A deceased coparcener's share cannot be allotted in a general partition, and the purchaser from a deceased coparcener is not entitled to equitable adjustment in a general partition.

Headnote:
PARTITION - GENERAL PARTITION - HINDU LAW - DEATH OF COPARCENER BEFORE SUIT FOR GENERAL PARTITION - SHARE OF DECEASED COPARCENER - ALLOTMENT - EQUITABLE ADJUSTMENT - NOT POSSIBLE - PURCHASER FROM DECEASED COPARCENER - ENTITLED TO SHARE OF DECEASED COPARCENER - BUT NOT TO EQUITABLE ADJUSTMENT - SHARE OF WIFE IN GENERAL PARTITION - WIFE NOT ENTITLED TO FILE SUIT FOR GENERAL PARTITION - BUT ENTITLED TO SHARE IF SUIT FILED BY SONS - SHARE OF FATHER IN PROPERTY SOLD BY HIM - 1/5TH SHARE.
Fact of the Case:

Govinda, a coparcener in a joint Hindu family, sold a house to the plaintiff in 1940. Govinda's sons filed a suit to set aside the alienation, which was decreed in 1951. The plaintiff filed a suit for general partition in 1953, after Govinda's death. The trial court allotted the entire house to the plaintiff's share, holding that it was necessary to adjust the equities between the parties.
Finding of the Court:

The court held that the trial court erred in allotting the entire house to the plaintiff's share, as Govinda was not alive at the time of the institution of the suit for general partition. The court further held that the plaintiff was entitled to 1/5th share in the house, as that was the share of Govinda at the time of the alienation.
Issues: 1. Whether a share could be allotted to a deceased coparcener in a general partition. 2. Whether the purchaser from a deceased coparcener is entitled to equitable adjustment in a general partition. 3. Whether the wife of a coparcener is entitled to file a suit for general partition. 4. What is the share of the wife in a general partition if the suit is filed by the sons.
Ratio Decidendi: 1. A share cannot be allotted to a deceased coparcener in a general partition, as the shares of the coparceners are fluctuating and, when any coparcener dies, the shares of the remaining coparceners are augmented to that extent. 2. The purchaser from a deceased coparcener is not entitled to equitable adjustment in a general partition, as the principle of equitable adjustments assumes that the coparcener is alive at the time of the general partition. 3. The wife of a coparcener is not entitled to file a suit for general partition, as she is not a coparcener. 4. If a suit for general partition is filed by the sons, the wife is entitled to a share in the partition if the court comes to the conclusion that the alienation is not for a purpose binding upon the family consisting of the father, mother, and sons.
Final Decision: The appeal was allowed, the decree of the trial court was set aside, and the plaintiff was granted 1/5th share in the suit house after partition.

JUDGMENT - 1. This appeal arises out of a suit filed by the plaintiff as the alienee from one of tie coparceners against the coparceners and the members of the joint Hindu family for general partition. The material tacts are set out below: Govinda nad a wife Kashibai and four sons, saknaram, Namdeo, Hanmant and Bhanuaas. On 20-3-1940, Govinda passed a sale- deed in respect of house No. 101 in tavour of the plaintiff tor a sum of Rs. 795/-. Tne four sons of Govinfla filed a suit, (Civil Suit No. 94-A of 1951), against the original plaintiff for possession of the sun house alter setting aside the alienation effected by the father. GovinSa was a party to the suit. The suit was decreed on 3-5-1951 and the plaintiff preferred civil appeal No. 51-A of 1951. Tne appeal came to be dismissed on 6-9-1952. Exhibit P-1 is a copy of tha judgment in that appeal. While dismissing the appeal am appellate court allowed four months time to the plaintiff for vacating the premises. The appellate Court suggested that, in tne meantime, the plaintiff may the a suit tor general partition which was the only way of obtaining the property purchased from one of the coparceners. Accordingly, on 3-11-53 the plaintiff filed a suit tor general partition which has given rise to this appeal. It may be mentioned that Govinda died on 8-11-1952, that is to say, prior to the institution of tne suit tor general partition. Sakharam, the eldest son, had predeceased Govlnda, tie having died on 21-3-1952. The remaining three sons were added as defendants Nos. 1, 2 and 3 and the mother Kashibai was added as defendant No. 4 to the suit. Defendant No. 5 was a purchaser or another item of the joint family property, that is, nouse Ho. 33. Defendant No. 6 is a transferee trom defendant No. 4 in respect of the suit house, that is, house No. 101, sold by Govinda to the plaintiff. The sale deed in favour of defendant No. 6 was executed on 24-1955 pending the suit and defendant No. 6 Laxman was added as a party after his purchase; The plaintiff had prayed that the entire suit house should be allotted to the share of Govinda in me general partition and tne defendants be compensated by being awarded other items of joint family property. It is on that aasis that the plaiutiff asked tar possession or the suit house in its entirety although the plaintiff would be entitled to a fraction of interest in the property, that is to say, the share which belonged to Govinda which would have to be determined in the present litigation.

2. The defendants resisted the plaintiffs claim for the allotment of the house to the share of Govinda in the general partition as an equitable measure. This was, in fact, the principal defence raised by the defendant. The second defence put forward on behalf of the defendant was that the plaintiff was entitled to 1/5th share. Finally they suggested that since the plaintiff has been in enjoyment or tne property for about 14 years, no equities arise in her favour and, therefore she should not be awarded the retier of partition even in respect of 1/5th share of Govinda.

3. The trial Court came to the conclusion that it was necessary for adjusting the equities between the parties to allot the entire house to the share of sovinoa. it further held that since the house could be allotted to the share of Govinda, the plaintiff would be entitled to claimpossession of the entire house. Consequently, it decreed tne plaintiffs suit and awarded possessien of the same to her. It is against that judgmant that defendants Nos. 1 to 3 have come up in appeal.

4. The first point to be considered in this appeal is whether, in the course of the general partition, any snare could be allotted to Govinda who was not alive at tne time of the institution of the present suit. It is true that the plaintiff was entitled to Govindas share in tha sun property, that is, house No. 101, and that her right to claim partition and possession of the share transterred to her by Govinda cannot be defeat

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1961 Supreme(Bom) 57

IN THE HIGH COURT OF BOMBAYNaik V.A. J.Appellants: Namdeo Govind and Ors.Vs.Respondent: Mumtaz BegumFirst Appeal No. 89 of 1956Decided On: 26.10.1961Counsels: For Appellant/Petitioner/Plaintiff: J.N. Chandurkar, Adv.For Respondents/Defendant: M.M. Qazi, Adv.

A deceased coparcener's share cannot be allotted in a general partition, and the purchaser from a deceased coparcener is not entitled to equitable adjustment in a general partition.

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IN THE HIGH COURT OF BOMBAY
Naik V.A. J.
Appellants: Namdeo Govind and Ors.
Vs.
Respondent: Mumtaz Begum
First Appeal No. 89 of 1956
Decided On: 26.10.1961
Counsels:
For Appellant/Petitioner/Plaintiff: J.N. Chandurkar, Adv.
For Respondents/Defendant: M.M. Qazi, Adv.