1. The plaintiff-respondent brought a suit on a ruzu-khata against Anant, father of the defendants-appellants, minors, and his brother Hari, the latter being impleaded on the v. ground that he was a member of a joint Hindu family along with Anant. Subsequently, on Hari' s special oath, the claim against Hari was given up and a decree was passed against Anant alone. After the decree the respondent applied for execution by attachment and sale of certain property, and put in an application that in the sale proclamation not only the right, title and interest of Anant should be included as being put up for sale, but also the interest of Anant's two minor sons, the appellants Ramchandra and Dattatraya. Notice was issued to the minors and their grandfather appointed guardian ad litem. After framing issues and recording evidence, the executing Court held that the debt in dispute was not immoral as the appellants alleged, and granted the application of the decree-holder respondent, The appeal of the minors to the District Court failed, and they now appeal here.
2. Three points are taken by the appellants, firstly, that the respondent having failed to implead the minors in the suit, could not proceed against them in the darkhast under Order XXI,, Rule 66, Clause (e), as he purported to do. The executing Court had no jurisdiction to inquire. Secondly, that the debt was tainted by immorality. Thirdly, that the judgment of the lower appellate Court on this question is too summary, and gives no grounds, and cannot, therefore, be accepted in second appeal.
3. The first point, as far as I know, is novel. It has not come up previously before the Courts. At the same time it is of some importance. There are a large number of cases in which the sons have failed to be impleaded in the suit or their names included in the proclamation of sale, and they have subsequently filed suits years after the event for a declaration that their interest had not passed. It suffices to refer to the cases, such as Timmappa v. Narsinha Timaya I.L.R.(1913) 37 Bom. 631 ; Dayanand v. Daji : (1926)28BOMLR1082 ; and Sripat Singh v. Tagore (1916) L.R. 44 IndApI . Except Order XXI, Rule 66, no other section Is shown under which an application such as the present can be made. That rule refers to the proclamation of sale, and Sub-rule (2), Clause (e), directs the Court to specify every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property. In the present case, for instance, the value of the property is intimately connected with the question whether the right, title and interest sold includes or not the interest of the eons. Once the decree-holder makes an application such as Exhibit 31 to include the sons' interest in the proclamation, it is difficult for the Court to dispose of it except upon notice and inquiry such as the present. Can it then be said that such an application itself is 'such that either the decree-holder is not in law entitled to make it or the Court to dispose of it? Confining myself to the case of a Hindu father alleged to be a member of a joint Hindu family with his sons, it is, in my opinion, difficult to hold that such an application is incompetent, and that if once the plaintiff, because perhaps of ignorance, has failed to implead minor sons expressly in the suit, lie cannot make an application such as the present in the darkhast, but that the matter must be left to be agitated, in all probability, many years afterwards on the sons attaining their majority, when much of the materials and evidence on which the Courts can come to a conclusion will disappear. The balance of convenience is very heavily in favour of an early inquiry and an inquiry in the darkhast, and before the proclamation and sale rather than after, when an innocent third-party purchaser would be exposed to harassment. On the whole, therefore, and in the absence of express enactment or authority to the contrary, I am inclined to hold that while it is preferable that these minor sons should be impleaded in the suit itself, with the father as manager of the joint family, an application such as the present to include their interests in the proclamation of sale in darkhast is not incompetent.
4. The evidence for the respondents is that the debt was incurred for a shop to be carried on by the father and not separately for himself, in other words, presumably for the joint family. On the other hand, there is evidence that he kept a mistress, and that at least after he got into pecuniary difficulties, he had sent his wife and children to their grandfather's house, whether because of the distress, or mistress, or both combined, it is difficult to say. If I may be permitted to draw upon my own knowledge of certain parts of the Ratnagiri District, and subject to changes in the last ten or fifteen years, I am under the impression that the keeping of a mistress is not considered to be a particularly scandalous or immoral act. There is no connection shown between the ruzukhata and the mistress. The evidence, as far as it goes, does not show that it was borrowed for the expenses of the mistress, but rather for the starting of the shop. Although I am in sympathy with the argument for the appellant that the District Judge should not have dealt with the matter as summarily as he has, the view of both the lower Courts, in my opinion, is correct, that in point of fact the debt was incurred not on account of the mistress, was not tainted with immorality, but was taken to start a shop for the benefit of the family.
5. If so, there is abundant authority for the proposition that joint family property including the share of the sons may he proceeded against on a decree on such a debt. The onus in such case would be upon the sons: Bhagbut Pershad v. Mussumat Girja Koer and that they would be bound by the decree, Brij Narain v. Mangla Prasad . In this view the order of the lower Court was, in my opinion, correct.
6. The appeal is dismissed with costs.