Shyam Sunder Rai v. Jagarnath Misra

Mullick, J.:— (after stating the facts of the case, as set out above, proceeded as follows):—

The present second appeal is preferred by the defendants on the ground that in view of the finding that the plaintiff was not separate at the time of the sale his claim to recover a half-share cannot be entertained.

Now, upon the authorities, this contention is undoubtedly correct. A coparcener in a joint family who establishes that a member of the family has alienated family property without legal necessity, can ??? to recover the whole property. He cannot be allowed to sue for his own share or any specific portion thereof for the simple reason that in a Mitakshara joint family no particular share can be predicated as belonging to any individual member. In the present case the plaintiff has not only omitted to ask for the recovery of the whole property but he has failed to implead his co-sharers. Therefore, in my opinion, the suit ought not to have been entertained.

The only concession, which the Courts have so far made in the direction of allowing the share of the transferor to be affected, is where the share of the transferor has been attached in execution of a money decree. In such a case the Courts have held that, a co-sharer, who sues for the recovery of the whole property, will be allowed to recover, but that it will be declared that the purchaser of the interest of the transferor is entitled to partition and to recover thereafter that portion of the property which represents the transferor's interest therein. There is no justification for the contention that as the plaintiff was entitled to sue for the whole he is entitled also to relinquish his claim to half and to ask for a decree for the remainder. The Courts have never countenanced a suit of this kind.

The question as to other equitable relief does not arise in this case. In Bunwari Lal v. Daya Sanker Misser a coparcener sued the transferees as well as the coparcencers who had transferred the property. There a decree was made for the recovery of the whole property but it was provided that the plaintiff should refund to the transferees the purchase money paid by them and in the event of his failing to do so, the transferees would be entitled to retain possession of that share, which on partition would represent the interest of the transferors. A somewhat similar course was followed in Mahanth Ram Sunder Das v. Barhamdeo Narayan Thakur. There a coparcener sued for a declaration that a mortgage, in respect of the—joint family property by his coparceners, was invalid. The mortgagees having brought a suit for the enforcement of their mortgage and advertised the joint family property for sale, the declaration given to the plaintiff in his suit was that the whole property was liable to be sold in execution of the mortgage decree, it being-notified at the sale that the plaintiff and his coparceners were possession in proportion to their respective interests and that the shares of the mortgagor coparceners were held subject to the lien of the transferees. No such equity arises in the present case in view of the form in which the suit has been laid.

The result might have been otherwise if the plaintiff had put his claim in the alternative and joined his coparceners as defendants, but he has not chosen to do so; and I think it is not possible to allow him any equitable relief.

It is suggested by the learned Vakil, for the appellants, that we should allow the plaint to be amended. But having regard to the fact that the case has now reached the second appeal stage and that it was open to him in the trial Court as soon as the evidence on the issue as to separation was taken to ask for, the amendment, I do not think we should now allow him to alter the whole aspect of the litigation by including an additional prayer for relief and by bringing new parties on the record.

The result, therefore, is that the decree of the low. Appellate Court will be set aside and the suit will be dismissed with costs throughout.

Bucknill, J.:— I agree.

Decree set aside.