The purchaser of an undivided share in a dwelling house belonging to an undivided family does not acquire a right to joint possession or other common or part enjoyment of the house, and the period of limitation for a suit for partition and specific possession by such a purchaser begins to run from the date of confirmation of the sale, and not from the date of symbolical possession.

Judgement

DAS, J. :- This is a plaintiffs Letters Patent appeal against the judgment dated 22-12-61 of Barman J. in Second Appeal No. 179/59.*

* Reported in AIR 1962 Orissa 147.

2. The suit properties which include residential houses belong to defendants 2 to 9 and 14 constituting a Mitakshara joint family and governed by the Hindu Law as prevalent in Madras. The following pedigree would show the relationship of the parties :

Chiranjili died without leaving any heir. Viswanatham and his two sons, Ramesam (father of defendant-2 and husband of defendant-3) and Lakhmikantam (D-4) executed a mortgage deed in favour of Gadi Ranga Nayakamma (D. 1) in respect of their 3/5th share in the property. Defendant-1 filed a suit (O. S. No. 6 of 1925) against the aforesaid mortgagors as also against Subbarao (father of defendants 7 and 8 and husband of defendant-9) and defendant No. 14 on the basis of the aforesaid mortgage and obtained a decree on 12-3-25 for sale of 3/5th share of the mortgage property. She put the aforesaid decree into execution and herself purchased the suit property and the other mortgaged properties in court auction sale on 23-4-40. The sale was confirmed on 17-9-41 and symbolical delivery of possession was taken on 20-4-43.

Meanwhile defendant-14 filed another suit (O. S. 303 of 1928) against defendant No. 1 and obtained a decree on 23-1-29 to the effect that the decree passed in O. S. 6025 was not valid and binding against him. On 16-4-55 defendant No. 1 sold her share in the suit property by means of a sale deed which was registered on 18-4-55. The plaintiff has now filed the present suit on 19-4-55 for partition and specific possession in respect of the house properties mentioned in Schs. A and B of the plaint on the basis of her purchase from defendant No. 1.

3. The objection raised on behalf of the main contesting defendants Nos. 2 to 4, was one of limitation. They also contended that the defendant-1 by the auction purchase got merely a right to sue for partition and such a right not being a transferable one the plaintiff has not acquired any right to sue. Defendants 10 to 13 contended that the property which the father of defendant-10 purchased from S. Laxmikanto was not the subject matter of the mortgage and they are unnecessary parties. The Courts however found that the suit property did in fact form a part of the mortgage and the Court sale and they negatived the contention of defendants 10 to 13. The Courts below held that the suit was barred by limitation as it was filed beyond 12 years from the date of confirmation of the sale which took place on 26th April 1940. An appeal was carried to this Court and Barman J. upheld the decision of the courts below dismissing the plaintiffs suit as barred by limitation under Art. 144 of the Limitation Act, but granted leave to appeal as it involved, some important question of law. Hence this appeal.

4. It is not disputed that both defendant-1 and the plaintiff are strangers to the family of the defendants 2 to 9 and 14 who constituted a joint family. Mr. M.S. Rao, learned counsel for the appellant contended before us that no question of limitation can arise in such suits, as the purchaser of an undivided interest of coparcener whether in a private or a court sale, in effect, becomes a co-sharer or co-owner and there is no period of limitation prescribed in the Limitation Act for such a co-sharer to file a suit to enforce a partition. He further contended that assuming Art. 144 applied to such cases, the period of limitation has to be computed from the date of delivery of the possession given through the Civil Court. According to him the actual physical possession of an undivided interest could not be given under O. 21, R. 95 C.P.C. and therefore the only way by which such delivery could be given was by way of symbolical delivery of possession as contemplated under Or. 21, R. 96 and since such delivery was given on 20-4-43 the suit was well within time being filed within 12 yea