In case the alienation is found to be valid, the alienee is entitled to the interest of the coparcener as it stood at the time of alienation. The subsequent fluctuation o£ coparcenary interest does not have any effect on this.
This rule was upheld by the Bombay and Kerala High Courts but the views of Madras and Andhra Pradesh High Courts were different. Thus the alienee of undivided interest of a coparcener acquires the following rights:—
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(i) Right to Partition:
ADVERTISEMENTS:
The alienee has a right to claim partition of his share. Partition may be general, i.e., of the entire joint family property, or specific i. e., of specific property sold by the coparcener. As to the former, the law is well settled and the purchaser has the right to sue for it. As to the latter, opinions vary. The Allahabad and Calcutta High Courts hold the view that specific partition is permissible while the Bombay and Madras High Courts do not hold it permissible.
The purchaser of undivided interest is not bound to sue for partition during the lifetime of his vendor coparcener; he may sue for partition even after his death.
(ii) Right to Mesne Profit:
The alienee is not entitled to mesne profit from the date of his purchase till the decree in his partition suit. But if the joint family is divided in status though no partition by metes and bounds has taken place, the alienee is entitled to the mesne profits.
(iii) Right to Joint Possession:
The purchaser’s right to joint possession before he seeks partition, is a controversial question. According to Madras High Court the alienee does not acquire any right to joint possession both at the private sale and Court sale, but according to Calcutta and Allahabad High Courts, no such right to joint possession with other coparceners is possible at the Court sale only.
ADVERTISEMENTS:
The Bombay High Court has taken a different view and held that both at private sale and Court sale, if the purchaser is a stranger and has not obtained possession, his remedy would be to bring a suit for possession. Where the purchaser has obtained the possession, the non-alienating coparceners are entitled to joint possession with him. It is also open to the coparceners to sue for recovery of possession of the whole property.
When two strangers purchase the property from different coparceners of a joint family they cannot claim joint possession of the property.
The alienee from a coparcener’s interest will take the property subject to all charges, encumbrances and liabilities affecting the joint family property or the interest of the coparcener.
An alienee in a general suit of partition cannot claim that specific properties alienated to him should be allotted to his share. But he has an equitable claim and ordinarily the court may decree that very property to his share if it could be done without injustice to other coparceners.