1. There were four brothers constituting a joint family. The only piece of joint ancestral estate was the old family house. Three of the brothers remained in their native village, formed a partnership and traded there. The fourth Nanchand went to Ahmednagar and working first as a servant, ended by being taken into partnership in a business there. Nanchand married while away from the rest of the family, finally fell sick, returned home and presently died. That was in 1894. His widow stayed with the other three brothers in the family house. It seems to be conceded that there never had been any separation, although this was the original plea in the first Court, or that if the mere departure of Nanchand to seek his livelihood could be so regarded, there was a complete reunion on his return.
2. The local trading concern had been carried on by the three brothers who survived Nanchand. In our understanding of the case, Nanchand had no lot or part in it or its fortunes, at any rate before he threw up his own business and returned sick, to die. Pour years after his death there was a suit against what was now the joint family of the three surviving brothers for debts incurred by their firm. Those debts were incurred before the death of Nanchand. They were the outcome of Khata transactions which admittedly began before 1894. For the purpose of the only point of law we have to decide we think that the lower Court held and that we ought to hold that the debts for which the decree was obtained were debts of the local firm incurred while Nanchand was still alive, trading elsewhere on his own account and with no interest in this other business. In other words that taking the joint family to have then consisted of all four brothers and the only joint family property at the time to have been the house these debts were not joint family debts, which could have been enforced against the joint estate as such. But with the death of Nanchand the character of the debt, too, changed. In respect to all that was left of the joint family, all that now is the joint family, the three brothers, who were also the three partners and did incur the debt, it cannot be other than a joint family debt enforceable against any joint family estate in their possession. In execution the creditor sold the family house. Nanchand's widow resisted and claimed her husband's share, as widow of a separated member. That was clearly an untenable claim; but in the alternative, though we think with doubtful propriety, she was it appears allowed to set up an alternative and rely on her right to undisturbed residence. The first Court found against her, but the lower appellate Court held that the debts for which the house was sold were not joint family debts as the family stood at the death of her husband, the time when her right to residence began and therefore that that right could not be affected by the latter change in the character of the debts. The question thus arising is whether in those circumstances the character of the debt is to be fixed by the state of affairs existing when it was incurred, or when it was enforced. It cannot be denied that a widow's right to residence shall not be affected by the enforcement of debts which are from the joint family point of view, improper, that is to say, not for the benefit of the joint family as a whole. There are other transactions such as fraud, immoral dealings etc., the consequences of which also will not be allowed to touch the widow's right to residence. But those are foreign to the facts here and the principle upon which this case is being decided differs from the principle to which they would be referable. Not without considerable doubt we have concluded that the better opinion and the opinion most consonant with the sentiment of the Hindu law and its earliest expositions by the Pandits, before it became saturated with the dominant ideas of the English law, is that the widow's right would when brought into conflict with the claim arising upon such a debt, have to be fixed by reference to the character of the debt at the time it was incurred. The greatest difficulty in the way of accepting what, thus stated, has all the appearance of a plausible, not to say, an almost self-evident proposition, is that we do not doubt that had these local firm debts been incurred after, instead of before, the death of Nanchand the widow's right would have been bound by them. And the distinction in her favour which we are thus drawing fines down close to the vanishing point. Again if instead of this house having been taken in execution of a debt incurred by the three brothers before the death of the fourth, they had after his death quite bona fide and with no intention of defrauding the widow decided to sell it outright, it would be hard to say that they had not the power, or that the widow would not be bound. Those are different cases. But they serve to show how nice the distinction is. Holding as we do, that in the circumstances of this case the character of the debt is to be fixed at the time it was incurred, that at that time it was a private personal debt of the three brothers and did not bind the joint estate of the fourth brother, therefore did not bind either his widow's right to reside in the family house, after his death, we think that the Court of first appeal was right and that this appeal fails on the only point of law that was argued. It is significant that when the pleadings were opened the learned and experienced pleader for the appellant hardly said a word about or seemed to think it worth while seriously to press it. His chief ground and apparently his only grievance was, not that the widow had been allowed a right of residence, but that she had been allowed too large a right. He complained that the Court below had allotted to her twelve Khans, which was more than her husband's full share would have been had he been alive and a separated member of the family. And that to the end was the real grievance. Now that is a matter with which in second appeal we should not be likely to interfere except for the strongest reasons. How much or how little accommodation would do for the lady is surely a matter of discretion and the way in which Courts below use their discretion is not a proper ground of second appeal, unless it can be shown that the use had been so unreasonable, or contrary to all principle, as to have become an abuse. But that cannot be said here. We must therefore confirm the decree of the Court below and dismiss this appeal with costs.