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Bombay High Court
Babaji And Ors. vs Dhuri And Anr. on 25 November, 1884
Equivalent citations: (1885) ILR 9 Bom 305
Author: West
Bench: West, N Haridas


West, J.

1. The case of Deen Dayal v. Jagdip Narayan, as recently explained in Hurdey Narain Sahu v. Pandit Babu Rudra Prakash Misser L.R. 11 Ind Ap. 26, rules that no matter for what purpose an unsecured debt was contracted by a father, if he alone is sued not expressly in his representative capacity and without his sons being joined as defendants, the decree does not bind their inter, ests in the family estate. Nor when the judgment-creditor proceeds to sale in execution against the family property does the sale of the father’s “right, title, and interest” pass any more than his interest to be ascertained generally by a partition with his sons. In the present case there are four sons forming, with their father Dhuri, a united family. This of them sue on acquired of themselves and of their infant brother, which, on. the decisions, they may properly do. The father having been sued on a simple debt, his interest in a piece of land was sold in execution of the decree against him., and was purchased by defendant Babaji. Had there been other property, we should have to award to Babaji the field he has purchased so far, but so far only as it could be equitably brought within Dhuri’s share in a partition with his sons. But it appears that the field in question is, in fact, the while of the family estate, and in a partition enforced by the sons Dhuri’s share of it is one-fifth. This is what Babaji has acquired by has purchase : the other four-fifths we award to the plaintiffs on a right separate from their father’s.

2. The cost of this, appeal are to be borne by the respondents: those of the Courts below by the parties severally as they have incurred them.

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