Mahabir Prasad, J.:— These appeals arising out suits between the same parties have been heard together by their consent. The appeals were on behalf of defendant no. 1 as originally constituted. His minor sons, who were defendants 3 and 4 in the suits were not made co-appellants and were arrayed as respondents, to the appeals. On their behalf applications have been made before this Court, by their guardians-adlitem to have them transposed from the category of the respondents to that of the appellants. It is stated on their behalf that on account of the default of their guardians-ad-litem who represented them in the Court below, no appeal was filed on their behalf. In the circumstances of the present case their prayer is allowed as their transposition from the category of the respondents to that of the appellants does not in any manner change the scope of the appeals and the main question which has to be decided in the appeals remains the same, and it is necessary in the ends of justice to so transpose them.
Dr. D.N Mitter, however, appearing on behalf of the contesting respondents opposed this application. He raised a contention that as section 22 of the Limitation Act had no application to appeals, this transposition could not be done, and he relied upon the decision in the case of Chandrika Ray v. Ram Kuer Thakur in support of his contention that the application, of section 22 of the Limitation Act is limited to suits only. That section 22 of the Limitation Act does not apply to appeals cannot be questioned, but it does not appear how its non-application to appeals can be in the way of an appellate Court exercising its power to transpose a respondent to the category of an appellant in proper cases. The effect of section 22 of the Act applying to appeals is that where a respondent is transposed to the category of an appellant, the appeal as regards him will not be deemed to have been instituted when he was so made an appellant. The appeal is one and the date of its filing even as regards him will be the date on which it was originally filed. To my mind, the only cases where the appellate Court will not exercise its power and will not allow a respondent to be transposed to the category of an appellant is where the result of such transposition is likely to be that new grounds not common to the appellants already on the record, may have to be, determined for disposing of the appeal. Order 41 rule 4, Civil Procedure Code, fully empowers an appellate Court to reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be, irrespective of the fact that the appeal is preferred only by one of the plaintiffs or one of the defendants, if the decree appealed from proceeds or any ground common to all the plaintiffs or all the defendants. Order 41 rule 33, Civil Procedure Code authorises the appellate Court to pass any decree and to make any order which ought to have been passed or made, and this power may be exercised by the Court, notwithstanding that the appeal is as to the part only of the decree, and may be exercised in favour of all or any of the respondents or parties although such respondents and parties may not have filed any appeal or objection. The appellate Court, having such large powers to pass whatever decree it considers just and proper in the case that comes before it can certainly allow transposition of a respondent to the category of an appellant in cases, where ends of justice require it.
The appeals, therefore, now stand as having been instituted on behalf of not only defendant no. 1 but as also on behalf of the minor defendants 3 and 4.
Appeals nos. 39 and 40 of 1945 are against the decision of the Additional Subordinate Judge of Motihari, dated the 16th September, 1944, decreeing two money suits which were, heard together with the consent of the parties and for the sake of convenience. These suits were instituted for recovery of damages' for use and occupation. One of them related to the income from Dasehra Mela and the Naika Bazar held at Madhuban on bakasht and gairmazrua malik lands, and the other related to the produce of the bakasht and gairmazrua malik lands and also to the yields from the orchards situate in village Madhuban Khas and Tola Gangapur. Appeal no. 219 of 1946 is against the decision of the Additional Subordinate Judge of Motihari, dated the 29th January, 1946, decreeing a suit for partition of a 4 annas share in Mahal Madhuban bearing tauzi no. 703. The two appeals, as already mentioned, relate to the use and occupation of Bazar lands and culturable lands situate in the Mahal, in respect of which, the suit for partition out of which appeal no. 219 arises, has been instituted.
The facts leading to the institution of these suits, shortly stated, are these. Bhubneshwar Prasad Narayan Singh defendant no. 1, had borrowed a sum of money from one Panchanan Banerji on a handnote. On which basis, Panchanan Banerji obtained a decree against defendant no. 1, and in its execution put his right title and interest stated to be 4 annas share in Mahal Madhuban tauzi no. 703, on sale and purchased it himself. The sale was held on the 7th of September, 1932. Delivery of possession was effected in favour of the decree-holder purchaser on the 25th of January 1935. The plaintiff, who is transferee from Panchanan Banerji therefore, claims to be proprietor of 4 annas share of Mahal Madhuban, and to be jointly in possession of this share with the defendants' 1st party who are co-proprietors of the remaining 12 annas. Defendants 5 and 6 are zarpeshgidars at the 12 annas share belonging to defendants 1st party excluding the bakasht inalik lands, gairmazrua malik lands and the Naika Bazar in village Madhuban. Defendant no. 7 is a zarpeshgidar of 12 annas share of defendants 1st party in respect of village Kalhara and 2 annas, share of the old Madhuban Bazar, the remaining 10 annas of the old Bazar being in zarpeshgi of defendants 5 and 6. Tauzi no. 703, it appears, consists of villages Madhuban and tolas Gangapur, Bhanwarua, Kulhara, Semri, Dihu and Sariya. The plaintiff is a purchaser under a sale deed of the 1st of February, 1935, from the said Panchanan Banerji, who had auctioned-purchased the right, title and interest of defendant no. 1 in the execution sale held in Execution case no. 16/32 of the Subordinate Judge's Court, Motihari. The plaintiff alleges that, as he has been feeling inconvenience in continuing in joint possession and as the defendants declined to have an amicable partition of their respective shares, there was no alternative but to institute the suit for partition.
The other two suits giving rise to the other two appeals, were instituted earlier claiming, damages for use and occupation as the plaintiff was, wrongfully kept out from the income derivable from the Dasehra Mela and the Naika Bazar and was deprived; of the produce and enjoyment of Bakasht lands of the Mahal in question. All the suits were decreed by the Additional Subordinate Judge. Hence these appeals.
The decision of these appeals, it will be seen, depends upon the determination of one main question, namely, what interest was actually sold and purchased by Panchanan Banerji, the predecessor-in-interest of the plaintiff, at the auction sale held in: execution of the money decree obtained by Panchanan Banerji against defendant no. 1, and whether by his purchase Panchanan Banerji and his successor-in-interest, the plaintiff, became entitled to joint possession of the property to the extent of the interest so purchased.
Exhibit 1 is the sale certificate dated the 7th of September, 1932, and what it mentions as having been sold is “right, title and interest of the judgment-debtor, which, on partition, would be 4 annas out of 16 annas.” It is admitted that in the money suit, the decree that was passed and in the execution proceeding relating to that decree, only defendant no. 1 was a party. It is also admitted that, at the time of the sale, defendant no. 1 was a junior member of a joint Hindu Mitakshara family, his grandfather Babu Bishun Prakash Narain Singh being the karta, and his father Lachmi Prasad Narain Singh, and his two sons being the other coparceners. It is also not in controversy that, on partition the share of defendant no. 1 at the time of the sale would have been 1 anna 4 pies only in the Mahal sought to be parttioned. What is claimed on behalf of the plaintiff, is that what was sold and purchased at the execution sale, was not only the right, title and interest of defendant no. 1, but also those of his sons defendants 3 and 4. It is contended that it is clearly stated in the sale certificate that the right, title and interest of the judgment-debtor, which was being sold and, purchased was to be on partition 4 annas, and it is obvious that unless the right, title and interest of his sons were also included, the interest of defendant no. 1 in the property sold could not be on partition a share of 4 annas. It is urged, therefore, that the interest to the extent of 4 annas as representing the share of defendant no. 1 and his two sons was sold and purchased by Panchanan Banerji who actually got joint possession of that interest by the delivery of possession which was effected on the 25th of January, 1935. The plaintiff claims to be put in separate possession of his share of 4 annas of which he is in joint possession.
On behalf of the defendants, on the other hand, it is contended that all that the plaintiff's predecessor-in-interest purchased was the undivided and undefined interest of defendant no. 1 in the joint family property. As to what that interest was, was to be determined by a suit for partition, and the plaintiff cannot claim to have purchased a definite share of 4 annas in the property. The sons of defendant no. 1 were not parties to the suit, or, the execution proceedings and their interest was not, and could not, be put up for sale and purchased by the plaintiff's predecessor-in-interest; The plaintiff, therefore, was not entitled to a 4 annas share as claimed by him. All that he is entitled to on partition is a share of one anna four pies in the properties in suit.
The learned Subordinate Judge, applying the doctrine of the son's pious obligation to pay his father's debts and relying upon the decisions which establish that a creditor is entitled to take into execution, against a father the whole of family property, the sons not being in a position to object, being-bound by; the pious obligation to pay the father's debt, held, that what was sold and purchased, by the plaintiff's predecessor-in-interest was a 4 annas share in tauzi no. 703, and that the delivery of possession having been effected, he came into joint possession of the same. He, therefore, decreed the plaintiff's, suit for partition holding that he was entitled to and was in possession of the 4 annas share, as claimed by him.
What is to be determined, therefore, as already stated, is as to what actually was sold and purchased at the execution sale in question. Some of the principles of Hindu Law, which are firmly established and are relevant to the question for determination, may be stated with advantage. A coparcener of a joint Hindu Mitakshara family has no defined interest in the family property; in an execution of a decree against him what can be sold is his undivided interest entitling the purchaser to sue and have the interest purchased by him defined and partitioned. A coparcener is entitled to no special interest in the coparcenary, nor is he entitled to exclusive possession of any part of the property. There is community of interest and Unity of possession between all the members of the family—Sheo Ganga's case. A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined when the partition takes place — Appoviers's case. Each, coparcener is entitled to joint possession and enjoyment of the family property and is entitled to enforce a partition of the coparcenary property by suit. A coparcener, who is a manager, has certain special powers of disposition over the coparcenary property which no other coparcener has. He can contract debts for family purposes and family business, as also can alienate coparcenary property for legal necessity. If the manager happens to be the father, he has special powers of alienating coparcenary property which a coparcener who is a mere manager has not. He may sell or mortgage ancestral property including the interest of his son, grandson and great grandson therein, for the payment of his own debt, provided the debt was antecedent and was not incurred for immoral or illegal purposes. A purchaser of an undivided interest of a coparcener does not become substituted in the place of the coparcener whose interest he has purchased, and gets nothing more than the right to have the interest of the coparcener, whose interest he has purchased, defined and partitioned. He does not by his purchase become entitled to claim joint possession or by such sale of the interest of a coparcener the joint tenancy is not extinguished, and the purchaser does not become a tenant in common with the other coparceners. He is only entitled in equity to enforce his right in a suit for partition.
What is, therefore, to be seen first in the present case, is whether the plaintiff's predecessor-in-interest purchased anything more than the right of defendant no. 1 to have his interest, as it existed on the date of the sale, defined and partitioned. The expression used in the sale certificate is, as already stated.
“right, title and interest of the judgment-debtor which on partition would be 4 annas out of 16 annas”.
It is clear, what is being sold, is the interest of the judgment-debtor, the extent of which, would be found out on partition. The expression “would be 4 annas” is significant. It clearly shows that what is being conveyed is just the right to have by partition defined, as the law is, the interest of the judgment-debtor in the property on the date of the sale, which, it is expected on partition, would be 4 annas. It is undoubted that the auction-purchaser of the interest of a member of a joint Hindu Mitakshara family cannot predicate at any given moment as to what that interest is or will be any more than the coparcener himself. The statement, therefore, that on partition the interest of the judgment-debtor would be 4 annas can be no more than mere expectation. What again cannot be disputed is that the auction-purchaser does not by his purchase get the right to joint possession and joint enjoyment of the property which the coparcener whose interest he has purchased, has. The sale certificate Exhibit 1, therefore, must be read as having conveyed to the predecessor-in-interest, of the plaintiff nothing more than just a right to sue for partition for having that interest defined, and definitely not the right, which the coparcener has on the date of the sale to possession and enjoyment of the family property.
As the defendant no. 1 on the date of the sale was admittedly only a junior member of the family and not a manager, he had no power of disposition over the coparcenary property either that of a mere manager or that of a father-manager. It is to be borne in mind that a mere manager or a father-manager of a, coparcenary while he has a power of disposition over the coparcenary property under certain circumstances in excess of the powers of other junior members of the family, his power to claim partition is just the same as the power of other members of the family, limited to having his own interest in the family property defined and separated. In other words, the manager or the father-manager cannot under any circumstances claim to have the interest of other members of the family defined and partitioned as his own. To make it more explicit, it may be stated, that while it is possible for a manager of a Hindu family to dispose of the whole coparcenary property for legal necessities, and for a father-manager to dispose of the whole of that property for his own debts if the other members of the family happen to be his sons, grandsons and great grandsons, it is not open to them for any reason whatsoever to claim that the interest of other members of the family may be defined and partitioned as theirs. The doctrine of pious obligation of the sons to pay his father's debt has not been extended and cannot be extended to entitle the father in the event of partition to have the interest of his son's allotted to him. It can, therefore, never be that a creditor, who has obtained a decree against a father, who at the date of the decree and sale is only a junior member of the family, can put up for sale and purchase an interest which will entitle him on partition not only to as here of the family property which may be available as the, interest of his judgment-debtor, the father, but also the interest of his sons as well.
The position, however, is entirely different if the coparcener against whom the decree is obtained is the karta of the family and not only a junior member of it. What is liable to be taken in execution of such a decree is; the entire joint family property, notwithstanding that other members of the family are no parties to the decree. The reason seems to be that a karta can be sued as representing the family for a debt contracted by him for family necessities or family business or in respect of family properties and the decree passed against him is deemed to be a decree against all the members of the family, and, as such, is binding upon them. What, therefore, can be and is generally put up for sale and purchase in execution of such a decree is the entire joint fatally property. The purchaser at such an execution sale becomes entitled, to immediate possession of the joint family estate sold unlike the purchaser of an undivided interest of a coparcener in such property who is entitled only to have the interest purchased by him defined land partitioned by a suit for that purpose. If the karta happens to be the father, the creditor, as already stated, is entitled to sell the entire joint family property even for his personal debts if the other coparceners are no other than his sons. It is plain, therefore, that if the father against whom the decree is passed is not the managing member, and the other coparceners are not only his sons, the creditor is not entitled to put up for sale the entire joint family and what can be put up for sale and purchased in execution of a decree for a debt contracted by him for his personal benefit and obtained only against him is his undefined and undivided interest in the joint family property, and the purchaser at such van execution sale does not become entitled to anything more than a right to claim possession only when by partition the interest purchased by him has become ascertained and separated. This important distinction between the cases where the creditor obtains a decree against a father who also is the karta and those where he is a mere junior member of a family is of great consequence and has to be borne in mind in determining the point that arises in the present case. In the former case the creditor is undoubtedly entitled to attach and sell the whole joint family property including the son's interest for debts contracted by the father for his personal benefit. In the latter case, although the son of a father, who is only a junior member of the family, is under pious obligation to pay his father's debts, and the creditor can, if he is so minded, enforce that liability by impleading the son also as a party to his suit for realisation of the debt [Lalta Prasad v. Gajadhar Sukul], he cannot enforce the money decree obtained against the father alone by attachment and sale of an undivided interest in the family property which is not only the interest of the father, his judgment-debtor, but also includes the undivided interest of his son. The reason for this is not far to seek. The father in such a case not being the karta did not and could not represent his son, and a decree passed against him alone could under no circumstances be construed as having been passed against him in a representative capacity and the decree might be deemed also as being against his son and binding upon nim. No question, therefore, can possibly arise in respect of such a decree, and proceedings in execution relating to such decree as to whether what was sold and purchased by a purchaser at the execution sale was anything more than the interest of the judgment-debtor in the family property. The cases necessitating construction of execution proceedings for determining whether a decree obtained against a father alone has been enforced by attachment and sale of the son's interest as well, are those where the decrees under execution against the father who on the date of the suit was also the karta of the family and could have been sued alone as representing the joint family, and in execution of which decree, the entire joint family property including the son's interest could have been attached and sold. Although the creditor is entitled to sell the entire joint family property, it goes without saying that he is not obliged to do so. He may rem aim content by putting up only the father's interest for sale, and if it is that which he has only put up for sale, he cannot enter into possession of the joint family property and his only remedy is to bring a general suit for partition and not possession of the share which would be allotted to the father on such partition. But if what is bought and sold is the entire property, the purchaser is entitled to enter into possession of the entire property sold and purchased by him. If, as a matter of fact, the purchaser either claims to have purchased the entire property or has entered into possession of the entire property in execution of a decree passed against the father alone, the sons are entitled to recover possession of the property if on construction of the execution proceedings, it becomes manifest that what was bought and sold was merely the interest of the father and not the entire joint family property. It becomes, therefore, important in such cases to enquire whether the sale passed the whole property including the interest of the son therein or only the father's interest in the property. The determination of this question depends mainly on the terms of the execution and the sale proceedings' such as the application for execution, warrant for attachment, warrant of sale and sale certificate. Certain well known principles have been laid down by judicial decisions for construing execution proceedings in such cases. In the case of Sirpat Singh v. Tagore it was observed: “In cases of this kind, it is of utmost importance that the substance and language, and not the mere technicalities of the transaction should be regarded.” But in a case such as the present where the decree against the father, defendant no. 1, who on the date of the suit, on the date of the decree, and on the date of the attachment and sale was a junior member of the family and did not and could not represent other members of the family including his sons, defendants 3 and 4 in the suit or the execution proceedings, the entire joint family property was not and could not be bought and sold. The question of construction of proceedings in execution for determining whether what was bought and sold included the interest of defendants 3 and 4 really does not arise. It has already been seen that in execution of such a decree the interest of defendants 3 and 4 who were no parties to the decree could not in law be sold at all. There is, however, nothing in the language of processes of execution and the sale certificate in the present case to indicate that what was in, fact bought and sold was anything more than the interest of defendant no. 1 alone the extent of which, however, was left to be determined in a suit for general partition.
It is true, as contended for by Dr. Mitter and held in the case of Lalta Prasad v. Gajadhar Sukul, already cited, that every Hindu son is under pious obligation to discharge his father's debts which are neither immoral nor illegal, irrespective of the fact whether the father is or is not the manager of the joint family, and, therefore, as held in that case, the creditor may be entitled to enforce that liability against the sons in a properly constituted suit against them. But the creditor is not for that reason entitled to proceed in execution of a decree passed only against the father against the interest of the sons who are no parties to the decree. Defendants 3 and 4 may, therefore, be liable to pay the debt in respect of which the decree in question was passed, but the point is whether this liability has been elevated into a decree against them in the execution of which their interest in the joint family property, can be taken. The answer to the question which arises, it will be seen, does not so much depend on any principle of Hindu Law as on well established principle of procedure that a decree can be executed and realised only from the properties of the judgment-debtor and nobody else. The Full Bench case of Atul Krishna Roy v. Lala Nandanji while holding that a Mitakshara son even after partition liable for debts contracted by the father during jointness on the doctrine of pious obligation, held that where a suit filed against, the father alone is decreed after a partition is effected between the father and sons and the father dies, though the sons are liable for pre-partition debts of the father, the decree against the father alone cannot he executed against the separate share of the sons. What Noor, J. stated as the reason for coming to this conclusion is clearly applicable to the situation arising in the present case and may be quoted with advantage:—
“The problem is not so much of Hindu law as of procedure. There can be no doubt that a decree can be executed and realised only from the properties of the judgment-debtor and nobody else. Therefore, at first sight it would appear that a decree against the father cannot be executed against the sons. No doubt, when a family is joint and a decree is obtained against the father alone it can be executed against the joint family property including the undivided share of the sons; but this stands upon a different footing. The father being joint with his sons represents the entire family as he has got a complete disposing power over the family property for the satisfaction of his antecedent debt. The sons must be deemed to have been represented by the father in the suit. The position entirely changes when the family is disruputed. No doubt, as I have held, the sons are still liable to pay the debt which could have been taken out of the joint family property at the time of partition; the father no longer represents the sons, nor does he represent the property. Therefore a decree obtained against the father alone after partition cannot be executed against the separated share of the sons on the simple ground of procedure that they are not the judgment debtors under the decree”.
How could this decree have been executed against the sons, when they were not parties to it, nor could they have been deemed to be party to it?”.
Agarwala, J. (as he then was) observed:—
“Assuming therefore the liability of Hindu sons for their father's pre-partition debt, there appears to be no reason why they should be in any worse position than anyone else with, regard to the enforcement of this liablity…………It may however be argued that as when a creditor sues a father alone on a personal debt when he is joint with his sons, and obtains a decree against him, the decree is executable against the sons although they were not parties to the decree, they are in no worse position if the decree is obtained after partition. At first sight, the argument appears unanswerable but a more careful scrutiny of it reveals its inherent weakness. So long as the family is joint the father represents his own and his sons' interests.”
The true position seems to be this. In order that a creditor may be entitled to execute a decree obtained only against a member of the Hindu family against family property, the member of the family against whom the decree has been obtained must have (1) the power to dispose of the whole of the coparcenary property either for the family necessities and or his own debts; and (2) the capacity to be sued as representing the coparcenary and the entire coparcenary property. That power of disposition varies with whether such a member is only a mere manager or also a father. If he is the latter and the other members are his sons, as held in Brij Narain's case, he may incurring debt so long as it is not for immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt passed only as against him. The right of the creditor to so execute his decree is dependant upon the power of the person against whom the decree is obtained to dispose of the family property for the purposes mentioned. In other words, the right of the creditor to take the property in execution is coextensive with the power of the person against whom the decree stands, to dispose of the coparcenary property. The essence of a caparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. The manager or the karta as the head of the family has the power to make lawful disposition of the family property in the interest of the family. He alone can act for the whole family. He alone can sue and can be sued as representative for the whole family. No other member of the family has that power nor that status. It is on that account that a decree against him is deemed to be a decree as against the rest of the family unless it can be shown that the decree is in respect of a debt which could not be binding on the family and the other members of the family who were no parties to the decree. They are, therefore, entitled in a suit of their own to have it declared that decree was in respect of a debt which was not binding upon them. But so long as that is not done, the decree is binding upon the whole family because it has been obtained against a person who could represent the whole family in transactions on behalf of the family. If such a manager also happens to be the father, and the family of which he is the manager consists only of his sons, his power of disposition over the property becomes at once enlarged. He can dispose of the whole of the family property for his own debts as well. This power of disposition which he is held to have is based upon the doctrine that the sons under, a pious obligation to pay their father's debts, are bound to pay those debts. If that is so, why not the father himself can pay off those debts by disposing of the estate which he holds as the karta of the coparcenary consisting of the sons. Again, if the father can validly dispose of the estate to pay off his own debt, why cannot the creditor, in execution of the decree against the father in respect of those debts take the entire estate including the interest of the sons. What, therefore, to be remembered is that before a father can dispose of the family property for the payment of his debts, he must have first in him the right to act for the family and deal with the whole estate as the managing member. It will be seen, therefore, that before a creditor can work out this right of the father to dispose of the property belonging to the sons for the payment of his own debts by executing a decree passed only against the father against the property also belonging to the sons, the father must also be the managing member: In the present case, however, the question whether the decree passed against defendant no. 1 was executable against the entire joint family estate including the interest of his sons and whether it was so executed as already stated hardly arises. The decree was against defendant no. 1. It was executed against defendant-no. I and as defendant no. 1 happened to be a junior member of a Hindu Mitakshara family what was purchased and could have been purchased in the execution sale-was, as already stated, only the right which the defendant no. 1 had on that date, to demand and sue for partition of just his own share in the family, property, that share having been till then undefined of defendant no. 1 on the date of the sale had been the managing member of the family, it would have been possible for the creditor to have put up for sale and purchased the whole joint family property and taken possession thereof. The auction-purchaser in that case would not have purchased merely a right to sue for partition but the whole family property would have passed to him by reason of such a sale. In cases in which the auction-purchaser purchases in the execution of a decree against a member of Hindu Mitakshara family just an undivided interest entitling him to compel partition, in a sense no property passes to him of which he can be put into immediate possession. If he does succeed in getting possession of the joint family estate having only purchased an undivided interest of a member of the joint Hindu Mitakshara family, he is liable to be ejected therefrom as being unlawfully in possession thereof. In the case of Deendyal Lal v. Jagdeep Narain Singh their Lordship affirmed the decree of the Court below, which had decreed possession in favour of the coparceners against the creditor on the finding that what he had purchased in execution of his decree was an undivided interest of a member of the family and had wrongfully taken possession of the whole of the family property. What their Lordship said is that the right, of the purchaser at the execution sale should be limited to that of compelling the partition which the debtor might have compelled, had he been so minded, before the alienation of his share took place and that I 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 finally and properly found to be joint family property to be restored to the respondent”. In the present case, therefore, it must be held in law and in fact that what was sold and purchased by the plaintiff's predecessor-in-interest and what the plaintiff is entitled to on partition is the interest which defendant no. 1 had in the family property on the date of the sale. It is not disputed that if he had claimed partition on that date, he could not have obtained as his share more than 1 anna 4 pied in the family property;. The plaintiff could not have purchased from Panchanan Banerji anything more than what he had purchased at the execution sale. The plaintiff, therefore, is entitled only to 1 anna 4 pies share in Mahal Madhuban tauzi no. 703 and the finding of the Court below on issue no. 6 that the plaintiff is entitled to 4 annas share in tauzi no. 703 must be set aside. The findings of the Subordinate Judge on other issues in the suit giving rise to appeal no. 219/46 were not challenged, and they are affirmed.
So far as appeals nos. 39 and 40 of 1945 are concerned, having regard to the conclusion already reached that by his purchase the predecessor-in-interest of the plaintiff was not entitled to joint possession of the property, unless he had sued for partition and had the interest purchased by him defined, it must be held that the plaintiff had no cause of action for the claim made by him in the suits for damages for use and occupation giving rise to these appeals. The claim in those suits is in the nature of mesne profits in respect of the share which the plaintiff alleges to, have purchased, at the execution sale. It has been held in the case of Maharaja of Bobbil v. Venkataramanjuly Naidu that a purchaser of the undivided share of a member of a joint Hindu family does not thereby become a tenant in common with the other members and hence he is not entitled to any mesne profits in respect of his share for the period between the date of his purchase and the date of his suit for partition. It is clear that defendant no. 1 as a member of a joint Hindu family could not have claimed anything for use and occupation of his share of the joint family property before the date of his demand for partition. It has been held by this Court in the case of Nand Kishore Prasad v. Parmeshwar Prasad Singh that a coparcener who sues for partition is entitled only to a division of property as from the date when the notice of separation was given. Until the actual determination of his share and the separation of a corresponding takhta, the karta or other coparceners in possession being rightly in possession, are not liable to him for mesne profits in the sense of damages. The purchaser of a coparcener's interest cannot be entitled to more than what his vendor had, and he no more than his vendor can claim mesne profits in this latter sense. Similar is the view expressed in the case of Timbak Ganesh Karmarkar.
In the result, the decrees passed against which Appeals nos. 39 and 40 of 1945 are directed are set aside, and the appeals are allowed with costs. The decree for partition passed in Appeal no. 219 of 1946 is modified to the extent indicated above, and the appeal is partly allowed with proportionate costs.
Manohar Lall, J.:— I have perused the exhaustive judgment prepared by my learned Brother, and I agree that the vendor of the plaintiff derived title only to the extent of one anna and four pies in mahal Madhuban, Touzi no. 703. The decision would have been different if the judgment-debtor, namely, the father was the head member of the Joint Hindu family and not, as in this case, the junior member of the joint Hindu family of which the grandfather was the karta. The argument that in the sale proclamation and the sale certificate the shares sold had been stated to be four annas, and therefore, this must be held to be the real share purchased does not appeal to me. The correct interpretation of the sale certificates and the sale proclamation is that the interest of the father alone had passed which was wrongly thought by the decree-holder to be four annas; but the sons were no party to those proceedings and their interest cannot be held to have passed to the auction purchaser. This is on the assumption that by the auction purchase any definite share passed to the auction purchaser, but in truth, as has been shown by my learned Brother; such an auction purchaser merely acquired a right to partition, and it is only when the partition suit is brought that the court decides what is the definite share-which could be allotted to the judgment-debtor in whose shoes the auction purchaser stepped in. I have not thought it necessary to review the authorities over again, as I am in entire agreement with the views expressed by my learned Brother as to the principles to be deducted from important authorities which have been discussed by him including those cited at the bar. For these reasons I agree that the decrees-which are the subject of appeals nos. 39 and 40 of 1945 should be set side, and the appeals are allowed with costs; and the decree for partition passed in appeal no. 219 of 1946 will be altered to the extent indicated, and this appeal should be allowed with proportionate costs only.
K.D
Appeals allowed.