1. The question is whether certain land forms part of the joint family property of all the members of the Oke family who are the parties to the suit, or whether it is the separate property of the defendants.
2. According to the findings of the lower appellate Court the land was originally ancestral and was the subject of a suit brought on behalf of one Hari Krishna Oke against the branch of the Oke family to which the parties to this suit belong. The litigation ended in a compromise in 1867 whereby the father of the parties to the suit was to remain in possession of land claimed for seven years, and then to convey it to the other branch. The representative of the other branch on the 24th of September 1873 sold his interest which was to come into his possession under the terms of the compromise in the following year to the defendant No. 1 by a sale-deed for the sum of Its. 500. It is found as a fact that Rs. 500 was not part of the joint family money but was provided by the defendant No. 1 on his own responsibility. The learned Judge also found that the defendant No. 1 did not intend by the purchase to merge this land in joint family property and excluded his brother from it.
3. It is contended on this state of facts that the defendant No. 1 is not entitled to the benefit of his purchase, but that he must partition the land with the other members of his family subject to a right under Hindu law of retaining an additional quarter share for himself. In support of this contention reliance is placed upon certain texts Mitakshara, Ch. l, Section 5 para 3; Mayukha, Ch 4 Section 7, para 3. If these texts involve the conclusion contended for by the defendants the result would be anything but equitable. We, however, think that the comment upon the texts which is to be found in West and Buhler's Hindu Law p. 719, must be accepted as correct. The learned authors say: 'It seems probable from the wording of the texts upon which this doctrine rests, that they contemplate the cases only of property forfeited or withdrawn from the family estate otherwise that by voluntary and valid alienation. This view seems to be strongly supported by the words 'hrita' (i.e., that which has been taken or seized), and 'nastha' (i.e., that which has been lost), and 'uddharet (i.e., if he rescue or win back). Though there is no explicit rule which enables a member of a united family purchasing a portion of the patrimony, formerly sold, out of his separate means, to enjoy it as in the case of another acquisition free from claims to partition by his co-parceners, yet neither is any express limit set to such enjoyment, and it would probably now be held that such property stands on the same footing as any other purchased property of his separate estate. A contention to the contrary was abandoned in the case of Gooroo Pershad Roy v. Debee Pershad Tewaree 6 W.R. 58.'
4. This view receives support from the Judged of the Madras High Court who in Vasalatchi Ammal v. Annasamy Sastry 5 M.H.C.R. 150 said: 'The language both of the texts and the commentaries seems to us as at present to indicate that the rule was intended to apply strictly to hereditary property of which the members of the family had been violently or wrongfully dispossessed or adversely kept out of possession for a length of time: 'Property unjustly detained which could not be recovered before' is the import of the ordinance of Manu, Ch. IX, sl. 209.'
5. For these reasons, we confirm the decree of the lower Court and dismiss the appeal with costs.