Richard Garth, C.J.
1. These are four cases, in which somewhat similar claims were made by the plaintiffs.
2. At an auction sale in execution, the plaintiff's purchased the right, title and interest of the defendants Nos. 1 and 2, who are members of the Biswas family, in certain property, which those defendants were jointly entitled to, and in possession of, with the other Biswas defendants; and amongst other lands, which were included in the purchase, was the right, title and interest of the defendants 1 and 2 in the joint family dwelling-house.
3. Other portions of the family property consisted of lands let out to tenants, whilst others again were held by one or two of the Biswas defendants in rather a peculiar way, which I shall presently explain.
4. At present we will deal with one of the cases only (No. 738), which relates to the joint family dwelling-house, and to one or two plots of land which were held by tenants of the family on service tenure.
5. The Munsiff held that the plaintiffs were not entitled to be put into joint possession of the dwelling-house with the rest of the Biswas family, but only to receive what would be a fair rent for the interest which they had bought in it.
6. The Subordinate Judge thought otherwise. He decreed that the plaintiffs were entitled to be put into joint possession with the other Biswas defendants of the family dwelling-house, and also that the plaintiffs were entitled to receive their share of the service rents of the other plots.
7. It has been contended before us that the Subordinate Judge was wrong, and that when the interest of one of several joint tenants in a family dwelling-house is sold in execution, the purchaser is not entitled, as a matter of law, to joint possession of the dwelling-house with the other shareholders.
8. We know of no law which justifies this contention. We find, on the contrary, that, in order to obviate the inconvenience which would arise from strangers being thus introduced into a joint family dwelling-house, the Code of Civil Procedure (see Section 310*) gives the other shareholders under such circumstances a right of pre-emption of the property.
9. If the other shareholders do not choose to avail themselves of this right, the law must take its course, and the purchaser has the same right of joint possession as the shareholder whose property he buys.
10. This is what the Subordinate Judge has decided; and we think he is right.
11. We have been referred to a Full Bench decision upon this point Kowar Bijoi Kesal Roy v. Samasundari B.L.R. Sup. Vol. 172 : 2 W.R. Mis. 30 in which the Judges appear to have differed in opinion, and Mr. Justice Kemp took a somewhat peculiar view of the law. The rest of the Judges seemed to think that a purchaser under such circumstances was entitled to possession of the interest which he bought; but that an Ameen might be directed in the execution proceedings to make a partition between the purchaser and the other joint shareholders. But, so far as we are aware, there is no provision in the present case, which would justify the Court in ordering such a partition.
12. Then, with regard to the other plots, it is said that the Subordinate Judge was wrong, because the rents of those plots were in the nature of service rents. But whether they were or no, we think that the plaintiffs were entitled to their share of them. If the plaintiffs were entitled to joint possession of the family dwelling-house with the others, it may be that the services to be rendered by way of rent would be quite as beneficial to them as to the other shareholders.
13. Then, as regards appeals Nos. 733 and 734, the state of things was this: that in one of those cases some seven years ago, and in the other, some three or four years ago, the ryots had relinquished possession of a portion of the joint property, and one of the defendants had wrongfully (so far, as appears) taken possession of that property, and had been in possession ever since. The plaintiffs' prayer being that they should be restored to possession of those properties conjointly with the Biswas defendants, the Subordinate Judge has given them a decree to that effect; we see no reason to dissent from that decree.
14. With regard to the last case, No. 739, it differs from the two last in this respect: that there the ryots had also relinquished a portion of the joint property, and one of the Biswas defendants had built a house upon it, in which he was living, and the order which had been made by the Subordinate Judge is, that the plaintiffs should be entitled to a reasonable rent for their share of the plot upon which the house was built. They would certainly either be entitled to that rent, or else to joint possession of the land on which the house is built; and probably the order which the Subordinate Judge has made is more favourable to the other defendants than it ought to be. At any rate, as a matter of equity and fairness, we think that those defendants have no reason to complain of the decision of the Subordinate Judge.
15. All four appeals, therefore, will be dismissed with costs.
*[Co-sharer of share of undivided estate sold in execution to have preference in bidding.
Section 310: When the property said in execution of a decree is a share of undivided immoveable property, and two or more persons, of whom one is a co-sharer, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the co-sharer.]