ivil Appeal No 420 of 1963
Appeal from the judgment and decree dated September 9 1960 of the Andhra Pradesh High Court in Appeal Suit No 300 of 1955
M Suryanarayana Murti and TVR Tatachari for the appellant
KR Chaudhuri for respondents 1 to 13
The Judgment of Sarkar and Raghubar Dayal JJ was delivered by Sarkar J Ramaswami J delivered a separate Opinion
Sarkar J
In a certain money suit being Small Cause Suit No 9 of 1953
a decree had been passed against Narasimhaswamy and his four sons who were members of a Mitakshara Hindu joint family
In execution of that decree the shares of the four sons in the joint family properties described altogether as 45th share were put up to auction on December 21 1936 and purchased by one Sivayya whose successors in interest are the appellants
The father Narasimhaswamy s share had not been put up for sale because an application for his adjudication as insolvent was then pending
The sale to Sivayya was duly confirmed
Thereafter Sivayya sold the properties purchased by him at the auction to one Prakasalingam
On November 6 1939 an order was made
under O 21 rr
352 and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchased to Prakasalingam along with the members of the joint family in actual  possession
This order was duly carried out and possession was delivered to Prakasalingam by publishing that fact by beat of drum as prescribed in these rules
Subsequently Prakasalingam re transferred the properties to Sivayya
On October 16 1951 Sivayya filed the suit out of which this appeal arises against the then members of the joint family whose Sup 65 12 632 number had by that time increased and various other persons holding as alienees from them asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession
The trial Court decreed the suit but held that Sivayya was not entitled to a 45th share but only to a 23rd share because before the decree a 5th son had been bom to Narasimliaswamy who had not been made a party to the suit or the execution proceedings and whose share had not consequently passed under the auction sale
Some of the defendants appealed to the High Court of Andhra Pradesh from this judgment
The High Court allowed the appeal on the ground that the suit was barred by limitation under article 144 of Schedule 1 to the Limitation Act
Sivayya had filed a cross objection in the High Court on the round that he should have been held entitled to a 45th share of the properties which was dismissed by the High Court without a discussion of its merits in view of its decision on the question of limitation
Sivayya having died pending the appeal in the High Court the appellants as his successors in interest have come up to this Court in further appeal under article 133 of the Constitution
Various questions had been raised in the trial Court but only two survive after its decision
They are whether the suit was barred by limitation and whether Sivayya was entitled to a 45th share
On the question of limitation two articles of the Act were pressed for our consideration as applicable to the ease
They are articles 144 and 120
We consider it unnecessary to decide in this case which of the two articles applies for in our view the suit was not barred under either
As earlier stated the High Court held that article 144 applied
The application of this article seems to us to present great difficulties to some of which we like to refer
That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff
This article obviously contemplates a suit for possession
of property where the defendant might be in adverse possession of it as against the plaintiff
Now it is well settled that the purchaser of a copartner s undivided interest in joint family property is not entitled to possession of what he has purchased
His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener 63 3 whose share he had purchased
His right to possession would date from the period when a specific allotment was made in his favour Sidheshwar Mukherjee vs Bhubneshwar Prasad Narain 1 It would therefore appear that Sivayya was not entitled to possession till a partition had been made
That being so it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession
Support for this view may be found in some of the observations in the Madras full bench case of Vyapur vs Sonamm Boi Ammani 2
In the case in hand the learned Judges of the High Court thought that the applicability of article 144 to a suit like the present one was supported by the decision of the Judicial Committee in Mahant Sudarsan Das vs Mahan Ram Kirpal Das3
We feel considerable doubt that the case furnishes any assistance
It held that article 144 extends the conception of adverse possession to include an interest in immovable property as well as the property itself
In that case a purchaser of an undivided share in a property which was not coparcenery property had obtained possession of that share and he was held to have acquired title to it by adverse possession
That was not a case of a person who was not entitled to possession
We are not now concerned with adverse possession of an interest in property
Having expressed our difficulties on the matter let us proceed on the assumption without deciding it that article 144 is applicable
Even so it seems to us that the suit is not barred
It is not in dispute that in order that the suit may be barred under the article the defendant must have been uninterrupted possession for twelve years before the date of the suit
Now in
the present case that was not so
By the delivery of symbolical possession under the order of November 6 1939 the adverse possession of the defendants was interrupted
Time has therefore to commence to run from that date and so considered the suit having been brought within twelve years of that date it was not barred under that article
That would follow from the case of Sri Radha Krishna Chanderji vs Ram Bahadur 4 where it was held that delivery of formal possession also interrupted the continuity of adverse possession
It was however said that the order for delivery of possession 1  188
3 1949 LR 77 IA 42
2 Mad
4 AIR 1917 PC 197
634 made in the present case was a nullity because Sivayya and his transferee who had purchased an undivided share in coparcenery property were not entitled to any possession at all
We agree that the order cannot be supported in law but we do not see that it was for this reason a nullity
It is not a case where the order was without jurisdiction
It was a case where the learned Judge making the order had while acting within his jurisdiction one wrong in law
Such an order has full effect if it is not set aside as it was not in this case
Yelumalai Chetti vs Srinivasa Chetti1 to which we were referred does not support the contention that the order was a nullity There a purchaser of an undivided share in coparcenery property at an execution sale had applied for possession under section 318 of the Code of Civil Procedure of 1882 which corresponds to 0 21 r 95 of the present Code
That application was dismissed as barred by limitation
Later the purchaser who had subsequently acquired the interest of the other coparceners in the property under a private sale filed a suit for possession of the whole
it was contended that the suit was barred under section 244 of the old Code  section 47 of the present Code as the purchaser could only proceed by way of execution
In dealing with that contention it was said that though the purchaser of an undivided share in coparcenery property was only entitled to ask for a partition it was not competent to a court on a mere application for execution by a purchaser of such a share at a court sale to order a partition and therefore the dismissal of the application under section II 8 of the old Code had no effect by way of yes judicature on the second Suit for Possession
This case said nothing about the legality of an order under 0
21 rr 35 95 or 96
It seems to us that the question of adverse possession is one of fact
If the person against whom adverse possession is set up should that he had in fact obtained possession whether lawfully or not that would interrupt any possession held adversely against him
The question is whether there was in fact an interruption of the adverse possession and not whether that interruption was justifiable in law
Under the order for delivery of symbolical possesSion whether it was legal or otherwise Prakasalingam did obtain possession and this was an interruption of the adverse possession by the respondents
In respect of the present suit time under article 144 must therefore commence from that interruption
We wish to observe here that this aspect of the matter exposes the anomaly that seems to arise from the application of article 144 to this case
If Prakasalingam s possession under the order of 1 Mad
63 5 November 6 1939 was no possession in law because as is contended he was not entitled to possession at all then it would be difficult to hold that at that time somebody else was holding the property adversely to him
Since Prakasalingam or his successor Sivayya was not entitled to possession till after the decree in a suit for partition brought by him article 144 would seem to be inapplicable to that suit
Learned counsel for the respondents referred us to Mahadev Sakharam Parkar vs Janu Namji Hatle1 and Jang Bahadur Singh vs Hanwant Singh1 to show that the delivery of symbolical possession does not avail the appellants
On behalf of the appellants it was said that these decisions are no longer good law in view of the judgment of the Judicial committee in Sri Radha Krishan Chanderji s 3 case
Apart however from the merits of this contention which no doubt deserve consideration the principle of these cases does rot seem to us to be applicable to the present case
That principle was expressed in the case of Jang Bahadur Singh 2  which also is clearly to be implied from the decision in the case of Mahadev Sakharam Parkar1 in these words If possession was delivered in accordance with law that undoubtedly would as between the parties to the proceedings relating to delivery of possession give a new start for the computation of limitation and the possession of the defendants would be deemed to be a fresh invasion of the plaintiff s right and a new trespass on the property
But if possession was not delivered in the mode provided by law that delivery of possession cannot in our opinion give a fresh start to the plaintiff for computing limitation
 By the words in accordance with law the learned Judges meant in accordance with the Code of Civil Procedure and not any other law
These cases dealt with an order for delivery of symbolical possession where an order for actual possession could have been made under the Code
Because of this it was held that the order for delivery of symbolical possession did not interrupt the adverse possession of the defendant
That is not the case here
The only order for delivery of possession that could possibly be made under the Code in the present case was under 0
21 rr
352 and 96 because the other members of the family whose share had not been sold were certainly entitled to remain in possession
The fact that I view of the provisions of the Hindu law the order made is illegal is irrelevant for the present purpose
That would not bring the case within the principle of either the Bombay case or the Allahabad case
1 Bom
2 All
3 AIR 1917 PC 197
636 Learned counsel for the respondents however contended that 0 21 r 352 only applied where there was a decree for joint possession and it did not apply to the present case because here there was only an order for delivery of joint possession and not a decree
This contention cannot be accepted because under section 36 of the Code the provisions relating to the execution of decrees are applicable to execution of orders
In any case the order is clearly within the terms of 0 21 r 96
The delivery of symboli cal possession made in this case was quite in terms of the Code and so amounted to an interruption of the respondent s adverse possession and the period of limitation for the purpose of the application of article 144 would start from the date of such delivery
As the suit was brought within twelve years from the date of that delivery of possession article 144 even if it applies does not bar it
We then turn to article 120
In Bai Shevantibai vs Janardan R warick1 it has been held that to a suit like the present this is the article that applies
Learned counsel for the respondents himself contended that this was the appropriate article to be applied
This article applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years commencing from the date when the right to sue accrues
Learned counsel for the respondents relied on the observation in Shevantibai s1 case that in a suit like the present one
the period of limitation under article 120 commences to run from the date of the sale
This the case no doubt held but we think in that respect it did not lay down the law correctly
It has been held by this Court in Mst
Rukhmabai vs Lala Laxminarayan 2  and C Mohammad Yunus vs Syed Unnissa3 that the right to sue accrues for the purpose of 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it
Now whatever the nature of the plaintiff s right in the present case there is nothing to show that right was ever challenged in any way by the respondents
It is impossible therefore to hold that his suit was barred under article 120
The result is that the suit was not barred whether article 144 or article 120 applied to it
It remains now to deal with the cross objection
We do not think that it has any merit
Both the courts below have held that what Sivayya purchased at the auction sale was the share of the four sons of Narasimhaswamy in the joint family properties
At the date of the auction sale that share which was originally 1 AIR 1939 Bom
3  2  637 45th had been reduced to 23rd by the birth of another son Venugopal to Narasinihaswamy who had not been made a party either to the suit or the execution proceedings
It is irrelevant to enquire whether after his birth the fifth son s share could be proceeded against in the execution of the decree in suit No 9 of 1933
It is enough to say that was not in fact done
What was purchased at the execution sale was only the shares of Venugopal s four brothers at the date of the sale and this was 23rd
That being so we think Sivayya was not entitled to get Venugopal s 16th share also allotted to hi in in the partition suit
The crossobjection must fail
We may add that no claim has been made against Narasimhaswamy s share whose insolvency once ordered appears subsequently to have been annulled
In the result we would allow the appeal set aside the judgment and decree of the High Court except as to the dismissal of the cross objection and restore that of the learned trial Judge
The appellants will be entitled to proportionate costs here and in the High Court
Ramaswami J
The question of law involved in this appeal is what is the period of limitation applicable to a suit filed by an alienee of a coparcener of an undivided share in the joint family property for general partition
The appellants are the legal representatives of the deceased plaintiff Mamidi China Venkata Sivayya
The suit was filed by him on October 16 1951 for partition and separate possession of the 45th share in the joint family properties
It is alleged that he purchased the undivided share of defendants 2 to 5 at a Court auction sale held on December 21 1936 in execution of a decree of the Court of Small Causes
The sale was confirmed on February 23 1937
Later on ie on March 5 1939 the purchaser Sivayya sold the right he had purchased to one Prakasalingam who it is alleged obtained symbolic delivery of possession of the undivided share of the joint family properties on November 6 1939
It appears that Sivayya obtained a reconveyable of the right from Prakasalingam on April 11 1945
Sivayya brought the present suit on October 16 1951 against the other coparceners and alienees from some of the coparceners
The suit was filed by Sivayya for general partition
The main defence of the contesting defendants was that the suit was barred by limitation
The trial court held that the suit was governed by Article 144 of the Limitation Act and Article 120 did not apply
The trial court also found that there was symbolic delivery of possession in favour of Prakasalingam on November 6 1939 and there was break up of adverse 638 possession of defendants 1 to 5 and that the suit was therefore brought within time
The trial court held that the 16th share of the 6th defendant one of the coparceners did not pass to the plaintiff as the 6th defendant was born before the Court sale and he was not implement as a party in the present case
The trial court accordingly gave a decree for partition and separate possession to the plaintiff of 23rds share of the properties mentioned in Sch A  of the plaint
The defendants preferred an appeal before the High Court of Andhra Pradesh against the judgment and decree of the trial court
The plaintiff also filed a Memorandum of Cross Objections claiming the 16th share of the 6th defendant also
The High Court held that Article 144 of the Limitation Act applied to the suit and the adverse possession of the defendants commenced from the date of the auction sale and that the suit was barred by limitation as it was filed on October 16 1951 ie more than 12 years after the auction sale
The High Court also held that the symbolic delivery had no legal effect and did not break the adverse possession of the defendants
Accordingly the High Court allowed the appeal and the suit was dismissed with costs throughout
The present appeal is presented on behalf of the legal representatives of the deceased plaintiffs against the judgment and decree of the High Court of Andhra Pradesh
Before dealing with the question as to which Article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu Joint Family
It is wellsettled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property
The purchaser acquires only an equity to stand in the alienor s shoes and work out his rights by means of a partition
The equity depends upon the alienation being one for value and not upon any contractual nexus
The purchaser does not become a tenant in common with the other members of the joint family
He is not entitled to joint possession with them
The alienee s suit for partition must be one for partition of the entire property and not for the partition of any specific item of or interest in the family property
Such a suit however will not be technically on a par with a suit for partition filed by a coparcener
Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family
Mayne s Hindu Law eleventh edition page 489
639 On behalf of the appellants learned Counsel put forward the argument that the right of the alienee to sue for partition is a continuing right and there is no period of limitation for enforcing such right
In my opinion there is no warrant for this argument
A suit for partition filed by the alienee from a coparcener is not in a technical sense a suit for partition and as already stated such a suit will not have the necessary effect of breaking up the joint ownership of the members of the family in the joint property nor the corporate character of the family
As observed by Bhashyam Ayyangar J in Aiyyangari Venkataramayya vs Aiyyagari Ramayya The vendee s suit to enforce the sale by partition is not a suit for partition  in the technical sense in which partition  or vibhaga  is used in the Hindu law
A suit for partition in the technical sense can be brought only by an undivided member of the family
The right to such partition is personal to him and not transferable
Such a suit can be brought only in the lifetime of the coparcener and even if so brought it will abate if he should die before final decree without leaving male issue
A partition in the technical sense whether effected amicably or by decree of Court breaks up not only the joint ownership of property but also the family union ie the corporate character of the family
Each member thereafter becomes a divided member with a separate line of heirs to himself
An undivided member of a family though he may alienate either the whole Gurulingappa vs Nandappa ILR  or any part of his undivided share will continue to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the family property other than what he has transferred  
The transferee however does not step into the shoes of the transferor as a member of the family and there will be no community of property between him and all or any of the members of the family in respect either of the property transferred to him or the rest of the family property
In my opinion a suit like the present one will fall within Article 144 of the Limitation Act
1 ILR at p 717
64 0 It is true that an alienee of an undivided interest of a Hindu coparcener is not entitled to joint possession with the other coparcener and he is also not entitled to separate possession of any part of the family property
But the alienee is entitled to obtain possession of that part of the family property which might fall to the share of his alienor at a partition
What the alienee acquires by a purchase is not any interest in specific family property but only an equity to enforce his right in a suit of partition and have the property alienated set apart for the alienor s share if possible
In the present case the alienee has instituted a suit for general partition with the prayer that he may be put in possession of that part of the family property which may be allotted to his alienor
It is not right to consider such a suit as a suit for more partition
The main relief sought by the plaintiff is the relief for possession of that part of the property which may be allotted to the alienor s share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor s share
What the plaintiff seeks is actual delivery of possession
In my opinion such a suit falls within the purview of Article 144 of the Limitation Act and the law on this point is correctly stated in Thai vs Dakshinamutthy1
If Article 144 is the proper article applicable when does time commence to run  According to the third column of Article 144 time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff
As I have already pointed out the possession of the non alienating members of the family cannot be deemed to be possession on behalf of the alienee also because the purchaser alienee does not acquire any interest in the property sold and does not become tenant in common with the members of the family nor is he entitled to joint possession with them
It is clear that in the absence of a clear acknowledgment of the right of the alienee or participation in the enjoyment of the family property by the alienee the possession of the nonalienating coparceners would be adverse to the alienee from the date on which he became entitled to sue for general partition and possession of his alienor s share
The fact that the alienee has purchased an undivided interest of joint family property is not inconsistent with the conception of adverse possession of that 64 1 interest
As Lord Radcliffe observed in Sudarsan Das vs Ram Kirpal Das1  Now it is the respondents  case it is in fact their main contention on this issue that the appellant has never at any time had adverse  possession against them because the disputed property being a fourteen undivided share his possession has been throughout no more than a joint possession with them
And the joint possession which coparceners enjoy in respect of the undivided property involves that prima facie the exclusive possession of any one of them is not adverse to the others
Their Lordships have no doubt of the validity of this general rule  but they are unable to think that it will be in any way departed from if they hold that in respect of the disputed property itself the appellant s possession has been adverse to the owners of the other shares
In truth there is some confusion involved in the argument
What is in question here is not adverse possession of the block of property in which the various undivided interests subsist but adverse possession of one undivided interest
Article 144 certainly extends the conception of adverse possession to include an interest in immovable property as well as the property itself nor was it disputed in argument by the respondents that there could be adverse possession of an undivided share given the appropriate circumstances
 In the present case therefore adverse possession began to run from the date of purchase of the undivided share ie from December 21 1936 but it was submitted on behalf of the appellants that Prakasalingam obtained symbolic delivery and possession of the undivided share on November 6 1939 after notice to defendants 2 to 5 and there was a fresh cause of action to Sustains the present suit for possession
It was contended on behalf of the respondents that the symbolic delivery was illegal and the executing court was not competent to make an order of delivery of possession either symbolic or actual with regard to the sale of an undivided interest of joint family property
In support of this argument reliance was placed on the decision in Yelumalai Chetti vs Srinivasa Chetti 2  in which it was held that the purchaser at a Court sale of the share of an undivided member of a joint Hindu family acquires only a right to sue for partition and for delivery of what may be allotted as the share of such undivided member 1 AIR 1950 C44at p 47
2 ILR 642 and the Court cannot on a mere application for execution by such purchaser enforce his right by an order for partition
It was further held that no such order can be made under section 318 of the Code of Civil Procedure and the dismissal by the Court of an application by the purchaser under section 318 cannot be a bar to a suit by the purchaser for partition
Even assuming that the grant of symbolic delivery of possession ought not to have been made and that the executing court acted illegally in making such an order it cannot be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye of law
I am therefore of the opinion that the rant of symbolic possession by the court in favour of Prakasalingam after notice to the defendants 2 to 5 was tantamount in law to delivery of actual possession and there fore sufficient to break up the continuity of adverse possession in favour of the defendants
In Sri Radha Krishna Chanderji vs Ram Bahadur1 it was held by Lord Sumner that symbolic posses sion was available to dispossess a party sufficiently where he was a party to the Proceedings in which it was ordered and given
I am accordingly of the opinion that the suit of the plaintiff is not barred by limitation under Article 144 of the Limitation Act and the view taken by the High Court on this part of the case is not correct and must be overruled
On behalf of the appellants it was also argued that a decree for 56th share of the joint family properties and not merely for 23rds share should have been granted
The claim of the appellants was rejected by the trial court
It is not disputed by the plaintiff that the 6th defendant was born before the Court sale and it is also not disputed that the execution case was taken out only against defendants 2 to 5
It is manifest that the plaintiff is not entitled to recover the possession of the share of the 6th defendant in execution proceedings and there is no merit in the cross objection filed on behalf of the plaintiff in the High Court
am unable to accept the argument advanced by the appellants  on this point
For these reasons I hold that the judgment and decree of the High Court should be set aside and the judgment and decree of the trial court should be restored and a preliminary decree of partition of the properties should be ranted as mentioned in the trial court s decree
The appeal is accordingly allowed with costs Appeal allowed
1 AIR1917 PC 197


Summary:
A decree was passed in a money suit against N and his four sons who were members of a Mitakshara Hindu joint family
In execution of that decree the shares of the four sons in the joint family properties described altogether as 45 th share were put up for auction in December 1936 and purchased by section N s interest was not put up for sale as it was the subject matter of insolvency proceedings
The sale to S was duty confirmed
S sold the properties to P
On November 6 1939 an order was made under 0
21 rr
332 and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchase to P along with the members of the joint family already in possession
This order was carried out and possession was delivered to P by publishing that fact by beat of drum as prescribed in the rules
Subsequently P retransferred the properties to section On October 16 1951 S filed a suit against the then members of the joint family and various alienees asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession
The trial court decreed the suit but held that S was not entitled to a 45th share but only to a 23rd share because before the decree a 5th son had been born to N who had not been made a party to the suit or the execution proceedings and whose share had consequently not passed under the auction sale
Some of the defendants filed an appeal to the High Court which allowed the appeal holding that the suit was barred by limitation under article 144 of Schedule 1 to the Limitation Act
S had field a coss objection in the High
Court on the ground that he should have been held entitled to a 45th share of the properties which was dismissed by the High Court without discussion of the merits in view of its decision on the question of limitation
S having died the appellants as his successors in interest appealed to this Court under article 133 of the Constitution
The two questions that arose for decision were 1 whether the suit was barred by limitation under article 144 or article 120 and 2 whether S was entitled to a 45th share
HELD  Per Sarkar and Raghubar Dayal JJ i a Me view that the suit was barred under article 144 of the suit presented great difficulties
The article obviously contemplates a suit for possession of property where the defendant might be in possession of it as against the plaintiff
However the purchaser of a copartner s undivided interest in joint family property is not entitled to possession of what he has purchased
His only right is to sue for partition of the property and ask for allotment to him of that which an partition might be found to fall to the share of the copartner whose share he has purchased
His right to possession would date from the period when a specific allotment is made in his favour632 H 629 S was therefore not entitled to possession till a partition had been made
As possession of the defendants could tie adverse to him only if he was entitled to possession the difficulty in applying article 144 arose
633 B Sidheshwar Mukherjee vs Bhubneshwar Prasad Narain   relied on
Vyapuri vs Sonamma Boi Ammani Mad 81 referred to
Mahant Sudarsan Das vs Mahan Ram Kirpal Das 1949 LR 77 IA 42 distinguished
b Even on the assumption that article 144 applied the suit was not barred
In the present case the defendants were not in uninterrupted possession for twelve years as required by the Article
By the delivery of symbolical possession under the order of November 6 1939 the adverse possession of the defendants was interrupted
Time had therefore to commence to run from that date and the suit having been brought within twelve years of that date it was not bared under that article
633 F G Sri Radha Krishna Chanderji vs Ram Bahadur AIR 1917 PC 197 relied on
It could not be said that the order of delivery of possession was a nullity though S and his transferee who had purchased an undivided share in copartners property were not entitled in law to any possession at all
In making the order the learned Judge had gone wrong in law but he had acted within his jurisdiction
Such an order has full effect if it is not set aside
634 A B Yelumalai Chetti vs Srinivasa Chetti Mad 294 distinguished
Mahadev Sakharam Parkar vs janu Namji Hatle 1912 ILR and fang Bahadur Singh vs Hanwant Singh All
520 held inapplicable
ii Article 120 applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years commencing from the date when the right to sue accrues
636 D The right to sue accrues for the purpose of article 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it
In the present case there was nothing to show that the right was ever challenged in any way by the respondents
It was impossible therefore to hold that the suit was barred under article 120
636 F Mst
Rukhmabai vs Lala Laxminarayan  and C Mohammad Yunus vs Syed Unnissa   relied on
Bai Shevantibai vs Janardan R Warick AIR 1939 Bom
322 disapproved in so far as it held that the right to sue accrued from the date of sale
iii The cross objection had no merit
What S purchased at the auction sale was the share of the sons of S then bom in the joint family Properties
At the date of the auction sale that share which was originally 45th had been reduced to 23rd by the birth of another son to N who had not been made a party either to the suit or the execution proceedings
What was purchased at the execution sale was only the shares of the four elder sons of N and their share at the date of sale was 23rd
That 630 being so S was not entitled to get the 16th share of the fifth son also allotted to him in the partition suit
637 B C Per Ramaswami J  i The purchaser of a share of joint Hindu family property doe  not acquire any interest in the property he cannot claim to be put
in possession of any definite place of Property
A suit for partition filed by the alienee from a is not in a technical sense a suit for partition and such a suit have the necessary effect of breaking up the joint ownership of the members of the family in the joint family in the joint property nor the corporate character of the family
Such being the rights of the alienee his right to sue for partition cannot be said to be a continuing right subject to no period of limitation for enforcing it
638 F H Aiyyagari Venkataramayya vs Aivyagari Ramayya ILR 25 referred to
ii Though the alienee of an undivided interest of a Hindu is not entitled to joint possession with other copartners or to separate possession of any part of the family property he is entitled to obtain possession of that part of the family property which might full to the share of his alienor at a partition
640 B In the present case the alienee instituted a suit for general the prayer that he may be put in possession of that part of the family property which may be allotted to his share
It is not right to such a suit as a suit for mere partition
The main relief sought by the plaintiff is the relief of possession of that part of the property which may be allotted to the alienor s share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor s share
what the plaintiff seeks is actual delivery of possession
Such a suit falls within the of article 144 of the Limitation Act
640 B D Thani vs Dakshinamurthy
ILR  appoved iii the possession of the non alieniting members of the family cannot be said to be possession on behalf of the alienee also because the purchaser alienee does not acquire in interest in the property sold and does not become tenant in common with the members of the family tier is he entitled to joint possession with them
In the absence of clear acknowledgement of the right of the alienee or participation in the enjoyment of the family property by the alienee the possession of his alienors share
The fact that the alienee has purchased an undivided interest is not inconsistent with the conception of adverse possession of that interest
640 E H Sudarsan Das vs Ram Kirpat Das AIR 1950 PC 44 reliel on
According to the third column of article 144 time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff
In the present case therefore adverb possession bengon to run from the date of purchase of the undivided share ie front December 21
640 E 641 FF iv However the grant of symbolic possession bv the court in favour of P after notice to defendants 2 to 5 was tantamount in law to delivery of actual possession and therefore efficient to break up the continuity of adverse scion in favour of the defendants
Even assuming that the grant of symbolic possible ought not to have been made and that 631 the executing court acted illegally in making such an order it could not be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye of law
642 B Yelumalai Chetti vs Srinivasa ChettiILR  referred Sri Radha Krishna  Chanderii vs Ram Bahadur AIR 1917 PC 197 relied on
According the suit of the plaintiff was not barred by limitation under  article 144 of the Limitation Act and the view taken by the High Court on this part of the case was not correct
642 D