Skip to content


Kagal Ganpaya Vs. Manjappa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom691
AppellantKagal Ganpaya
RespondentManjappa and ors.
Excerpt:
hindu law - joint family--money decree--decree against father alone--purchaser at execution sale under such decree--how far such sale binding on the interest of the, sons not parties to the suit or execution proceedings. - .....or what the purchaser had reason to think he was buying if there was no conveyance, but only a sale in execution of a money decree.' in that case, as in deendyal's case and the case of hurdey narain, the court had little difficulty in coming to the conclusion that only the father's interest was intended to be sold by the proclamation, as the property attached and offered for sale stated by the certificate to have been purchased was, in terms, confined to the interest of the father in the family property.3. as the district judge has decided this question exclusively on the ground that the property was purchased in execution of a money decree without referring to the execution proceedings, we cannot accept his decision as conclusive. those proceedings are not before us, and as the.....
Judgment:

Charles Sargent, C.J.

1. The District Judge held that only the share of Manjappa, the second defendant, passed to the plaintiffs vendor under the Court sale in execution of the decree against the second defendant, on the ground that the decree was a mere money decree as distinguished from one passed in a suit for the realization of a mortgage security directing the property to be sold. This distinction is doubtless much relied on by the Privy Council in Baboo Hurdey Narain Sahu v. Pundit Baboo Rooder Perkash Misser 11 Ind. Ap., 26 as explaining the apparent inconsistency between the decision in Girdharee Lall v. Kantoo Lall 1 Ind. Ap., 321 and that in Deendyal Lal v. Jugdeep Narain Singh 4 Ind. Ap., 247 ; and was acted upon by this Court in Trimbak v. Narayan I.L.R., 8 Bom., 481 . However, that the above distinction is not a complete test of whether the entire family property or only the father's interest in it passes to the auction-purchaser, and that Deendyal's Case does not bind the Court to hold under all circumstances that only the co-parcenery interest of the father passes to the purchaser, is shown by the decision in Mussamut Nanomi v. Modun Mohun 13 I.A., 1 ; I.L.R S.C.., 13 Cal. where the decree was a mere money decree, and yet the Privy Council, confirming the decision of the Calcutta High Court, held that the entire family interest in the property passed to the purchaser, on the ground that the language of the execution and sale proceedings was such that the purchaser must be deemed 'to have bargained and paid for the entirety.'

2. In Simbhunath Panday v. Goldb Singh 14 I.A., 77; S.C.I.L.R., 14 Cal, 572 the Privy Council after referring to Deendyal's Case and Namomi's Case say: 'Each case must depend on its own circumstances. It appears to their Lordships that in all the cases, at least the recent cases, the inquiry has been what the parties contracted about if there was a conveyance, or what the purchaser had reason to think he was buying if there was no conveyance, but only a sale in execution of a money decree.' In that case, as in Deendyal's Case and the case of Hurdey Narain, the Court had little difficulty in coming to the conclusion that only the father's interest was intended to be sold by the proclamation, as the property attached and offered for sale stated by the certificate to have been purchased was, in terms, confined to the interest of the father in the family property.

3. As the District Judge has decided this question exclusively on the ground that the property was purchased in execution of a money decree without referring to the execution proceedings, we cannot accept his decision as conclusive. Those proceedings are not before us, and as the vakils on both sides think it the advisable course, we reverse the decree and send back the case for a fresh decision. Costs to abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //