A purchaser of an undivided share in a joint family property is not entitled to possession of what he has purchased and his right to possession would date from the period when a specific allotment was made in his favor.

( 1 ) THE principal question that needs to be answered by us in this Letters Patent Appeal is, whether an auction-purchaser of the shares of two members of a family, which has undergone division in status but has not divided its assets by metes and bounds, is entitled to have mesne profits from the date of the sale in his favour.

( 2 ) THIS question arises in the appeal brought by the 2nd defendant against the judgment and decree of our learned brother Ramachandra Rao J. in A. S. No. 483 of 1970 confirming the judgment and decree of the Subordinate Judges Court Visakapatnam in O. S. No. 119 of 1967. That suit was filed by the present respondent for partition of a house into seven shares and for possession of two such shares, and for past and future mesne profits on that 2/7th share. He sought past mesne profits right from the date on which he purchased the 2/7th share in the court auction on 7-7-1974. A third party had obtained a money decree against defendants 1 and 2, who are brothers, and, in execution thereof, brought their 2/7th share, i. e. , 3 residential house, to sale on 7-7-1974. The respondent purchased that share for Rs. 6,700. 00. It is said that symbolic delivery was also given to him. He later filed the suit for the above reliefs.

( 3 ) THE 1st defendant contended that there were other properties also and without dividing them, this house-property cannot be partitioned. The 2nd defendant averred in his written statement that immediately after his share was sold in the Court auction, he vacated the house and ever since then was living apart and was not, therefore, liable to pay any mesne profits.

( 4 ) THE 1st defendant and the defendants other than defendant No. 2, on the other hand averred that it was the 2nd defendant that was in management of the joint family properties and so, he alone was liable to pay the mesne profits.

( 5 ) THE trial court held that the plaintiff was entitled to a decree for partition and, consequently, passed a preliminary decree for 2/7 share. It also found that there was a division in status amongst the members of the family, and felt that division in status would be sufficient to enable the plaintiff to claim mesne profits right from the date of the sale. In the result, it decreed past profits for 37 months, @ Rs. 40 per month, and directed the future profits to be ascertained in separate proceedings. This decree for profits was passed only against defendants 1 ,and 2, whose shares alone the plaintiff purchased. It repelled the contention of the 2nd defendant that he had vacated the house immediately after the sale. Costs were, however, awarded against all the defendants.

( 6 ) THE 2nd defendant alone appealed against this decree. Ramachandra Rao, J. held that there was a division in status amongst the defendants on the date of the purchase in the court auction, and the family was divided in status. The court auction purchaser would be entitled to claim mesne profits and interest on the undivided share purchased by him. In that view, he affirmed the trial courts decree, in regard to mesne profits from the date of the sale. He also rejected the 2nd defendants contention that he was not in possession of the suit house, subsequent to the court sale, and in regard to symbolic delivery.

( 7 ) ONCE again it is the 2nd defendant alone that has preferred this Letters Patent Appeal. Sri K. V. Subrahmanya Narsu raises two contentions before us. The first is that the 2nd defendant vacated the house immediately after the court sale and so, he cannot be mulcted with a decree for mesne profits. On a consideration of the evidence on record, the trial court as well as our learned brother found that this was not established by the 2nd defendant. We find no justification for interfering with this concurrent finding of fact. We, accordingly, confirm that finding and hold that the 2nd defendant has not established his contention that he had vacated the house.

( 8 ) THE second contentio