Burkitt and Dillon, JJ.
1. This is an appeal from an order of the Subordinate Judge of Cawnpore, by which it was decided that certain movable property was liable to attachment and sale in execution of a decree obtained by the respondent against the representatives of one Khurshed Bahadur, deceased. In a previous case in this Court it was decided that the decree could not be executed against any ancestral joint property of the family. The question now to be decided is, does the property sought to be sold come within that description, or is it to be treated as having been the self-acquired property of the debtor Khurshed Bahadur.
2. The following genealogical table shows the members of the family:
Bhola Nath. J
| | | Ram Narain Sheo Narain Jai Narain died Dec., 1877. died Aug., 1874. died after 1890. | No male issue. No male issue. | Raj Bahadur died Oct., 1870. | Khurshed Bahadur died Feb., 1890. | ------------------------------| | ------------------------------ | | Nawal Behari Chail Behari, alias Naunihal defendant- died 1876. appellant (minor).
3. The property in dispute consists of a house in Cawnpore and of two villages. Admittedly that property stood recorded in the name of Shed Narain, the second of Bhola Nath’s sons. On his death it was transferred to the name of Nawal Behari, then an infant. There is some dispute as to how that transfer was made. The respondent, through his witness Jiwan Ram, set up a nuncupative will alleged to have been made by Sheo Narain. We do not believe the allegation as to the will. We do not believe that any will was formally made, even in the loose form of a nuncupative will. We believe that the evidence of Jiwan Ram has been constructed to fit and account for the fact that after Sheo Narain’s death the property in dispute was recorded in Nawal Behari’s name. The latter was a great-grandnephew of Sheo, Narain, Daring his father’s life-time he had no claim whatever to succeed to Sheo Narain’s estate. But we are quite prepared to believe that Sheo Narain and his brother Ram Narain (who survived him for more than three years) did arrange that the property should be transferred to Nawal Behari. Both the brothers must have been anxious to save the property from getting into the hands of Khurshed Bahadur, who had taken to a licentious, immoral and debauched course of life, as mentioned in the judgment of this Court in F.A. No. 56 of 1893, decided on the 29th January 1896. The minor boy Nawal Behari unfortunately did not long survive his great-grand uncle Sheo Narain, and predeceased his great-grandfather Ram Narain. On the boy’s death his father Khurshed Bahadur inherited the property in dispute.
4. The question we have to decide is–What was the nature of that property in the hands of Sheo Narain? For the appellants it is contended that the property was a portion of the joint undivided property of a joint Hindu family, possessed as such of this and of other property. On the other hand, the contention for the respondent–a contention which has been affirmed by the lower Court–is that the property in dispute was the self-acquired property of Sheo Narain.
5. As to the early history of the family there is little, if any, room for doubt. Their ancestral house is at Belhaur, in the Cawnpore district, and that house is at present the joint and undivided property of Bhola Nath’s descendants in the male line. It is perfectly clear that there has been no partition of the ancestral house. The three brothers went out into the world and obtained employment in the Commissariat Department, and in course of time each acquired considerable wealth. They are not shown to have had any assistance from the joint family funds excepting their support in early years and the usual rudimentary education. It is not shown that any money was raised on the ancestral house to start any of them in life. They did not work jointly, each being separately employed, and no one of them is shown to have had any concern with the savings and accumulations of either of the other two brothers, though no doubt funds may have been remitted by one or other to the others for investment. Such being the case, we have no doubt that the property in dispute was, when in the hands of Sheo Narain, his self-acquired property over which he had full powers of disposal. It was argued for the appellant that because Sheo Narain was educated when a boy at the family expense all his subsequent earnings and accumulations remained joint family property. This contention is described by their Lordships of the Privy Council in Pauliem Valoo Chetty v. Pauliem Sooryah Chatty I.L.R. 1 Mad. 262, as being a “somewhat startling proposition of law,” and their Lordships expressed their disapproval of some cases in the Madras High Court which went that far. AM the cases on the point have been very fully considered and discussed by the Bombay High Court in the case of Krishnaji Mahadev v. Moro Mahadev I.L.R. 16 Bom. 32, in which it was held with respect to a person inmuch the same position as Sheo Narain that as he had received only a rudimentary education from the joint family funds his earnings were self-acquired, as also was any property purchased with those earnings. The fruits of an ordinary elementary education could not, it was held, be regarded as the “gains of science ” acquired at the expense of ancestral wealth.
6. Having fully considered the rule laid down in the cases cited above, we rind ourselves entirely in accordance with it. Following that rule, we hold in the present case that the property in dispute was the self-acquired property of Sheo Narain. It follows, therefore, that both in the hands of Nawal and of Khurshed it was self-acquired property and liable as such to be seized in satisfaction of the respondent’s decree. We dismiss this appeal with costs to be paid out of the proceeds of the property in dispute.