Lallubhai Shah, Ag. C.J.
1. The facts which have given rise to this appeal are these, Bala and Malhari were cousins who owned Survey Nos. 868 and 808 in equal shares. Apparently in 1890 they sold these lands to their brother-in-law Devji, who afterwards conveyed one moiety in each of these two Survey Numbers to the wife of Malhari and the other moiety to the wife of Bala. The wives of Bala and Malhari mortgaged their respective moieties to the defendant in 1901 In miscellaneous proceedings the creditors of Bala sought to attach his interest in these lands, but the attachment was raised on the ground that he had no attachable interest in these lands, The creditors filed a suit in 1905 to which both Bala and Malhari, and the wives of Bala and Malhari, named Kashi and Baku respectively, and also the present defendant mortgagee Madhavrao were parties In that suit it was held that the conveyance to Devji was merely a nominal and sham transaction, that Bala was the true owner and that the conveyance was merely a device to defeat the claims of the creditors. Thereafter there was a litigation between the mortgagee and Thaku, the daughter of Bala, who claimed to redeem the property as having inherited the equity of redemption belonging to her deceased mother. In that suit the mortgagee pleaded that the equity of redemption belonged to Bala and not to his wife. But it was held in that suit that the mortgagee was estopped from disputing the title of Kashi, the mother of the plaintiff in that suit, and the question whether as between Bala and his wife Kashi, the true owner was Bala was held to be outside the scope of that suit for redemption. That view was upheld by the High Court in S. A No. 630 of 1920 decided on August 9, 1921. We are not concerned in this suit with that moiety of the two lands.
2. It appears that with regard to the other moiety, which originally belonged to Malhari, and which was conveyed to his wife, Baku, in the manner indicated, that it was put up for sale by the Collector in execution of a money decree in a small cause suit which the defendant-mortgagee had obtained against both Malhari and his wife Baku. Before the decree was executed both of them died, with the result that in execution proceedings the son of Malhari was brought on the record as the legal representative of both the judgment-debtors, and in execution in July 1914, the right, title and interest of both the deceased judgment-debtors were put up for sale and purchased by one Trimbak Keshav Thakur, who in his turn sold the same to the present defendant, who was the decree-holder also.
3. The present suit was filed in 1921 by the daughter of Baku for redemption of the mortgage by Baku in 1901. The defendant pleaded that as a fact she had no right to redeem because the property really belonged, not to Baku, but to Malhari; and secondly, that as regards Survey No. 868, he had purchased the right, title and interest both of Malhari and Baku in the moiety, and, therefore, the plaintiff had no right to the equity of redemption.
4. On these pleadings the learned trial Judge found that the plaintiff was the heir of Baku according to Hindu law, as the daughter would be a preferential heir to her mother's stridhan, and that it was not open to the defendant to question the title of Baku from whom he had accepted the mortgage in 1901. He further held that the sale effected in 1914 in the Darkhast of 1912 was an invalid sale, and that it was void and inoperative against the true heir of Baku, as in the execution proceedings according to the learned Judge, Baku could not be properly represented by her son on the ground that he was not the heir of his mother but his sister would be the proper heir. In coming to this conclusion the learned Judge relied upon the observations in Khiarajmal v. Daim (1904) L.R. 32 IndAp 23; 7 Bom. L.R. 1, The learned Judge found that the mortgage amount was satisfied from the proceeds of the property and that nothing was due on the mortgage, and accordingly passed a decree declaring that the mortgage was fully satisfied and that the plaintiff was entitled to redeem and recover possession of the property in suit.
5. The defendant appealed to the District Court, and the learned. First Class Subordinate Judge, with appellate powers, who heard the appeal, came to the same conclusion on the two main questions in the appeal and dismissed the appeal with costs.
6. The defendant has appealed to this Court, and it is urged in support of the appeal, first, that it is open to him to show that the real owner of the property was not Baku, who mortgaged the property to him, but her husband Malhari, and that if that be the case, the plaintiff would not be entitled to redeem. Secondly, it is urged that in any case his title to a moiety in Survey No. 868, which was sold in 1914, and ultimately purchased by him, gives him a title to that property as against the plaintiff.
7. As regards the first point, it is clear that the defendant as mortgagee cannot be allowed to question the title of his mortgagor Baku, and that for the purposes of the suit it must be taken that Baku was the owner. If that be so, it is not disputed that the plaintiff as the daughter of Baku would inherit the right of Baku to the equity of redemption, and as such would be entitled to maintain the suit. Whatever the rights to this property as between Baku and Bala may have been, it is not open to the mortgagee to question the title of his mortgagor in this suit. It was so held by the Court in a similar suit by the daughter of Bala against the defendant in S.A. 630 of 1920. The first point must, therefore, be disallowed.
8. The other question whether the sale held in execution of the decree against Malhari and Baku is valid or not, is more difficult. It must be remembered that the money decree was against both Malhari and Baku, and the interest of both, whether in fact Malhari was the owner or his wife Baku was the owner of the moiety in these two Survey Numbers was liable to be put up for sale in satisfaction of that decree. No proceedings with reference to the sale in execution of this decree have been put in. At least our attention has not been drawn to any paper except the sale certificate. That certificate shows that the right, title and interest of both were purchased by the auction-purchaser. It is true that in these execution proceedings, the person brought on the record as representing both the deceased judgment-debtors was their son. It is urged that as the real heir of Baku, namely her daughter, was not on the record in the execution proceedings, the sale cannot be treated as binding upon her. That is the.only irregularity in the execution proceedings relied upon as vitiating the sale and the question is whether that irregularity such as it is, is sufficient to vitiate the sale.
9. In the present case, as I have already said, both Malhari and Baku were parties to the decree, and at any rate it was known to the decree-holder who was a party as the mortgagee to the suit of 1905, that it had been held that the real owner af the moiety in these two lands was Malhari, and not Baku, as the sale in favour of Devji by Malhari and Bala was held to be a colourable transaction. He no doubt brought the son on the record as the legal representative of his father and also of his mother. It is true that there was no investigation by the Court, and the position possibly did not lend itself at the time to any further investigation. In other respects the proceedings were regular, and it must be taken that the sale was held in the presence of the son of Malhari and Baku. Under these circumstances, I am not prepared to hold that the sale was void and invalid. It is quite true that the daughter is the heir of her mother in respect of her stridhan property, but the mere fact that the son was brought on the record as the legal representative of both his father and mother is not sufficient to invalidate the sale under the circumstances of this case. Undoubtedly he was the true legal representative of Malhari, and the sale was brought about in execution of a decree, under which both Malhari and Baku were liable. The question as to whether Malhari or Baku was the true owner of this land was to say the least not free from doubt in view of the result in the suit of 1905. Thus it is difficult to say that the decree-holder had no justification whatever to treat the son as the proper legal representative for the purposes of execution proceedings.
10. There is a further ground to support the view that the representation of the deceased debtor was not defective; it is based upon a rule of Hindu law which has not been referred to in the course of the argument. As the conclusion can be properly reached without reference to that rule, I do not desire to rest my decision thereon. I may, however, refer to the rule, which is contained in the Mitakshara, Chapter I, Section 3, placita 9 and 10 (see Stokes' Hindu Law Books, p. 383, and Gharpure's translation of the Vyavahara Adhaya of the Mitakshara, page 189). After referring to the text of Yajnavalkya that 'The daughters share the residue of their mother's property, after payment of her debts,' Vijnaneshwara points out in his commentary as follows:--'A debt, incurred by the mother, must be discharged by her sons, not by her daughters; but her daughters shall take her property remaining above her debts '
11. The same view is accepted by Nilkantha in the Vyavahara Mayukha (Mandlik's Hindu Law, p 97 and Gharpure's Translation of Vyavahara Mayukha at p. 134, placita 12 of Chapter IV, Section 10.) Thus as regards her debt payable under the decree, if the son were brought on the record it would not be unjustified. I do not say more on this point, as it has not been adverted to in the arguments.
12. In a case of this kind, where we are concerned with the validity of the sale otherwise regularly held in the course of execution taken out in respect of a decree against her, I do not see any objection to the son having been brought on the record under the circumstances of this case. The omission to bring the daughter on the record is not, in my opinion, sufficient to invalidate the sale. As in Khiarajmal v. Daim, it cannot be said here that Baku was not a party to the suit, nor can it be said that the judgment-debtors were altogether unrepresented. Even admitting the irregularity in the representation, which I doubt according to the rule of Hindu law which I have referred to, I do not think that it is anything more than a mere irregularity in procedure in execution of a deeree properly obtained against the mother, which cannot affect the substance of the matter. Each case must depend upon its facts and circumstances. I think that in the present case it is merely a case of irregularity, and not of such want of representation as would amount to an absence of jurisdiction on the part of the Court to carry out the sale. I am, therefore, of opinion that the sale must now be accepted as valid even as against the present plaintiff.
13. The result must, therefore, be that she would have no right to the moiety in Survey No. 868. I would, therefore, modify the decree of the lower appellate Court by dismissing her claim as regards Survey No. 868. Each party to bear his or her own costs throughout.
14. I agree in allowing the appeal and in the order as to costs proposed by my learned brother. I think the decision in the suit of 1905, to which the plaintiff's mother Baku and defendant were parties (see Exhibit 38), has the conclusive effect of showing that, so far as the land in suit is concerned, Baku was a mere benamidar of her husband Malhari. As such benamidar, her prosper, representative was her son rather than her daughter, the plaintiff. In the circumstances of the case, the mere omission to bring the plaintiff on the record does not, in my opinion, make the sale under the execution proceedings of 1914 a nullity. It is somewhat similar to the omission of Nabibaksh's infant daughter, which was held immaterial in the Privy Council case of Khiarajmal v. Daim I.L.R. (1904) Cal. 296 : 7 Bom. L.R. 1, and I think the case is one which can be held to fall under the discretion properly exercisable by a Court in allowing the estate of a deceased debtor to be represented by one member of the family, such as is referred to by Lord Davey at p. 314 of that report.