Judgement

B. K. MUKHERJEA J.: Civil Appeal No. 53 of 1951. This appeal is on behalf of the plaintiff and is directed against a judgment and decree of a Division Bench of the Patna High Court, dated 8-9-1948, modifying those of the Additional Subordinate Judge, Moihari, passed in Partition Suit No.108/6 of 1943/46. There were two Money Suits between the same parties which, were tried along with the suit for partition and both of them were decreed by the trial judge, but dismissed by the High Court on appeal. Civil Appeals Nos. 54 and 55 of this court arise out of these appeals and we will deal with them separately.

2. So far as the main appeal is concerned, the material facts are uncontroverted and the dispute centres round one short point, which relates to the extent of share in the disputed properties to which the plaintiff can be said to have acquired a legal title. The plaintiff averred that he was entitled to a 4 annas share in the schedule lands and this claim was allowed by the trial judge. The High Court held, on the other hand that the plaintiff s title extended only to 1 anna 4 pies share in the disputed properties, and with regard to this share alone he could claim partition. It is the propriety of this decision that has been challenged before us in this appeal.

3. To appreciate the contentions that have been raised by the parties before us, it may be convenient to narrate a few material facts. The properties in suit, which are comprised in Tauzi No. 703 of the Champaran Collectorate, belonged admittedly to the defendants first party and their ancestors. Defendant No. 1 Bhubneshwar Prasad, who is the main defendant in the present litigation, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note some time before 1932.

Panchanan instituted a suit in the court of the Subordinate Judge at Motihari against Bhubneshwar for recovery of this loan and having obtained a decree, put the decree in execution in Execution Case No. 16 of 1932 of the court of the Subordinate Judge at Motihari. In course of these proceedings, the right, title and interest of the judgment-debtor in the properties in suit which was described as amounting to 4 annas share in the same, was put up to sale and purchased by the decree-holder himself on 7-9-1932. The purchaser got delivery of possession on 25-1-1935.

" It is admitted that at the time of the sale, Bhubneshwar along with his grand-father Bishun Prakash, his father Lachmi Prasad and his two sons who are defendants 2 and 3 in the suit, constituted an undivided Hindu family, of which apparently his grand-father was the karta; and it is not disputed that if a partition had taken place at that time, Bhubneshwar Prasad along with his sons would have got 4 annas share in the joint ancestral property.

Panchanan sold the interest purchased by him at the execution sale to the plaintiff by a conveyance dated 1-2-1935 and it is on the strength of this conveyance that the plaintiff instituted the present suit claiming specific allotment of a 4 annas share in the suit properties. Bhubneshwar and his three sons, to with defendants 2, 3 and 4, are the main defendants in the suit and it is not disputed that at the present moment they own the remaining 12 annas share in the suit properties. The defendants 5, 6 and 7 were impleaded as parties defendants on the allegation that they held different portions of the joint properties as zarpeshgidars under the 12 annas proprietors.

4. The suit was contested primarily by defendant No. 1 and the substantial contention put forward by him was that in the Money Suit was Instituted by Panchanan against him alone and his sons were not made parties either to the suit or the execution proceeding, his own undivided Interest in the joint family properties and not that of his sons passed by the sale. Consequently, the execution creditor could not by his purchase acquire more than 1 anna 4 pies share in the suit properties and to this share alone th