1959 Supreme(Pat) 101

PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Sheonandan Prasad Sao
Versus
Ugrah Sao
Letter Patent Appeal No. 1 of 1954 ;
Decided On : AUGUST 31, 1959

Headnote:

Execution sale of undivided share of a coparcener of a joint Hindu family governed by the Mitakshara law does not effect severance of the joint status, so that the other coparceners will be deemed to be separate, and the remaining share of the alienating coparcener will pass not by survivorship to the coparceners but by succession to his heirs.

Fact of the Case:

Shyamlal Sao and Rangi Sao, both brothers, constituted a joint Hindu family governed by the Mitakshara law. The joint family possessed amongst others plot 1904 with a gola standing thereon situate in village Masaurhi Bazar in the district of Patna, The two brothers had created thereon several usufructurary mortgages. In execution of their money decree against Shyamlal, defendants 1 to 12 attached the entire gola with the land appurtenant thereto and advertised it for sale. Rangi Sao raised objection that he was not bound by the decree and his share in the gola house was not liable to attachment and sale. By its order dated 31st January, 1931, the executing Court directed that only the right, title and interest of the judgment-debtor, Shyamlal Sao, will be sold. Accordingly, the sale proclamation advertising for sale of only the right, title and interest of Shyamlal, subject to the prior encumbrances, was issued, and it was purchased by the decree-holders themselves on 11th July, 1931. In the sale certificate that was issued, however, the entire sixteen annas interest in the disputed plot 1904 was shown as conveyed to the auction purchasers. In view of the order of the executing Court and the writ of sale proclamation, only the right, title and interest of the judgment-debtor, Shyamlal, was sold, and the mention of sixteen annas interest in the sale certificate was demonstrably wrong. The decree-holders auction-purchasers obtained delivery of possession on 11th August, 1932, but they could not obtain khas possession due to pre-existing usufructuary mortgages. The possession delivered to them was, therefore, symbolical possession. Rangi Sao died in 1938 in a state of jointness with the plaintiffs. He left behind him only a daughter. On 23rd August, 1941, the decree-holders auction purchasers conveyed plot 1904 to Sheonandan Prasad Sao, defendant 13, the appellant before this Court, by virtue of a registered deed of sale. By this sale deed they purported to transfer to him the entire sixteen annas interest in the said plot. Defendant 13 redeemed the usufructuary mortgages on 12th May, 1945. On 4th July, 1945, Shyamlal commenced the present action for declaration of title and confirmation of possession or, in the alternative, recovery of possession of eight annas interest in the said plot. His case was that the auction purchasers had in fact purchased only eight annas interest in the said plot, that in the sale certificate sixteen annas interest was fraudulently entered as the subject of sale, that despite this fraudulent entry in the sale certificate the auction purchasers had acquired valid title, only to eight annas interest, that the sale deed (exhibit B) in favour of the appellant, though prima facie in respect of sixteen annas interest was legally operative in respect of eight annas only and did not confer valid title on the purchaser (defendant 13) in respect of the entire plot, that on the death of Rangi bis interest in disputed plot passed to him by survivorship and that he was totally ignorant of the fraudulent entry in tbe sale certificate and learnt of it only on 20th May, 1945.

Finding of the Court:

The execution sale did not operate either to disrupt the joint status of the family or defeat the right by survivorship and, therefore, upon the death of Rangi Sao his share in the joint family property passed by survivorship to the plaintiffs and not by succession to his daughter.

Issues: Whether the sale of undivided share of a coparcener of a joint Hindu family governed by the Mitakshara law operates to effect the severance of the joint status, so that the other coparceners will be deemed to be separate, and the remaining share of the alienating coparcener will pass not by survivorship to the coparceners but by succession to his heirs.

Ratio Decidendi: The alienation by a coparcener of an undivided share or an involuntary vesting of the coparceners share in the Official Receiver after the coparceners adjudication under the Insolvency Act does not have the effect of separation of the joint status of the alienating coparcener or the breaking up of the corporate character of the Hindu undivided family.

Final Decision: Appeal dismissed with costs.