1. The only objection taken in special appeal to the decision of the Assistant Judge is that he was in error in holding that the sale of the right, title, and interest of the judgment-debtor Mahamed Natha to Ardesir Nasarvanji was null and void, as being contrary to Bombay Act V of 1862.
2. It appears that, on the application of the decree-holder, the whole of a bhag or share in a bhagdari village, together with a house and gubhan, standing in the name of Natha Amiji, was attached in execution of a decree against Mahamed Natha, one of the sons of Natha Amiji. The proclamation and certificate of sale were made in the usual terms, and Ardesir became the purchaser of the right, title, and interest of Mahamed Natha in the attached property. In attempting to take possession he was opposed by, Muse Natha, the brother of Mahamed Natha, but with the assistance of the Court he succeeded in obtaining possession of three survey number fields, forming a portion of the bhag, but was refused possession of the house and gubhan. In consequence a suit was brought by Ardesir to recover the house and gubhan from Muse Natha, who, in his turn, sued Ardesir for possession of the fields. The Assistant Judge in appeal held that the sale to Ardesir, being a sale of a portion of a bhag other than a recognized subdivision, was contrary to the provisions of Bombay Act V of 1862, and on this ground he decided both suits in favour of Muse Natha.
3. In support of the special appeals it has been contended that Section 1 of Act V of 1862 only prohibits the attachment and sale of a portion of a bagh, and that in the present case it was not a portion of a bhag which was sold, but the undivided share of one of two coparceners in the whole bagh.
4. This contention is, perhaps, in accordance with certain admissions said by the Assistant Judge to have been made by the pleaders of the parties in his Court; but it is certainly not in harmony with the pleadings in the case, nor, apparently, with the circumstances out of which the suits arose. Those pleadings and those circumstances negative the supposition that the two brothers, Mahamed Natha and Muse Natha, were undivided co-sharers. Muse claims the whole of the property in dispute, partly as being his own original and distinct share in the bhag, and partly as having been purchased by him from his brother Mabamed. On the other hand, Ardesir has been placed in possession of three fields, as if the same had been the separate share of Mahamed, and he is suing for the house and gubhan on the same hypothesis. It seems scarcely open to doubt that, at the time of the attachment and sale, Mahamed and Muse were not undivided co-parceners, but were in possession of the separate shares, to which they were entitled under Muhammadan law.
5. If this were the case, the attempt to render Mahamed's property available to his creditors by selling, not his separate portion of the bhag, but his right, title, and interest in the whole bhag, was merely an attempt to evade the provisions of Act V of 1862: and, if the statements of the pleaders in the Court below be correct, the Act is in this manner systematically evaded with the connivance of the Subordinate Courts. This Court is certainly not disposed to give a sanction to any such proceedings. A creditor who applies for an attachment of his judgment-debtor's property is bound to specify the debtor's share or interest therein, to the best of the applicant's belief, and so far as he has been able to ascertain the same (Act VIII of 1859, Section 213). If the defendant has only a share in the property, the applicant ought to state whether such share is undivided or separate. When the share is stated to be undivided, then only ought the defendant's right, title, and interest in the whole property to be sold. When the share is stated to be separate, then the sale ought to extend only to the defendant's right, title, and interest in such separate portion. If the defendant has a separate portion, and the law forbids the sale of such separate portion, but allows the sale of the whole property, the law is not to be evaded by describing the defendant's portion as the defendant's right, title, and interest in the whole estate. What is sold under such description is the separate portion and nothing more. In the present case it seems clear, from the pleadings and the facts, that Mahamed Natha had a separate portion of the bhag, and the sale of such separate portion was directly opposed to the provisions of Act V of 1862.
6. It is difficult to understand how the pleaders in the Court below could have stated that Mahamed and Muse were undivided co-parceners. We cannot help thinking that the Assistant Judge must have misunderstood their statements upon this point; such statements being, as we have said, inconsistent with the pleadings and with the conduct of the parties. We do not feel bound to decide this case as if those doubtful statements were correct, nor to determine the question whether the attachment and sale of an undivided share in a bhag would be contrary to the letter or spirit of Act V of 1862. It is sufficient to say that, even if such a sale were lawful, and even if Ardesir were the purchaser of an undivided share, he would not be entitled to insist, as he is now doing, upon the possession of any particular portion of the bhag, house, or gubhan, as representing the share of Mahamed Natha: Appovier v. Ramasubha Aiyan 11 Moore I.A. 75, Udaram Sitaram v. Banu Panduji 11 Bom. H.O. Rep. 76. All that he could do would be to sue for a partition, which admittedly he has never done, and which he is not now doing: and the question would then arise whether, consistently with the provisions of Act V of 1862, such a partition could be made.
7. We confirm the decrees of the Court below, with costs on Ardesir Nasarvanji in both special appeals.