JAGDISH DUTT AND ANR. versus DHARAM PAL AND ORS.

Citation: [1999] 2 S.C.R. 576 · Decided: 12-04-1999 · Supreme Court of India · Bench: B.N. KIRPAL · Disposal: Dismissed

Judgment (excerpt)

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 
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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

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