Westropp, C.J:— Krishnaji Ramchandra obtained against Ramchandra Balaji, (one of the sons of the applicant Balaji Anant,) a money decree, and upon it an attachment against the alleged one-twelvth share of Ramchandra Balaji in seven parcels of land then in possession of the applicant, and caused the same to be sold by the Court of the Subordinate Judge of Vengurla which had made the decree. Yeshvant Narayan Adarkar became the purchaser for Rs. 18-5-3 on the 8th February, 1877. Neither the order for confirmation of that sale, nor the certificate of sale, is in evidence. However, for the purpose of the present judgment (and for that purpose only), we assume that the sale was confirmed, and such a certificate given. Yeshvant Narayan Adarkar, subsequently—viz., on the 23rd July, 1879—sold the subject of his purchase to the respondent, Ganesh Janardan Adarkar, for the same sum. The deed of purchase is not in evidence, but that re-sale does not appear to be disputed. He applied to be put in possession. A warrant for that purpose was issued by the Subordinate Judge. The present applicant, Balaji Anant, obstructed the execution of that warrant. The respondent then applied, under section 335 of act x of 1877 to have that obstruction removed and the Subordinate Judge, on the 15th January, 1880, made an order complying with that request, and directing the present respondent to be put into possession. Balaji Anant thereupon made the present application to the extraordinary jurisdiction of this Court to set aside that order. A rule nisi was made by Pinhey and F.D Melvill, JJ., to set it aside; and cause against the rule nisi having been shown before us, we are of opinion that the cause shown should be disallowed, and the rule nisi made absolute with costs. Our reasons for this opinion are that, even assuming what the applicant denies, namely, that the property is ancestral property, it has not been contended, on behalf of the purchaser, that any division of the property, by metes on bounds or otherwise, of which he claims a twelvth part as the share of the judgment-debtor Ramchandra, had taken place between the latter and his father, Balaji, and the other co-parceners (if any), whereby a twelvth part of the property, or any other share thereof, had been allotted to Ramchandra, or that Ramchandra ever bad separate occupation of a twelvth or any other part of that property, or had the management of any part of it. In Appovier v. Rama it has been stated by the highest judicial authority in Indian cases that, “according to the true notion of an undivided family in 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 undivided family could go to the place of the receipt and claim to take from the Collector or receiver of the rents (i.e, the family manager) a certain definite share. The proceeds of undivided property must be brought, according to the theory or of an undivided family, to the common chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family.” Lord Westbury, who thus spoke in delivering the judgment of the Privy Council, then proceeded to discuss the case of a family which had voluntarily agreed to a division of right as distinguished from a division of property,—i.e, the conversion of a joint tenancy into a tenancy in common without any actual partition by metes and bounds. We have nothing of that kind in the present case. Undoubtedly the undivided share of a co-parcener may in this Presedency be alienated by him for valuable consideration, or may be seized and sold in discharge of his separate debt. In Pandurang Anandrav v. Bhasker Sadashiv —where the mortgagee of a portion of the estate of an undivided Hindu family, whose mortgage was executed by two members of the family only, brought a suit to recover, from a third member of the family, the mortgaged premises which were in his possession— the Court (West, J., and Nanabhai, J.,) held that such a suit was not sustainable, and that the mortgagee could only obtain relief against the property by a plenary suit for partition, inasmuch as the share of a co-parcener, being in the estate as a whole and not in any particular part of it, can be ascertained only by taking a general account of the whole estate, and making a distribution in accordance with the result of such an account. A similar opinion was expressed (as an obiter dictum) in Udaram Sitaram v. Ranu Panduji, where it was said that “the sale (judicial or private), mortgage, or other alienation of a share in the undivided family property of a Hindu family, though in this Presidency conferring a right upon the mortgagee or purchaser, and working a severance so far as to render the mortgagee or purchaser a tenant-in-common with the parceners other than he whose share has been thus alienated, cannot be regularly and completely enforced by giving possession except through the medium of partition, which may be effected either amicably with the other parceners, or by a duly constituted suit for the partition of the whole of the family property, to which suit all of the co-parceners, should be made parties.” It is true that in certain cases, in which the purchaser of a co-parcener's share has peaceably obtained possession, Division Benches of this Court have refused to oust him, and have declared him entitled to hold as a tenant-in-common with the other co-parceners. Such were Mahabalaya v. Timaya, Babaji v. Vasudev, and Kallapa v. Venkatesh. In all of these cases the suit was instituted by the co-parceners, other than he whose share had been sold, against the purchaser in possession, and the plaintiffs sought to oust him from that possession. A Division Bench of this Court refused to go beyond those cases in Krishnaji v. Sitaram, which was a suit by a mortgagee of the share of a co-parcener against the other co-parceners for possession. Such a suit that Court deemed to be unsustainable, but it permitted the plaintiff to amend his plaint by converting it into a suit for partition. It distinguished that case from the three last-mentioned cases—saying that those “were all instances in which the purchaser from a co-parcener had already obtained possession of the undivided property or of a part of it, and are, therefore, inapplicable here, where the purchaser (the plaintiff) has never had any real possession.” In Dugappa v. Venkatramnaya the Devision Bench did not go beyond the three previous cases; as the facts of that case show that it, too, was a suit by a co-parcener in which the principal defendant was a purchaser (already in possession) of another coparcener's share. But the more recent case—Indrasa v. Sadu — does go beyond Dugappa v. Venkatramnaya and the three previous cases; as, in it, a Division Bench of this Court—in a suit brought by a mortgagee, claiming under a purchaser, to obtain possession of a house (to the whole of which he, the plain tiff, improperly laid claim) from the co-parcener of the vendor—made a decree whereby it ordered the mortgagee (the plaintiff) to be put into joint possession with the defendant (the co-parcener). Neither the purchaser nor his mortgagee had ever previously been in possession: so that, although the Division Bench grounded its decree upon the above-mentioned cases of Babaji v. Vasudev, Kallapa v. Venkatesh, and Dugappa v. Venkatramnaya, it really went beyond those cases and Mahabalaya v. Timaya, and is in conflict with Pandurang Anandrav v. Bhaskar Sadashiv, and with Krishnaji v. Sitaram, which latter case probably had not then been printed, and does not appear to have been cited. We prefer to adhere to the rule laid down in the two last-mentioned cases, and feel less difficulty in so doing than we should have experienced, had the Court in its judgment in Indrasa v. Sadu noticed the distinction between the cases there relied upon by the Court and that before it. We also deem it a far safer practice, and less likely to lead to serious breaches of the peace, to leave a purchaser to a suit for partition than to place him by force in joint possession with members of a Hindu family, which may be not only of a different caste from his own, but also different in race and religion. We think that the Court has gone quite as far as it can go with prudence in Mahabalaya v. Timaya, Babaji v. Vasudev, Kallapa v. Venkatesh, and Dugappa v. Venkatramnaya. Wo disallow the cause shown, and make absolute the rule nisi to set aside the order of the Subordinate Judge of the 15th January, 1880, with costs.
The case of Indrasa v. Sadu (Second Appeal, Ho. 189 of 1880) referred to above: heard before Mr. Justice Melvill and Mr. Justice Kemball, July 26, 1880:—
This was a second appeal from the decision of E. Hosking, Assistant Judge at Nasik, in the district of Thana, in Appeal No. 114 of 1878, affirming the decree of Krishnamukh, Second Class Subordinate Judge of Yeola.
The plaintiff, Indrasa, brought his suit for possession of a house which he alleged had been sold by one Tukaram, brother of the defendant Sadu, to one Lakshman Bavasa; that, after the sale, Tukaram had continued to live in the house as tenant to Lakshman under a rent note executed by him to Lakshman; that Lakshman, on the 11th January, 1873, mortgaged the house in question to the plaintiff; that Tukaram then passed a new rent note to the plaintiff, and continued to live in the house as plaintiff's tenant; that the plaintiff subsequently brought a suit of ejectment against Tukaram, and obtained a decree against him; that the plaintiff attempted to execute the decree and take possession of the house, but was prevented from so doing by the defendant, who had himself in the meanwhile taken possession of the same. Hence the present suit.
The defendant, Sadu, answered that the house was the ancestral property of himself and his brother Tukaram, and not the self-acquired property of the latter.
It appeared, on the evidence, that neither the plaintiff nor his mortgagor, Lakshman, (the purchaser of the house from Tukaram,) had ever been in actual personal possession of the house.
The Subordinate Judge found that the plaintiff had not proved the house to have been the self acquired property of Tukaram. He, therefore, rejected the plaintiff's claim.
In appeal, the Assistant Judge affirmed the decree of the Court below, on the ground that the house was ancestral property in which Tukaram and Sadu were, respectively, half-sharers, and that the plaintiff could not maintain a suit for the whole of it (19th January, 1880).
The plaintiff, Indrasa, thereupon appealed to the High Court on the 12th April, 1880.
Pandurang Balibhadra for the appellant.— The Assistant Judge found that Tukaram, through whom the appellant derives his title, had a half share, and only a half share, in the house in dispute. Having found that, he ought to have allowed the appellant's claim to that extent, and not to have dismissed it altogether. The appellant is, at least, entitled to the joint possession of the house with the respondent under the previous decisions of this High Court,
Harishankar Balkrishna for the respondent.
The following is the Judgment of the Court delivered by
Melvill, J.:— The appellant's pleader admits that he cannot say that there is no evidence to support the Assistant Judge's finding that the house in dispute is ancestral property; and we must, therefore, accept that finding as conclusive. The house must, consequently, be held to have been the joint property of Tukaram and his brother, the defendant. The plaintiff, having purchased Tukaram's share only, is not entitled to the whole house, nor to the exclusive possession of half of it; but, following previous decisions of this Court (Babaji Lakshman v. Vasudev Vinayak; Kallapa bin Girmallapa v. Venktesh Vinayak; and Dugappa Sheti v. Venkatramnaya, we make a decree that the plaintiff be put into possession of the house jointly with the defendant, and leave it to either of the parties to have their respective shares therein ascertained by a partition suit. The decrees of the Courts below are amended accordingly. The parties to bear their own costs in this appeal.