Lindsay and Sulaiman, JJ.
1. This is a plaintiffs' appeal arising out of a suit brought by the two minor sons of Suraj Prasad for a declaration that they are the owners of a two thirds share in the house in dispute, which was sold at auction in execution of a simple money decree against the father. It appears that Suraj Prasad executed a simple money bond on the 6th of May, 1913, in order to pay interest on a previous mortgage-deed. A. suit was brought by the obligee on the basis of the bond and a, decree was obtained against Suraj Prasad. In execution of that decree the house in question was attached and was put up for sale and purchased by the decree-holder himself namely, Pahlad Das. In spite of getting a formal delivery of possession Pahlad Das was dispossessed and he had to bring a separate suit for the possession of the house, which was decreed in 1919. On the 2nd of June, 1919, Pahlad Das executed a sale-deed of the property in question in favour of Janki Pande, which sale was pre-empted by Haji Muhammad Nur, the present respondent. Haji Muhammad Nur obtained the pre-emption decree on the 27th of March, 1920, and has been in possession of the house since. The present suit was brought by the sons on the allegation that the debt, to recover which the property was sold at auction, was without any legal necessity and that in fact it was tainted with immorality.
2. The court of first instance found that the house was the ancestral property of the family and that the sons not having been made a party to the previous litigation, their interest in the house was not affected. It accordingly decreed the claim, exempting a two-third share of the house from the operation of the sale.
3. On appeal the learned District Judge, finding that the debt was not tainted with immorality, set aside the decree of the first court and dismissed the suit in toto.
4. The plaintiffs come up in second appeal to this Court, and on their behalf it is contended, on the authority of the cases of Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437 and Chet Ram v. Ram, Singh (1922) I.L.R. 44 All. 368 that the sons' interest cannot be affected by the previous sale proceedings. We are of opinion that neither of the two cases relied upon by the learned advocate for the appellants supports that contention. It was remarked by their Lordships of the Privy Council in Sripat Singh Dugar v. Prodyot Kumar Tagore (1916) I.L.R. 44 Calc 524 that by the Mitakshara law 'a judgment against; the father of the family cannot be executed against the whole of the Mitakshara property if the debt in respect of which the judgment has been obtained was a debt incurred for illegal or immoral purposes. In every other event it is open to the execution creditor to sell the whole of the estate in satisfaction of the judgment obtainable against the father alone,'
5. In the present case the rights of third parties have come into existence inasmuch as the property was sold by public auction in execution of a simple money decree, passing not only the interest of the father but that of the whole family; and subsequently the auction-purchaser transferred it by sale which has been pre-empted by the principal respondent. The sons cannot now question the auction sale unless they can show that the simple money debt was illegal or tainted with immorality. We need only refer to an earlier pronouncement of their Lordships made in the case of Girdharee Loll v. Kantoo hall (1874) L.R. 1 I.A. 321 that 'where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, the sons cannot recover that property unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted.'
6. The comment made on this pronouncement by Sir John Stanley in the case of Chandradeo Singh v. Mata Prasad (1909) I.L.R. 31 All. 176 and recently approved by the Privy Council, was to the effect that this proposition deals with the cases in which ancestral property has passed out of the family, and with no other eases. Even in the case of Sahu Ram Chandra v. Bhup Singh (1917) I.L.R., 39 All., 437, their Lordships at p. 446 remarked:
A perusal of the numerous authorities will show that where a joint family property has been sold out and out, or where a decree in execution of the mortgage has been obtained against the property, and rights have thus sprung up with regard to the joint family estate, these rights are not to be defeated by the members of the joint family simply questioning the transaction entered into by its head.
7. We may also point our that in the case of Chet Ram v. Ram Singh (1922) I.L.R. 44 All. 368 (373) their Lordships laid special stress on the circumstances that the case was a singularly clear one because it was not affected by other considerations such as the property having been publicly sold, and there were no rights of auction-purchasers to be considered. We are supported in this view by the Bombay High Court in the case of Hanmant Kashinath Joshi v. Ganesh Annaji Pujari (1918) I.L.R. 43 Bom. 612 and by the Oudh Judicial Commissioner's Court in the case of Bharat Singh v. Sarsuti Singh (1920) 60 Indian Cases 137. The appeal accordingly fails and is hereby dismissed with costs.