LALL v. JAGDEEP Judgment. 1877 He took no proceedings to enforce this decree, which was in the DEENDYAL form of an ordinary decree for money, against the property especially hypothecated; but in September 1870 caused "the rights and proprietary and mokurruri title and share of Toofani Singh, the judgment-debtor" in the joint family property, which is the subject of this suit, to be put up for sale in two lots for the realization of the sum of Rs. 11,144-6-4, the amount alleged to be then due on the decree; and himself became the purchaser of those lots for the sums of Rs. 900 and 10,100. Objections were taken to this sale by the judgment-debtor, which, after going through all the Courts, were finally overruled, and the appellant obtained the usual certificate title, and in January 1871 succeeded in taking possession thereunder of the whole of the property now in dispute. Thereupon, in February 1871, the respondent brought the suit, out of which this appeal arises, for the recovery of the whole property on the ground that, being according to the law of the Mitacshara, the joint estate of himself and his father, it could not be taken or sold in execution for the debt of the latter, which had been incurred without any necessity recognized by the shastras or the law. The father was joined as a defendant. The issues on the merits settled in the cause were— 1. Did Toofani Singh borrow money from the defendant (the appellant) under a legal necessity or without a legal necessity? And are the auction sales and other proceedings taken in satisfaction of the debt all illegal, and ought they to be set aside or not? Under the Mitacshara law, is the plaintiff entitled to the entire property sold in satisfaction of his father's debts, or to how much? 3. Was some portion of Mouzah Domawun personally acquired by the plaintiff's father, or was it acquired by the ancestral funds and property? A good deal of evidence was given in the Court of first instance as to the nature of the debt incurred by Toofani Singh, and upon the issue whether it was borrowed under a legal necessity. Upon the face of the bond the debt is ostensibly that of the father alone; there is no statement that the money was borrowed for the purposes of the joint family, or so as to bind LALL v. JAGDEEP Judgment. co-sharers in the estate. The oral evidence adduced by the 1877 plaintiff was directed to show that his father, who had passed five DEENDYAL years in jail on a conviction for forgery, had both before and since his imprisonment lived an immoral and disreputable life, not residing with and rarely visiting his family; and that the money was borrowed on his sole credit, and spent by him in riotous living. On the other hand, the defendant (the appellant) brought witnesses to prove that part at least of the money, viz., Rs. 1,500, was expressly borrowed in order to provide for the marriage expenses of one of the daughters of the family; and, generally that the plaintiff was cognizant of his father's transactions, and the whole debt one which bound co-sharers. The Subordinate Judge does not appear to have thought it necessary to come to any definite conclusion upon this issue. In one passage of his judgment he says:-"The sale being held by the Court, it is unnecessary to see whether it was held under a legal necessity or not." In another passage he says:-"The sale held by the Court, according to the laws in force of the ancestral estate, as the rights and interests of the judgment-debtor, cannot be regarded as including the right of the son of the judgment-debtor which he derived under the shastras; and so far as the plaintiff's share is concerned, the sale cannot be confirmed." This seems to be the ground on which he proceeded; for he gave the plaintiff a decree for one moiety of all the property claimed, except a small portion which he held was the separate acquisition of the father. On appeal this decree was reversed by the Zillah Judge of Gyah, who dismissed the suit on the ground (amongst others) that a legal necessity to borrow the money had been established, and consequently that not merely the particular share of the property that may have belonged to Toofani Singh, but the whole undivided estate was liable for the debt. The respondent then brought his case before the High Court by special appeal, which, by its decree of the 14th June 1873, reversed the decree of the Lower Appellate Court, and ordered that the plaintiff should obtain possession from the defendants of the property which was the subject of suit for the benefit of the joint family. The present appeal, which has been heard ex parte, is against that decree. 1877 LALL v. JAGDEEP SINGH. A good deal of the argument at their Lordships' bar was adDEENDYAL dressed to the question of the nature of the judgment-debt, and whether or not there was "legal necessity" for the loans of which it was composed. Whatever may be their Lordships' opinion of the finding of the Zillah Judge upon this point, they Judgment. must, for the purposes of this appeal, treat it as conclusive. The appeal is only from the order on special appeal; and on that special appeal the High Court could not have disturbed the finding of the Lower Appellate Court on this question of fact, unless there was no evidence at all to support it. And this, whatever was the character and weight of the evidence, cannot be affirmed. This issue, however, seems to their Lordships to be immaterial in the present suit, because whatever may have been the nature of the debt, the appellant cannot be taken to have acquired by the execution sale more than the right, title, and interest of the judgment-debtor. If he had sought to go further, and to enforce his debt against the whole property, and the co-sharers therein who were not parties to the bond, he ought to have framed his suit accordingly, and have made those co-sharers parties to it. By the proceedings which he took he could not get more than what was seized and sold in execution, viz., the right, title, and interest of the father. If any authority be required for this proposition, it is sufficient to refer to the cases of Nugenderchunder Ghose vs. Srimutty Ramunee Dossee, 11 Moore Ind. App., 241; and Baijun Doobey vs. Brij Bhookun Lall Awasti, L. R., 2 Ind. App., 275. The first and principal question, however, that arises or this appeal is, whether the appellant acquired a good title even to the right, title, and interest of the father; whether under the law of the Mitacshara the share of one co-sharer in a joint family estate can be taken and sold in execution of a decree against him alone. In Lower Bengal, where this question can arise only between brothers or other collaterals (sons not having as against their father in his lifetime, under the law of the Daya Bhaga, the rights which they have under the law of the Mitacshara), it is settled law that the right, title, and interest of one co-sharer in a joint estate may be attached and sold in execution to satisfy his personal debt; and that the purchase under such an execution stands in the shoes of the judgment-debtor, and acquires the right as against the other co-sharers to compel a partition. That a similar rule prevails in the south of India, though the law there administered is founded on the Mitacshara, is shown by two cases decided by the High Court of Madras, Vrásvámi Grámini, 1 Mad., 471; and Palani Valappa Ramdan vs. Manara Naickan, 2 Mad., 416. The latter case was one in which, as here, the co-parceners were father and son; and that the law is to the same effect in the Presidency of Bombay, was ruled in the two cases which are reported at 1 Bom. 39,' 182. All these cases, however, affirm not merely the right of a judgment-creditor to seize and sell the interest of his debtor in a joint estate, but also the general right of one member of a joint family to dispose of his share in a joint estate by voluntary conveyance without the concurrence of his co-parceners. This latter proposition is certainly opposed to several decisions of the Courts of Bengal. In 1869 the question was carefully considered by the High Court of Calcutta. A Division Bench of that Court referred it to a Full Bench in the case of Sadabart Persad Singh vs. Phoolbash Koer. The decision of the Full Bench is reported in 12 W. R., 1, Full Bench, and 3 B. L. R., 31, Full Bench. The Chief Justice, after reviewing all the authorities, came, with the concurrence of his colleagues, to the conclusion that under the law of the Mitacshara, as administered in the Presidency of Fort William," Bhagwan Lall," whose act was in question, "had no authority, without the consent of his co-sharers, to mortgage his undivided share in a portion of the joint family property, in order to raise money on his own account, and not for the benefit of the family." The Full Bench so reported to the Division Bench, and the latter then made its final decree in the cause, which involved many other questions. From that decree there was an appeal to Her Majesty in Council, which was heard ex parte. This Committee, for the reasons stated in their judgment, which is reported in L. R., 3, Ind. App., p. 7 (see also 25 W. R., 285; I. L. R., 1, Cal., 226) 'Goondo Mahadeo vs. Rambhut bin Baboobhut. Damodhur Vithul Khare vs. Damodhur Hari Somana. 1877 DEENDYAL LALL v. JAGDEEP NARAIN SINGH. Judgment. บ. 1877 did not think it necessary or expedient either to affirm or disaffirm DEENDYAL the ruling of the Full Bench on this point. Their Lordships LALL said they "abstained from pronouncing any opinion upon the grave question of Hindoo law involved in the answer of the Full Bench to the second point referred to them, a question which, the Judgment. appeal coming on ex parte, could not be fully or properly argued. That question must continue to stand, as it now stands, upon the authorities unaffected by the judgment on this appeal." JAGDEEP NARAIN SINGH. It is, however, to be observed that even the Full Bench in the case under consideration recognized a possible distinction between the sale of a share in a joint estate under an execution, and an alienation by the voluntary act of a co-sharer, and thought that the former might be valid, though the latter was invalid. In dealing with the first question referred to the Full Bench, the Chief Justice says: "It is unnecessary for us to decide whether, under a decree against Bhagwan in his lifetime, his share of the property might have been seized, for that case has not arisen. According to a decision in Stokes' Reports (1 Mad., 471), it might have been seized, but the case as against Bhagwan, and that against the survivors, are very different. So long as Bhagwan lived, he had an interest in this property, which entitled him, if he had pleased, to demand a partition, and to have his share of the joint estate converted into a separate estate." ; The decision in Sadabart's case has been followed by, amongst others, that of Mahabeer Persad vs. Ramyad Singh (20 W. R., 192 12 B. L. R., 90,) being the case referred to in the judgment under appeal as No. 209 of 1872. That was a decision by the two learned Judges who passed the decree now under appeal, and the circumstances of the one case are nearly the same as those of the other. In that of 1872, the father had borrowed the money ostensibly on his sole credit, and given a Bengali mortgage bond to secure it. The bond-holder had sued on his bond, obtained a decree, taken out execution against joint property, and become the purchaser of it at the execution sale. The distinction between that case and the present is, that the property seized and sold was that which was specially hypothecated by the bond. The sons sued to recover the property. There was |