Basil Scott, Kt., C.J.
1. A suit was filed in the year 1888 against two of four,, cousins entitled to certain joint family property in Malvan to recover Government assessment which had been paid under compulsion of law in respect of that property by an owner of another property.
2. The two defendants in that suit were sued as managers of the family. They were originally sued in their individual capacity alone, but the plaint was subsequently amended by adding that they were sued as managers. A decree was obtained for the amount of assessment which had been paid by the plaintiff on their behalf and in execution of the decree the property was sold in 1895. The purchaser went into possession in the month of November of that year, and as certain exhibits referred to by the Subordinate Judge in this case show, he obtained decrees for rent against tenants in occupation of portions of the family property so long ago as 1900.
3. This suit was filed in 1904 by the purchaser to obtain partition of property which was held in common with 66 or 67 other co-sharers and then the defendants took the opportunity of objecting that they were not bound by the Court-sale in 1895.
4. The learned Subordinate Judge, however, finds, and his finding is accepted by the appellate Court, that ' In the suit of 1888 the defendant No. 2 and Narayan were sued as managers of the family, but they did not deny that they were managers. There was similar acquiescence on the part of defendants 3 and 4 also, that is, of the present appellants. Though employed in Bombay they frequently came home and were on very good terms with defendant 2 and Narayan, for it is admitted that these latter used to collect rents for them. Hence the defendants 3 and 4 must have had intimation of the decree passed against defendant 2 and Narayan, as managers, and of the execution proceeding!; which resulted in the sale of their lands. And yet, till the institution of this suit, they took no steps whatever to get the sale set, aside or declared not binding on them. But it is urged on behalf of defendants 3 and 4 that they took no steps because the lands were in possession of the family. But the lands were in possession of the tenants, and the plaintiff had obtained rent-decrees against many of them. Thus the conduct of all the defendants 1 to 4 till now has been such as to show that they regarded defendant 2 and Narayan as managers of the family.'
5. In this state of facts we think that the principle underlying the decision in Narayan Gop Habbu v. Pandurang Ganu ILR (1881) 5 Bom. 685 may be properly applied against the appellants although they were not parties to the suit of 1888.
6. In support of the conclusion of the lower Court the respondent's pleader has relied strongly upon the decision in Han Vithal v. Jairam Vithal ILR (1890) 14 Bom. 597, which appears to be a case very much on all fours with the present in regard to its facts, and if correctly decided would be sufficient, without the adverse finding of fact to which we have referred, to defeat the appellants' claim. We are not, however, altogether satisfied with the reasons given in that judgment for the conclusion that Lakshman Venkatesh v. Kashinath ILR (1886) 11 Bom. 700 has been over-ruled by Daulat Ram v. Mehr Chand ILR (1887) Cal. 70 : L.B. 14 I.A. 187. Daulat Ram's case was one which was concerned with a mortgage by the manager of a joint family. The case of Hari Vithal v. Jairam Vithal ILR (1890) 14 Bom. 597 was not concerned with a mortgage. In Lakshman Venkatesh v. Kashinath ILR (1886) 11 Bom. 700 it was held that where in execution of a money-decree obtained against two brothers of the plaintiff as managers in a ' suit to which the plaintiff was not a party, the house which was the family property was sold, the sale was void as against the plaintiff's share in the house.
7. It appears to us that there is a distinction between cases of decrees against a father where the interest of the sons is sold in execution and the case of a decree against a managing brother where the interest of other brothers is sold in execution they not being parties to the suit. We also think that there is a distinction between the case of a mortgage where the whole family property has been mortgaged for family necessity by the manager and the case where there is only a money-decree against one individual member of a joint family.
8. We therefore think that although the decree of the lower appellate Court must be affirmed in this case, it may be necessary in the future to consider the correctness of the decision in Hari Vithal v. Jairam Vithal.
9. We affirm. the decree of the lower appellate Court and dismiss the appeal with costs.