# RAO AND ANOTHER v. MANDr;LA NA!!ASli\IllASWAMI AND OTHERS

- **Citation:** [1966] 1 S.C.R. 628
- **Court:** Supreme Court of India
- **Decided:** 1966
- **Bench:** A. K. Sarka, !lAGHUBAR DAYAL, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rao-and-another-v-mandr-la-na-asli-illaswami-and-others-3663
- **Pages:** 15

## Headnote

Indian Lirni;aition .r!ct, Arts 144 and 120·-·Aii~·1u11~u11 of shu1·c of flindu
Joint family property--Pos~;ession of members uf j"nzily whc1her adverse
tu ailenee-Period within which l"Uil for partition and possession by iditmee
must be brought.
A decree was passed in a money suit against N and his four ~ons who
were members of a Mitakshara Hindu joint family. Jn execution of lhat
decree the sbarea of the four sons in the joint family properties, <lescribed
altogether aa 4/Sth 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 insolvCillCY proceedinll". The sale to S was duly confirmed. S
sold the properties to P. On November 6, 1939 an order was made under
0. 21 rr. 35(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 )oiot_ family already in possession. This order was carried out and
p<>MCOSton was delivered to P by publishing that fact by beat of drum a•
prescribed in tho 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
ouch shares by removing the defendants from possession.
The trial court
de::reed the suit but held that S was not entitled to a 4/ 5th share but only
10 a 2/3rd share because before the decree a Sth son had been born to N
who had not been made a party to the suit or the execution proceedinga
and whose share had consequently not passed under the auction sale.
Some of the defendants filed an appoal to the High Court which allowed
the appeal holding that the suit was barred by limitation under Art. 144
of Schedule I to the Limitation Act.
S had fild a coss-0bjection in tho
High Court on the ground that he should have been held entitled to a
4/ Sth share of the properties which waa dismissed by the High Court
without discussion of the merits in view of its decision on the ques~ion of
limitation. S having died the appellants aa bis successors in intercot appealed to this Court under Art. 133 of the Constitution. The two Qtlll<ltion•
that arose for decision were ( 1) whether the suit was barred by limillttion
under Art. 144 or Art. 120 and (2) whether S was entitled 'to a 4/Stb
!lbaro.
HELD: (Per Sarkor and Raghubar Dayal, JJ.) (i) (a) The view thot
'he mil was barred undor Art. 144 of the suit presented great difficulties.
"fbe article obviously eontemplatcs a suit for pos~cssion of propcrtv where
the defendant might be in posscss'on of it •• a~ainst the plainriff. However, the ?Urcha~er of 3 coparcencr's undivided interest tn joint family
property is not entitled to po!!"lession of what he has purchased. His only
ri~ht is to sue for pac'ition of the oroperty and ask for allotment to ~im
o! lh:tt whic!l on partition mip.ht be found to fall to the •hare cf the coP!lt'CCner \vhose share he h.1s purchased.
Hi.'i right lo p~es·:ioa \\'outd
dote frnm the p.riod w~ a 1'peclfic allotment is mado in
his
favour.
[632 HI
ll
c
[)
E
F
II
•
J
•
•
•
•
•
SATYANARAYANA v. NARASfMHA
G29
A
S was therefore not entitled to possession till a partiticn had been
made. As possession of the defendants could be adverse to him only if
he was entitled to possession the difficulty in applying Art. 144
arose.
[633 Bl
B
c
D
E
J1
G
H
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain, [1954] S.C.R.
177, relied on.
Vyapuri v. Sonamma Bol Ammani, (1916) I.L.R. 39 Mad. 81, referred
to.
Mahant Sudarsan Das v. Mahan Ram Kirpal Das, (1949) LR. 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 No\·ember 6, 1939, the adverse
possession

## Text

_Characters 0–39,370 of 41,575. This is a partial read: ask again with offset=39370 for what follows._

MAl\llDI VENKATA SATYANARAYANA MANIKYAI,A
A
RAO AND ANOTHER
v.
MANDr;LA NA!!ASli\IllASWAMI AND OTHERS
A ug11st 27, 1965
[A. K. SARKA&, !lAGHUBAR DAYAL AND V. RAMASWAMI, JJ.j
Indian Lirni;aition .r!ct, Arts 144 and 120·-·Aii~·1u11~u11 of shu1·c of flindu
Joint family property--Pos~;ession of members uf j"nzily whc1her adverse
tu ailenee-Period within which l"Uil for partition and possession by iditmee
must be brought.
A decree was passed in a money suit against N and his four ~ons who
were members of a Mitakshara Hindu joint family. Jn execution of lhat
decree the sbarea of the four sons in the joint family properties, <lescribed
altogether aa 4/Sth 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 insolvCillCY proceedinll". The sale to S was duly confirmed. S
sold the properties to P. On November 6, 1939 an order was made under
0. 21 rr. 35(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 )oiot_ family already in possession. This order was carried out and
p<>MCOSton was delivered to P by publishing that fact by beat of drum a•
prescribed in tho 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
ouch shares by removing the defendants from possession.
The trial court
de::reed the suit but held that S was not entitled to a 4/ 5th share but only
10 a 2/3rd share because before the decree a Sth son had been born to N
who had not been made a party to the suit or the execution proceedinga
and whose share had consequently not passed under the auction sale.
Some of the defendants filed an appoal to the High Court which allowed
the appeal holding that the suit was barred by limitation under Art. 144
of Schedule I to the Limitation Act.
S had fild a coss-0bjection in tho
High Court on the ground that he should have been held entitled to a
4/ Sth share of the properties which waa dismissed by the High Court
without discussion of the merits in view of its decision on the ques~ion of
limitation. S having died the appellants aa bis successors in intercot appealed to this Court under Art. 133 of the Constitution. The two Qtlll<ltion•
that arose for decision were ( 1) whether the suit was barred by limillttion
under Art. 144 or Art. 120 and (2) whether S was entitled 'to a 4/Stb
!lbaro.
HELD: (Per Sarkor and Raghubar Dayal, JJ.) (i) (a) The view thot
'he mil was barred undor Art. 144 of the suit presented great difficulties.
"fbe article obviously eontemplatcs a suit for pos~cssion of propcrtv where
the defendant might be in posscss'on of it •• a~ainst the plainriff. However, the ?Urcha~er of 3 coparcencr's undivided interest tn joint family
property is not entitled to po!!"lession of what he has purchased. His only
ri~ht is to sue for pac'ition of the oroperty and ask for allotment to ~im
o! lh:tt whic!l on partition mip.ht be found to fall to the •hare cf the coP!lt'CCner \vhose share he h.1s purchased.
Hi.'i right lo p~es·:ioa \\'outd
dote frnm the p.riod w~ a 1'peclfic allotment is mado in
his
favour.
[632 HI
ll
c
[)
E
F
II
•
J
•
•
•
•
•
SATYANARAYANA v. NARASfMHA
G29
A
S was therefore not entitled to possession till a partiticn had been
made. As possession of the defendants could be adverse to him only if
he was entitled to possession the difficulty in applying Art. 144
arose.
[633 Bl
B
c
D
E
J1
G
H
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain, [1954] S.C.R.
177, relied on.
Vyapuri v. Sonamma Bol Ammani, (1916) I.L.R. 39 Mad. 81, referred
to.
Mahant Sudarsan Das v. Mahan Ram Kirpal Das, (1949) LR. 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 No\·ember 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 und..r that article, [633 F-0]
Sri Radha Krishna Chanderjl v. Ram Bahadur, AI.R. (1917) P.C. 197,
relied on.
It could not be said that the order of delivery of possession w.. a
nullity though S and his transferee who had purchased an undivided
share in coparcenary property were not entitled in law to anY possession
at all.
Jn making the order the learned Judge had gone wrong in Jaw
but he had acted within his jurisdiction. Such an order has full effect if
it is not &et aside. [634 A-Bl
Ye/uma/ai Chettl v. Srlnlvasa Chettl, (1906) IL.R. 29 Mad. 294, distinguished.
Mahadev Sakharam Parkar v. Ianu Namjl Hatle, (1912) I.L.R. 36
Bom. 373 and Jang 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 ;,.
provided elsewhere and prescribes a period of six yeara commencing from
the date when the right to sue accrues. [636 DJ
The right to sue accrues for the purpose of Art. 120 when there is an
accrual of the right asserted in the suit *1d an unequivocal threat by
the respondent to infringe it.
In the present case there was nothing to
show that 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 Fl
Mst. Rukhmalial v. Lala L=minarayan, [1960] 2 S.C.R. 253 and C.
Mohammad Yunus v. Syed Unnissa, A.LR. 1961 S.C. 808, relied on.
.
Bal Shevantibal v. Janardan R. Warick, A.I.R. 1939 Born.. 322 disapproved in so far as it held that the right to sue accrued from the date of
we.
(iii) The cros.> objection had no merit.
What S purchased at !tie
auction sale was the share of the sons of S then born, in the joint family
properties. At the date of the auction sale that share which was originany
4! 5th bad been reduced to 2/ 3rd by tho 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 th• date of oale was 2/3rd. That
SUPRl!Ml! COUllT REPORTS
[1966] 1 S.C.R.
being so S was not entitled to get the 1I6th share of the fifth son also
A
.allotted to him in the partition suit. [637 B-C]
Per Ramaswami, J. : (i) The purchaser of a share of joint Hindu
family property does not acquire any interest in the property sold and
he cannot claim to be put in possession of any definite place of family
property.
A suit for partition filed by the alienee from a coparcener
is not, in a technical sense, a suit for partition and such a suit will not
have the necessary effect of breaking up the joint ownership of the memB
bers of the family in the joint family in the joint property nor the cNporate 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 wbject
to no period of limitation for enforcing it. [638 F-H]
Alyyagari Venkararamayya v. Aiyyagari Ramayya, I.LR. 25 Mad. 690,
referred to.
(ii) Though the alienee of an undivided interest of a Hindu coparcener
is not entitled to joint possession with other coparcener& or to separate
pos.ession of any part of the family property he is entitle<! to obtain
possession of that part of the family property which might fall to th<:
share of his alienor at a partition. [640 BJ
In the present case the alienee 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 share. It is not right to consider
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
i~ only a
machinery for working out his right and ancillary to the main reHcf 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 purvie\v
of Art. 144 of the Limitation Act. [640 B-Dl
Thani v. Dakshlnamurrhy, I.LR. 1955 Mad. 1278, approved.
(iii) The possession of the non-alienating members of the family
·cannot be said 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
c
D
E
nor is he entitled to joint possession with them. In the absence of clear
acknowledgement of th·~ right of the alienee or participation 1n the enjoyr
ment 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 aticnor's ihare. The faot that the alienee baa purchased an undivided
interest is not inconsistent with the conception of adverse possession of
that interest. [640 E-H]
•
•
•
Sudarsan Das v. Ram Kirpa! Dl1.!', A.LR. 1950 P.C. 44, relied on.
According to the third column of Art. 144, time begins to run from
G
'
·the date 'vhen the possession of the defendant becomes adverse to the
plaintiff.
Jn the present
ca..~e. therefore, adverse possession hev,-an to
run from the date of purchase of the undivided share i.~. fro1n December
,
21, 1936. [640 E; 641 E-F]
(iv) Howe\'Cf the grant of svmbolic possession by the court in favour
of P after notice to defendants 2 to 5 was tantamount in law to delivery
H
of actual pos<esSicm and therefore sufficient to break up the continuitv
of adverse posseMion in favour of the defendant~. Even as~uming thr!t
the grant of symbolic poosession ought not to have been mado and that
•
SATYANARAYANA v. NARASIMHA (Sarkar, J.)
631
A
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 posse~sion was a nullity in the eye of law.
[642 BJ
B
Y elumalai Chetti v. Srinivasa Chetti, I.L.R. 29 Mad, 294, referred
to.
Sri Radha Krishna Chanderji v. Ram Bahadur, A.l.R. 1917 P.C. 197,
relied on.
According the suit of the plaintiff was not 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 DJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 420 of
c 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 appelD
!ant.
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 .
E
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
F
one Sivayya whose successors-in-interest are the appellants. The
father Narasimhaswamy's share had not been put up for sale
because an application for 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
G
under 0. 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-transH
ferred the properties to Sivayya.
On October 16. 1951, Sivayya filed the suit out of which this
appeal arises, against the then members of the joint family whoseL7Sup./65-12
632
SUPUMB COU&T llEPORTS
(1966] I S.C.R..
number had by that time increased, and various other persons
A
holding as alienees from them, asking for a partition of the joint
family properties into five equal shares and thereafter for posses·
sion of four of such shares by removing the defendants from posses·
sion. 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 born to Narasimhaswamy
B
who had not been made a party to the suit or the execution procc.~dings 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 I to the Limitation Act. Sivayya had
C
filed a cross-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 a di.scussion of its
merits in view of iLs decision on the question of limitation. Sivayya
having died pending the appeal in the High Court, the appellants
D
as his successors-in-interest, have come up to this Court in further
appeal under Art. 133 of the Constitution.
Various questions had IY:en raised in tho 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
~~
E
On the question of limitation, two articles of the Act were
pressed for our consideration as applicable to the case. 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.
F
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
G
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 coparccner's
undivided interest in joint family property is not entitled to possesH
sion of what he has purchased. His only right is to sfte 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
'
•
•
SATYANARAYANA v. NARASIMHA (Sarkar, /.)
633
A 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(').
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
B 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 Vyapuri v. Sonamma Bai Ammani(2).
D
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 Kirpa/ 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
I: possession. We are not now concerned with adverse possession of
an interest in property.
Having expressed our difficultie8 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
fl 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
G 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(') where it was held that delivery of formal possession also interrupted the continuity of adverse possession.
H
It was however said that the order for delivery of possession
(1) [!954] 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.
63~
SUPIJ!MB COUllT REPORTS
(1966) I S.C.ll.
made in the present case was a nullity because Sivayya and his transA
fcree 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, gone wrong in law.
•
Such an order has full effect if it is not set aside, as it was not in
this case. Yelumalai Che/Ii v. Srinivasa Che/Ii(') to which we
were referred, docs 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 C
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 p<>ssession of the whole. It was contended that the suit was barred under s. 244 of the oid Code D
(= 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
shCJre at a court sale. to order a partition and, therefore, the disE
missal of the application under s. 318 of the old Code had no effect
by way of res j11dicata on the second suit for possession. This case
said r;othing 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, I'
shows that he had in fact obtained posses1ion, 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 adver;e 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
G
the anomaly that seems to arise from the application of Art. 144 H
to this case. If Prakasalingam's possession under the order of
I (I) (1906) I.LR. 29 Mad. 294.
•
'
•
•
SATYANARAYANA v. NARASIMHA (Sarkar, J.)
635
A 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
B inapplicable to that suit.
Learned counsel for the respondents referred us to Mahadev
Sakharam Parkar v. Janu Namji Hatle(') and Jang Bahadur Singh
v. Hanwant Singh (2 ) to show that the delivery of symbolical possession does not avail the appellants. On behalf of the appellants it
c 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 not seem to us to be applicable to the present
case. That principle was expressed in the case of Jang Bahadur
D Singh(')-which also is clearly to be implied from the decision
in the case of Mahadev Sakharam Parkar(')-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
I: 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
P 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 heH that the order for delivery
o 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
g
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 in
view of 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 AllahaH bad ca0e .
I
(I} (1912) I.L.R. 36 Born. 373.
(2) (1921) I.L.R. 43 All. 520.
(3) A.I.R. 1917 P.C. 197.
636
SUPABMll COURT REPORTS
(1966) 1 S.c.R.
Learned counsel for the respondents however contended that
A
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 ancl 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
B
clearly within the terms of 0. 21, r. 96. The delivery of symbolical possession made in this case was quite in terms of the Code
and so amounted to an interruption of the r~pondent'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
C
delivery of possession, Art. 144 even if it applies, does not bar it.
We then turn to Art. 120. In Bai Shcvantibai v. Janardan R.
Warick(') 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.
D
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
B
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 (') and C. Mohammad Yunus
v. Syed Unnissa(') 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 r
whatever the nature of the plaintiffs right in the present case,
there is nothing to show that that right was ever challenged in
any way by the respondents. It is impo,sible, therefore, to hold
that his suit was barred under Art.
120.
The result is that the suit was not barred whether Art. 144 or c:
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 JlropcTlics.
At the date of the auction sale that share which was originally
B
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(t) A.l.R. 1939 Dom. 322.
(2) 11960) 2 S.C.R. 253.
(3) A.l.R. 1961 S.C. 808.
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SATYANARAYANA v. NARASIMHA (Ramaswami, J.)
637
A 4/5th had been reduced to 2/3rd by the birth of another son,
Venugopal, to Narasimhaswamy 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 that was not in fact done. What
B was purchased at the execution 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
I/6th share also allotted to him 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,
C 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
D 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 repreE sentatives 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
F 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 reconveyance of the right from Prakasalingam on April 11,
G 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
H 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
SUPllEMB COUJlT REPORTS
[1966) I S.C.I..
possession of defendants 1 to 5 and that the suit was, therefore,
brought within time.
The trial court held that the I/6th share
of the 6th defendant one of the coparccners did not pass to the
plaintiff as the 6th defendant was born before the Court sale and
he was not impleaded 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 I/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 plaintiffSivayya against the judgment and decree of the High Court of
Andhra 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 ""
equity to stand in the alicnor'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 docs not become " tenant in common with the other
members of the joint family.
He is not entitled to joint possession
with them.
The alienec'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 coparcencr.
Such a suit would not have the necessary effect
of breaking up the joint ownership of the members of the family
in the remaining prope•ty nor the corporate character of the
family.
(Mayne's Hindu Law, eleventh edition, page 489).
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SATYANARAYANA v. NARASIMHA (Ramaswami, !.)
639
On behalf of the appellants learned Counsel put forward the
argument that the right of the alieuee 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 q_bserved by Bhashyam Ayyangar, J. in Aiyyagari Venkataramayya v.
Aiy,yagari
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 Born. 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 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.
(I) I.L.R. 25 Mad. 690 at p. 717.
640
SUPllEMB COURT REPORTS
(1966] I S.C.R.
It is true that an alience of an undivided interest of a Hindu
A
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
JI.
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
c
out his right and ancillary to the main relief for possession of the
property allotted to the ailenor's share.
What the plaintiff seeks
D
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 Thani v. Dakshinamurthy (').
If Article 144 is the proper article applicable, when does time
E
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 he deemed to be possession on behalf of the alienee
F
also, because the purchaser-alienee does not acquire any interest
in the property sold and does not become tenant-in-<:ommon 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
G
of the family property by the alienee, the possession of the non·
alienating coparceners would be adverse to the alience, from the
date on which he became entitled to sue for general partition and
possession of his alienor's share. The fact that the alicnee has
purchased an undivided interest of joint family property is not
H
inconsistent with
the conception of adverse possession of that
(I) J.L.R. (19551 Mad. 1278.
SATYANARAYANA v. NARASIMHA (Ramaswami, J.)
641
A interest.
As Lord Radcliffe observed in Sudarsan Das v. Ram
Kirpal Das(') :
B
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"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 four-anna 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 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 Pn 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
F 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 sustain
the present suit for possession. It was contended on behalf of
the respondents that the symbolic delivery was illegal and the exG ecuting-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 Y elumalai 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
H 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.l.R. 1950 P.C. 44 at p. 47.
(2) I.LR. 29 Mad. 294.
~42
SUPUMB couaT llEPOllTS
[1966] l S.C.R.
and the Court cannot, on a mere application for execution by
A
Sl!Ch 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.