1. This is a plaintiff's appeal arising out of a suit for partition of a 1/4th share in a house and a shop. In 1899 there was partition suit brought by Salig Ram, a cousin of the contesting defendant's fathers for separation of his share. That suit was decreed and separate lots were allotted to Salig Ram and his brothers. According to the judgment of the Court of first instance the lots marked yellow and red were given to Lalman and Jagannath, the fathers of the three contesting defendants. Subsequently Jagannath made a mortgage of the 1/4th share allotted to him and Lalman in favour of one Shib Narain. A suit was brought on the basis of this mortgage deed against Jagannath and his sons, two of the contesting defendants who were impleaded as minors under the guardianship of Jagannath himself. To this suit neither Lalman nor his son Ram Prasad, the other defendant, was impleaded. The suit was decreed. The decree was sold to the present plaintiff who put it in execution, and the mortgaged property was put up at auction sale and purchased by the plaintiff. He also obtained a delivery of symbolical possession over the property purchased by him at auctions, but admittedly he did not succeed in obtaining actual possession of the house and the shop.
2. The present suit has been instituted for an actual partition and separation of the 1/4th share. The suit was resisted by the sons of Jagannath and his nephew on the ground that the mortgage of 1908 was without any legal necessity and was inoperative. Both the Courts below have dismissed the claim. The lower appellate Court has held that Jagannath, his sons and his nephew were members of a joint Hindu family and that the mortgage was without any legal necessity. It has further held that the mortgage debt was not tainted with any illegality or immorality but that, inasmuch as the plaintiff had not obtained actual possession of the property, the property could not be said to have passed out of the family so as to make the rule laid down by their Lordships of the Privy Council applicable. The first point to consider in second appeal is whether the finding of the lower appellate Court that the family is joint must be accepted. Prima facie it is clearly a finding of fact and cannot be challenged in second appeal. The learned vakil for the appellant, however, urged that in the litigation of 1899 the shares of Lalman and Jagannath also were separated and that, therefore, the partition decree of that year involved a separation between the two brothers Jagannath and Lalman also. This argument is based on the passage in the judgment of the Court of first instance that two lots yellow and red belonged to Lalman and Jadgnnath. That, however, does not show, that each got one lot and not that the two lots were given to both jointly. I, therefore, feel bound to accept the finding of the lower appellate Court that Jagannath, his sons and nephew Ram Prasad formed a joint Hindu family in 1908 and do so even now.
3. It has been argued on behalf of the appellant that the view of the lower appellate Court is that in order to make the rule laid down by their Lordships of the Privy Council in the case of Girdharee Lal v. Kantoo Lal (1836) 1 IA 321 applicable, it is not necessary that actual possession should have been taken by the purchaser third party and that all that is necessary is that the property should have passed out of the family under a Bale in execution of a decree. This contention may have some force, but the plaintiff cannot succeed in the present case because of the finding that the nephew Ram Prasad is also joint with Jagannath. In all the cases where it has been held that where property has passed out of the family in execution of a decree and rights of a third party have come in, the sale cannot be set aside unless it is established that the debt was tainted with illegality or immorality, the persons who were challenging the transaction were sons or grandsons of the transferor. It is only when the transfer has been made by a father or grandfather that the question of the debt having been tainted with immorality or illegality can arise. No such consideration arises when the transfer has been made by an uncle and a mere manager of a joint Hindu family. In such cases the transfer unless it is supported by legal necessity cannot be upheld. The learned vakil for the appellant has referred me to the cases of Ram Chandra v. Muhammad Nur AIR 1923 All 591; Jadubir Pande v. Gajadhar AIR 1924 All 169 and Gajadhar Pande v. Jadubir Pande : AIR1925All180 ; but in all these three cases the persons who wanted to challenge the alienations ware sons of the transferors. I am, therefore, of opinion that on the ground last mentioned the plaintiff cannot succeed. The finding that there was no legal necessity for the mortgage of 1908 is fatal to this case. 'When the plea of want of legal necessity raised by one of the contesting defendants succeeds the whole suit must stand dismissed. The appeal is accordingly dismissed with costs including fees in this Court on the higher scale.