Purchaser of undivided interest of a coparcener cannot claim to be in joint possession of that property with all other coparceners - joint decree holder to execute a decree in its entirety, but if whole of the decree cannot be executed

Citation

CDJ 1999 SC 250

Head note

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 13 - Transfer of Property Act, Section 111(d) - Civil Procedure Code, Section 47 and Order XXI Rule 15 - Joint decree in favour of joint family - Execution of - After the decree, judgment debtor purchasing share of one of the coparceners - Decree whether can be executed in such a case - Held : i. Decree gets extinguished to the extent of the interest so assigned and its execution could lie only to extent of remaining part; ii. In case where interest of coparceners is unidentified, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. iii. Purchaser of undivided interest of a coparcener cannot claim to be in joint possession of that property with all other coparceners - However, in a case, where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of possession because a joint decree holder can seek execution of a decree in the whole and not in part of the property. iv. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the shares of the decree holders are defined or those shares can be predicted or the share is not in dispute - Otherwise the executing court cannot find out the shares of the decree holders and dispute between joint decree holders does not come within ambit of Sec. 47 C.P.C. v. Order XXI Rule 15 of CPC enables a joint decree holder to execute a decree in its entirety, but if whole of the decree cannot be executed, this provision can be of no avail - In that event decree holder will have to work out its rights in an appropriate suit for partition and obtain necessary relief thereto. 1985(2) SCC 332 distinguished. [Para 7]

Cases referred:
1. Sant Lal Jain v. Avtar Singh, 1985(1) RCR 696 (SC).
2. Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malage and others, 1976 RCR 865 (SC).
3. Parmar Kanaksinh Bhagwansinh (Dead) by LRs. v. Makwana Shanabhai Bhikhabhai and another, 1995(2) RCR 287 (SC).
4. Hasimathunnisa Begum v. Vithall Rao Gangaji and Another, A.I.R. 1979 Andhra Pradesh 273.
5. Milkhi Ram and others v. Raghunandan and others, A.I.R. 1982 H.P. 87.
6. Bawa Maharaj Singh v. Bawa Gurmukh Singh and others, A.I.R. 1965 Punjab 166.

COMPARATIVE CITATIONS:
1999 AIR(SC) 1694, 1999 (3) CLT 26, 1999 (3) JT 49, 1999 (4) Supreme 19, 1999 (3) SCC 644, 1999 (3) SCJ 148, 1999 (3) SLT 501, 1999 (4) AD(SC) 36, 1999 (2) MLJ 85 (SC), 1999 (2) LW 688

#partition
#ancestral
#coparcener
#undividedshare
#sale