1. This is an appeal on behalf of the first defendant in an action for recovery of possession of immovable property. It appears that one Dhoordhar Singh left three sons Sarablal Singh, Narsingh Singh and Behari Singh. Sarablal left two sons Jaikissen Singh and Harikissen Singh and Behari Singh left a son Fateh Bahadur Singh. The parties were members of a joint Mitakshara family; and it has been found by the learned Subordinate Judge that they have not yet separated. On the 20th September 1905 Harikissen executed a conveyance in favour of the present appellant for Rs. 382 in respect of two cottahs of land purporting to sell thereby his share out of a larger plot of twelve cottahs which belonged to the entire family. Narsing for himself and as guardian for his nephew Jaikissen along with Fateh Bahadur then commenced this action on the 1st December 1905 for recovery of the property transferred, on the ground that it was part of the joint family property and an alienation of it by one co-parcener without the consent of the others and without proof of family necessity was void and inoperative. The claim was resisted substantially on the ground that the members of the family had separated, that upon partition four cottahs had fallen into the share of the two sons of Sarablal and that Jaikissen and Harikissen had each taken two cottahs. On this basis it was argued that it was quite competent to Harikissen to alienate the disputed land as he did.
2. The Court of first instance upheld this contention, found that the transfer by the second defendant in favour of the first defendant was for the consideration alleged in the conveyance and dismissed the suit. Upon appeal the learned Subordinate Judge has held that the members of the family are still joint and that the partition alleged by the defendant has not been established. On this ground he has held that the alienation is void and concluded that the plaintiffs are entitled to an unconditional decree for recovery of the property.
3. The first defendant has now appealed to this Court and on his behalf the judgment of the Subordinate Judge has been challenged substantially on two grounds, namely, first that the Subordinate Judge ought to have held that there was a partition as alleged by the defendant, and secondly, that in any view of the matter the plaintiffs are not entitled to an unconditional decree for recovery of possession, and that the Court ought to protect the purchasers who paid Rs. 382 to the second defendant on the faith of his representation that there was a partition of family property and that he was competent to alienate the two cottahs which form the disputed property.
4. As regards the first of these contentions, it is impossible for the appellant to succeed. The Subordinate Judge has found it as a fact that the alleged partition has not been established. So far as the oral evidence is concerned the view of the Subordinate Judge that it is not sufficient to establish partition is not liable to be challenged in second appeal. But so far as the documentary evidence is concerned the learned vakil for the appellant has contended that as the shares of the parties were entered in the record of (sic) sufficient to prove the fact of partition. He has argued in effect that as laid down by their Lordships of the Judicial Committee in Apoovier v. Ramasubha Aiyan 11 Moo. I.A. 75; 8 W.R. 1 (P.C.) partition by metes and bounds is not necessary. This latter contention is no doubt well-founded: but it is impossible to support the contention of the appellant that the mere circumstance that the shares of the parties are mentioned in the record of rights is sufficient to prove partition. It has been repeatedly held that mere definement of shares in the Revenue records without separate enjoyment of the shares so enumerated is not sufficient to constitute partition. Hoolash Kooer v. Kassee Proshad 7 C. 369 and Ambika Dat v. Sukhmani Kuar 1 A. 437. No doubt, as pointed out in the case of Ram Lal v. Debi Dat 10 A. 490 the definement of shares followed by entries of separate interest in the Revenue records may, under certain circumstances, be important evidence of separation and if not otherwise explained the Court may infer from such evidence that the parties had separated. Here, however, as pointed out by the learned Subordinate Judge, the entry in the record of rights appears to have been made for the purpose of showing how much share would belong to each branch of the family in the event of a partition. It is impossible for me to say in second appeal that the inference which the Subordinate Judge has drawn involves any error of law. The first point taken by the appellant cannot, therefore, be supported.
5. The second contention of the appellant, however, is manifestly well-founded. It is sufficient to refer to the cases of Mohabeer Pershad v. Ramyad Singh 12 B.L.R. 90; 20 W.R. 192 and Jamuna Pershad v.Ganga Pershad Singh 19 C. 401, in supports of the proposition that when a Court sets aside an alienation by one member of the joint Mitakshara family on the ground that that person had no right to alienate any portion of the joint property without the assent of his co-sharers and without proof of family necessity, the Court will protect an innocent purchaser and will work out the equities in favour of the alienee. The cases upon this point were recently reviewed by this Court in Banwari Lal v. Sheo Sankar Miser (1909) 1 Ind. Cas. 670. On the authorities as well as upon principle it is clear that the present plaintiffs are not entitled to an unconditional decree for recovery of the disputed property. The property which has been alienated admittedly represents what would fall to the share of the second defendant in the event of partition of the family properties. The proper decree to make therefore under the circumstances will be to direct that the plaintiffs do recover possession of the disputed property on condition that they deposit in Court Rs. 382 for payment to the second defendant within six months from this date. If they carry out the order of this Court they will be entitled to be restored to possession and to hold that property as part of the joint family properties. If they fail to do so their suit must stand dismissed. It is not necessary to make any provision for the payment of interest on the consideration mentioned in the conveyance; that may be set-off against the profits received by the purchaser during the time that ho has been in possession of the property.
6. Under the circumstances the proper order for costs will be that each party do pay his own costs throughout the litigation.