JUDGMENT
Prinsep and Ghose, JJ.
1. The subject-matter of this suit is a three annas four dams share of mouza Simrora Boreni. This mouza, with various other properties, originally belonged to one Murl Mhar, the common ancestor of the parties to the suit. A genealogical table of the family is set out at page 6 of the printed paper-book. It appears that Murlidhar died in the year 1224 F.S. (1817), leaving a widow, Rup Dai, and four sons : Rai Bishnath, Rai Gunga Bishen, Rai Luchmi Narain and Rai Kunjbehari Lal. Gunga Bishen died in 1254 (1847), leaving four sons : Rai Bholi Prasad, Rai Chet Bahadur alias Sheo Prasad, Rai Deoki Nandan and Rai Gauri Sankar. Luchmi Narain died childless in 1258(1851), leaving a widow, Mussamat Ayodbya Dai; Kunjbehari Lal also died childless in 1260 (1853), leaving a widow Mussamat Ratan Dai; and Rai Bishnath died in 1262 (1855), leaving two sons : Rai Rasbehari Lal and Rai Bissessur Nath. The widow of Murlidhar, namely, Mussamat Rup Dai, died in 1264 F.S. (1857). It would appear that during her life-time she was in possession of mouza Simrora Boreni and some other properties, and one of the matters that were discussed in the case, to which we are presently going to refer, is whether she was in possession of those properties as an absolute owner under a gift by her husband, Murlidhar, or whether they were in her possession in lieu of maintenance for her life-time. We ought here to mention that of the four sons of Rai Gunga Bisben, Bholi Prasad and Deoki Nandan died childless in the years 1255 and 1263, respectively, leaving their widows Munni Bibi and Lalti Bibi: and it does not appear that these two ladies inherited any property of the family. It would appear, that the family was possessed of various properties which had descended to them from Murlidhar; and Raigunga Bishen, Rai Luchmi Narain and Rai Kunjbehari Lal were apparently possessed of certain separate properties. In the year 1864, a suit was instituted by Rai Gauri Sankar against Rai Rasbehari Lal, Rai Bissessur Nath, Mussamat Ratan Dai, widow of Rai Kunjbehari Lal, and Rai Sheo Prasad alias Chet Bahadur, to recover, first, one-fourth share of the properties left by Kunjbehari and Luchmi Narain; secondly, one-fourth share of the properties left by Rup Dai; thirdly, one-half share of the properties (self-acquired) left by Gunga Bishen; and the plaintiff further asked that a deed of tamliknama, said to have been executed by Kunjbehari Lal and his wife, Mussamat Ratan Dai, an ikrarnama by the same lady, a ticca, lease purporting to have been executed by Ayodhya Dai, and a mukarari lease by Rup Dai, might be set aside as either untrue or not bond fide transactions. We might here mention that Rai Rasbehari Lal claimed to hold those properties under those instruments, and as regards the. properties held and enjoyed by Mussamat Rup Dai, the allegation of Rai Gauri Sankar, the plaintiff, was that they had been assigned to her by Murlidhar for her maintenance; while, on the other hand, the defendants contended that she had an absolute title in them under a gift by Murlidhar. The Court of first instance decreed the plaintiff’s suit on the 10th January 1865, holding that the deeds set up by Rasbehari Lal were either inoperative or untrue. And as regards the title of Sup Dai, it was found that there was no gift in her favour by Murlidhar, and that the properties in her possession were ancestral properties of Murlidhar. No relief was given to the plaintiff against Sheo Prasad, as none could be given against him, because, as the principal Sadar Amin remarked, the plaintiff’s right had been injured by the other defendants, and not by Sheo Prasad, who had been made a defendant simply to, meet any possible objection that might be raised by the principal defendants to the suit, and accordingly the costs of that defendant were charged against the defeated defendants.
2. On appeal by Ratan Dai and Rai Rasbehari Lal, the High Court affirmed the decree of the lower Court on the 29th November 1865 with this slight modification. It was held that, as regards the properties which had been transferred to Rasbehari Lal by Ratan Dai, he was entitled to hold them during the lady’s life-time, and that the plaintiff was entitled to a declaration that this transfer was only valid during her life-time (see 4 W.R. page 72).
3. In the meantime, that is to say, on the 28th January 1865, Sheo Prasad instituted a suit against Rasbehari Lal, Mussamat Ratan Dai and Parameshar Nath, son of Bissessur Nath, for the same relief which had been recovered in his suit by Rai Gauri Sankar, and he obtained judgment on the 14th December 1866. The Subordinate Judge of Shahabad, in following the decision of the High Court in the suit of Gauri Sankar, gave a decree to the plaintiff for the properties other than those claimed by Mussamat Ratan Dai, with a declaration that the plaintiff would be entitled to recover them to the extent of his share upon the death of that lady. On appeal by the defendant, this judgment was affirmed by the High Court on the 24th January 1868.
4. Ratan Dai, the widow of Kunjbehari, died in 1278 (1871); and Gauri Sankar then brought a suit in May 1874, in the first instance, against Rai Monohur Lal, the son of Rasbehari Lal then deceased; and by a petition, presented on the 21st June 1874, Sheo Prasad was added a defendant to that suit. It would appear upon reference to the plaint itself that the claim that was preferred by Gauri Sankar was in respect of mesne profits of the properties loft by Luchmi Narain by Rup Dai and by Kunjbehari Lal. There was no allegation whatsoever that Sheo Prasad had kept the plaintiff out of possession; but, on the contrary, it was distinctly alleged that the defendant (meaning thereby Rai Monohar Lal) and his ancestor had been holding possession of the properties in question by appropriating their profits without any right or title. In the petition, however, that was subsequently presented, introducing the name of Sheo Prasad as a defendant, it was stated that he should be brought in as a principal defendant as an heir of Mussamat Ratan Dai, deceased, and that his name had by mistake been omitted from the list of defendants in the plaint.
5. The only defendant that contested the suit was Rai Monohar Lal: and the Subordinate Judge of Patna, before whom the suit was instituted, after disposing of the various objections that were raised by that defendant, and after determining the amount of mesne profits of the various properties, passed a decree as follows: “That a modified decree be passed with this direction that the defendants Nos. 1 and 2 do pay the sum of Rs. 2,353-1-1, being the amount of wasilal for the years 1279 to 1281 F.S. in respect of the property left by Rai Kunj-behari Lal, and that the defendant No. 1 alone do pay Rs. 10,066-10-9 as wasilat of other properties, and that the defendants should pay interest from this date at the rate of eight annas per cent, per month, and that the costs in proportion to the amount proved should be borne by defendants with interest thereon; and that they should get their costs from plaintiffs with interest in proportion to the amount not proved.” It would appear from the body of the judgment itself that there was no finding or determination that Sheo Prasad had by any act of his made himself liable for any mesne profits in respect of the properties left by Rai Kunjbehari Lal, though, as already stated in the ordering portion, the Subordinate Judge made a decree against Sheo Prasad as well. It appears from the record that a petition was presented on behalf of Chet Bahadur on the 25th September 1875, praying that the decree, which was an ex parte one, against him, might be set aside, upon the ground that no summons had ever been served upon him; but when the matter came on for hearing, no witnesses were present on his behalf, the result being that his petition was rejected on the 15th January 1876. Gauri Sankar, having thus secured a decree against Chet Bahadur, applied for execution on the 1st March 1877; and he caused the interest of Sheo Prasad in a four annas share of mouza Simrora Boreni to be attached, and sold on the 16th June 1877, and he purchased the property himself for Rs. 2,010. On the 12th July 1877 a petition was presented on behalf of Chet Bahadur for setting aside this sale, upon the ground that the proceedings had been taken out surreptitiously without his knowledge; that the sale was irregular; and that the property, which was worth more than Rs. 40,000, had been improperly sold for the small price of Rs. 2,010. This petition was not, however, prosecuted. The petitioner produced no evidence on the date fixed for trial, and accordingly the objection to the sale was disallowed, and the sale was confirmed on the 5th of September 1877. The purchaser then obtained the usual certificate of sale, and also obtained from the Court the usual writ of delivery of possession; and formal possession was delivered to him on the 19th December 1878 (10th Pous 1286 F.S.),
6. The present suit was instituted on the 18th December 1890, just within twelve years from the date when the defendant was put in possession of the property in question by the Court. The plaintiffs- in this suit are Rai Puran Chand, Rai Gopi Chand and Rai Bal Kissen, the three sons of Rai Chet Bahadur alias Sheo Prasad, and the principal defendants are the two sons of Rai Gauri Sankar, who is now dead. The plaintiffs in their plaint shortly refer to the genealogical table of the family, and to some of the proceedings to which we have already adverted; and they allege that, although their father was not liable to pay any metae profits in the suit by Rai Gauri Sankar, still a decree was, improperly and out of mistake, made against him, and that no portion of the property could be rightly sold in execution of that decree. They allege that the plaintiff No. 1 was born in October 1861′, the plaintiff No. 2 in June 1864, and the plaintiff No. 3 in June 1876, and they aver that the defendant’s father, Gauri Sankar, took advantage of the weak intellect of Rai Chet Bahadur and of their (the plaintiffs’) youth, and wrongfully took possession of the entire four annas share of the property on the 10th Pous 1286, so that he could not be regarded as having acquired under the sale any more than the father’s share, which was but one-fifth, the remaining four-fifths belonging to the plaintiffs and their mother, and that she having since died in 1885 her share has devolved upon thorn. The plaintiffs accordingly seek to recover possession of a four-fifth share of the four annas, i, c, a three annas four dams share of the property.
7. We should here mention that the plaint also refers to a deed of sale, bearing date 12th September 1881, executed by the plaintiffs 1 and 2 and their mother in respect of a one anna six dams share of this property in favour of the defendants 4 and 5; and the plaintiffs allege that the consideration mentioned therein did not pass, and that it was a champertous transaction, and there fore inoperative.
8. The suit was defended by the two sons of Rai Gauri Sankar, who are the principal defendants, upon the ground that the suit was barred by limitation; that they and their predecessor had been in adverse possession of the property for more than twelve years; that Chet Bahadur Singh had an absolute title to this property; that as regards a two annas share of the property, it was inherited by Chet Bahadur from his uncles, Kunjbehari and Luchmi Narain, that is to say, from two collateral branches of the family; and, therefore, the plaintiffs were not entitled to participate in that share; that the debt for which the decree was obtained by Rai Gauri Sankar was not contracted for any immoral purpose; and that the decree was rightly obtained, and therefore they were entitled to the entire property, namely, the four annas share which was sold in June 1877. It was further pleaded that the plaintiff No. 3 was not born, as alleged in the plaint, in 1933 Sumbat (June 1876), but that the birth took place two years after that, namely, in 1935 Sumbat (corresponding with 1878), that is to say on a date subsequent to the sale in question, and, therefore, he was not entitled to any share in this property. It was also contended that the plaintiffs’ mother was not entitled to any share, because she died before any partition took place. The defendant No. 4, Mussamat Saukha Koer, also put in a written statement insisting upon her rights under the deed of sale of the 12th September 1881 mentioned in the plaint, and she alleged that it was a genuine and operative transaction; that the consideration mentioned therein actually passed; and, therefore, the plaintiff’s were not entitled to claim the share conveyed by that document.
9. The Subordinate Judge has given the plaintiffs a modified decree. He is of opinion that the suit is not barred by the law of limitation, because, after Chet Bahadur had obtained his decree in December 1866, Rai Rasbehari Lal, the defendant, against whom that decree was obtained, made over possession of the properties without the intervention of the Court, and that he, Chet Bahadur, was in possession of the property in suit until the defendant, on the 19th December 1878, obtained possession thereof under process of the Court: and that supposing that Rasbehari Lal, or his son Monohar Lal, was in possession of the property in the interval, the adverse possession of Gauri Sankar did not commence until the 19th December 1878, when possession was delivered to him by the Court, and the suit having been commenced within twelve years from that time, it was not barred by limitation.
10. In regard to the question raised as to the character of the debt for which the property was sold in June 1877, the Subordinate Judge held that Chet Bahadur was not liable for the mesne profits in respect of which the decree was obtained by Gauri Sankar, and, therefore, the defendants could not claim under the purchase any more than Chet Bahadur’s interest in the family property. He was, however, of opinion, having regard to the proceedings in connection with the sale held in June 1877, that the whole of the four annas share of Simrora Boreni was sold.
11. In regard to the question of the time of the birth of the plaintiff No. 3, the Subordinate Judge found upon the evidence that he was born in Assar 1933 (June 1876), that is to say, on a date previous to the sale, and that the mother of the plaintiffs Mussamat Mohan Dai died in 1292 (1885), that is to say, after the sale. Upon the question raised as to the character of the title which Chet Bahadur” derived in this property by succession, the Subordinate Judge has expressed the opinion that the whole of it was ancestral property, and that it was only upon Rup Dai’s death that mouza Simrora Boreni devolved upon the then surviving heirs of Murlidhar, viz., Rasbehari Lal, Bissessur Nath, Gauri Sankar and Chet Bahadur, the share of each being one-fourth, and that this property was held by Mussamat Rup Dai during her lifetime in lieu of maintenance. In regard to the kabala of the 12th September 1881, he was of opinion that it was a bond fide and operative transaction, and, therefore, the plaintiffs could not recover the share covered thereby, save and except the interest of the mother, namely, half anna, which on her death devolved upon the plaintiffs. The Subordinate Judge has accordingly given to the plaintiffs a decree for a two annas four dams, share of the village. We might here mention that the Court below has further found that the value of the four annas share of the property would be Rs. 10,000 at the lowest.
12. The present appeal is by the defendants Beni Prasad and Rai Binda Saran, the two sons of Rai Gauri Sankar, and the main grounds that have been pressed upon us by the learned vakil on their behalf are: first, that the suit is barred by limitation; second, that a two annas share of the property having been derived by Chet Bahadur from Luchmi Narain and Kunjbehari, his uncles, could not be regarded as ancestral, and, therefore, the plaintiffs could not be entitled to claim any share therein; third, that the father, Chet Bahadur, in the suit for mesne profits, was sued in his representative character, and the plaintiffs not having proved that the debt for which the said decree was obtained was of an immoral character, the whole property passed under the sale; fourth, that the plaintiff No. 3 was not born before the sale; fifth, that the plaintiffs cannot claim the share of the mother, because she died before the suit was brought; sixth, that under the kabala of the 12th September 1881, an absolute estate was sold, and therefore, the share, which the mother sold, could not, upon her death, devolve upon the plaintiffs.
13. We shall discuss the points raised by the appellants in the order stated.
14. As regards the question of limitation, the defendant’s case seems to have been this : That after the sale of the 16th June 1877 was confirmed in September 1877, Gauri Sankar, without waiting for formal delivery of possession through the Court, which was effected on the 10th Pous 1286, took possession from the hands of Rai Monohar Lal, the son of Rai Rasbehari Lal, without the intervention of the Court in Aswin 1285; and their contention was that, up to Aawin 1285, the possession of Chet Bahadur’s four annas share of Simrora Boreni was with Rasbehari, and then with his son Rai Monohar Lal, and that, therefore, both under Article 142 and Article 144 of the Indian Limitation Act, the claim is barred. We, however, agree with the Subordinate Judge in holding that, after Chet Bahadur had obtained his decree of a four annas share, Rasbehari Lal gave up possession of that share in the same manner as he surrendered possession to Gauri Sankar when he took out a writ from Court for delivery of possession, and this was in Jaisth 1281. It would appear from the evidence of one of the defendant’s witnesses, Chakan Mahton, that down to the year 1274 F.S., Rasbehari was in possession of sixteen annas share of Simrora Boreni; that subsequently he gave a four annas share to his nephew Parnmeshar Nath; and that up to Jaisth 1281 he had only twelve annas share in his possession, and that after that, his son Monohar Lal had only four annas left to himself, and no other share, and that in the same year (1281) Monohar Lal sold his four annas share to one Chowdhry Saheb, This evidence supports the story told by the plaintiff’s witnesses that Chet Bahadur was in possession of his share in the property from the year 1282; and this is further supported by the, evidence of the defendant’s witness, Lala Mahton, who deposed that “when Gauri Sankar obtained a decree of his four annas share against Rasbehari, then Rasbehari gave up possession of that share, and similarly when Chet Bahadur got a decree for his four annas share, Rasbehari gave up possession of that share.” It also appears from the evidence of Chakan Mahton that Gauri Sankar took out a writ for delivery of possession in Jaisth 1281, and according to the evidence of the plaintiff’s witness, Girdhar Lal, it seems that, when Gauri Sankar took out the order for delivery of possession, Monohar Lal surrendered possession to Gauri Sankar in the same way as he did to Chet Bahadur in respect of his four annas share. If then Chet Bahadur obtained possession of his share of the property from the hands of Monohar Lal in Jaisth 1281, we may well presume, and that is the evidence on the part of the plaintiffs, that this possession continued until Gauri Sankar obtained delivery of possession through the Court in Pous 1286 (December 1878), and if that is so, it is obvious that neither under Article 142, nor under Article 144 of the Limitation Act, is the suit barred by limitation, it having been instituted within twelve years from the date when, under the writ for delivery of possession in favour of Gauri Sankar, the plaintiffs lost possession.
15. As regards the second question raised before us, namely, whether the two annas share of the property is ancestral within the meaning of the Mitakshara Law, the first observation that we have to make is that it appears upon the judgment of the Court of First Instance in the suit of Rai Gauri Sankar, dated 10th January 1865, as already mentioned, that the properties in the possession of Mussamat Rup Dai were the ancestral properties of Murlidhar, and that it was the case of Gauri Sankar himself that they had been assigned to her by Murlidhar in lieu of maintenance. It is quite clear that during Rup Dai’s lifetime no portion of the property came into the hands of Luchmi Narain or Kunjbehari Lal, and no member of the family was entitled to claim it until after her death. It retained throughout the character of ancestral property. Luchmi Narain and Kunjbehari predeceased her, and therefore, it seems to us that when, upon the death of Rup Dai, the property devolved upon Rai Gauri Sankar, Rai Chet Bahadur, Rai Rasbehari and Rai Bissessur Nath, it came to them as ancestral property, and not as property derived by collateral succession from either Kunjbehari Lal or Luchmi Narain.
16. We next proceed to discuss the question regarding the character of the decree passed against Rai Chet Bahadur. As has already been mentioned in the plaint presented by Gauri Sankar on the 30th May 1874 for mesne profits, there was no allegation whatsoever that Rai Chet Bahadur Singh was in possession of his share of the property, or that he had in any way made himself liable for mesne profits, and there was no finding by the Court that he was in such possession. There is no evidence whatsoever on the part of the defendants in this case that Chet Bahadur kept Gauri Sankar out of possession, or was in possession of his share of the properties left by Rafcan Dai for a single day. On the contrary, we find upon the evidence of Nanku Singh, a witness for the defendants, that as regards Muggerpal, one of the properties held by Ratlin Dai, and in respect of which mesne profits were decreed, Gauri Saokar was in possession of a one anna share during 1279 and 1280, Monohar Lal of a half-anna and Parmeshar Nath of a three annas share of the property, and that no one else of this family was in possession of any share in that village during those two years. We find it also stated in the written statement presented by Gauri Sankar in the suit of one Proon Dayal Singh on the 21st April 1885, that after the death of Mussamat Ratan Dai” the shares in suit (by which we understand the shares of the properties claimed in that suit) never came into the possession of Chet Bahadur, but all along remained in the wrongful possession of Rai Monohar Lal, and that they came into the possession of Gauri Sankar from the hands of Monohar Lal. One of the properties claimed in that suit was Balwakhas, which is a property that was in the possession of Ratan Dai, and in respect of which also mesne profits were decreed against Chet Bahadur.
17. We observe that the record of the suit for mesne profits was before the Court below, and the Subordinate Judge remarks that there was no evidence whatever in that case, showing that Chet Bahadur was liable for mesne profits. In order, however, to satisfy ourselves that there was really no evidence showing the liability of Chet Bahadur, we sent for that record; and the learned vakil for the appellant has been unable to point to any evidence showing that Chet Bahadur was in possession of any of the properties left by Ratan Dai in respect of which mesne profits were decreed against him in that suit. That being so, we may take it that there was no debt, properly so called, due from Chet Bahadur, though no doubt a decree was obtained by Gauri Sankar for a debt said to have been due.
18. The question then arises whether the decree is conclusive upon the question of the liability of Chet Bahadur, or whether it is open to the plaintiff’s in this case to show that there was really no debt for which a decree could have been obtained. Now there can be no doubt that if the’ purchaser at the sale in June 1877 were a third party, a stranger to the suit in which the decree was obtained, he need not have looked behind the decree and satisfied himself that there was really a debt due. But the defendant’s father, Rai Gauri Sankar Lal who purchased the property, was the decree-holder in the suit, and therefore he was not entitled to claim the position which a third party might have taken. In the case of Suraj Bunsi Koer v. Sheo Persad Singh I.L.R. 5 Cal. 148 : L.R. 6 I.A. 88, the Judicial Committee, after referring to the case of Girdhari Lal v. Kantoo Lal L.R. 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56, and to a decision of the Sudder Dewani Adawlat of 1861, observed as follows:
The decision of this tribunal in the before mentioned case of Kantoo Lal has, however, gone beyond this decision of the Sudder Dewani Adawlat, because it treats the obligation of a son to pay his father’s debt, unless contracted for an immoral purpose, as affording of itself a sufficient answer to a suit brought by a son either to impeach sales by private contract for the purpose of raising money in order to satisfy pre-existing debts, or to recover property sold in execution of decrees of Court. The judgment, moreover (and this is the portion of it that is chiefly material to the determination of the present appeal), affirms the principle laid down in the judgment of the Sudder Dewani Adawlat, that a purchaser under an execution is not bound to go further back than to see that there was a decree against the father : and that the property was properly liable to satisfy the decree if the decree had been given properly against the lather. In such a case one who has bond fide purchased the estate under the execution, and bond fide paid a valuable consideration for it, is protected against the suit of the sons seeking to set aside all that has been done under the decree and execution, and to recover back the estate as joint ancestral property.
” This case then, which is a decision of this tribunal, is undoubtedly an authority for these propositions: first, that where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off sin antecedent debt, or under a sale in execution of a decree for the father’s debt, his sons, by reason of their duty to pay their father’s debts, cannot recover that property, unless they shew that the debts were contracted for immoral purposes, and that the purchaser had notice that they were so contracted; and, secondly, that the purchasers at an execution sale, being strangers to the suit, if they have not notice that the debts were so contracted, are not bound to make enquiry beyond what appears on the face of the proceedings.
19. In the case of Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855, decided by a Full Bench of this Court, one of the questions that were referred to the Full Bench was as follows:
If the mortgagee under such circumstances “(i.e., where it is not proved, on the one hand, that there was any legal necessity for the father raising the money, nor, on the other hand, that the money was raised or expended for immoral or illegal purposes, or that the lender made any inquiry as to the purpose for which it was required)” brings a suit against the father alone, obtains a decree for payment and for sale of the property, and at the sale buys the property himself, is he entitled, as a bona fide purchaser for value, to hold the property as against the infant son either daring the life or after the death of the father?” And the answer to that question was, “We think that, under such circumstances, the mortgagee could not be considered as a bond fide purchaser for value, and would not be entitled to the property except to the extent of the father’s interest as against the infant son.” In the case of Nanomi Babuasin v. Modun Mohan I.L.R. 13 Cal. 21 : L.R. 13 I.A. 1, where the father having executed a zurpeshgi lease in favour of a person who had lent him a considerable sum of money, kept the zurpeshgidar out of possession, and where that person obtained a decree against the father for mesne profits, and in execution of that decree caused certain property to be sold, the Judicial Committee observed as follows:
If his debt “(i.e., the father’s debt)” was of a nature to support a sale of the entirety, he might legally have sold it without suit, or the creditor might legally procure a sale of it by suit. All the sons can claim is that not being parties to the sale or execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own: “and later on, they addressed themselves to the consideration of “the nature of the debt,” and they held that the debt in question must be taken as joint-family debt: and then looking into the proceedings terminating in the sale, they were of opinion that the purchaser must be taken to have purchased the entire property.
20. Having regard to the authorities we have just referred to, we are clearly of opinion that the plaintiffs are not precluded by the decree obtained by Gauri Sankar against Chet Bahadur, and that the question whether the debt really existed or not is a question which may well be gone into, as it has been gone into in this case. And as we have already stated, there being no evidence that Chet Bahadur was in any way liable for the mesne profits decreed to Gauri Sankar, it follows that, at the sale which took place, the interest of no other member of the family, save and except that of the father who did not choose to contest it, could have passed to the purchaser.
21. We might here observe that the evidence in this case shows that Chet Bahadur was a person of weak intellect, and, at the time of the sale, the present plaintiffs were very young, and it is no wonder that the applications that had been made by Chet Bahadur to contest the ex parte decree and the sale were not prosecuted.
22. As bearing upon the question what was acquired by Gauri Sankar under the sale, we would refer to his deposition, dated 23rd April 1884, a copy of which has been filed in this case, and in which, referring to this sale, he stated as follows: “I have purchased the share of Chet Bahadur for over Rs. 2,000′ in execution of my decree. I did not make Puran Chand or Gopi Chand defendants in the case, in which I obtained the decree against Chet Bahadur. It was a money decree against the person of Chet Bahadur.” In the view, therefore, which Gauri Sankar himself took of the decree, it was but a personal decree against the father and not against him in his representative capacity, and, therefore, according to the view enunciated by the Judicial Committee in the cases of Deendyal Lal v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 I.A. 247, Hurdey Narain Sahu v. Rooderperkash Misser I.L.R. 10 Cal. 626 : L.R. 11 I.A. 26, Simbhunath Panday v. Golap Singh I.L.R. 14 Cal. 572 : L.R. 14 I.A. 77, what really passed to the defendants was but the limited interest of Chet Bahadur, and not the interest of other members of the joint-family. We should, however, say that so, far as concerns the question what was sold at the execution sale, the proceedings leading up to the sale purport to have been a sale of the entire four annas share, though no doubt described as “the right, title and interest” of the father therein. The property was, however, sold for Rs. 2,010, just one-fifth of the value which the Subordinate Judge finds is the lowest value of the property, and it is: this one-fifth share that the plaintiffs contend really passed under the sale.
23. The next question that we have to consider is whether the plaintiff No. 3 was born before the sale in June 1877. The Subordinate Judge has found upon the evidence that he was so born, and we concur with him. The plaintiff No. 3 is, therefore, entitled to a share in this property.
24. We next proceed to consider what is the exact share which the defendants under the sale are entitled to claim, and what is the relief to which the plaintiffs are entitled in this case. According to the case of Deendyal Lal v. Jug-deep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 I.A. 247, the plaintiffs were entitled in this suit to claim the entire four annas share, leaving the defendants as purchasers of the share of the father to have that share and interest ascertained by partition. But they have chosen to regard the sale as operating as a partition, and they have claimed a four-fifth share of the property, dividing it into five equal parts between the father, three sons and the mother, and assigning to the purchaser the share of the father. It was contended by the appellants before us that the shares, which the parties to this suit are respectively entitled to claim, must be regulated with reference to the date of the present suit (this being regarded as a suit for partition), and not with reference to the date of the sale at which the defendant’s father purchased the property, and that the mother having died previous to the suit, the property is divisible into four parts only. But we are clearly of opinion that this contention cannot be sustained; for there can be no doubt upon the authorities that the defendants, could only claim that share which, if a partition had taken place on or before the date of sale, would be allotted to the father [see Hurdey Narain Sahu v. Rooderperkash Misser I.L.R. 10 Cal. 626 : L.R. 11 I.A. 26 and Suraj Bunsi Koer v. Sheo Persad Singh I.L.R. 5 Cal. 148 : L.R. 6 I.A. 88] : what then would be the share which, if a partition had then taken place, would be the father’s share? The property would be divisible into five parts between the three sons, the mother and the father, he obtaining only a one-fifth share and that would be the share which the defendants have acquired under the sale. It has, however, been contended before us that as regards, at any rate, a six pies share (i.e., one-third of the eighteen pies sold), which the mother assigned away by the kabala, dated the 12th September 1881, it passed absolutely to the purchaser, and therefore the plaintiffs cannot claim it. We are, however, unable to accept this contention as correct; for the mother was entitled to hold her one-fifth share in lieu of maintenance only, and had, therefore, no absolute power of disposal, though, no doubt, the Mitakshara describes such property (i.e., property acquired by partition) as “woman’s property” [see Judoonath Tewaree v. Bishonath Tewaree 9 W.R. 61, Lalljeet Singh v. Raj Coomar Singh 12 B.L.R. 372 : 20 W.R. 336, Mayne’s Hindu Law, paras. 614 to 617, Viramitro-daya (Babu Golap Chunder Sarkar’s Translation), pp. 224, 225J; and there has been no contention raised before us as to the correctness of the decision of the Subordinate Judge that upon the death of the mother, her share devolved upon her sons.
25. We have now dealt with all the questions that were raised before us in the course of this appeal; and the conclusion that we arrive at is that the decree of the Court below is right, and that this appeal must be dismissed with costs.
