1. This is an appeal by the sole plaintiff Patru Lal whose suit was dismissed by the Civil Judge of Azamgarh. The plaintiff and pro forma defendant 5, Madho Prasad, are the sons of Moti Lal, defendant 3 and of Mt. Bhagwanta Kuer, defendant 4. The suit was brought for possession of a half share in certain houses and shops by cancellation of a sale dated 21st June 1921, of a sale deed dated 17th November 1925 and of an auction sale dated 9th February 1928.
2. Moti Lal, defendant, in 1913 brought a suit for separation of himself and his son, Madho Prasad, from Sarju Prasad, father of Moti Lal, and Hira Lal, son of Sarju Prasad and brother of Moti Lal. At that time the present plaintiff was not born. Sarju Prasad died and the original family property went as the result of partition and inheritance half to Hira Lal and half to Moti Lal and the latter's sons. Moti Lal began to borrow money. One of these transactions led to a decree being obtained by one Tribeni Misir and an auction sale dated 21 June 1921. The plaintiff filed a suit that the joint family property was not liable and the result was that only the interest of Moti Lal, excluding the interest, of his two sons, passed by the auction and for this reason in this appeal we have not been asked to set aside the auction sale dated 21st June 1921. What has been urged before us is that the sale deed dated 17th November 1925 does not bind the plaintiff or his brother, the defendant Madho Prasad, and should be cancelled as should the auction sale of 9th February 1928. This auction sale was the result of execution proceedings on a decree obtained against Moti Lal and his two sons. No prayer has been made that decree be declared invalid against the plaintiff and his brother and there being nothing against the auction sale in itself it cannot be set aside while the decree which has led to it holds good and seeing that no prayer has been made for the decree to be set aside, the appeal in so far as regards the auction sale of 9th February 1928 fails.
3. There remains to be considered the sale deed dated 17th November 1925. This sale deed was executed by Moti Lal himself and by defendant Mt. Bhagwanta as guardian of the plaintiff 'and of his brother Madho Prasad, defendant. The learned Civil Judge has found that Moti Lal and his sons formed a joint family and this sale deed of joint family property was valid against the plaintiff and his brother. If this was joint family property the sale deed is valid against the plaintiff and his brother but the learned Counsel has urged that there was a division of the joint family property as the result of a decree. The consideration for this sale deed was as follows Rs. 225 to pay off certain decrees. The decrees have not been pointed and we do not know against whom they were obtained, whether against Moti Lal himself or against the whole family and there is, therefore, nothing to show that they did not bind the present plaintiff. The second part of the consideration is Rupees 1021-4-0 to pay off a certain mortgage. The plaintiff and his brother brought a suit for a declaration that this mortgage was not binding on them but they failed. This being so, that part of the consideration cannot be challenged now. The same applies to the third part of the consideration, a sum of Rs. 425 to pay off a decree against Moti Lal and his two sons which decree the sons by a suit tried to have declared not binding on them but failed. There is then a sum of Rs. 559-12-0 which is only for registration fees and if the rest of the consideration is good this cannot be challenged. The last item is a sum of Rs. 250 to pay off a decree based on an antecedent debt of Moti Lal for payment of Government revenue. This too cannot be challenged.
4. If, however, when this sale deed was executed the plaintiff and his brother were no longer joint with their father, the sale deed would not bind them. We have stated above that Tribeni Misir obtained a decree against Moti Lal, and the plaintiff and his brother under the guardianship of their mother Mt. Parbawati Kuer brought a suit for a declaration that the joint family property was not liable as Moti Lal's debt was an immoral one. The learned Munsif who decided that suit held that the share of sons in joint family property cannot be sold in execution of a simple money decree against the father during his lifetime and he, therefore, declared that the plaintiff's and his brother's share was not liable to be sold in execution of the decree so that a two-third portion of half of the house was not liable to be sold but the suit was dismissed as regards the remaining one-third of half the house. We may explain that the suit was about half the house as the other half share belonged to Hira Lal, brother of Moti Lal and uncle of the plaintiff. Learned Counsel has argued that as the judgment mentions a two-third share of one-half as being the interest of the sons of Moti Lal and one-third as the share of Moti Lal which one-third share was eventually sold, Moti Lal was left with no interest in any joint family property of himself and his sons so that he ceased to be a coparcener and the joint family was disrupted.
5. The decision of the learned Munsif declaring that a two-third portion of half of the house in dispute was not liable to be sold was really an incorrect decision in view of the decision of their Lordships of the Privy Council in Brij Narain v. Mangal Prasad ('24) 11 A.I.R. 1924 P.C. 50 What the Munsif thought was that that particular debt of Moti Lal was not contracted for immoral and illegal purposes so it was binding on the joint family estate belonging to the family composed of the father and his two sons but during the lifetime of the father the joint family estate was liable only to an extent equivalent to what would have been the share of the father had he partitioned. The use of the word 'share' was of course not meant by the Munsif to indicate that there had been separation. We do not think that, supposing execution could only have been taken as regards one-third of one-half of the house, it followed that the father became separated from the sons. The separation of the coparceners from a joint Hindu family can only be brought about by individual volition and partition by an act of a Court only takes place when the aid of the Court is invoked at the request of a plaintiff who seeks to partition by recourse to a Court and not otherwise.
6. Learned Counsel has referred us to some decisions as supporting his submission but most of them have no bearing on this point and we do not propose to refer to them. There are two to which we will make reference. The first is Soundararajan v. Saravana Pillai ('17) 4 A.I.R. 1917 Mad. 700. That is a case when a father sold all his then remaining property which, was a transfer by him, not an auction sale. One of the two learned Judges who decided that case dissenting from observations made in two prior cases held that the father having alienated the whole of his interest in the joint family property became separated. On-the other hand, the other learned Judge held a contrary view. Gurlingappa Satwirapa v. Nandapa Chanbasapa ('97) 21 Bom. 797 a decision by a Bench, is against the contention of the learned Counsel. Learned Counsel could quote no authority of this Court. In our opinion, it is only a member of the joint Hindu family who can separate and neither a Court nor a third party can separate him against his wishes. There is nothing on the record to show that either Moti Lal or his sons, who incidentally were minors, had any desire to separate or took any steps to do so. This sale deed dated 17th November 1925, must be regarded, therefore, as a sale deed by a father of joint family property which, for reasons that we have given above, was binding on his sons too. We find that the decision of the learned Civil Judge dismissing the planitiffs' suit was correct and we dismiss this appeal with costs.