http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

PETITIONER: MAMIDI VENKATA SATYANARAYANA MANIKYALARAO AND ANOTHER

       Vs.

RESPONDENT: MANDELA NARASIMHASWAMI AND OTHERS

DATE OF JUDGMENT: 27/08/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. DAYAL, RAGHUBAR RAMASWAMI, V.

CITATION:  1966 AIR  470            1966 SCR  (1) 628  CITATOR INFO :  F          1975 SC1767  (21)  D          1977 SC1123  (10)

ACT: Indian Limitation Act, Arts 144 and 120-Alienation of  share of  Hindu  Joint family property-Possession  of  members  of family  whether adverse to alienee-Period within which  suit for partition and possession by alienee must be brought.

HEADNOTE: A  decree was passed in a money suit against N and his  four sons  who were members of a Mitakshara Hindu  joint  family. In  execution of that decree the shares of the four sons  in the joint family properties, described altogether as 4/5  th share,  were  put  up  for auction  in  December,  1936  and purchased  by S. N’s interest was not put up for sale as  it was the subject matter of insolvency proceedings.  The  sale to  S  was duty confirmed.  S sold the properties to  P.  On November 6, 1939 an order was made under 0. 21 rr. 33(2) and 96  of  the Code of Civil Procedure for  delivery  of  joint possession  of the properties purchase to P along  with  the members  of  the joint family already in  possession.   This order  was carried out and possession was delivered to P  by publishing  that fact by beat of drum as prescribed  in  the rules.  Subsequently P retransferred the properties to S. On October 16, 1951 S filed a suit against the then members  of the joint family and various alienees asking for a partition of  the joint family properties into five equal  shares  and thereafter for possession of four of such shares by removing the defendants from possession.  The trial court decreed the suit  but held that S was not entitled to a 4/5th share  but only  to a 2/3rd share because before the decree a  5th  son had been born to N who had not been made a party to the suit or   the   execution  proceedings  and   whose   share   had consequently not passed under the auction sale.  Some of the defendants  filed an appeal to the High Court which  allowed the  appeal holding that the suit was barred  by  limitation under  Art. 144 of Schedule 1 to the Limitation Act.  S  had field  a  coss-objection in the High.  Court on  the  ground that  he should have been held entitled to a 4/5th share  of the properties which was dismissed by the High Court without

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

discussion  of  the merits in view of its  decision  on  the question of limitation.  S having died the appellants as his successors in interest appealed to this Court under Art. 133 of  the  Constitution.   The two questions  that  arose  for decision were (1) whether the suit was barred by  limitation under Art. 144 or Art. 120 and (2) whether S was entitled to a 4/5th share. HELD : (Per Sarkar and Raghubar Dayal, JJ.) (i) (a) ’Me view that  the  suit  was  barred under  Art.  144  of  the  suit presented   great  difficulties.   The   article   obviously contemplates  a  suit for possession of property  where  the defendant  might  be  in possession of  it  as  against  the plaintiff.    However,  the  purchaser  of   a   copartner’s undivided interest in joint family property is not  entitled to  possession of what he has purchased.  His only right  is to  sue for partition of the property and ask for  allotment to him of that which an partition might be found to fall  to the  share  of the copartner whose share he  has  purchased. His  right to possession would date from the period  when  a specific allotment is made in his favour.[632 H] 629 S was therefore not entitled to possession till a  partition had  been made.  As possession of the defendants  could  tie adverse  to  him only if he was entitled to  possession  the difficulty in applying Art. 144 arose. [633 B] Sidheshwar  Mukherjee v. Bhubneshwar Prasad  Narain,  [1954] S.C.R. 177, relied on. Vyapuri  v. Sonamma Boi  Ammani, (1916) I.L.R. 39  Mad.  81, referred to. Mahant Sudarsan Das v. Mahan Ram Kirpal Das, (1949) L.R.  77 I.A 42, distinguished. (b)  Even  on the assumption that Art. 144 applied the  suit was not barred.  In the present case the defendants were not in uninterrupted possession for twelve years as required  by the Article.  By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted.  Time had therefore to  commence to  run  from that date, and the suit  having  been  brought within  twelve  years of that date, it was not  bared  under that article. [633 F-G] Sri  Radha Krishna Chanderji v. Ram Bahadur,  A.I.R.  (1917) P.C. 197, relied on. It  could  not  be  said  that  the  order  of  delivery  of possession was a nullity though S and his transferee who had purchased an undivided share in copartners property were not entitled  in  law to any possession at all.  In  making  the order  the  learned Judge had gone wrong in law but  he  had acted  within  his  jurisdiction.  Such an  order  has  full effect if it is not set aside. [634 A-B] Yelumalai Chetti v. Srinivasa Chetti, (1906) I.L.R. 29  Mad. 294, distinguished. Mahadev  Sakharam Parkar v. janu Namji Hatle, (1912)  I.L.R. 36  Bom. 373 and fang Bahadur Singh v. Hanwant Singh  (1921) I.L.R. 43 All. 520, held inapplicable. (ii) Article  120  applies to suits for which no  period  of limitation is provided elsewhere and prescribes a period  of six  years  commencing from the date when the right  to  sue accrues. [636 D] The  right to sue accrues for the purpose of Art.  120  when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it.  In the present  case there was nothing to show that the  right  was ever  challenged  in  any way by the  respondents.   It  was impossible therefore to hold that the suit was barred  under Art. 120. [636 F]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

Mst.   Rukhmabai v. Lala Laxminarayan, [1960] 2  S.C.R.  253 and C. Mohammad Yunus v. Syed Unnissa, A.I.R. 1961 S.C. 808, relied on. Bai Shevantibai v. Janardan R. Warick, A.I.R. 1939 Bom.  322 disapproved  in  so  far as it held that the  right  to  sue accrued from the date of sale. (iii)     The   cross  objection  had  no  merit.   What   S purchased at the auction sale was the share of the sons of S then  bom, in the joint family Properties.  At the  date  of the  auction sale that share which was originally 4/5th  had been  reduced to 2/3rd by the birth of another son to N  who had  not  been  made  a party either  to  the  suit  or  the execution proceedings.  What was purchased at the  execution sale  was  only the shares of the four elder sons of  N  and their share at the date of sale was 2/3rd.  That 630 being  so S was not entitled to get the 1/6th share  of  the fifth  son also allotted to him in the partition suit.  [637 B-C] Per  Ramaswami, J. : (i) The purchaser of a share  of  joint Hindu family property doe-, not acquire any interest in  the property  he  cannot claim to be put. in possession  of  any definite  place of Property.  A suit for partition filed  by the alienee from a is not, in a technical sense, a suit  for partition  and  such  a suit have the  necessary  effect  of breaking up the joint ownership of the members of the family in the joint family in the joint property nor the  corporate character  of  the  family.  Such being the  rights  of  the alienee his right to sue for partition cannot be said to  be a  continuing right subject to no period of  limitation  for enforcing it. [638 F-H] Aiyyagari  Venkataramayya  v. Aivyagari Ramayya,  I.L.R.  25 referred to. (ii) Though the alienee of an undivided interest of a  Hindu is not entitled to joint possession with other copartners or to separate possession of any part of the family property he is entitled to obtain possession of that part of the  family property  which might full to the share of his alienor at  a partition. [640 B] In  the  present  case the alienee  instituted  a  suit  for general the prayer that he may be put in possession of  that part  of  the family property which may be allotted  to  his share.   It is not right to such a suit as a suit  for  mere partition.   The main relief sought by the plaintiff is  the relief of possession of that part of the property which  may be  allotted  to  the  alienor’s  share  and  a  relief  for partition is only a machinery for working out his right  and ancillary to the main relief for possession of the  property allotted to the alienor’s share. what the plaintiff seeks is actual delivery of possession.  Such a suit falls within the of Art. 144 of the Limitation Act. [640 B-D] Thani v. Dakshinamurthy.  I.L.R. 1955 Mad. 1278, appoved (iii)     the  possession of the non-alieniting  members  of the family cannot be said to be possession on behalf of  the alienee also because the purchaser-alienee does not  acquire in interest in the property sold and does not become tenant- in-common with the members of the family tier is he entitled to  joint  possession with them.  In the  absence  of  clear acknowledgement of the right of the alienee or participation in  the enjoyment of the family property by the alienee  the possession  of  his   alienors  share.  The  fact  that  the alienee     has  purchased  an  undivided  interest  is   not inconsistent  with the conception of adverse possession,  of that interest. [640 E-H] Sudarsan Das v. Ram Kirpat Das, A.I.R. 1950 P.C. 44,  reliel

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

on. According  to the third column of Art. 144, time  begins  to run  from  the  date when the possession  of  the  defendant becomes  adverse  to the plaintiff.  In  the  present  case, therefore, adverb possession bengon to run from the date  of purchase  of  the undivided share i.e.  front  December  21. 1936. [640 E; 641 FF] (iv) However  the grant of symbolic possession bv the  court in  favour  of  P  after notice to defendants  2  to  5  was tantamount  in  law  to delivery of  actual  possession  and therefore  efficient to break up the continuity  of  adverse "scion in favour of the defendants.  Even assuming that  the grant  of symbolic possible ought not to have been made  and that, 631 the executing court acted illegally in making such an order, it  could  not  be argued that the executing  court  had  no jurisdiction  to make the order or that the act of  symbolic possession was a nullity in the eye  of law. [642 B] Yelumalai  Chetti  v. Srinivasa Chetti,I.L.R. 29  Mad.  294, referred     Sri Radha Krishna’ Chanderii v. Ram Bahadur, A.I.R. 1917 P.C. 197, relied on.     According  the suit of the plaintiff was no.t barred  by limitation  under’  Art. 144 of the Limitation Act  and  the view  taken by the High Court on this part of the  case  was not correct. [642 D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  420  of 1963.     Appeal from the judgment and decree dated September   9. 1960 of the Andhra Pradesh High Court in Appeal Suit No. 300 of 1955.     M.  Suryanarayana  Murti and T.V.R. Tatachari,  for  the appellant. K.R. Chaudhuri, for respondents 1 to 13.     The  Judgment  of  Sarkar and Raghubar  Dayal,  JJ.  was delivered  by Sarkar J. Ramaswami, J. delivered  a  separate Opinion.     Sarkar,  J.  In a certain money suit, being Small  Cause Suit  No.  9  of  1953. a decree  had  been  passed  against Narasimhaswamy  and  his  four sons who were  members  of  a Mitakshara Hindu joint family.  In execution of that  decree the shares of the four sons in the joint family  properties, described altogether as 4/5th share, were put up to  auction on  December  21, 1936 and purchased by  one  Sivayya  whose successors-in-interest  are  the  appellants.   The   father Narasimhaswamy’s share had not been put up for sale because= an  application fo.r his adjudication as insolvent was  then pending.    The   sale  to  Sivayya  was   duly   confirmed. Thereafter  Sivayya sold the properties purchased by him  at the  auction to one Prakasalingam.  On November 6, 1939,  an order was made. under O. 21, rr. 35(2) and 96 of the Code of Civil  Procedure  for delivery of joint  possession  of  the properties  purchased   to  Prakasalingam  along  with   the members  of  the joint family in actual’  possession.   This order  was duly carried out and possession was delivered  to Prakasalingam  by  publishing that fact by beat of  drum  as prescribed  in these rules. Subsequently, Prakasalingam  re- transferred the properties to Sivayya.       On  October ’16, 1951, Sivayya filed the. suit out  of which this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

   appeal  arises,  against the then members of  the  joint family whose Sup../65  12 632 number had by that time increased, and various other persons holding as alienees from them, asking for a partition of the joint   family  properties  into  five  equal   shares   and thereafter for possession of four of such shares by removing the defendants from possession.  The trial Court decreed the suit but held that Sivayya was not entitled to a 4/5th share but  only to a 2/3rd share because before the decree  a  5th son had been bom to Narasimliaswamy who had not been made  a party  to  the suit or the execution proceedings  and  whose share  had not consequently passed under the  auction  sale. Some of the defendants appealed to the High Court of  Andhra Pradesh  from  this judgment.  The High  Court  allowed  the appeal on the ground that the suit was barred by  limitation under Art. 144 of Schedule 1 to the Limitation Act.  Sivayya had filed a cross-objection in the High Court on the  -round that  he should have been held entitled to a 4/5th share  of the properties which was dismissed by the High Court without a  discussion of its merits in view of its decision  on  the question  of  limitation.  Sivayya having died  pending  the appeal in the High Court, the appellants as his  successors- in-interest,  have come up to this Court in  further  appeal under Art. 133 of the Constitution. Various  questions  had been raised in the trial  Court  but only two survive after its decision.  They are, whether  the suit  was  barred  by limitation  and  whether  Sivayya  was entitled to a 4/5th share. On the question of limitation, two articles of the Act  were pressed  for  our consideration as applicable to  the  ease. They  are Arts. 144 and 120.  We consider it unnecessary  to decide  in this ,case which of the two articles applies  for in our view, the suit was not barred under either. As earlier stated the High Court held that Art. 144 applied. The application of this article seems to us to present great difficulties  to  some  of which we  like  to  refer.   That article  deals  with  a suit  for  possession  of  immovable property  or  any interest therein not  otherwise  specially provided  for  and  prescribes  a  period  of  twelve  years commencing  from  the  date  when  the  possession  of   the defendant  becomes adverse to the, plaintiff.  This  article obviously  contemplates a suit for possession. of  \property where the defendant might be in adverse possession of it  as against  the  plaintiff.  Now, it is well-settled  that  the purchaser  of  a  copartner’s undivided  interest  in  joint family property is not entitled to possession of what he has purchased.   His only right is to sue for partition  of  the property  and  ask  for allotment to him of  that  which  on partition  might  be  found  to fall to  the  share  of  the coparcener 63 3 whose  share  he  had purchased.  His  right  to  possession "would  date from the period when a specific  allotment  was made in his favour":     Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain (1) It would,   therefore, appear that Sivayya was not entitled to possession till     a partition had been made.  That being so, it is arguable that the defendants  in the suit could never have been in adverse possession of  the properties  as  against him as possession could  be  adverse against  a person only when he was entitled  to  possession. Support  for  this  view  may  be  found  in  some  of   the observations  in  the Madras full bench case  of  Vyapur  v. Sonamm Boi Ammani  (2).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

In  the  case in hand the learned Judges of the  High  Court thought  that the applicability of Art. 144 to a  suit  like the  present  one  was  supported by  the  decision  of  the Judicial  Committee  in  Mahant Sudarsan Das  v.  Mahan  Ram Kirpal  Das(3).   We feel considerable doubt that  the  case furnishes any assistance.  It held that Art. 144 extends the conception  of adverse possession to include an interest  in immovable property as well as the property itself.  In  that case  a purchaser of an undivided share in a property  which was  not  coparcenery property, had obtained  possession  of that  share and he was held to have acquired title to it  by adverse possession.  That was not a case of a person who was not  entitled to possession.  We are not now concerned  with adverse possession of an interest in property. Having  expressed  our  difficulties on the  matter  let  us proceed on the assumption without deciding it, that Art. 144 is applicable.  Even so, it seems to us that the suit is not barred.   It is not in dispute that in order that  the  suit may be barred under the article the defendant must have been uninterrupted possession for twelve years before the date of the  suit.  Now, in. the present case that was not  so.   By the  delivery  of symbolical possession under the  order  of November 6, 1939, the adverse possession of the,  defendants was  interrupted.  Time has, therefore, to commence  to  run from  that  date  and so considered, the  suit  having  been brought within twelve years of that date, it was not  barred under that article.  That would follow from the case of  Sri Radha Krishna Chanderji v. Ram Bahadur (4) where it was held that  delivery  of formal possession  also  interrupted  the continuity of adverse possession. It  was  however  said  that  the  order  for  delivery   of possession (1)  [1954] S.C.R. 177,188. (3)  (1949) L.R. 77 I.A. 42. (2)  (1916) I.L.R. 39 Mad. 811. (4)  A.I.R. 1917 P.C. 197. 634 made  in the present case was a nullity because Sivayya  and his  transferee  who  had purchased an  undivided  share  in coparcenery property were not entitled to any possession  at all.  We agree that the order cannot be supported in law but we do not see that it was for this reason a nullity.  It  is not a case where the order was without jurisdiction.  It was a  case where the learned Judge making the order had,  while acting within his jurisdiction, -one wrong in law.  Such  an order has full effect if it is not set aside, as it was  not in  this case.  Yelumalai Chetti v. Srinivasa  Chetti(1)  to which we were referred, does not support the contention that the  order was a nullity There a purchaser of  an  undivided share  in  coparcenery  property at an  execution  sale  had applied  for  possession under S. 318 of the Code  of  Civil Procedure  of 1882 which corresponds to 0 21, r. 95  of  the present  Code.  That application was dismissed as barred  by limitation.   Later,  the  purchaser  who  had  subsequently acquired  the  interest  of the  other  coparceners  in  the property  under a private sale, filed a suit for  possession of  the  whole. it was contended that the  suit  was  barred under  S. 244 of the old Code (= s. 47 of the present  Code) as the purchaser could only proceed by way of execution.  In dealing  with  that contention it was said that  though  the purchaser of an undivided share in coparcenery property  was only  entitled to ask for a partition, it was not  competent to  a  court  on  a mere  application  for  execution  by  a purchaser  of  such  a share at a court  sale,  to  order  a partition  and, therefore, the dismissal of the  application

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

under  S. "II 8 of the old Code had no effect by way of  yes judicature  on  the second Suit for Possession.   This  case said nothing about the legality of an order under 0. 21, rr. 35, 95 or 96. It  seems to us that the question of adverse  possession  is one of fact.  If the person against whom adverse  possession is  set up, should that he had in fact obtained  possession, whether lawfully or not, that would interrupt any possession held  adversely against him.  The question is whether  there was  in fact an interruption of the adverse  possession  and not whether that interruption was justifiable in law.  Under the order for delivery of symbolical possesSion, whether  it was legal or otherwise, Prakasalingam did obtain  possession and  this was an interruption of the adverse  possession  by the respondents.  In respect of the present suit time  under Art. 144 must, therefore, commence from that interruption. We  wish  to  observe here that this aspect  of  the  matter exposes the anomaly that seems to arise from the application of  Art.  144 to this case.  If  Prakasalingam’s  possession under the order of (1)  (1906) I.L.R. 29 Mad. 294. 63 5 November  6,  1939 was no possession in law because,  as  is contended, he was not entitled to possession at all, then it would  be difficult to hold that at that time somebody  else was   holding   the  property  adversely  to   him.    Since Prakasalingam  or his successor Sivayya was not entitled  to possession  till  after the decree in a suit  for  partition brought  by him, Art. 144 would seem to be  inapplicable  to that suit. Learned  counsel for the respondents referred us to  Mahadev Sakharam  Parkar  v. Janu Namji Hatle(1)  and  Jang  Bahadur Singh  v.  Hanwant  Singh(1) to show that  the  delivery  of symbolical  possession  does not avail the  appellants.   On behalf  of the appellants it was said that  these  decisions are  no  longer  good law in view of  the  judgment  of  the Judicial  committee  in Sri Radha  Krishan  Chanderji’s  (3) case.   Apart  however from the merits  of  this  contention which  no  doubt, deserve consideration,  the  principle  of these  cases  does rot seem to us to be  applicable  to  the present  case.  That principle was expressed in the case  of Jang Bahadur Singh (2 )-which also is clearly to be  implied from the decision in the case of Mahadev Sakharam Parkar(1)- in  these words, "If possession was delivered in  accordance with  law that undoubtedly would, as between the parties  to the  proceedings relating to delivery of possession, give  a new  start  for  the  computation  of  limitation  and   the possession  of the defendants would be deemed to be a  fresh invasion of the plaintiff’s right and a new trespass on  the property.   But if possession was not delivered in the  mode provided by law, that delivery of possession cannot, in  our opinion,  give a fresh start to the plaintiff for  computing limitation."  By  the  words "in accordance  with  law"  the learned  Judges meant, in accordance with the Code of  Civil Procedure and not any other law.  These cases dealt with  an order  for delivery of symbolical possession where an  order for  actual possession could have been made under the  Code. Because of this, it was held that the order for delivery  of symbolical   possession  did  not  interrupt   the   adverse possession  of  the defendant.  That is not the  case  here. The  only  order  for  delivery  of  possession  that  could possibly  be  made under the Code in the  present  case  was under  0. 21 rr. 35(2) and 96 because the other  members  of the  family  whose share had not been  sold  were  certainly entitled to remain in possession.  The fact that ;,I view of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

the  provisions of the Hindu law the order made is  illegal, is irrelevant for the present purpose.  That would not bring the  case within the principle of either the Bombay case  or the Allahabad case. (1) (1912) I.L.R. 36 Bom. 373. (2) (1921) I.L.R.  43 All. 520. (3)  A.I.R. 1917 P.C. 197. 636 Learned counsel for the respondents however contended   that 0.   21, r. 35(2) only applied where there was a decree  for joint  possession and it did not apply to the  present  case because  here there was only an order for delivery of  joint possession  and  not a decree.  This  contention  cannot  be accepted  because  under s. 36 of the  Code  the  provisions relating  to  the  execution of decrees  are  applicable  to execution  of  orders.  In any case, the  order  is  clearly within the terms of 0. 21, r. 96.  The delivery of  symboli- cal  possession made in this case was quite in terms of  the Code and so amounted to an interruption of the  respondent’s adverse  possession  and the period of  limitation  for  the purpose of the application of Art. 144 would start from  the date  of  such  delivery.  As the suit  was  brought  within twelve  years from the date of that delivery of  possession, Art. 144 even if it applies, does not bar it. We then turn to Art. 120.  In Bai Shevantibai v. Janardan R. warick(1) it has been held that to a suit like the  present, this  is the article that applies.  Learned counsel for  the respondents himself contended that this was the  appropriate article  to be applied.  This article applies to  suits  for which  no  period of limitation is  provided  elsewhere  and prescribes  a period of six years commencing from  the  date when  the  right to sue accrues.  Learned  counsel  for  the respondents  relied on the observation  in  Shevantibai’s(1) case  that  in a suit like the present one.  the  period  of limitation under Art. 120 commences to run from the date  of the sale.  This the case no doubt held, but we think in that respect it did not lay down the law correctly.  It has  been held by this Court in Mst. Rukhmabai v. Lala Laxminarayan (2 ) and C. Mohammad Yunus v. Syed Unnissa(3) that the right to sue accrues for the purpose of 120 when there is an  accrual of the right asserted in the suit and an unequivocal  threat by  the respondent to infringe it.  Now whatever the  nature of  the  plaintiff’s  right in the present  case,  there  is nothing to show that right was ever challenged in any way by the respondents.  It is impossible, therefore, to hold  that his suit was barred under Art. 120. The result is that the suit was not barred whether Art.  144 or Art. 120 applied to it. It remains now to deal with the cross-objection.  We do  not think  that  it has any merit.  Both the courts  below  have held that what Sivayya purchased at the auction sale was the share of the four sons of Narasimhaswamy in the joint family properties.   At  the date of the auction  sale  that  share which was originally (1)  A.I.R. 1939 Bom. 322. (3) A.I.R. 1961 S.C. 808. (2) [1960] 2 S.C.R. 253. 637 4/5th had been reduced to 2/3rd by the birth of another son, Venugopal, to Narasinihaswamy who had not been made a  party either  to  the suit or the execution  proceedings.   It  is irrelevant  to  enquire whether after his  birth  the  fifth son’s  share could be proceeded against in the execution  of the decree in suit No. 9 of 1933.  It is enough to say  that was not in fact done.  What   was purchased at the execution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

sale was only the shares of Venugopal’s four brothers at the date  of  the sale and this was 2/3rd.  That  being  so,  we think  Sivayya  was not entitled to  get  Venugopal’s  1/6th share  also  allotted to hi-in in the partition  suit.   The crossobjection must fail.  We may add that no claim has been made  against Narasimhaswamy’s share whose  insolvency  once ordered, appears subsequently to have been annulled. In  the  result  we would allow the appeal,  set  aside  the judgment  and  decree  of the High Court except  as  to  the dismissal  of  the cross-objection and restore that  of  the learned trial Judge.        The appellants will be  entitled to proportionate costs here and in the High Court. Ramaswami, J. The question of law involved in this appeal is what is the period of limitation applicable to a suit  filed by  an alienee of a coparcener of an undivided share in  the joint family property for general partition.  The appellants are  the  legal representatives of the  deceased  plaintiff- Mamidi China Venkata Sivayya.  The suit was filed by him  on October  16, 1951 for partition and separate  possession  of the  4/5th  share  in the joint family  properties.   It  is alleged that he purchased the undivided share of  defendants 2 to 5 at a Court auction sale held on December 21, 1936  in execution  of  a decree of the Court of Small  Causes.   The sale was confirmed on February 23, 1937.  Later on i.e.,  on March  5, 1939 the purchaser Sivayya sold the right  he  had purchased to one Prakasalingam who, it is alleged,  obtained symbolic  delivery of possession of the undivided  share  of the joint family properties on November 6, 1939.  It appears that  Sivayya  obtained  a reconveyable of  the  right  from Prakasalingam  on  April  11,  1945.   Sivayya  brought  the present   suit  on  October  16,  1951  against  the   other coparceners and alienees from some of the coparceners.   The suit  was filed by Sivayya for general partition.  The  main defence  of the contesting defendants was that the suit  was barred  by limitation.  The trial court held that  the  suit was  governed  by  Article 144 of  the  Limitation  Act  and Article 120 did not apply.  The trial court also found  that there  was  symbolic  delivery of possession  in  favour  of Prakasalingam on November 6, 1939 and there was break up  of adverse 638 possession  of  defendants  1 to 5 and that  the  suit  was, therefore,  brought within time.  The trial court held  that the 1/6th share of the 6th defendant one of the  coparceners did not pass to the plaintiff as the 6th defendant was  born before the Court sale and he was not implement as a party in the present case.  The trial court accordingly gave a decree for  partition and separate possession to the  plaintiff  of 2/3rds share of the properties mentioned in Sch.  ’A’ of the plaint.  The defendants preferred an appeal before the  High Court  of Andhra Pradesh against the judgment and decree  of the  trial court.  The plaintiff also filed a Memorandum  of Cross  Objections  claiming  the  1/6th  share  of  the  6th defendant also.  The High Court held that Article 144 of the Limitation   Act  applied  to  the  suit  and  the   adverse possession of the defendants commenced from the date of  the auction  sale and that the suit was barred by limitation  as it  was filed on October 16, 1951 i.e., more than  12  years after  the auction sale.  The High Court also held that  the symbolic delivery had no legal effect and did not break  the adverse possession of the defendants.  Accordingly the  High Court  allowed  the appeal and the suit was  dismissed  with costs throughout.  The present appeal is presented on behalf of  the  legal representatives of  the  deceased  plaintiffs against the judgment and decree of the High Court of  Andhra

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

Pradesh. Before dealing with the question as to which Article of  the Limitation  Act applies to the present case it is  necessary to  examine the legal position of persons like  Sivayya  who purchase  shares  of some of the coparceners  of  the  Hindu Joint Family.  It is wellsettled that the purchaser does not acquire  any  interest in the property sold  and  he  cannot claim  to  be  put in possession of any  definite  piece  of family  property.  The purchaser acquires only an equity  to stand  in  the alienor’s shoes and work- out his  rights  by means   of  a  partition.   The  equity  depends  upon   the alienation being one for value and not upon any  contractual nexus.   The  purchaser does not become a tenant  in  common with  the  other  members of the joint family.   He  is  not entitled to joint possession with them.  The alienee’s  suit for  partition  must  be one for  partition  of  the  entire property and not for the partition of any specific item  of, or interest in, the family property.  Such a suit,  however, will  not be technically on a par with a suit for  partition filed  by  a  coparcener.  Such a suit would  not  have  the necessary  effect of breaking up the joint ownership of  the members  of  the family in the remaining  property  nor  the corporate  character  of  the family.  (Mayne’s  Hindu  Law, eleventh edition, page 489). 639 On behalf of the appellants learned Counsel put forward  the argument that the right of the alienee to sue for  partition is  a continuing right and there is no period of  limitation for  enforcing  such  right.  In my  opinion,  there  is  no warrant  for this argument.  A suit for partition  filed  by the alienee from a coparcener is not, in a technical  sense, a  suit  for partition and, as already stated, such  a  suit will not have the necessary effect of breaking up the  joint ownership of the members of the family in the joint property nor  the corporate character of the family.  As observed  by Bhashyam  Ayyangar,  J.  in  Aiyyangari  Venkataramayya   v. Aiyyagari Ramayya               "The  vendee’s  suit to enforce  the  sale  by               partition  is not a suit for  ’partition’,  in               the  technical sense in which  ’partition’  or               ’vibhaga’  is used in the Hindu law.   A  suit               for partition, in the technical sense, can  be               brought  only  by an undivided member  of  the               family.   The  right  to  such  partition   is               personal to him and not transferable.  Such  a               suit  can be brought only in the  lifetime  of               the coparcener and even if so brought, it will               abate  if he should die before  final  decree,               without  leaving male issue.  A  partition  in               the technical sense, whether effected amicably               or by decree of Court, breaks up not only  the               joint  ownership  of property,  but  also  the               family union, i.e., the corporate character of               the family.  Each member thereafter becomes  a               divided  member with a separate line of  heirs               to himself.  An undivided member of a  family,               though  he  may  alienate  either  the   whole               (Gurulingappa v. Nandappa-I.L.R. 21 Bom. 797),               or  any  part  of  his  undivided  share  will               continue  to  be an undivided  member  of  the               family  with  rights of  survivorship  between               himself  and the remaining members in  respect               of all the family property other than what  he               has      transferred................       The               transferee,  however, does not step  into  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

             shoes  of  the transferor as a member  of  the               family  and  there  will be  no  community  of               property  between  him and all or any  of  the               members of the family in respect either of the               property transferred to him or the rest of the               family property". In my opinion, a suit like the present one will fall  within Article 144 of the Limitation Act. (1) I.L.R. 25 Mad. 690 at p. 717. 64 0 It  is  true that an alienee of an undivided interest  of  a Hindu  coparcener is not entitled to joint  possession  with the other coparcener and he is also not entitled to separate possession  of  any part of the family  property.   But  the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition.  What the alienee acquires by a purchase  is not  any  interest in specific family property but  only  an equity to enforce his right in a suit of partition and  have the property alienated set apart for the alienor’s share, if possible.  In the present case the alienee has instituted  a suit  for general partition with the prayer that he  may  be put in possession of that part of the family property  which may be allotted to his alienor.  It is not right to consider such  a suit as a suit for more partition.  The main  relief sought by the plaintiff is the relief for possession of that part of the property which may be allotted to the  alienor’s share  and  a relief for partition is only a  machinery  for working  out his right and ancillary to the main relief  for possession of the property allotted to the alienor’s  share. What  the plaintiff seeks is actual delivery of  possession. In  my  opinion,  such a suit falls within  the  purview  of Article 144 of the Limitation Act and the law on this  point is correctly stated in Thai v. Dakshinamutthy(1). If  Article 144 is the proper article applicable, when  does time  commence  to run ? According to the  third  column  of Article  144,  time  begins to run from the  date  when  the possession   of  the  defendant  becomes  adverse   to   the plaintiff.  As I have already pointed out, the possession of the non-alienating members of the family cannot be deemed to be  possession  on behalf of the alienee also,  because  the purchaser-alienee  does  not  acquire any  interest  in  the property sold and does not become tenant-in-common with  the members of the family nor is he entitled to joint possession with  them.   It  is clear that in the absence  of  a  clear acknowledgment of the right of the alienee or  participation in the enjoyment of the family property by the alienee,  the possession of the nonalienating coparceners would be adverse to the alienee, from the date on which he became entitled to sue  for general partition and possession of  his  alienor’s share.  The fact that the alienee has purchased an undivided interest  of joint family property is not inconsistent  with the conception of adverse possession of that 64 1 interest.  As Lord Radcliffe observed in Sudarsan Das v. Ram Kirpal Das(1) :               "Now it is the respondents’ case-it is in fact               their  main contention on this issue-that  the               appellant has never at any time had  ’adverse’               possession against them because, the  disputed               property being a fourteen undivided share, his               possession has been throughout no more than  a               joint  possession  with them.  And  the  joint               possession which coparceners enjoy in  respect               of the undivided property involves that, prima

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

             facie, the exclusive possession of any one  of               them  is  not adverse to  the  others.   Their               Lordships  have  no doubt of the  validity  of               this  general  rule : but they are  unable  to               think that it will be in any way departed from               if  they hold that in respect of the  disputed               property itself the appellant’s possession has               been  adverse  to  the  owners  of  the  other               shares.   In  truth there  is  some  confusion               involved in the argument.  What is in question               here is not adverse possession of the block of               property   in  which  the  various   undivided               interests  subsist but adverse  possession  of               one undivided interest.  Article 144 certainly               extends  the conception of adverse  possession               to  include an interest in immovable  property               as  well  as the property itself  nor  was  it               disputed  in argument by the respondents  that               there  could  be  adverse  possession  of   an               undivided   share,   given   the   appropriate               circumstances." In the present case, therefore, adverse possession began  to run  from the date of purchase of the undivided share  i.e., from December 21, 1936 but it was submitted on behalf of the appellants that Prakasalingam obtained symbolic delivery and possession of the undivided share on November 6, 1939  after notice  to defendants 2 to 5 and there was a fresh cause  of action to Sustains the present suit for possession.  It  was contended  on  behalf of the respondents that  the  symbolic delivery  was  illegal  and  the  executing  court  was  not competent to make an order of delivery of possession, either symbolic  or actual with regard to the sale of an  undivided interest  of  joint  family property.  In  support  of  this argument  reliance was placed on the decision  in  Yelumalai Chetti  v. Srinivasa Chetti (2 ) in which it was  held  that the  purchaser at a Court sale of the share of an  undivided member of a joint Hindu family acquires only a right to  sue for  partition and for delivery of what may be  allotted  as the share of such undivided member (1) A.I.R 1950 C.44at p. -47. (2) I.L.R. 29 Mad. 294. 642 and the Court cannot, on a mere application for execution by such purchaser, enforce his right by an order for partition. It  was  further held that no such order can be  made  under section 318 of the Code of Civil Procedure and the dismissal by the Court of an application by the purchaser under S. 318 cannot  be a bar to a suit by the purchaser  for  partition. Even  assuming  that  the ,grant  of  symbolic  delivery  of possession  ought  not  to  have  been  made  and  that  the executing-court acted illegally in making such an order,  it cannot   be   argued  that  the  executing  court   had   no jurisdiction  to make the order or that the act of  symbolic possession  was  a  nullity  in  the  eye  of  law.   I  am, therefore,  of  the  opinion  that  the  -rant  of  symbolic possession  by  the court in favour of  Prakasalingam  after notice  to  the defendants 2 to 5 was tantamount in  law  to delivery of actual possession and, there fore, sufficient to break  up the continuity of adverse possession in favour  of the  defendants.   In  Sri Radha Krishna  Chanderji  v.  Ram Bahadur(1) it was held by Lord Sumner that symbolic  posses- sion was available to dispossess a party sufficiently  where he  was a party to the ’Proceedings in which it was  ordered and given.  I am accordingly of the opinion that the suit of the plaintiff is not barred by limitation under Article  144

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

of  the Limitation Act and the view taken by the High  Court on  this  part  of  the case is  not  correct  and  must  be overruled. On behalf of the appellants it was also argued that a decree for  5/6th  share  of the joint family  properties  and  not merely for 2/3rds share should have been granted.  The claim of  the appellants was rejected by the trial court.   It  is not  disputed  by the plaintiff that the 6th  defendant  was born before the Court sale and it is also not disputed  that the  execution case was taken out only against defendants  2 to  5. It is manifest that the plaintiff is not entitled  to recover the possession of the share of the 6th defendant  in execution  proceedings and there is no merit in  the  cross- objection  filed  on  behalf of the plaintiff  in  the  High Court.  am  unable to accept the argument  advanced  by  the appellants’ on this point. For these reasons I hold that the judgment and decree of the High  Court should be set aside and the judgment and  decree of  the  trial court should be restored  and  a  preliminary decree  of partition of the properties should be -ranted  as mentioned  in  the  trial court’s  decree.   The  appeal  is accordingly allowed with costs, Appeal allowed. (1) A.I.R.1917 P.C. 197. 643