Batchelor, A.C.J:— This is an appeal from a judgment and decree of the First Class Subordinate Judge of Dhulia. The plaintiff was the son of defendant 5, these two persons constituting an undivided family. It appears that among the family assets was a firm conducted in the name of Khushaldas Damodardas. In 1904 the present defendants 6 and 7, filed a suit in the Court of Dhulia to recover a sum of Rs. 22,000 odd, upon certain cotton transactions which they had with the firm of Khushaldas Damodardas. Defendants 6 and 7, by this suit, sued to recover the money from the present defendant 5, the father of the plaintiff. It was not then known that defendant 5 had a son, or that there was any other member of the family besides defendant 5. In March 1905 the claim was decreed against defendant 5. In April following an application was made for execution and in the course of the execution the present appellants, who were defendants 1 to 4 at the trial, became the purchasers of two of the properties belonging to the joint family. In January 1906, the appellants were put into possession of these two properties, and in the following month they obtained a sale certificate. The present plaintiff, who was born in 1900 or 1901, brought this suit against his father, defendant 5, and the decree-holders defendants 6 and 7 as well as against the auction purchasers, the present appellants, claiming a declaration that the plaintiff's half-share in the properties did not pass to the appellants at the Court-sale, and claiming also possession of his half-share on equitable partition, together with mesne profits. The learned Judge of the lower Court has allowed the plaintiff's claim. Upon the view which the learned Judge below tool of the case, the terms of his decree are formally correct, except in one particular and that is, in his description of the plaintiff's share as a “half-share” in the plaint houses. It appears to me that the word “half” occurring in these passages in the decretal order should be altered to the word “undivided” and with this verbal correction, the decree, as it stands is a correct order, assuming that the learned Judge's view of the law of the case is correct.

2. On behalf of the present appellants, two points have been taken by their learned counsel. The first of them may, I think, be disposed of in very few words. The contention here is that on the facts of the case the lower Court should have held that the son's interest also passed at the Court sale. The learned Judge below has disallowed the defendants' contention upon this point, in reliance upon this Court's ruling in Timmappa Devarabhatta v. Narsinh Timmaya Hebar(1). I have no doubt that the learned Judge was right in thus disposing of the point, and that no distinction can be drawn between the present facts and those upon which the case of Timmappa Devarabhatta v. Narsinh Timmayya Hebar was decided. It is unnecessary for us to consider whether the ruling in Timmappa's case could be distinguished, if in fact the creditor's suit of 1904 had been brought against the joint family firm. For I am clear upon the facts on this record that this suit was not so brought but was brought against the father personally. I hold therefore following Timmappa Devarabhatta v. Narasinh Timmayya Hebar, that the learned Judge below was right in deciding that the son's share did not in fact pass to the purchasers at the auction sale.

3. But the second point taken on the appellants' behalf is more substantial and difficult. The facts are that the sale in execution was held in bona fide ignorance of the existence of the plaintiff as the son of defendant 5 and that over and above the two properties, now in controversy, there are other properties belonging to the joint family. In this condition of the facts Mr. Desai has contended that this suit by the son for a partial partition of the properties is bad. The learned counsel began his argument upon this point by reminding us of Lord Westbury's language in Appovier v. Rama, Subba Aiyan(2), where his Lordship says:

“According to the true notion of an undivided family is Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property that he, that particular member, has a certain definite share. No individual member of an undivided family could go to the place of the receipt of rent, and claim to take from the collector or receiver of the rents a certain definite share.”

4. That being so the son, as the argument proceeded, is not a tenant-in-common, but a co-parcener jointly owning the whole, and the plaintiff consequently cannot claim to be entitled to a half-share in just these two particular properties out of all the properties owned by the joint family. His claim must be, argued counsel, that on a general partition of the joint family property, he and his father are entitled to equal shares. It was pointed out that in a somewhat similar case before the Calcutta High Court, Koer Hasmat Rai v. Sunder Das(3), Mitter, J. in delivering the judgment of the Court, said:

“If this suit be treated as one for partition, the plaint was open to the objection that the whole of the family property was not included in it. This is not a more technical objection, because on partition of the whole of the joint family property the mauzas in dispute might under certain circumstances fall entirely to the father's share.”

5. So, here Mr. Desai contended, that if the son was relegated to his proper remedy of a suit for general partition, the result would ordinarily be that the Court effecting the partition would be able, if it so chose, in working out the equities between the parties to allot to the father as his share those properties which at the execution sale passed to the present appellants. It was observed that this argument received strong support both from the language of West, J., in Pandurang Anandrav v. Bhaskar Shadahsiv(4) and from the judgment of Sir Michael Westropp, C.J, in Udaram Sitaram v. Ranu Panduji(5). On the whole therefore it was contended that this suit could not succeed, and that the Court should direct the plaintiff, if so advised, to amend his plaint so as to convert the suit into one for general partition, so that on such general partition, if made, the equities between the parties might be adjusted in the manner which I have indicated. It is unnecessary however to consider what the Court's view would be upon this argument if the point were res integra, open to determination now without reference to pronouncements by a higher Court and with reference only to the decisions of Sir Michael Westropp and Sir Raymond West. Those decisions were delivered in 1875, and in 1877, in the case of Deendyal Lal v. Jugdeep Narain Singh(6) their Lordships of the Privy Council have, I think, indicated their preference for another course of procedure in such litigation. In considering this decision of the Privy Council in contrast with the judgments of Sir Raymond West and Sir Michael Westtropp, it is, I think, of some materiality to point out that in the Bombay suits the plaintiff was not the co-parcener but the purchaser, whereas before the Privy Council the converse was the case. In Deendyal's case their Lordships at the end of their judgment say that they

“are of opinion that they ought not to interfere with the decree under appeal so far as it directs the possession of the property, all of which appears to have been Anally and properly found to be joint family property to be restored to the respondent (that is, the plaintiff, the son of the judgment-debtor). But they think that the decree should be varied by adding a declaration that the appellant, as purchaser at the execution sale, has acquired the share and interest of Toofani Singh in that property, and is entitled to take such proceedings as he shall be advised to have that share and interest ascertained by partition.”

6. This method of dealing with such suits was followed by their Lordships in the latter case of Hardi Narain Sahu v. Ruder Perkash Misser(7), where the judgment of their Lordships was delivered by Sir Barnes Peacock. That was a case under the Mitakshara law where the right, title and interest of a father in the joint family estate had been sold in execution of a money decree, and upon the question as to what the purchaser took at such a sale Sir Barnes Peacock says:

“The bond holder had sued on his bond, obtained a decree, taken out execution against joint property, and become the purchaser of it at the execution sale. 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.”

7. Though for particular reasons explained in that case their Lordships did not interfere with the High Court's decree they took occasion to refer to Deendyal's case and to point out that “the decree which ought properly to have been made would have been that the plaintiff, respondent 1, should recover possession of the whole of the property with a declaration that the appellant, as purchaser at the auction sale had acquired the share and interest of Shib Perkash Misser, and was entitled to take proceedings to have it ascertained by partition.” It seems to me that these decisions of the highest Tribunal conclude the matter now before us and I need only refer to the cases of Subramanya Chettyar v. Padmanabha Chettyar(8) and Ram Charan v. Ajudhia Prasad(9), as authority for the view that when a co-parcener is suing an auction-purchaser it is not a valid objection to the suit that the co-parcener claims only a partial partition. On these grounds I think that the determination of this suit must follow the principles of the Privy Council judgments, I would allow the lower Court's decree to stand with the verbal amendment which I have already specified but I would stay the execution of the decree for a period of three months directing that if during that period of three months, the present appellants' file a suit for partition against the plaintiff, the stay of the present decree should last until the disposal of the appellant's suit for partition: but if such suit for partition be not brought within the three months allowed then this appeal to be dismissed with costs. It is not disputed that the appellants here as purchasers at the execution sale have acquired the share and interest of the father, defendant 5, in this property. The appellants will pay half the respondent's costs and bear their own costs in this appeal.

8. Kemp, J.:— Defendant 5 is the father of the minor plaintiff. The plaintiff brings this suit against defendants 6 and 7, who are the holders of a decree against his father defendants 1 and 4, the purchasers at the auction-sale held in execution of that decree, and defendant 5, his father, for a declaration that the plaintiff's half-share in the two properties in the suit being part of the joint family property of the plaintiff and defendant 5 was not sold in execution of the decree against his father, and for possession of and his half-share by equitable partition; mesne profits.

9. Now an auction-purchaser of the share of a co-parcener sold in execution of a decree against the co-parcener, in order, to separate the share of the co-parcener from the joint family property, must bring a suit for partition. It has been held by the Privy Council in the cases referred to by my Lord that where he does not do so but obtains possession the other co-parceners are entitled to sue to eject him and that all that the auction-purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the co-parcener against whom the decree has been passed. Possibly, the reason for that was that the auction-purchaser should act be allowed to avoid the necessity of having to file a suit for partition by obtaining possession of any portion of the joint family property by virtue of his purchase under the decree. But, in effect what the plaintiff in this suit claims is a partition of the two properties which are in possession of the auction-purchaser. So that be consents to a partial partition of those two properties. The decisions in the cases of Ram Charan v. Ajudhia Prasad and Subramania Chettyar v. Padmanabha Chettyar show that he may bring such a suit. But in order to avoid any dispossession of the plaintiff as regards these two properties which might he caused if the auction-purchaser were relegated to a suit for partition and the plaintiff now put into possession it is desirable that execution in this case should be stayed.

10. I therefore agree that the decree of the lower Court, with the amendment of the word “half-share” into “undivided share,” should be allowed to stand and that there should be a stay on the terms proposed by my Lord.

G.P/R.K

11. Decree varied.