Charles Sargent, Kt., C.J.
1. This suit arises out of the following facts. Nan Ganaji and his nephew, Hashia Bhika, were the members of an undivided Hindu family in 1872, in which year Nan mortgaged the land in dispute (part of the family property) to one Jana Patil, who subsequently obtained a decree on 10th June, 1876, against Nan, directing the sale of the mortgaged property, which was accordingly sold by auction on 26th October, 1876, and purchased by the defendant. The plaintiff had previously (as alleged in the plaint) purchased the same property from Nan and Hashia by a registered deed dated the 30th June, 1876, and seeks by his plaint to recover possession of Hashia's half share of the land and mesne profits. The defendant pleaded that the mortgage was binding on Hashia, and that plaintiff's purchase was not bona fide, but made in collusion with Nan and Hashia in order to save the property; and, lastly, that plaintiff was estopped from disputing his title. The Subordinate Judge found that plaintiff's purchase was bona fide, and that Hashia's share was not bound by the mortgage, there being no sufficient proof that the loan was contracted by Nan for family purposes, that the plaintiff was not estopped, and he decreed possession of the field in dispute to plaintiff with mesne profits.
2. On appeal the District Judge held that the bona fides of the plaintiff's purchase was not relevant; that plaintiff was not estopped from disputing defendant's title, and that whether both Nan and Hashia were liable or not for the mortgage-debt, as only Nan's interest in the land was put up for sale and purchased by defendant, Hashia's interest was not affected by the sale.
3. It has been contended before us that the District Judge ought to have recorded a finding as to whether the loan contracted by Nan in 1872 was for a necessary family purpose, as, in that case, it was said Nan having been the manager of the family at the time, Hashia's interest in the property must be deemed to have passed under the sale of the right, title and interest of Nan. This question, however, must now be regarded as concluded by authority. Not only is the case of Mahabalaya v. Timaya 12 Bom. H. C Rep. 138 cited by the District Judge clear on the point, but we may also refer to the more recent decision in Maruti Narayan v. Lilachand I.L.R. 6 Bom. 564. There the brother of the plaintiff executed a mortgage to defendant during plaintiff's minority. The defendant sued the brother on the mortgage and obtained a decree, in execution of which the property was sold and purchased by defendant himself. Plaintiff sued to have the sale set aside and to recover his half share. The Court, consisting of Mr. Justice Melvill and Mr. Justice Kemball, held that it was incompetent to the Court below to go into the question whether the mortgage by the brother was binding on the minor plaintiff, relying on the decision of the Privy Council in Deendayal's Case I.L.R. 3 Cal 208 as a direct authority that the defendant by the proceedings which he took could not get more than was seized and sold in execution, viz., the right, title and interest of the plaintiff's brother. In Deendayals Case the plaint was instituted by the son of one Toofani Singh against his father and the purchaser at auction-sale of the right, title and interest of the father to recover possession of the family property. In dealing with the question whether the interest of the son (the family being governed by the Mitakshara law) passed to the purchaser under the auction-sale, their Lordships accepted the finding of the Zilla Judge that the loan (in payment of which the property was sold) was contracted by the father for a legal necessity as binding on them in special appeal, but proceeded to mark following remarks (i.e., as to the purpose for which the loan was contracted):
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 cosharers 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 case of Nagenderchander Ghose v. Srimutty Ramunee Dossee 11 Ind. Apps. 241; Baijun Doobey v. Brij Bhookun Lall Awusti I.L.R. 1 Cal 133; S.C.L.R.
4. The judgment in Maruti Narayan v. Lilachand concludes with these remarks: 'There may be some difficulty in reconciling the view expressed (i.e. in Deendayal's Case as to the effect of the sale of a father's right, title and interest with the decision of the Judicial Committee in Girdharee Lall's Case 1 I.L.R., 321 but there never has been, so far as we know, any difference of opinion as to the effect of a sale under a decree obtained against the manager of a Hindu undivided family alone, when that manager is not the father of the other co-sharer or co-sharers. We may refer on this point to the decision of this Court in Pandurang Kamti v. Venkatesh Pai Printed Judgments for 1879 p. 513, 2 Ind. Apps 275. and see infra p. 95,' and the Court directed that the plaintiff should be put into possession of his half share of the property.
5. As to the defendant's contention that the District Judge ought to have found whether the conveyance to the plaintiff was bona fide, as otherwise it would be without consideration and therefore void--Vrandavandas Ramdas v. Yamunabai 12 Bom. H.C. 229; it is to be remarked that if Nan Ganaji's share had already been sold to defendant, the latter and Hashia were simply tenants-in-common and there could be no possible objection to Hashia's doing what he liked with his remaining share. As to the objection that plaintiff was estopped from disputing defendant's right to the land, because he had bid at the auction, it is plain that as only Nan's right, title and interest were put up for sale, he is in no way precluded from now contending that defendant bought that interest and nothing more. As to the objection that the sale to the plaintiff took place pending defendant's suit against Nan to enforce the mortgage, it is sufficient to say that it was not taken in either of the Courts below, and cannot, therefore, be taken in this Court. The decree must, therefore, be confirmed with costs.