K. M. Dayal, J. - (1.) :-
(2.) THIS appeal arises out of execution proceedings. The admitted facts of the case are that the decree holder respondents obtained money decree against one Jagdish Prasad. Jagdish Prasad was the member of the Hindu Joint Family which owned the disputed house. The family consisted of Shiv Charan father, Ganga Devi mother and four sons namely Jagdish Prasad, Radhey Shyam, Satya Prakash and Jai Prakash. The property is admitted to be ancestral. The decree holder sought to attach l/5th share allegedly belonging to Jagdish Prasad in the undivided property. An objection was filed by Radhey Shyam, appellant that Jagdish Prasad would be entitled to 1 /6th share in the Joint Family Property on partition being effected. Consequently, the share of Jagdish Prasad that could be attached by the decree holder would be only l/6th and not l/5th. Both the courts below have held that the mother of Jagdish Prasad, Smt. Ganga Devi could not be entitled to any share in the joint property and consequently the share of Jagdish Prasad would be 1/5th. It is not disputed that if the mother also claimed partition the share of Jagdish Prasad would become l/6th. Learned counsel for the appellant relied upon the case reported in Mst. Muneshwari v. Smt. Jugal Mohini Dasi, AIR 1952 Calcutta 368. After considering several decisions it was held that the attachment of undivided share of a member of Mitakshara joint family operated as division of interest and caused severance of status. Para 23 of the aforesaid judgment is as under : "In my opinion, it is clear from the decision of the Judicial Committee referred to above that an attachment of the undivided share of a member of Mitakshara joint family during his life time operates as a division of interest & causes a severance of status. If the interest which passes to the purchaser is the share which the J.D. would get if a partition was made at the time of the sale, it follows that the interest would neither be diminished by an increase, nor increased by a diminution in the number of co-sharers, as has been held by a Full Bench of the Madras H.C. in the case of voluntary alienations of undivided shares which, in the Madras Presidency, are valid, Chinnu v. Kalimuthu, 35 Mad. 47." Learned counsel for the respondents, relied upon the case reported in Sheo-nandan Prasad Sao v. Ugrah Sao, AIR 1960 Patna 66. In that case it has been held that the execution sale of undivided share of a coparcener of Mikakshara joint family does not effect severance of joint status and does not destroy the right of survivorship. It has been further held that where, therefore, two brothers A and B constituted a joint family and in execution of a money decree against A his right, title and interest in a joint property was sold and thereafter B died survived by his daughter and A, the daughter would not be entitled to succession and the property would go to A by survivorship.
(3.) THIS case does not help the respondents. The division of property necessarily does not disturb the status as coparcener of the joint family. Some time it may effect but not always. In a case where there is a partition between two brothers the joint status may be destroyed but where there is only partial partition and only some of the properties are divided, joint status is preserved. If the doctrine of jointness is extended to the extent that inspite of attachment of the entire share of one, coparcener that member continued to be a co-parcener, far reaching effects may follow. In such cases inspite of the fact that the entire share of the particular member of the family has been sold he continued to remain a joint member of the joint family. Consequently the remaining property would continue to be a joint property giving him a right to claim a partition and share in the remaining property as well. That cannot be the intention of law. It has been held in Balkishan Das v. Ram Narain Sahu, XXX Indian Appeal page 139 that the-property ceases to be joint as soon as the shares are defined and thereafter parties hold the property as tenants-in-common. Mulla in his Hindu law in para 322 has indicated that the definition of the shares of various constituent of the family amounts to separation of their status. The shares may be defined by agreement between the parties or otherwise.;