John Beaumont, Kt., C.J.
1. This is a second appeal against a decision of the District Judge of Dharwar.
2. The property in suit originally belonged to one Rudragouda, who died in the year 1914 leaving a widow Basavva but no son. Basavva took possession of the suit property and remained in possession until the year 1934 when she adopted the present appellant. In the year 1924 Basavva incurred certain debts which in this appeal it is admitted were for legal necessity and were therefore binding on her husband's estate. She gave a promissory note to secure those debts, which promissory note passed to respondent No. 1 in the present appeal. In the year 1928 she filed a suit to recover the amount due under the promissory note from Basavva, and on August 26, 1928, a decree in her favour was passed against Basavva. Under that decree the suit property, which had belonged to Rudragouda, was attached and brought to sale, and respondent No. 3 became the purchaser of the property.
3. The plaintiff, as the adopted son of Rudragouda, filed this suit soon after his adoption to restrain the sale of the property in the suit against Basavva and for a declaration that the suit property was not liable to be attached in execution of the decree in the suit of 1928 and that he should not be dispossessed. The trial Judge made a declaration that the decree in the suit of 1928 was not binding on the plaintiff, that the auction sale consequently was invalid and directed that the plaintiff should recover the suit property. In appeal the learned District Judge reversed that decree and held that the decree in the suit of 1928 was binding on the plaintiff. The learned trial Judge had based his decision partly on the view that the debts incurred by Basavva, although for legal necessity, were not binding on the estate because no charge on the estate had been created; but between the date of his decision and the decision of the District Court, that question had come before a full bench of this Court in Dhondu Yeshwant v. Mishrilal Surajmal (1935) I.L.R. 60 Bom. 311: s.c. 38 Bom. L.R. 6, F.B, and this Court had held that the estate in the hands of a reversioner is bound by an unsecured debt contracted by a Hindu widow as representing the estate, if the debt is for legal necessity. The learned District Judge based his decision on that view of the law. But I think he did not quite appreciate the real difficulty in the case. Having regard to the decision of the full bench, there can be no doubt that this debt incurred by Basavva for legal necessity was binding on the estate of Rudragouda, and the present respondent No. 1 might have framed her suit against Basavva in such a way as to claim a decree against her personally and also against the estate. But what she did do in the 1928 suit was to base her claim entirely on the promissory note, and the decree which was passed was in thei only form open on a claim based merely on a promissory note, namely a personal decree against the maker of the note for the amount due with interest and costs. The plaintiff (respondent No. 1) might have framed her plaint differently; she might have alleged that the debts were incurred by Basavva for legal necessity, and have asked for a decree that the debts should be satisfied out. of the estate of Rudragouda and also by Basavva personally under her personal contract contained in the promissory note, but she did not do that. She only took a personal decree against Basavva, and I am at a loss to see how the executing Court under that decree can sell more than the interest of the judgment-debtor. All that the Court can sell is the right, title and interest of the defendant in the suit. The executing Court cannot go into the question whether the debt had been incurred by a widow, and if so, whether it had been incurred for legal necessity and was binding on the husband's estate. Those were matters which should have been gone into by the trial Court if they had been raised in the plaint, which they were not. In my opinion, therefore, although the debts here were for legal necessity and were binding upon the estate of Basavva's husband, the decree being merely a personal decree against her, nothing can be sold in execution of the decree except her right, title and interest. The two Privy Council decisions cited by Mr. Shah confirm that view. In Baijun Doobey v. Brij Bhookun LallAwusti there was a decree against a widow for maintenance which was in fact a charge on the husband's estate, but all that was sold in. execution was the widow's right, title and interest, and the Privy Council held that the decree being a merely personal decree, only her interest in the estate could be, and was, sold. In the other case Lalit Mahan Pal v. Dayamoyi RoyChowdhurani (1926) 29 Bom. L.R. 759, P.C. the decree was a personal decree against a minor through his guardian ad litem, and it was held that the original debt having been for legal necessity, the creditor might have recovered the debt from the estate of the father if he had chosen to do so; but as he had framed his suit, the father's estate was not liable.
4. In my opinion, the decision of the learned District Judge was wrong. We make a declaration that the decree in suit No. 471 of 1928 is not binding: on the plaintiff and the auction sale consequent thereon is invalid as against him. The plaintiff to recover possession of the suit property and costs of the suit from the defendants. The appeal is allowed with costs throughout.
5. I agree.