JAGDISH DUTT AND ANR.versusDHARAM PAL AND ORS.

A                              JAGDISH DUTT AND ANR.
                                         v.
                                                                                         -
                                DHARAM PAL AND ORS.

                                      APRIL 12, 1999

B                   [B.N. KIRPAL ANDS. RAJENDRA BABU, JJ.]


         Civil Procedure Code, 1908: Section 47, Order XX!, Rule 15-Hindu
   Undivided family-Suit for ejectment-Decree in favour of joint family-
  Execution of-Transfer of undivided interest of a coparcener in favour of
C judgment-debtor-Effect of-Held, decree gets extinguished to the extent of
   interest so assigned and execution could lie only to the extent of remaining
  part of the decree~If the interest of the coparcener. in the property is not
  specifically defined; the Judgm_ent debtor cannot be, deprived of possession
   unless the .rights are appropriately ascertpined in a par.tition suit.
D             Ap~llants instituted a suit for ejectment on the ground of arrears of
        rent and sub-letting by respondents No. 1 and 2. The said suit was decreed
        by Trial Court and appeals against the decree were dismissed. In the execution
        petition, respondent No. 2 claimed that he had purchased the undivided
        interest of the coparceners in the Hindu Undivided family of the decree
E       holder and therefore, actual physical possession cannot be given but only
        symbolic possession can be given to the appellant-decree holder. The Executing
        Court upheld the said contention. However, on challenge, the High Court
        setting aside the order of Executing Court, remitted the matter to Executing
        Court to investigate to quantu01 ofshare purchased by respondent No. 2.
F       Aggrieved by the order of High Court, the present appeal was preferred.

             The contention of the appellants was that it is not open to the
        respondents during the subsistence oftenancy or in the suit for recovery of.
        possession of the property after terinination of tenancy to set up title in
        himself or in any other person. Respondents bad to surrender.possession
G       and seek remedy, if any, separately in case he acquires title subsequently
        through some other person.

              The contention of the respondent was that a lease of immoveable
        property determines in case the interest of lessee and lessor in the whole
        of the property becomes v.ested in one person and in the present case such
H       an event having taken piace to the extent of the undivided share of the
    .                                       576
                         JAGDISH DUTT v. DHARAM PAL                             577
    coparceners of the joint family, decree passed In favour of the appellants          A
    cannot be executed. Therefore, possession of the entire property cannot be
    obtained by the appellants and only symbolic possession can be given.

          Dismtssing the appeal, this Court

           HELD : 1. When a decree is passed in favour a joint family the same          B
    has to be treated as a decree in favour of all the members of the joint family
    in which event it becomes a joint decree. Where a joint decree for actual
    possession of immovable property is passed and one of the coparceners
    assigns or transfers his interest in the subject matter of the decree in favour
    of the judgment debtor, the decree gets extinguished to the extent of the
    interest so assigned and execution could lie only to the extent of remaining        C
    part of the decree. In case where the interest of the coparceners is undefined,
    indeterminate and cannot be specifically stated to be in respect of any one
    portion of the property, a decree cannot be given effect to before ascertaining
    the right of the parties by an appropriate decree in a partition suit. It is no
    doubt true that the purchaser of the undivided interest of a coparcener in an       D
    immovable property cannot claim to be in joint possession of that property
    with all the other coparceners. However, in case where he is already in
    possession of the property, unless the rights are appropriately ascertained,
    he cannot be deprived of the possession thereof for joint decree holder can
    seek for execution of a decree in the whole and not in part of the property.
    A joint decree can be executed as a whole since it is not divisible and it can      E
    be executed in part only where the share 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 is foreign to the provisions of Section
    47, CPC. Order XXI, Rule 15, CPC enables a joint decree holder to execute           F
    a decree in its entirety but if whole of the 'decree cannot be executed, this
    provision cannot be of any avail. In that event also, the decree holder will have
    to work out his rights in an appropriate suit for partition and obtain necessary
    relief thereto. Thus, High Court was justified in remitting the matter to the
    Executing Court to investigate the quantum of share purchased by respondent
    No. 2 -judgment debtor. [580-F-H; 581-A-C)                                          G

-        Sant Lal Jain v. Avatar Singh, (1985] 2 SCC 332, held inapplicable.

         Shah Mathuradas Magan/al & Co. v. Nagappa Shankarappa Malage
    & Ors., ( 1976] 3 SCC 660; Parmar Kanaksinh Bhagwansinh (Dead) by Lrs.
    v. Makwana Shanabhai Bhikhabhai & Anr., (19951 2 SCC 501;                           H
    578                    SUPREME COURT RgPORTS                   [1999] 2 S.C.R.

A Hasimathunnisa Begum v. Vitha/i Rao Gangaji & Anr., AIR (1979) Andhra
    Pradesh 273; Milkhi Ram & Ors. v. Raghunandan & Ors., AIR (1982) HP
    87 and Bawa Maharaj Singh. v. Bawa Gurmukh Singh & Ors., AIR (1965)
    Punjab 166, referred to.

          CIVIL AJ;>PELLA TE JURISDICTION : Special Leave Petition (C) No. 2590
B   of 1997 Etc.

         From the Judgment and Order dated 4.11.96 of the Himachal Pradesh
    High Court in C.R.P. No. 61of1993.

C        Surlil Kumar Jain, Jitender K. Bhatia, Ms. Jaya Kumari and Ajay Gupta
    for Mis Jain Hansaria & Co. for the Petitioners.

          Atul Shannar, Vijay Kumar and S. U~y Kumar Sagar for the Respondents.

          The Judgment of the Court was delivered by

D         RAJENDRA BABU, J. A suit .for ejectment was instituted by the
    appellants on t~e grounds of arrears of rent and' sub-letting by Dharam Pal
    (Respondent No. 1) and Sat Pal (Respondent No. 2). The suit was decreed
    by the trial court on March 31, 1987. Appeal against that decree, second
    appeal thereafter and further special leave petition to this Court against the
E   decree in second appeal stood dismissed., The appellants herein levied
    execution on February 5, 1991 and certain objections thereto were raised that
    Judgment Debtor No. I was unnecessarily arrayed as a party in the proceedings
    and he was not in possession of the disputed premises. Judgment Debtor No.
    2 claimed that he was a tenant in respect of the shop in question and his
    tenancy was not terminated in accordahce with I.aw. This contention was
F   belied by the finding recorded by the High Court in second appeal that the
    said Sat Pal (Respondent No. 2) was not a tenant but a trespasser of the shop.
    Hence the ~bjections were overruled. Against that order a revision petition
    was filed which was also dismissed, of course, granting some time to vacate
    the premises subject to certain conditions.
G
          In the execution petition respondent No. 2 claimed that he had purchased
    the undivided interest of the coparceners in the Hindu Undivided Family of
    the decree holder and, therefore, actual physical possession cannot be given
    but only symbolic possession can be given to the appellant-decree holder.
    The Executing Court, after inquiry, upheld this contention. That order was
H   challenged in the High Court. The High Court set aside the order made by /
    0




         JAGDISH DUTT v. DHARAM PAL [RAJENDRA BABU, J.]                      579
  the executing court and remitted the matter to it to ·investigate the quantum     A
  of share purchased by respondent No. 2. If a good or larger share as opposed
  to an insignificant share had been purchased by respondent No. 2 khas
  possession cannot be given to the appellant and if only an insignificant
· portion had been purchased by him, the khas possession shall be given to
  the appellant. It is against this order the present special leave petitions are   B
  preferred.

        The learned counsel for the appellants contended that it is not open to
 the respondents during the subsistence of tenancy or in the suit for recovery
 of possession of the property after termination of tenancy to set up title in
 himself or in any other person. Respondents had to surrender possession and        C
 seek remedy, if any, separately in case he acquires title subsequently through
 some other person and he placed strong reliance in support of this proposition
 on the decision of this Court in Sant Lal Jain v. Avtar Singh. [1985] 2 SCC
 332; He also contended that in a case of this nature where only a portion of
 the undivided interest had been purchased by the judgment debtor there
 would be n<? merger of interest in terms of Section 111 (d) of the Transfer of     D
 Property Ad, 1882 and submitted that the concept of merger would arise only
 if no property remains outside the sale. In the present case only I/3rd
 undivided share having been purchased the judgment debtor cannot resist
 the recovery of possession and placed· reliance on the decision of this Court
 in Shah Mathuradas Magan/al & Co. v. Nagappa Shankarappa Ma/age &                  E
 Ors., [1976] 3 SCC 660 and Parmar Kanaksinh Bhagwansinh (Dead) by LRs
 v. Makwana Shanabhai Bhikhabhai & Anr. [1995] 2 SCC 501.

       On the other hand, the learned counsel for the respondents submitted
 that a lease of immovable property determines in case the interests of lessee
 and lessor in the whole of the property becomes vested in one person and           F
 in the present case such an event having taken place to the extent of the
 undivided share of the coparceners of the joint family, decree passed in
 favour of the appellants cannot be executed. If that is so, the possession of
 the entire property cannot be obtained by the appellants and, therefore, only
 symbolic possession can be given and placed reliance on the decisions in           G
 Hasimathunnisa Begum v. Vitha/ Rao Gangaji & Anr., AIR (1979); Andhra
 Pradesh 273; Milkhi Ram & Ors. v. Raghunandan & Ors., AIR (1982) H.P.
 87; and Bawa Maharaj Singh v. Bawa Gurmukh Singh & Ors., AIR (1965)
 Punjab 166.

        We will first deal with the contention that a judgment debtor has to        H
                                                                                •

    580                    SUPREME COURT REPOp.rs                     [1999] 2 S.C.R.

A   surrender his possession and thereafter .seek his remedy in case he acquires
    any subsequent right in the· disputed property is attracted or not. A careful
    reading of the decision in Sant la/ Jain case (supra) would reveal that during
    the tenn of tenancy or in the suit for recovery of possession thereof after
    termination of such tenancy the 'tenant cannot set up title in himself and he
    has to surrender possession on tenancy being terminated and he has to seek
B   his remedy separately in case he acquires title subsequent to the decree
    through some other·person. It is also made ciear therein that he need not do
    so ifhe had acquired title to the property from the lessor or some one claiming
    through him in which case there would be a merger of two rights. In that case,
    the facts were that the original· owner had leased the property which was held
C   by the licensee through the lessee; that a sale had been effected in favour
    of the licensee but the lease in favour of the original lessor was continued;
    that his interest was different from. that of the original owner which was
    transferred to the licensee and thus there would be n~ merger of interests.
    In that view of the matter the decision in Sant Lal Jain\ case [supra] will not
    be of al}y assistance to the appellants.
D
          We need not.examine the scope of Section 111 (d) of the Transfer of
    Property Act inasmuch as respondent No. 2 is held to be a trespasser and
    not a lessee. We have to find out the effect of the purchase of undivided
    interest of some of the coparceners in family of the decree holder in respect
E   of the property which is the subjet:t-matter of execution.

           When a decree is passed in favour of a joint family the same has to be
    treated as a decree in favour of all the nietrrbers of the joint family in which
    event it becomes a joint decree. Where a joint decree for actual possession
    .of immovable property is passed and one ortite coparceners assigns or
F   transfers his interest in the subject matter of the decree in favour of the
    judgment debtor, the decree gets extinguished to the extent of the interest so
    assigned and execution could lie on'ly to the extent of remaining part of the
    decree. In case where the interest of the coparceners is undefined, indeterminate
    and cannot be specifically stated fo be in respect of any one portion of the
G   property, a decree cannot be given· effect to before ascertaining the rights of
    the parties by an appropriate decree in a partition suit. It is no doubt true that
    the purchaser of the undivided interest of a coparcener in· an immovable
    property cannot claim to be_ in joint possession of that property with all the
     other coparceners. However, in case where he is already in possession of the
     property, unless the rights are appropriately ascertained, he cannot be deprived
H    of the possession thereof for a joint decree holder can seek for execution of
            JAGDISH DUTT v. DHARAM PAL [RAJENDRA BABU, J.]                   581
 a decree in the whole and not in part of the property. A joint decree can be        A
 executed 'as a whole since it is not divisible and it can be executed in part
 only where the share of tne 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 is foreign to the provisions of Section 47, CPC. Order :XXI,
 Rule 15, CPC enables a joint decree holder to execute a decree in its entirety      B
 but if whole of the decree cannot be executed, this provision cannot be of
 any avail. In that event also, the decree holder will have to work ~ut his rights
 in an appropriate suit for partition and obtain necessary relief thereto. Various
 decisions cited by either side to which we have referred to do not detract us
 from the principle stated by us as aforesaid. Therefore, a detailed reference       C
 to them is not required.

       In this view of the matter, we think the High Court was justified in
  making the order under appeal. Hence the special leave petitions stand
. dismissed. No orders as to costs.
                                                                                     D
 S.V.K.I.                                                    Petition dismissed.