Co-parcener right to maintain suit for injunction

Coparcener has no right to maintain a suit for permanent injunction restraining the Manager or Karta from alienating the coparcenary property and the coparcener has the right only to challenge the alienation of coparcenary property and recover back the property after alienation has come into being.

 Ram Prakash being the Defendant in the original suit as Karta of joint Hindu family executed an agreement to sell suit property for a consideration and he received earnest money. As the Defendant refused to execute the sale deed, the defendant Jai Bhagwan instituted a suit in the court of Sub-Judge for specific performance of the agreement to sell and in the alternative for a decree for recovery of money. In the said suit the appellants are the sons of defendant Ram Prakash who made an application for being impleaded. Application, however, was dismissed.

 Thereafter three sons of Ram Prakash being the defendant as plaintiffs instituted Civil Suit in the Court of Sub-Judge for the permanent injunction stating inter alia that the said property was joint Hindu Family coparcenary property of the plaintiffs and defendant. That there was no legal necessity for sale of the property nor it was an act of a good management to sell the same to the defendant Jai Bhagwan without the consent of the plaintiffs and without any legal necessity.

 It was prayed that a decree for permanent injunction be passed in favour of the plaintiffs and against the defendant Ram Prakash restraining him from selling or alienating the property to the defendant Jai Bhagwan or to any other person and also restraining Jai Bhagwan from proceeding with the suit for specific performance pending in the civil court. Jai Bhagwan since deceased, filed a written statement stating inter alia that the Ram Prakash disclosed that the suit property was owned by him and that he was in need of money for meeting the expenses of the family including the education expenses of the children and also for the marriage of his daughters. It has also been pleaded that the house in question fetched a very low income from rent and as such the Ram Prakash, who has been residing in Delhi, did not think it profitable to keep the house.

It has also been stated that the suit was not maintainable in law and the injunction as prayed for could not be granted. The Trial Court after hearing the parties and considering the evidences on record held that the house property in question was the ancestral property of the Joint Hindu Mitakshara Family and the Ram Prakash who is the father of the plaintiffs was not competent to sell the same except for legal necessity or for the benefit of the estate since the plaintiffs' application for impleading them as party in the suit for specific performance of contract of sale, was dismissed the filing of the present suit was the only remedy available to the plaintiffs. The plaintiffs being coparceners having interest in the property, suit in the present form is maintainable. The Trial Court further held that:

“It is well settled law that Karta of the joint Hindu family cannot alienate the coparcenary property without legal necessity and coparcener has right to restrain the Karta from alienating the coparcenary property, if the sale is without legal necessity and is not for the benefit of the estate. This view of mine is supported by case titled “Shiv Kumar vs. Mool Chand” reported in CLJ 1971 page 1027 thus, the proposed sale is without any legal necessity and is not for the benefit of the estate, therefore the suit of the plaintiff is decreed with no orders as to costs.”

Against this judgment and decree defendants, the legal representatives of the deceased Jai Bhagwan preferred an appeal. The lower appellate court following the decision in Jujhar Singh vs. Giani Talok Singh, [1986] PLJ 346 held that a coparcener has no right to maintain a suit for permanent injunction restraining the Manager or Karta from alienating the coparcenary property and the coparcener has the right only to challenge the alienation of coparcenary property and recover back the property after alienation has come into being.

Court of appeal below further held:

Ram Prakash, father of the plaintiffs and Karta of the joint coparcenary property cannot be restrained by way of injunction from alienating the coparcenary property to Jai Bhagwan. In consequence, the appeal is accepted and the judgment and decree of the trial court under attack are set aside.

Against this judgment and decree, the instant appeal on special leave has been preferred by the appellants i.e. the sons of the Ram Prakash, the Karta of the Joint Hindu Family.

In this appeal we are called upon to decide the only question whether a suit for permanent injunction restraining the Karta of the joint Hindu family from alienating the house property belonging to the joint Hindu family in pursuance of the agreement to sell executed already in favour of the predecessor of the appellants, Jai Bhagwan, since deceased, is maintainable.

 It is well settled that in a Joint Hindu Mitakshara Family, a son acquires by birth an interest equal to that of the father in ancestral property. The father by reason of his paternal relation and his position as the head of the family is its Manager and he is entitled to alienate joint family property so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt. The power of the Manager of a joint Hindu family to alienate a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in Hunooman persaud Panday vs. Mussumat Babooee Munraj Koonweree, Moore's on Indian Appeal ( 1856, Vol. VI) 393:

 “The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is, by the Hindu Law, a limited and qualified power, which can only be exercised rightly by the Manager in a case of need, or for the benefit of the estate. But where the charge is one that a prudent owner would make in order to benefit the estate, a bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, or the criteria to be regarded. If that danger arises from any misconduct to which the lender has been a party, he cannot take advantage of his own wrong to support a charge in his favour against the heir, grounded on a necessity which his own wrong has helped to cause. A lender, however, in such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. If he does inquire, and acts honestly, the real existence of an alleged and reasonably credited necessity is not a condition precedent to the validity of his charge, which renders him bound to see to the application of the money.”

At the outset it is to be noticed that in a suit for permanent injunction under section 38 of the Specific Relief Act by a coparcener against the father or Manager of the Joint Hindu family property, an injunction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property. Sub-Section (h) of Section 38 of Specific Relief Act bars the grant of such an injunction in the suit. Secondly, the plaintiff respondents brought this suit for permanent injunction restraining their father from selling or alienating the property to the Jai Bhagwan or any other person and also restraining the Jai Bhagwan from proceeding with the suit for specific performance of the agreement to sell pending in the civil court.

Thus the relief sought for is to restrain by permanent injunction the Karta of the Joint Hindu Mitakshara Family from selling or alienating the house property in question. Ram Prakash as Karta of the joint Hindu family has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts. The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer.

If such a suit for injunction is held maintainable the effect will be that whenever the father as Karta of the Joint Hindu coparcener property will propose to sell such property owing to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided.

Judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Singh, AIR 1972 (Punjab & Haryana) 147 wherein it was held that a suit for permanent injunction against the father to restrain him from alienating the joint Hindu family property was maintainable has been off-set by Division Bench in Jujhar Singh v. Ciani Talok Singh, (supra) wherein it has been held that a suit for permanent injunction by a coparcener against father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale.

 Following this decision the High Court allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the Trial Court. We do not find any infirmity in the findings arrived at by the High Court. It has, however, been submitted on behalf of the appellant that the High Court should have held that in appropriate cases where there are acts of waste, a suit for permanent injunction may be brought against the Karta of the joint Hindu family to restrain him from alienating the property of the joint Hindu family. This question is not required to be considered as we have already held that the instant suit for injunction as framed is not maintainable.

 We, of course, make it clear that in case of waste or ouster an injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener. But nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity, cannot be granted. It further appears that the Ram Prakash entered into the agreement of sale stating that he is the owner of the suit property. The plaintiff-appellants claim the suit property as ancestral property and they as coparceners of joint Hindu Mitakshara family have equal shares with their father in the suit property. The question whether the suit property is the self-acquired property of the father or it is the ancestral property has to be decided before granting any relief. The suit being one for permanent injunction, this question cannot be gone into and decided. It is also pertinent to note in this connection that the case of specific performance of agreement of sale bearing suit had already been decreed by the Sub-Judge. For the reasons aforesaid we affirm the judgment and decree made by the High Court and dismiss the appeal without any order as to costs.

Summary of opinion of Jagannath Shetty J:

 I agree that this appeal should be dismissed but I add a few words of my own. The question raised in the appeal is whether interference of the Court could be sought by a coparcener to interdict the Karta of Hindu undivided family from alienating coparcenary property. The question is of considerable importance and there seems to be but little authority in decided cases.

 The facts of the case lie in a narrow compass. Ram Prakash entered into agreement for sale of certain house property in favour of Jai Bhagwan. The property has been described in the agreement as self-acquired property of Ram Prakash. It was agreed to be sold. Jai Bhagwan paid earnest money on the date of agreement. He promised to pay the balance on the date of execution of the sale deed. Ram Prakash, however, did not keep up his promise. He did not execute the sale deed though called upon to do so. Jai Bhagwan instituted a suit for specific performance of the agreement. In that suit, Rakesh Kumar and his brothers who are the sons of Ram Prakash wanted to be impleaded as parties to the suit. They want to resist the suit for specific performance. But the (Court did not permit them. The Court said that they were unnecessary parties to the suit. Being unsuccessful in that attempt, they instituted a suit for permanent injunction against their father. They wanted the Court to restrain their father from alienating the house property to Jai Bhagwan or to anybody else. Their case was that the said house was their coparcenary property and the proposed sale was neither for legal necessity nor for benefit of the joint family estate.

The suit for injunction was practically tried as a suit for declaration. A lot of evidence was adduced on various issues, including the nature of the suit property. The trial court ultimately decreed the suit with the following findings:

Suit property was coparcenary property of the joint family consisting of Ram Prakash and his sons. Jai Bhagwan has failed to prove that the proposed sale was for legal necessity of the joint family. He has also failed to prove that the intended sale was for benefit of the estate. Ram Prakash being the manager of the family cannot alienate coparcenary property in the absence of those two requirements. The sons could restrain their father from alienating the coparcenary property since the proposed sale was without justification Jai Bhagwan died during the pendency of the suit. His wife and children challenged the decree of the trial court in an appeal before Additional District Judge. By then, the Punjab & Haryana High Court had declared in Jujhar Singh v. Giani Talok Singh, [1968] P.L J. 346 that a suit for injunction to restrain Karta from alienating coparcenary property is not maintainable. The learned District Judge following the said decision reversed the decree of the trial court and dismissed the suit. The plaintiff preferred second appeal which was summarily dismissed by the High Court.

 Plaintiffs, by special leave, have appealed to this Court. The arguments for the appellants appear to be attractive and are as follows:

There is no presumption under law that the alienation of joint family property made by Karta is valid. The Karta has no arbitrary power to alienate joint family property. He could do so only for legal necessity or for family benefit. When both the requirements are wanting in the case, the coparceners need not vainly wait till the transaction is completed to their detriment. They are entitled to a share in the suit property. They are interested in preserving the property for the family. They could, therefore, legitimately move the court for an action against the Karta in the nature of a quia timet.

As a preliminary to the consideration of the question urged, it will be necessary to examine the structure of joint Hindu family, its incidents and the power of Karta or manager thereof. The status of the undivided Hindu family or the coparcenary is apparently, too familiar to everyone to require discussion. I may, however, refer in laconic details what is just necessary for determining the question urged in this appeal.

 Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property. But it is there from the ancient time perhaps, as a social necessity. A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters. They are bound together by the fundamental principle of sapindaship or family relationship which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another. The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition, whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants upto three degrees can offer spiritual ministration to an ancestor only males can be coparceners. [See: Hindu Law by A N.R. Raghavachariar 8th Ed. p. 202]. In an early case of Madras High Court in Sudarshan Maistri v. Narasimhulu Maistri ILR 25 MAD 149 Bhashyam Ayyanger, J. made the following pertinent observations about the nature of the institution and its incidents at p. 154:

 “The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant v. Narayan Dhond Savant), (I.L.R. 7 Bom 467 at p. 471) and Mayne's Hindu Law and Usage, 6th edition, paragraph 270 and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line and so long as that family is in its normal condition viz. the undivided state-it forms a corporate body Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family”.

 Adverting to the nature of the property owned by such a family, learned Judge proceeded to state at p. 155: “As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body."

This statement of law has been approved by the Supreme Court in Bhagwan Dayal vs. Mst. Reoti Devi, [1962] 3 SCR 440 at page 477 Managing Member and His Powers:

In a Hindu family, the karta or manager occupies a unique position. It is not as if anybody could become manager of a joint Hindu family. “As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property.” The manager occupies a position superior to other members. He has greater rights and duties. He must look after the family interests. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties. In other words, the actual possession and management of the joint family property must vest in him. He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of them.

The legal position of karta or manager has been succinctly summarized in the Mayne's Hindu Law (12th Ed. para 318) thus:

318. Manager's Legal position:

“The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that of principal and agent, or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees.”

The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect is that of the Privy Council in Hanuman Parshad vs. Mt. Babooee, [1856] 6 MIA 393. There it was observed at p. 423:

(1) The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate. This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.

 Remedies against alienations:

Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Courts of law. The other members of the family have a right to have the transaction declared void, if not justified. When alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bonafide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed. para 396]. In the light of these principles, I may now examine the correctness of the contentions urged in this appeal. The submissions proceeded firstly on the premise that a coparcener has as much interest as that of karta in the coparcenary property. Second, the right of coparcener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for legal necessity or for the benefit of the estate. When these two rights are preserved to a coparcener, why should he not prevent the Karta from dissipating the ancestral property by moving the Court? Why should he vainly wait till the purchaser gets title to the property? This appears to be the line of reasoning adopted.

 I do not think that these submissions are sound. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property.

There is one more difficulty for the sustainability of the suit for injunction with which we are concerned. Temporary injunction can be granted under sub section (l) of Section 37 of the Specific Relief Act, 1963. It is regulated by the Code of Civil Procedure, 1908. A decree for perpetual injunction is made under sub section (2) of Section 37. Such an injunction can be granted upon the merits of the suit. The injunction would be to restrain the defendant perpetually from the commission of an act, which would be contrary to the rights of the plaintiff Section 38 of the Specific Relief Act governs the grant of perpetual injunction and sub section 3 thereof, reads:

“When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely:

(a) Where the defendant is trustee of the property for the plaintiff;

(b) Where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion;

(c) Where the invasion is such that compensation in money would not afford adequate relief;

(d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings".

The provisions of Section 38 have to be read along with section 41. Section 41 provides that an injunction cannot be granted in the cases falling under clauses (a) to (j). Clause (h) thereunder provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). Coparcener has adequate remedy to impeach the alienation made by the karta. He cannot, therefore, move the Court for an injunction restraining the karta from alienating the coparcenary property. It seems to me that the decision of the Punjab & Haryana High Court in Jujhar Singh v. Giani Talok Singh, [1986 PLJ 346 has correctly laid down the law. There it was observed at page 348:

 “If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which may be of pressing and urgent nature would in most cases be frustrated by the time the suit is disposed of. Legally speaking unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognized in law to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for preventing waste by a manager or karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning. We are, therefore, of the considered view that a coparcener has no right to maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to challenge the same and to recover the property after it has come into being.”

Supreme Court dismissed the appeal.

What, if the purchasers bought the shares of some coparceners and other coparceners claiming partition?

It is settled law[1] in Madras and Bombay that a purchaser for value acquires the interest of his vendor, that is a right to a partition, and a right on partition to the share to which his vendor would have been entitled, but without partition he cannot acquire a right to any specific property or to a specific share. He is not entitled to possession, his right in that respects being the same as the right of a purchaser at a sale in execution of a decree.

The learned Author further says that the Judicial Committee has recognized this to be the law applicable in Madras and Bombay.

19. In 'Introduction to Modern Hindu Law', by J. Duncan M. Derrett - the learned Author has dealt with the subject at pages 303 and 304 and has stated that the law declared by the Madras and Andhra Pradesh High Court is the more attractive rule of limitation. The relevant passage reads thus:

We have seen that in South India the coparcener or owner of a coparcenary interest can create an equity in favour of an alienee against the whole family which can be worked out by the alienee stepping into the shoes of his alienor in a general partition of the joint family property. There is, therefore, no question of an actual transfer of an identifiable object, for the coparcener has no right to claim exclusive ownership of any object however trifling unless the manager, acting within his powers, confers this privilege upon him, or all the coparceners do the like. The alienee is not entitled to be put into possession of his purchase, he does not become a tenant-in -common with the coparceners, etc., nor does the transaction substitute him for his alienor in any respect whatever. If the coparceners put him into possession of the property, however, it is not possible for them to eject him, but he is liable to be ejected at the suit of minors or owners of coparcenary interests who did not authorize or participate in the act of putting him into possession. A rule confined to Maharashtra and Gujarat, that an alienee once put into possession cannot be ousted pending a partition suit and may hold as if he were a tenant-in -common with the coparceners, etc., is now supported by stare decisis only and appears to have been based on the special relationship of the alienee to the alienor in that very case as well as his long possession.

The alienee must pursue his remedy against the joint family within the period allowed by the Limitation Act. There is a difference of opinion both as to the moment when his cause of action arises and as to the period of time which may run against him. The Bombay High Court has held that the cause of action arises at the alienation (at the earlier) or on the death of the alienor, and, in the view of this High Court, there being no period specifically allotted by the Act the residual article (Article 120) applies and the alienee has only six years in which to sue for partition. If however the alienor was already separated in status and the property had remained undivided notwithstanding the severance, Article 144 applies and he must file his suit within twelve years from the date on which his title is actually denied. A more attractive rule is in force in Madras and Andhra Pradesh. There the view is taken that the alienee's cause of action arises at the time of the creating of the equity itself, that is, when he gives value to the coparcener- alienor, except in the rare cases where the coparceners put him into possession of the joint-family property, and that since his demand for partition is in substance a demand for possession of property (a view the Bombay High Court does not take) the appropriate articles of the Limitation Act are in every case those which relate to recovery of possession (Article 49 (it seems), and 144). Thus in all mortgages and sales of immovable property the period is twelve years, and it runs from the time when consideration passes.

In 'Hindu Law: Principles and Precedents' by N.R. Raghavachariar, 8th Edition (1987), at page 339, the learned author says:

Where the undivided interest of a coparcener has validly passed to a stranger either by operation of law as on the insolvency of a coparcener or by purchase either in execution of a decree or by private contract, he is entitled to claim a partition as against the other coparceners and to enforce it by a suit both during and after the lifetime of that coparcener.

Little down, the learned Author further says thus:

Such an alienee of an unascertained share in a joint family property cannot claim mesne profits, nor can he insist upon the possession of any definite piece of property. His remedy is to have that share and interest ascertained by instituting a suit for general partition in which the whole of the joint family property should be included and all the necessary parties joined. He can sue for a general partition ignoring any private partition effected between the coparceners. In such a suit he may also pray for allotment to his alienor the items which he has purchased.

Mulla on the 'Principles of Hindu Law' 15th Edition (1982), at page 348 deals with the right of a purchaser of an undivided interest from a coparcener. The learned Author says thus:

The purchaser of the undivided interest of a coparcener in a specific property-

(i) at a private sale in execution in West Bengal and Uttar Pradesh, or

(ii) at a private sale or a sale in execution in Madras, does not acquire a right to joint possession with the other coparceners. Such a purchaser acquires merely the right to compel a partition which the coparcener whose interest he has purchased might have compelled, had he been so minded, before the sale of his interest took place. That right can only be enforced by a suit for a general partition to which all the coparceners must be joined as parties. The purchaser may in such a suit ask the court to allot to his vendor the specific property sold to him, and the court may allot that property to him if the interest of the other coparceners will not be prejudiced thereby.

S.V. Gupte on 'Hindu Law' - 3rd Edition (1981) (Volume 1), at pages 356 and 357 says thus:

It is well established that a purchaser - whether of the whole or any portion of the joint family property and whether at a sale in execution of a decree, in insolvency or by a voluntary transfer -may claim partition of the joint family property. The equitable right to sue for partition which is available to an alienee from a coparcener flows from the purchase made by him for valuable consideration. By such purchase, an alienee does not acquire any right in a specific property belonging to the coparcenary, but acquires the equitable right to step into the shoes of the alienating coparcener and sue for partition in the same way in which that coparcener could.

At page 392 of the same book, the learned Author deals with suits by purchasers and says that there is no distinction between an auction purchaser and a private purchaser. The learned Author has not given his own views as to the starting point of limitation, though he has noted the differences of opinion among the various High Courts in that regard.

In Mayne's 'Hindu Law and Usage' - 13th Edition (1991), at page 689, the learned Author deals with right of purchasers under Mitakshara Law. The learned Author says that under Mitakshara law, no member has a right, without express agreement, to say that any specific portion is exclusively his. Consequently, the purchaser at a court auction cannot claim to be put into possession of any definite piece of property. Accordingly, the Judicial Committee held that the proper decree to be passed in a suit in which the purchaser has not obtained possession would be an order declaring that the purchaser acquired the undivided share of the judgment- debtor in the property with such power of ascertaining the extent of such share by means of a partition as the judgment- debtor possessed in his lifetime and confirming the possession of the other coparceners subject to such proceedings to enforce his rights as the purchaser might take. And where the purchaser has obtained possession they held that the plaintiff coparcener should obtain possession of the whole of the family property with a declaration that the purchaser had acquired the interest of the co-sharer and was entitled to take proceedings to have that interest ascertained by partition. Regarding the equitable rights of an alienee, the learned Author says thus:

Where the transfer is of an undivided interest in the whole of the family property the transferee will get whatever may be allotted to the transferor’s share in a suit for partition. A coparcener may alienate either his undivided share in the whole of the family property or His undivided share in certain specific family property or the whole of a specific item of the family property. In all these cases, the alienee does not acquire an interest in the property so as to become a tenant-in -common with the members of the family entitled to possession but only equity to stand in his vendor's shoes and to work out his right by means of a partition. The vendee's suit to enforce the sale by partition is not technically a suit for partition in the sense of the Mitakshara Law: and the decree which he may obtain enforcing the transfer, either in whole or in part, by a partition of the family property will not by itself break up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. In dividing the family properties the court will, no doubt, set apart for the alienation coparcener's share the property alienated if that can be done without any injustice to the other coparceners and such property, if it is so set apart, may be given to the transferee of the interest of such coparcener. But this is only equity and the alienee is not, as of right, entitled to have the property so allotted. If such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share, in substitution for the property that was alienated in his favour.

Hemang D. Rana

For, Hemang D. Rana & Co, Advocates

[1]  K.S.K.P. Subbayan Chettiar vs K. Ramu and Ors.  (1996) 2 MLJ 115