Krishnaswami Iyer that it is open to a purchaser in a suit for possession by a co-parcener on the ground of the invalidity of the alienation and in cases where the alienation is not impeached to the extent of the father's share to require the plaintiff at his option either to consent to a partition of the specific items conveyed and to get possession of his share after partition by metes and bounds or to require a general partition of all the joint family properties so that the purchaser need not be driven to a separate suit. The right of a co-parcener to require an alienee to deliver possession of the entire joint family property in cases where the alienation is not binding on the plaintiff is clear and the current of authority has been simply to declare the interests of the purchaser and to leave the purchaser to a separate suit for partition, if he wants to work out his interests. So far as the co-parcener is concerned, it is open to him to accept the alienation as valid and seek a partition with the purchaser of the only properties in which the purchaser is interested--vide Suhramania Chettiar v. Padmanabha Chettiar I.L.R.(1896) Mad 267 and Iburamsa Rowthan v. Theruvenkatasami Naick 20 M.L.J. 743. A purchaser, however, cannot sue for a partition of the item sold to him and obtain an allotment by metes and bounds of his vendor's share in that portion of the property but is bound to file a suit for a general partition (vide Venkatarama v. Meet a Lubbai I.L.R.(1890) Mad. 275 , and Palani Konau v. Masakonan I.L.R. (1896) Mad. 243 , though it has now been settled by the decision of the Full Bench in Chinnu Pillai v. Kalimnthu Chetti 21 M.L.J. 216, that there is no fluctuation in the share to which an alienee is entitled, his share being the share of the vendor at the date of the alienation subject of course to the equities in favour of the other members of the family against the transferor. It has also been settled that a vendee from a co-parcener is not a tenant-in-common with the other members. The view taken by Sundara Ayyar and Benson, JJ. in Subba Rao v. Ananthanarayana Ayyar : (1912)23MLJ64 , has not been followed in Maharaja of Bobbili v. Venkataramanjulu Naidu 27 M.L.J. 409, and Manjaya v. Shanmuga 6 M.L.J. 576 , and Kota Balabhadra Patro v. Khetra Doss : (1916)31MLJ275 . A purchaser has only an equity as against the other members of the co-parcenery to work out his interests by a suit for a general partition. In cases where possession of the property is claimed by a co-parcener on the ground of the invalidity of the alienation as against him the current of authority is to decree possession and simply declare the right of the purchaser to a partition. In Deeudyallal v. Jugdeep Narain Singh I.L.R.(1877) Cal. 198 their Lordships of the Privy Council, while directing possession of the property sold in execution of a decree to be given back to the co-parceners added a declaration that the appellant as purchaser in execution sale acquired the share and interest of the Judgment debtor in that property and was entitled to take proceedings to have that share ascertained. In Suraj Bunsi Koer v. Sheo Prasad Singh I.L.R(1879) . Cal. 148 , their Lordships of the Privy Council gave possession to the co-parceners who sued to set aside the sale in execution of a decree in respect of a debt which did not bind them but declared 'that by virtue of the execution sale to them the respondents acquire only the one undivided third share in the eight-anna shara of Mouza Bissumbhurpore in the pleadings mentioned which formerly belonged to Adit Sahai with such power of ascertaining the extent of such third part or share by means of a partition as Adit Sahai possessed in his life time; and ordering that the appellants be confirmed in the possession of Mouza Bissum-bhurpore subject to such proceedings as the respondents may take in order to enforce their rights above declared.' In Hardei Narain Sahu v. Ruder Perkash Misser I.L.R.(1383) Cal. 626 it was held that where joint family property is sold in execution of a decree to satisfy a claim against a co-parcener personally all that the purchaser acquires, is merely the right of the Judgment debtor to compel a partition against the other co-sharers. The High Court, when the case came before it in appeal, added the necessary party and effected a partition of the property. Their Lordships in referring to this observed 'According to the Judgment of their Lordships in Deendyal's case the decree, which ought properly to have been made, would have been that the plaintiff, the first respondent, should recover possession of the whole of the property with a declaration that the appellant, as purchaser at the execution sale, had acquired the share and interest of Shib Perkash Misser, and was entitled to take proceedings to have ascertained by partition. So that, in fact, the appellant has got a decree more favourable to himself than he was entitled to. He retains possession of one-third instead of being turned out of the possession of the whole and left to demand a partition. Their Lordships therefore think that there is no ground for altering the decree of the High Court although it may have gone beyond what was necessary or proper. The decree is not strictly right, but the appellant does not suffer by that. He gets all that he would be entitled to if a partition were made.' It is clear from the above observations that their Lordships were of opinion that the only right which the purchaser had in such cases is to obtain a declaration which would entitle him in a separate suit for partition to work out his interests. In Manjaya v. Shanmuga I.L.R.(1913) Mad. 684, it was held that where a coparcener alienates his share in certain specific family property the alienee does not acquire any interest in that property but only an equity to enforce his rights in a suit for partition and to have the property alienated set apart for the alienor's share if possible and that he is not therefore entitled to sue for partition and allotment to him of his share of the property alienated, nor has he a right to possession and to a status as a tenant in common. In Pandu Vithoji v. Gotna Ramji I.L.R.(1918) 43 Bom. 472 . it was held that in a suit by a coparcener to recover possession of property conveyed without any necessity joint possession cannot be given to the purchaser but that he is merely entitled to a declaration that he has acquired the interest of the vendor whatever that may be in the particular property and a direction that he be left to recover that interest by separate suit for partition in which all necessary parties and properties should be joined. The learned Judges have followed the course taken by the Privy Council in Deendyal Lal v. jugdeep Narain Singh I.L.R. (1877) Cal. 198 and Hardei Narain Sahu v. Ruder Perkash Misser I.L.R.(1883) Cal. 626.
8. Reliance was placed by Mr. Krishnaswami Ayyar on Ramkishore Kedarnath v. Jaimarayan Ramrachapal 25 M.L.J. 512 (P.C.) which was a suit by the members of a joint family to set aside their father's alienation of ancestral property. The respondents in that case objected inter alia to the form of the suit which they contended should have been for partition. The suit was decided in the lower Court without any evidence and on the allegations in the plaint and written statement. Their Lordships of the Privy Council in holding that the plaintiffs would in the absence of any other defence be entitled to succeed went on to observe as follows:
With respect to the form of the suit, it was rightly pointed out by the learned Counsel for the appellants that to deny any relief except in a suit for partition would be to deny the right of relief altogether, since the basis of their claim is that they are still entitled to the estate as a joint undivided estate, and desire to enjoy it as such. It may well be, however, that as between Kedarnath and Jainarayan, the latter may be entitled to insist that he stands in the shoes of the former as to the share which would come to Kedarnath upon a partition; and that the Court, if that position were established, would itself, at Jainarayan's instance, decree a partition as between the plaintiffs on the one hand and Kedarnath on the other. Their Lordships think that on the present pleadings it is open to Jainarayan to set up such a case, but express no opinion as to its validity either in law or face' Their Lordships therefore remanded the case for trial 'with a declaration that 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 Kedarnath's interests in the estate so as to give effect to any right to which the respondent may be entitled claiming through Kedarnath.' It is argued that these observations show that the Privy Council upheld the right of an alienee from a member of a joint family to require that a partition should be effected in a suit filed at the instance of the co-parcener without the necessity of a separate suit being filed. We do not think that this is the effect of the observations. Their Lordships were dealing with a case where the suit was disposed of on a preliminary question. This contention was never raised before them and they guard themselves by stating that though it may be open to the defendant to raise that point they express no opinion as to its validity either in law or fact. We do not think that their Lordships intended to overrule the plain dictum in Hardei Narain Sahu v. Ruder Perkash Misser I.L.R(1883) . Cal. 626 where they held that relief by way of partition was not open to the purchaser in a suit by a co-parcener Sadasiva Ayyar, J. in Subbaya Mudaliar v. Tulasi Mudaltar (1913) I.L.W. 65 was of opinion that their Lordships of the Privy Council did not decide the point in Ramkishore v. Jaianarayan I.L.R.(1913) Cal. 965 and guarded themselves against any idea that they expressed any opinion as to the validity of the contention either in law or in fact.
9. Having regard to the provisions of the Civil Procedure Code which do not allow any wide rights of counter-claim it is difficult to see how a suit by the plaintiffs for possession and mesne profits can be converted at the instance of the defendants into one for a general partition which would involve the presence of other parties and an enquiry into the debts and liabilities of the family. If the claim of the defendants is to be treated as a cross suit and if the written statement is to be stamped as a plaint in such cross suit claiming a general partition there is no reason why the defendants should not file their own suit for a general partition and work out any decree which they may obtain in the decree in the suit by the co-parcener. There is no special advantage in the defendants' doing in their written statement what they could easily do in a plaint filed by them. It is open to them as soon as a co-parcener files a suit for possession to file a suit for partition and where proper grounds exist the Court would try the suits together so as to afford relief to all parties. On the point of view of hardship we think that the hardship would be greater if a simple suit for possession which the co-parcener is in law entitled to file in cases of invalid alienations is converted into an elaborate enquiry as to a general partition of the family.
10. We are of opinion that the defendants are not in this suit entitled to a partition either of the specific item conveyed or of the joint family properties generally.
11. As regards the claim for mesne profits we do not see any reason for mesne profits being allowed before the suit. The alienation by the father to the extent of his share will be good. In the case of sales by a father or managing member of the joint family for alleged necessity, we think the sale will be good till avoided as it is open to the other co-parceners to affirm the transaction. The position of such a purchaser cannot be worse than that of a purchaser from a widow without legal necessity in whose case it has been held that the sale is good till repudiated by the reversioners. We respectfully dissent from the view taken by Krishnaswami Ayyar, J. in Kandasami Asari v. Somaskanda Ela Nidhi I.L.R( 1910) Mad. 177 that a sale without necessity is incapable of ratification by the other co-parceners. Following the decision in Bhirgu Nath Chaube v. Nursing Tivari I.L.R.(1916) All. 61 we think the claim for mesne profits should be limited to the period from the date of suit as there was no repudiation before the suit. There will be a declaration that the defendants are entitled to the half share of the vendor which they will be at liberty to work out by a suit for partition. The decree of the Subordinate Judge will be modified accordingly. Memorandum of Objection is dismissed with costs.
12. As the appellants have substantially failed, we direct them to pay the respondent's costs.