Period of limitation for filing suit for possession.

This is an appeal by the second defendant, the son of the first defendant, against the decree of the lower Court directing the sale of his one-eighth share. Mr.S.Tyagaraja Ayyar for the appellant contends that since the second defendant was not made a party to Execution Petition No.308 of 1937, the sale of his share is null and void. We find that it was after the filing of Execution Petition No.308 of 1937 that the decree in Original Suit No.55 of 1936 was passed on 10th July, 1937, by which the order on the claim petition was set aside and the attachment of the second defendant’s share was restored. As the first defendant was the kartha of the family, he must be deemed to have represented the second defendant also in Execution Petition No.308 of 1937. It cannot be said that even though the second defendant was not eo nomine a party to this execution petition, he was not represented in the petition, because his father, the manager of the joint family, was on record.

The other argument of the learned counsel is that the decree in Original Suit No.55 of 1936 cannot be held to have restored what was disallowed on the claim petition ; because it is only a party against whom an order is made that may institute a suit to establish the right which he claims in the property in dispute and since Original Suit No.55 of 1936 was by the sixth defendant, the order on the claim petition must be deemed to have become conclusive and therefore the attachment of his one-eighth share must be deemed to have been disallowed long ago. We are unable to accept this contention because in the decree in Original Suit No.55 of 1936, it is clearly stated that what was disallowed on the second defendant’s claim had been restored as a result of the suit.

Mr.Tyagaraja Ayyar then raised the question of limitation which the learned Judge has decided under issue No.7. This raises a rather interesting question where the applicability of Article 120 has to be considered.

The sale certificate Exhibit A-1 is dated 6th May, 1938, whereas the sale took place on 13th October, 1937. The present suit was instituted on 30th July, 1947, i.e., more than three months before the expiry of ten years from the date of sale but within a few more months of the termination of that period from the issuing of the sale certificate. The arguments of the learned counsel is that where the rights in joint family property of a coparcener is sold in Court-auction, or is alienated by him voluntarily, what the purchaser gets is an “equity” to work out his remedies by filing a suit for partition and getting the share of the vendor, or judgment-debtor-coparcener, allotted to him. Until such an event takes place, what has been acquired by the purchaser is what is legally termed an equity or an inchoate right which cannot be tangibly exercised or utilized. Such a purchaser does not become a coparcener with the remaining members of the family ; nor is he entitled to be in joint possession of the properties as a tenant-in-common can be under an ordinary co-ownership of property. He is also not entitled to claim mesne profits from the other coparceners until and unless after a suit for partition, or by consensus of opinion among the remaining members, the seller’s or judgment-debtor-coparcener’s share in the property is specifically allotted to him. In these circumstances, it cannot be said that any particular article prescribing a period of limitation in the schedule to the Limitation Act can be said to apply to a suit by a purchaser except the residuary Article 120. Observations of their Lordships of the Supreme Court in Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh and others1, are relied upon. At page 188 of the report their Lordships say:

“All that he (the purchaser) purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from