Bhagwati, J.:—

This second appeal raises an important question with regard to the auction purchaser's rights in respect of the undivided interest of a coparcener in specific property belonging to a coparcenery.

The plaintiff, the auction purchaser, filed the suit against the five defendants who were the members of the coparcenery and defendant No. 6 who was their mother, for a partition by metes and bounds of the moveable and immoveable properties of the defendants, for the ascertainment and separation of the one-fifth share of his judgment-debtor, defendant No. 3, in the moveable and immoveable properties of the family and for allotment to the share of defendant No. 3 of the property in suit which he had purchased at the auction sale and for a declaration in accordance with the partition that he had the right to maintain possession of the property in his capacity as absolute owner thereof, for costs and further and other reliefs. Defendants nos. 1 to 5 filed their written statement in which they contended inter alia that the plaintiff was not entitled to the relief which he claimed in regard to the property in suit, that defendant No. 3 had only a one-seventh undivided share in the joint family properties of the defendants and that the suit was not maintainable unless the liability of defendant No. ??? in respect of the joint family debts of the defendants was take into consideration at the time of partition.

The trial Court dismissed the plaintiff's suit with costs. The plaintiff filed an appeal in the District Court of West Khandesh at Dhulia, the appellants being the heirs and legal representatives of the original plaintiff, who had by then died, and the respondents being the heirs and legal representatives of the original defendant No. 1, the heirs and legal representatives of the original defendant No. 2 who had died pending the disposal of the suit, defendants Nos. 3 to 5, the brothers, and defendant No. 6 the mother. The lower appellate Court allowed the appeal and declared that the plaintiff was entitled to retain the suit property as part of the share of defendant No. 3 in the family properties and awarded to the plaintiff the costs in both the Courts from the respondents. This second appeal has been filed by the legal representatives of the original defendant Nos. 1 and 2 and the original defendants Nos. 4, 5 and 6 from that judgment of the lower appellate Court. Defendant No. 3 did not join as an appellant but was joined in this appeal at respondent No. 3, respondents Nos. 1 and 2 being the heirs and legal representatives of the original plaintiff who had been the appellants in the lower appellate Court.

The facts which led to this litigation may be shortly stated as under. A joint family firm of Raghunath Mangalsa owned inter alia the suit property. A suit for dissolution of that joint family firm was filed, being suit No. 882 of 1928, and as a result of the partition effected in that suit the suit property came to the share of a member of the joint family firm by name Mathuradas. Mathuradas had five sons, the original defendants Nos. 1 to 5 in this suit and this property was thus acquired by Mathuradas as property belonging to the joint family constituted by himself, his wife defendant No. 6 and his five sons defendants Nos. 1 to 5. Hiralal, defendant No. 3, was financially involved and a creditor of his by name Abdul Majid obtained against him a money decree in suit No. 330 of 1931. A darkhast was filed by the judgment-creditor, being Darkhast No. 492 of 1933, and on July 8, 1933, the suit property was attached in execution of that decree. The suit property was put up for auction sale through the Court on April 28, 1934, and the original plaintiff was declared to be the highest bidder at that auction sale. The suit property was knocked down to him and a certificate for sale was issued by the Court in his favour, declaring him to have been the auction purchaser and the owner of the right, title and interest of defendant No. 3 Hiralal in the said property. Possession of the property was given over by the Court to the original plaintiff on June 29, 1934, after removing the obstruction which had been raised to his obtaining possession of the said property. After possession of the suit property was obtained thus by the original plaintiff, Mathuradas the father and Mangaldas one of the brothers of Hiralal, filed a suit, being Suit No. 111 of 1934 for injunction against the original plaintiff, seeking to restrain him from obtaining possession of the suit property. It was realised that possession having already been obtained by the original plaintiff, such suit could not lie. The plaint was therefore amended and on the amendment of the plaint being made the suit was transferred to the Court of the First Class Subordinate Judge at Dhulia and was numbered as Regular Suit No. 689 of 1935. Before this suit came on for hearing and final disposal, the present suit, being Suit No. 95 of 1936, had been filed by the original plaintiff impleading defendants Nos. 1 to 5 as defendants in this suit. The regular suit No. 689 of 1935 came on for hearing on November 19, 1936, and a decree was passed by the Court in that suit to the following effect:

It was declared that defendant No. 3 (therein, i.e original plaintiff in this suit) had acquired the right, title and interest of Hiralal in the suit property; that the sale was declared to be valid to the extent of the share of Hiralal therein, that the sale was not binding on any other members of the family except Hiralal and that the plaintiff's suit was dismissed to the extent of the share of Hiralal. The suit was decreed as prayed for in the plaint in respect of the remaining shares of the other members of the family. It was further provided in the decree that if the original plaintiff herein prosecuted the present suit the claim for possession of Mathuradas and Maganlal was to be rejected. But if the original plaintiff withdrew the present suit without the written permission of Mathurdas or Maganlal, or if he failed to prosecute the present suit till the last with the object of causing loss to Mathurdas and Maganlal, Mathurdas and Maganlal were to be at liberty to take possession of the suit house from the original plaintiff by executing that decree. The members of the family, other than Hiralal were also to be similarly entitled to recover mesne profits as agreed in Ex. 58 in that suit.

This was the decree obtained on November 19, 1936. The present suit had its own career and was decided by the trial Court as above indicated, and the whole litigation between the original plaintiff on the one hand and defendants Nos. 1 to 5 and defendant No. 6 who was thereafter impleaded as a party defendant to the suit on the other proceeded right up to the second appeal which has come on for hearing and final disposal before us.

The original plaintiff was the purchaser of the suit property at the auction sale held by the Court in execution of the decree which had been obtained by Abdul Majid against his debtor Hiralal defendant No. 3. The application for execution and also the proclamation for sale referred to the property which was attached as the suit property and did not specifically mention there the right, title and interest of defendant No. 3 Hiralal in the suit property as the subject-matter of the execution proceedings. The yadi or the memorandum of the auction sale, however, which was prepared and which is Exhibit 59 in the record, showed that what was being sold at the auction sale which was held on that date April 28, 1934, was the right, title and interest (hakk sambandh) of defendant No. 3 Hiralal in the suit property. The certificate of sale which was granted by the Court also mentioned the hakk sambandh, i.e, the right, title and interest of Hiralal defendant No. 3 as the subject-matter of the purchase by the original plaintiff at the said auction sale. A point, was raised as to whether under those circumstances it could be urged on behalf of the original plaintiff that what he purchased really was the whole of the suit property and not merely the right, title and interest of Hiralal defendant No. 3 in the suit property. Reliance was placed in this behalf on the passage occurring in Mulla's Civil Procedure Code at p. 906:—

“It has been stated above that what passes to a purchaser at a Court-sale in execution of a money-decree is the ‘right, title and interest’ of the judgment-debtor in the property sold. To determine the nature and extent of the judgment-debtor's right, title and interest in the property sold, the test is as stated by Lord Watson in the course of the argument in Pettachi v. Chinnatambiar what did the Court intend to sell, and what did the purchaser understand that he bought? These are questions of fact or rather of mixed law and fact, and must be determined according to the evidence in the particular case.”

It may be noted that besides the documents which he have just referred to, there was no evidence led in the trial Court which would go to show what it was that the Court intended to sell and what it was that the purchaser understood that he bought. We are, however, of the opinion that this point is not of any particular significance in view of the conclusion which we have reached on the main points which have been discussed in this second appeal before us and which we shall now proceed to discuss.

The rights of a purchaser of an interest of a coparcener whether the sale be one by private contract or in execution of a decree are laid down as under in Mulla's Hindu Law, 10th edition, page 307 et seq. The right of the purchaser to possession of the property purchased by him along with non-alienating coparceners is recognised, but not to the extent that he would ever be entitled to exclusive possession of the same as against non-alienating coparceners. If the purchaser has obtained possession, the non-alienating coparceners would be entitled to joint possession with him, and if they sued for the same, the Court must decree joint possession to them. Further if the purchaser has obtained possession, the non-alienating coparceners can sue for recovery of possession of the whole of the property sold to him, i.e, they may sue for exclusive possession. But the Court is not bound to eject the purchaser and decree exclusive possession to the non-alienating coparceners, and it may in its discretion declare that the purchaser is entitled to hold the property until partition, as a tenant-in-common with the other coparceners, in other words the Court may in a proper case allow the purchaser to remain in joint possession with the non-alienating coparceners. Each case as to the propriety or otherwise of allowing the purchaser joint possession should be decided on its own facts. We are not here concerned with any claim on behalf of the non-alienating coparceners to either joint possession or exclusive possession of the suit property. What we are concerned with here is the claim which has been put forward by the purchaser to exclusive possession of the suit property as against the non-alienating coparceners and that certainly is a relief which cannot be awarded to the Plaintiff.

Coming to the right to partition which the purchaser of the undivided interest of a coparcener in a specific property belonging to the joint family has, it is, laid down that in Bombay such a Purcnaser is not entitled to a partition of that property alone, for his vendor himself could not have claimed it, unless the other coparceners consented to the same. He can only enforce his rights by a suit for a general partition. But even if a suit for a general partition is thus brought, the question may arise as to what are the rights of the purchaser of a specific property or of an undivided interest of a coparcener in such property on such general partition. In the case of an alienee by private contract it has been laid down that he has an equitable right to have that property or his alienor's share in that property, as the case may be, assigned to him if it could be done without injustice to the other coparceners. But there may be equities between the coparceners or liabilities attaching to the alienor's share which may render it inequitable or impracticable to do so. In such a case the alienee is entitled to recover from his alienor property of an equivalent value of the properties allotted to the alienor for his share in substitution of the property alienated. In making adjustments the Court-will take the value of the properties at the time of the division and not at the time of the sale. This is the position as laid down in Mulla's Hindu Law at page 311 with reference to the alienee of a specific property or of undivided interest of a coparcener in such property. A distinction is, however, made by Sir Dinshah Mulla in the case of a purchaser at a Court-sale in regard to his rights in this behalf, and it is laid down: “But a purchaser at a Court-sale has no such right, there being no warranty of title at such a sale”; and this position has been taken by Sir Dinshah Mulla from the case decided by the Madras High Court and reported in Sabapati Pillay v. Thandavaroya Odayar.

The case of Sabapati Pillay v. Thandavaroya Odayar was a case where a purchaser bought in Court auction specific items of properties said to belong to a member of a joint Hindu family. Subsequently there was a partition decree and only some of these items fell to the share of the judgment-debtor. It was held by the Court that the purchaser was entitled to only such of the items as were common to the sale-certificate and the share of the judgment-debtor under the decree, and that he could not compel the judgment-debtor to give him other properties in substitution for the remaining properties comprised in the sale certificate. It was a case where the purchaser at a Court-sale in execution of a decree against a member of a joint Hindu family bought four specific properties A, B, C and D, alleged to belong to him, and at a subsequent partition the properties A, B, X and Y were allotted to that member. The purchaser claimed to be entitled to have the equivalent of properties C and D out of the properties X and Y and his claim in this behalf was negatived by the Court. The learned Judges of the Madras High Court based their decision on the consideration that there was no privity of contract between the auction purchaser and the judgment-debtor. They observed that under the old Code of Civil Procedure if the purchaser had reason to believe that there was no saleable interest at all in the property sold, he had a right of action against the decree-holder for refund of money. The new Code had taken away that remedy, and limited the purchaser's rights to an application for refund. There was no indication in the Code that the purchaser had any remedy against the judgment-debtor. It was the decree-holder that brought the property to sale; he prepared the proclamation and to the best of his knowledge placed before the public all the available information in respect of the property to be sold. Although the judgment-debtor was expected to assist the Court in settling the proclamation, and although his failure to do so might entail some serious consequences, there was no provision of law which brought him into contract with the bidders at a sale. These persons were bound by the principle of caveat emptor. They took the risk of the property corresponding to the description given. If that failed, they could have no remedy against the judgment-debtor because there was no act, or representation, by him which had contributed to the result. They thus distinguished the case of an auction purchaser from the case of an alienee from a coparcener and held that the auction purchaser had no equitable right on a general partition to have a particular property or his judgment-debtor's share in that property, as the case may be, assigned to him even if it could be done without injustice to the other coparceners.

This decision in Sabapati Pillay v. Thandavaroya Odayar was followed by a division bench of our High Court in Chidambargauda v. Channappa. The question which there arose was with regard to the auction purchaser's rights to have a substitution of the properties by the judgment-debtor in the event of the properties, the subject-matter of the auction sale, not being identical with the properties which were allotted to the judgment-debtor on partition between him and the other members of the coparcenary. The decision in Sabapati's case was cited before the learned Judges and they considered the ratio of that decision. Mr. Justice Baker observed (p. 705):

“These, however, are all cases of mortgagor and mortgagee, and the doctrine of substituted security on which they proceed cannot be extended to cover the case of an auction-purchaser. There is direct authority for this in Sabapathi Pillay v. Thandavaroya Odayar.”

The learned Judge discussed the decision in that case and further observed (p. 705).

“Although there has been considerable argument on this point, I do not see any reason to differ from the view of the Madras High Court, and for the reasons which are given in that judgment, with which, with respect, I agree, I am of opinion that there is no justification for extending the theory of substitution, which has been enunciated in respect to persons standing in the relation of promisor and promisee, to persons who are strangers to each other, and therefore the plaintiffs are not entitled to any property other than that which they purchased at the Court sale.”

To the same effect were the observations of Mr. Justice N.J Wadia at page 717 of the judgment. Relying upon the passage from Mulla's Hindu Law above referred to and these two authorities, viz., Sabapati's case and Chidambargauda's case Mr. R.B Kotwal for the appellants urged that the original plaintiff being an auction purchaser of the right, title and interest of Hiralal defendant No. 3 in the suit property, had, even though he had filed a suit for general partition of the joint family properties, no equity in his favour to have the suit property assigned to Hiralal defendant No. 3 even though it could be done without injustice to the other coparceners.

Mr. B.N Gokhale, on the other hand, urged before us that even though normally the decision in Chidambargauda's case, being a decision of a Court of co-ordinate jurisdiction, would be binding on us, that decision was in fact arrived at without considering the authorities of our own High Court of an earlier date as they had not been cited before the learned Judges who decided that case, and that therefore that decision was not binding on us. He particularly referred to the case reported in Pandurang Anandrav v. Bhaskar Shadashiv. In that case the suit had been brought by one Bhaskar as purchaser at an execution sale of the interest of one Nilo in 20 gunthas of land. This land had formed part of a quantity mortgaged in 1848 by Nilo and Amritrav, and was sold in execution of a decree obtained on the mortgage in a suit against Nilo and Amrit. A certificate of sale was obtained relating to Nilo's interest alone and Bhasker brought this suit against a third member of the undivided family in whose possession the 20 gunthas of land then were to recover the same from him, as being the property of the mortgagor, whose right and interest therein had been attached and sold. It was held by the appeal Court that the purchaser could take no more than the share of the coparcener whose interest alone had been attached and sold though this share might be defined as it existed at the time of the mortgage made by him in 1848, that the share of a coparcener, being in the estate as a whole and not in any particular part of it, could be ascertained only by taking a general account of the whole estate, and making a distribution in accordance with the results of such account. In taking such account, however, and in making the consequent distribution, it would be only equitable that the share of the coparcener who affected to deal with a portion of the land as if empowered to mortgage it should ceteris paribus, if the purchaser takes his place, be so made up as to embrace wholly, or so far as possible, the land, which the purchaser bought as belonging to such coparcener. The appeal Court further held that to obtain possession of the land purchased by himself, the purchaser must file against the other member of the family a partition suit for the ascertainment of the share of the coparcener, whose interest he had purchased, as it stood in 1848, and for the allottment to himself of that share so far as it can legally and equitably be identified with the land purchased by himself. In so far as the suit filed in the form it was by Bhaskar, was not in that form, it was held that the suit did not lie and the suit was dismissed. This judgment was delivered by the appeal bench consisting of West and Nanabhai Haridas JJ. The case before the appeal Court was not that of an alienee by private contract from the alienating coparcener but was the case of a purchaser at an auction sale held at his instance in execution of a decree which he had obtained against the coparcener, and it is to be noted that no distinction was here made between the case of an alieneee by a private contract and an auction purchaser at a sale held in execution of a decree. Both these cases were treated as on a par with each other. A similar case arose before our appeal Court in the following year and the decision of the appeal Court there is also reported in Udaram Sitaram v. Ranu Panduji and Venku Panduji. The appeal Court there consisted of Westrop, C.J and West J. and they referred, with approval, to the judgment which had been delivered earlier by the appeal Court in Pandurang Anandraw's case. This was a case of a decree-holder who had attached in execution of a decree the right, title and interest of the father in a shop which had been owned by him along with his deceased son and in the plaint the plaintiffs alleged that the father and the son were equal coparceners in the ancestral shop and that although there had not been any partition of estate between the son and the father, the son's share therein was, after his death, liable in his father's hands for the amount of the decree in the former suit, and prayed for a declaration to that effect against the father. While discussing the rights of the parties in this case the learned Judges made the following observations (p. 82):

“When a share in the undivided ancestral estate of a Hindu family is mortgaged or sold, either by the coparcener himself, or by way of execution, the mortgagee or purchaser takes such share subject to such prior charges or incumbrances as may affect the family estate, or as may affect that particular share. If the mortgage or sale be of a special portion only of the family property, it may not always be possible, consistently with prior existing rights, for the Court, making the partition, to give possession of that portion to the mortgagee or purchaser. But generally it would be possible to do so, either wholly or partially, and, therefore, if without doing injustice either to prior incumbrances or coparceners, such possession can, on partition, be given, it would be the duty of the Court, making the partition, to endeavour to give effect to the mortgage or sale, and so to marshal the family property amongst the coparceners as to allot that portion of the family estate, or so much thereof as may be just to the mortgagee or purchaser. Such was the view expressed, as we think correctly, in Pandurang Anandrav v. Bhaskar Sadashiv decided 18th August 1874, and in which a review was refused on the 9th December 1874. Whether, in the event of it being impossible, consistently with justice to others, to give possession of the portion of the family property mortgaged or sold to the mortgagee or purchaser, he would be entitled to be recouped out of such other portion thereof as might, on partition, be allotted to the coparcener whose share in the special portion had been mortgaged or sold, it is unnecessary now to give any opinion.”

This was a clear and categorical enunciation of the position in law as laying down the rights of a mortgagee or a purchaser, the purchaser being either a purchaser by reason of a contract with the coparcener himself or by way of execution. Mr. R.B Kotwal for the appellants tried to suggest that this point as to the property in possession of an alienee by private contract and the purchaser at the auction sale was not argued before the learned Judges of the appeal Court in the cases which are reported in Pandurang Anandrav's case and Udaram Sitaram's case tnd that therefore these authorities should not be-considered as in any manner militating against the view which was taken by the learned Judges of our appeal Court in Chidambargauda's case. We, are however, not inclined to agree with that contention. There was no distinction in principle which could be made between the two positions. As has been observed in Mayne's Hindu Law and usage, 11th ed., p. 489, while discussing the position of an auction purchaser:—

“The grounds of decision in Sabapathi v. Thandavaroya are that there is no warranty of title in a Court sale and that there is no privity of contract between an auction purchaser and a judgment-debtor. This would seem to be taking too narrow a view. In Abdul Aziz v. Appayasami Naicker the Judicial Committee laid down that the rights of parties to a contract contained in the certificate of sale are to be judged of by that law by which they may be presumed to have bound themselves. Neither the purchaser at a Court sale nor a purchaser at a private sale acquires any interest in the specific property; both acquire only an equity which is the same in the one case as in the other, that is, an equity to stand in their alienor's shoes and to work out their rights by means of a partition. The equity depends upon the alienation being one for value and not upon any contractual nexus. The right to get properties which fell to an alienor at a partition is the primary and indeed the only right which an alienee has, though the Court may at a partition allot to him the properties which he purchased at a Court sale or at a private sale if it could be conveniently done.”

This, in our opinion, is the real ratio which should govern the decision of cases of this type. The real question to consider while deciding whether there is any equity in favour of the alienee or the auction purchaser is whether he has provides consideration for the same. Whether it is a transaction brought about as a result of a contract entered into between the alienor and the alienee or is the result of the party being an auction purchaser at an auction sale held at the instance of the Court would not make the slightest difference to the position. If not consideration had passed from the purchaser, then certainly according to the principles of equity, there would be no right in him to claim that equity. The equity obtains only in favour of the person who comes within the description of a “purchaser” at equity, and therefore the observations which are contained in Mayne's Hindu Law and Usage at page 489, that both the purchaser at a Court-sale and a purchaser at a private sale acquire the equity by reason of the alienation being one for value, correctly represent the legal position. We approve of that position in law and are therefore of the opinion that there is no distinction which can be drawn as it was done in Sabapati's case and Chidambargauda's case between an alienee by reason of a contract with the alienating coparcener and a purchaser at a Court sale of the right, title and interest of a coparcener. No doubt the decision of the division bench in Chidambargauda's case is a decision of a Court of co-ordinate jurisdiction, and we would normally have been under an obligation to follow the same. The cases which are reported in Pandurang Anandrav v. Bhasker Sadashiv and Udaram Sitaram v. Ranu Panduji were, however, not brought to the attention of that bench, and in any event, there being two conflicting decisions of division benches of this Hight Court, the one set reported in Pandurang Anandrav's case and Udaram Sitaram's case on the one hand and the other reported in Chidambargauda's case on the other, we feel free to follow the one or the other in accordance with what we conceive to be the true position in law. That being the case, we prefer to follow the decisions of the division benches in Pandurang Anandrav v. Bhaskar Sadashiv and Udaram Sitaram v. Ranu Panduji and are of the opinion as above indicated. That being so, the criticism which was offered by Mr. R.B Kotwal for the appellants against the judgment of the lower appellate Court loses its significance. The lower appellate Court had observed at page 3 of the print:

“I do not see why the position of a Court purchaser should be different from that of a purchaser at a private sale. Both acquire only an equity which is to stand in the shoes of the alienating coparcener and to work out their rights.”

These observations, in our opinion, are substantially correct and learned Judge in the appeal Court below was right in these observations which he made when he came to the conclusion adverse to the contesting defendants.

This leads us now to the question of what is the relief which the plaintiff is entitled to in the working out of this equity. The positon of an alienee of a specific property or of the undivided interest of a coparcener in such property on a general partition is laid down to be that he has an equitable right to have that property or the alienor's share in that property as the case may be assigned to him if it could be done without injustice to the other coparceners. The same is the position of a purchaser at a court-sale according to what we have decided above. That this is the true position is also supported by a decision of the Madras High Court in Manjaya v. Shanmuga. The learned Judges of the Madras High Court there held that when 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. The cases which we have referred to above were also cited in support of this position as it was enunciated by the learned Judges there. The real question which comes up to be considered in this connection is what it is that the alienee or the purchaser obtains on the alienation or the auction sale. As is well-known: According to the true constitution of an undivided Hindu family, no individual member of the family, whilst it remains undivided, can predicate of the joint and undivded property, that he has a certian definite share therein. (Vide Appovier v. Rama Subba Aiyan. Until a partition, notional or actual, takes place between the coparceners of a family, it could not be predicated by any coparcener that he had a particular or aliquot share in the joint family properties. What the coparcener therefore enjoys while the coparcenary is subsisting and there is no severance of joint status between the members of the coparcenary is an undivided interest in all the joint family properties. In so far as he has an undivided interest in all the joint family properties, he has also an undivided share in a specific property belonging to the joint family; but that is all. At no point of time could he ever say that be had a particular share in the specific property belonging to the joint family. What he could therefore alienate by private contract to an alienee or what could be the subject-matter of a purchase by an auction purchaser at a court-sale held in execution of a decree against him would be only his undivided share, right, title and interest in the specific property which is thus alienated or sold. The alienee or the purchaser would not be therefore in a position to say that he had acquired any particular share of his alienor or the judgment-debtor in a specific property. He would merely acquire the right which his alienor or his judgment-debtor had in the joint family properties or the specific property, but no more, which would be an undivided share, right, title and interest therein coupled with the right which he has of effecting a partition between himself and the other coparceners of his. That this is the true position is laid down in Deendyal Lal v. Jugdeep Narain Singh, where the Judicial Committee of the Privy Council observed (p. 255):

“It seems to their Lordships that the same principle may and ought to be applied to shares in a joint and undivided Hindu estate; and that it may be so applied without unduly interfering with the peculiar status and rights of the coparceners in such an estate, if the right of the purchaser at the execution sale be limited to that of compelling the partition, which his debtor might have compeled, had he been so minded, before the alienation of his share took place.”

and in Hardi Narain Sahu v. Ruder Perkash Misser where again their Lordships (p. 635):

“Therefore what was purchased on that occasion were the rights and interests of the father; and this is precisely like the case of Deendyal Lal v. Jugdeep Narain Singh, where their Lordships held that, the purchased being as it was here, by the person who had obtained the decree, only that passed which the father, the person against whom the decree was obtained, had.”

and further (p. 636):

“The interest which is purchased is not, as Mr. Doyne argued, the share at that time in the property, but it is the right which the father, the debtor, would have to a partition, and what would come to him upon the partition being made.”

That being the position, what the purchaser at the court-sale also obtained was the right which Hiralal defendant No. 3 had to obtain what would come to his share on partition being effected between himself and the other coparceners and in regard to the specific property which was the subject-matter of the auction sale, it would not be correct to say that the plaintiff was the purchaser of a 1/7th or any particular share of Hiralal defendant No. 3 in that property. He became the purchaser of the undivided share, right, title and interest of Hiralal defendant No. 3 in the suit property, but the only way to ascertain that undivided share, right, title and interest of Hiralal defendant No. 3 in that property would be to file a general suit for partition which Hiralal defendant No. 3 could have filed against the other coparceners of his. When such a general suit for partition was filed, the equity which we have defined above would operate in favour of the plaintiff, and in effecting that general partition, he standing in the shoes of Hiralal defendant No. 3 his judgment-debtor would be entitled to tell the Court that the specific property, the undivided share, right, title and interest of Hiralal defendant No. 3 wherein he had purchased at the auction sale should, as far as possible and subject to the equities subsisting between Hiralal defendant No. 3 and the other coparceners of his, be allotted to Hiralal defendant No. 3 on such partition. It was urged that so far as Hiralal defendant No. 3 was concerned, he had no equity in him to have a particular or specific property being allotted to him on a general partition between himself and the other coparceners, and that therefore the plaintiff being the purchaser it the auction sale of Hiralal, defendant No. 3's undivided share, right, title and interest in the suit property had no such right in his favour. This argument, however, ignores the position of the alienee or the auction purchaser in whose favour the quity prevails even though he stands in the shoes of his alienor or the judgment-debtor, by reason of the very nature of the transaction and the equity which has been declared to be available to him. He being a transferee for value, he has though is alienor or the judgment-debtor may not have it in himself. ??? right which has been recognised at equity to have assigned ??? him if it could be done without injustice to the other coparceners the specific property or his alienor's share in that property. No doubt that equity would not avail him where there is the other conflicting equity in favour of the other coparceners. Where there are equities as between coparceners or liabilities attaching to the alienor's share which would render it impracticable to do so, this equity would certainly not operate in favour of the alienee or purchaser. But except ??? those exceptional circumstances, where equities conflict ??? this manner and the equity in favour of other coparceners has of necessity to prevail, this equity avails to the alienee or purchaser and he is, so far as the case may be, entitled to have assigned to the share of his alienor or judgment-debtor the specific property or his share therein.

This being the position in law, we have to consider whether the decree which was passed in favour of the plaintiff by the lower appellate Court was right. No doubt the right which the alienee or the purchaser has in such cases is the right to have a general partition effected between his alienor or judgment-debtor on the one hand and the other coparceners ??? the other, and it would be only when in the working out of this general partition the specific property come to be allotted to the share of his alienor or the judgment debtor that the purchaser would be entitled to have possession of the specific property which he claims. In this case, however this position does not offer much difficulty. Both in the trial Court as well as the lower appellate Court the attention of the Court was directed to the working out of this position. The trial Court at page 9 of the print observed after calculating all the figures of the value of the properties, the amount of the debts payable by the properties as also the accounts between Hiralal the third defendant and the other coparceners, that ??? the plaintiff was held to be entitled to the equitable relief ??? seeks, the suit property could be assigned conveniently to the share of the third defendant in the general partition that would be effected hereafter in case any of the defendants paid the required stamp duty. The lower appellate Court also observe at page 3 of the print that the plaintiff had satisfactorily proved that the value of Hiralal's share was far larger than the value of the property purchased by him. The present litigation has started by the filing of the plaint by the original plaintiff the year 1936. The suit had a long career, the decision in the suit was reached on the 10th July 1944 and the lower appellate Court delivered its judgment on the March 31, 1948. The appeal has come before us for hearing and final disposal August 1950, and it is high time that the litigation was brought to an end. We agree with the sentiment expressed by the ??? appellate Court even in the year 1948 that this long ??? out litigation must now end. This sentiment is entertained us with greater force in the year 1950, and we are of opinion that the making of an order that a general partition ??? be effected and in that general partition it should be determined whether this property should fall to the share of Hiar the third defendant, would be an act of cruel kindness to the ??? concerned and would not be inconsonance with our ??? of Justice and fair play, we are, therefore, of the opinion ??? having regard to the findings of fact arrived at by both the Judges in the Courts below in this behalf we should confirm decree of the lower appellate Court allotting the suit property to the share of Hiralal the third defendant.

The result, therefore, will be that the judgment of the lower appellate Court will be confirmed and this appeal will be dismissed. In regard to the costs, we think that having regard the exceptional circumstances of the case, as also the question law that was involved for decision, the fairest order would that each party will bear and pay its respective costs of ??? appeal.

Decree confirmed.

J.G.R