1. We see no reason to dissent from the Subordinate Judge's finding that the mortgages of the plaintiff's, share of certain thikans by his father cannot be upheld. The plaintiff has proved that the debts were contracted for immoral purposes within the knowledge of the lenders. The alienations, therefore, cannot be held good as against the plaintiffs two-annas' share in those thikans, in respect of which only he seeks to set them aside. The case, however, of those appellant-defendants who purchased at auction-sales stands on a different footing. The Subordinate Judge has disallowed their claims as against the plaintiff's share in the lands sold merely on the ground that the sales were made in execution of decrees for debts contracted by his father for immoral purposes. But, in dealing with this part of the case, the Subordinate Judge has not considered the question whether the purchasers had notice that the debts were so contracted. We think that, as regards such purchasers, the two propositions laid down in Suraj Bunsi's Cas L.R., 6 IndAp 88 , are still in force unqualified by any later decision, and that having regard to that decision and the ruling in Nanomi's Case L.R., 13 IndAp1 ; I.L.R., 13 Cal 21 the points to be determined in any such case as the present are:
(1) What was the interest that was bargained for and paid for by the purchaser? Was it the father's interest only or was It the interest of the entire family?
(2) Where the debts for which the decrees were obtained under which the property was sold, contracted for immoral purposes? and
(3) Had the purchasers notice that the debts were so contracted?
2. The first of these points was the material point in the cases of Baboo Hurdey Narain v. Pundit Baboo Rooder L.R., 11 IndAp 26 Nanomi Babuasin v. Modun Mohun L.R., 13 IndAp1 Simbhunath v. Golab L.R., 14 IndAp 77 Pettachi v. Sangili L.R., 14 IndAp 84 and the determination of it was sufficient for the decision of those cases. It is for this reason, apparently, that the second proposition in Suraj Bunsi's Case is not again laid down in the subsequent cases. Considering, then, the first question which arises with reference to the sales of certain thikans in execution of decrees against the plaintiff's father, in the light of the cases just cited, we are of opinion that the father's interest alone is what was sold in the present case. It is nowhere stated in any of the certificates of sale that the share of the son (i. e. of the plaintiff) is sold. It is true that the property is described in the certificates as being a four-annas' share, which would be equal to the shares of the father and the son together, but this description is qualified by the statement that 'the right, title and interest in the above-mentioned property of the said Ravji' (i. e. the father) is sold. The case is thus very similar to Simbhunath's Case, where the interest of the father alone was held to have passed. It is remarked in Nanomi's Case that, if the expressions by which the estate is conveyed to the purchaser are susceptible of application either to the entirety or to the father's co-parcenery interest only, the absence of the sons from the proceedings may be a material consideration. In the present case, the plaintiff, though an adult at the time, was not a party to the suit or to the execution proceedings. Again, another very material circumstance is not established in the present case, namely, that the purchasers bargained for and paid for the entirety. Further, it is abundantly clear, from the evidence, that, as regards his possession and enjoyment of the thikans in question, the plaintiff was never disturbed, and that, too, although by private agreement the sharers had each separate possession of distinct portions, of the ancestral property. For this reason, then, that the interest of the father alone was sold, and not on the ground relied on by the Subordinate Judge, which, standing alone, is insufficient to justify his finding, we confirm that finding as to the sales in question, so far as they affect the plaintiff's share, which is alone claimed by him.
3. We think that the Subordinate Judge has rightly disallowed the plaintiffs claim to a share in the eight thikans mentioned in Exhibit A. In the proceedings consequent on the sale of these fields the plaintiff intervened. He was given an opportunity of showing either that his share was not sold or that it was improperly sold and that the sale was not binding on him, and he failed to prove either point; and the obstruction that he made to the purchasers obtaining possession was removed. This was in 1872. Under the law then in force, he was bound to sue within a year to establish the right that he claimed-the right that is to remain in possession of his share unaffected by the auction-sale under a decree obtained against his father, In the present suit, which was not filed till 1883, he seeks to obtain a declaration of the very same right, and asks that the time taken up in prosecuting a former suit which was filed in 1872 and disposed of in 1883 may be excluded. But that suit did not fail for want of jurisdiction or any defect of a like nature, such as is contemplated by Section 14 of Act XV of 1877 (see Bai Jamna v. Bai Ichha I.L.R., 10 Bom. 604 . It was withdrawn by the plaintiff himself, as it was defective for want of parties, and he was allowed to bring a fresh suit. It appears, therefore, that Section 374 of the Civil Procedure Code applies to the case. Inasmuch, moreover, as neither the decrees in execution of which the sales were held nor the bonds on which the decrees were obtained are filed in the present case and no evidence is adduced as to the exact character of the debts in respect of which the bonds were passed, it would not be possible for us to hold that these specific debts were contracted for immoral purposes.
4. The only other objection to the decree is that of the defendants Nos. 1 to 5. It refers to their claim to a jeshtbhag or larger share on partition. The Subordinate Judge has disallowed this claim, on the ground that the sum awarded by the agreement of A.D. 1842 to Ramchandra on account of jeshtbhag was provided for by the High Court's decree in a previous suit. The Subordinate Judge, however, here proceeds on a misconception both of the agreement and of the decree of the High Court. The agreement of 1842 (Exhibit No. 163) provided that 'fields yielding a net profit of Rs. 30 a year (after deducting the assessment) should be assigned to R.B. Renge for jeshtbhag at the time of making the partition.' The decree of the High Court (Exhibit 188) in the previous suit (Sp. A. 526 of 1865) also provided that the four fields claimed should be divided after an assignment had been made of an extra share for jeshtbhag, as stipulated in para. 2 of the agreement, Exhibit 12, (Exhibit 163 in the present case). It is, therefore, clear that the defendants are entitled to have an assignment of land from those four fields, yielding a net profit of Rs. 30 a year as jeshtbhag. We cannot, however, hold that they are entitled to more than that. The claim to hold the whole of these lands as jeshtbhag cannot be sustained. Exhibit 160, under which the claim is made, has been superseded by the decree, which alone now determines the rights of the parties inter se (Cf. Ramchandra v. Abaji Printed Judgments for 1886, p. 15.
5. We, therefore, modify the decree of the lower Court by declaring that, before making the partition, land yielding a net profit of Rs. 30 a year, out of the thikans Holiche Kate, Wada Maine, Dagad Kate, Khalil Khajan and Panchbhai Khajan Katuban, be divided off and assigned to the defendants Nos. 1 to 6 if no such assignment has already been made by virtue of the decrees obtained by defendants Nos. 14 to 18 for partition. In all other respects we confirm the decree.
6. We order that each party bear its own costs in the appeals in this Court.