1. Both Courts have failed to record a finding on several points essential to the decision of this case, and, before deciding this second appeal, we must ask the Subordinate Judge to return findings on the following issues:
(i) Was the sale of 1856 evideneed by Exhibit I concluded by the ejaman for purposes binding on the family.
(ii) Whether the two sisters, Puttamma and Mani, were at that time divided or undivided.
(iii) Whether, at the date of the sale evidenced by Exhibit I, Mani was the vendor of an undivided share.
(iv) Whether Uskunhi and his heirs have been in possession of the whole land since 1856, and, if not, who has been in possession, of how much, and for what length of time.
The findings should be returned within two months from the date of the receipt of this order, and ten days, after the posting of the findings in this Court, will be allowed for filing objections. Fresh evidence may be taken.
2. The findings returned by the Subordinate Judge in compliance with the above order were--on the 1st issue, in the negative; on the 2nd, to the effect that the sisters were undivided; on the 3rd, in the affirmative; on the 4th, that the whole land had been in the possession of the mortgagee and his heirs and his and their transferees since 1856.
3. This second appeal coming on for final hearing, the Court delivered the following judgment.
4. This second appeal comes on again for disposal upon findings returned on issues referred for re-trial. The land in dispute is part of an estate which originally belonged to an aliyasantana family in South Canara. In 1851 one Basava Shetti, who was its ejaman or representative, mortgaged the estate with possession for Rs. 200 to a Mopla named Uskunhi Byari. Basava Shetti died prior to 1855, leaving him surviving a brother named Tukra and two sisters named Putta and Mani, each of whom had a son, called Mahalinga Shetti and Subbu Shetti respectively. In April 1856, Mahalinga sold the entire estate to Uskunhi Byari in satisfaction of the mortgage and for a further payment under document I which was attested by his mother Subbu and his uncle Tukra.
5. The purchaser continued to hold possession until 1866 when he sold a moiety to his brother-in-law Abdul Kadiri, who gave it in 1872 to his two daughters who are the wives of the first and second defendants respectively. Uskunhi Byari had several wives, and defendants Nos. 1--3 are his sons by his 2nd wife and defendant Nos. 4--6 are his sons by his 3rd wife. In 1868 the latter sued the former for partition of the moiety of which Uskunhi Byari died possessed, and obtained 6/13ths as an allotment for their share and that of their mother, the other 7/13ths of the moiety remaining in the possession of the former. Defendants Nos. 2--6 alienated for value their several shares or portions of them afterwards. Of the entire estate, assessed at Rs. 64, a moiety, assessed at Rs. 32, is in the possession of the wives of the first and second defendants, and of the other moiety the first defendant is in possession of a portion assessed at Rs. 4-8-0, and the fifth and sixth of a part assessed at Rs. 5-12-0. As alienees in no way connected with Uskunhi Byari's family defendant No. 7 has in his possession land assessed at Rs. 7-12-0 under sale deeds III and IV, dated October 1877 and April 1880; defendant No. 8 is possessed of a part assessed at Rs. 5 under the sale deed V, dated April 1880; defendant No. 10 of a portion assessed at Rs. 9 under Exhibit XV, dated April 1876; defendant No. 9 is in possession of a small portion, but the claim against him was adjusted by compromise.
6. It was already observed that Basava Shetti had a sister named Mani who had a son called Subbu Shetti. In July 1857 they executed a sale deed in favour of one Sabine Byari purporting to transfer to him for value their undivided moiety of the family estate. Sabine Byari assigned his right of purchase in 1871 to one Moidin Byari whose representatives resold it to the plaintiff in November 1886. It would seem that the sale in favour of Sabine Byari was not heard of until the partition suit of 1868, and that it was during that litigation that the right of purchase was transferred to Moidin Byari, but that no action was taken upon it before the plaintiff bought it in 1886, although the suit of 1868 terminated in a decree for partition among defendants Nos. 1--6 and the decree was followed by sub-division among the several sharers and by sales of several of their allotments. The plaintiff's case was that according to the aliyasantana usage, as recognized by Courts of Justice in 1857, partition was permitted, and that the sale of a moiety of the estate by Mani and Subbu was therefore valid though subject to the mortgage executed in 1851 by Basava Shetti, about which there was no dispute. The defence was that the suit was barred by limitation, and that the prior sale by Mahalinga under which the parties now in possession claimed was binding upon Mani and Subbu, who executed the subsequent sale deed in favour of Sabine Byari under which the plaintiff claimed. As the possession of Uskunhi Byari commenced in 1851 under the mortgage executed by Basava Shetti, both the Lower Courts held that the right of redemption was in force for sixty years. On the merits they found that the several transactions already described were real, and that though the circumstances under which the plaintiff sued upon the sale in favour of Sabine Byari excited some suspicion to the effect that Sabine purchased benami for Uskunhi Byari, they could not decline to uphold the purchase on mere suspicion. They found further that in 1857 the sisters of Basava Shetti and their sons belonged to an undivided aliyasantana family, that the first sale by Mahalinga Shetti was not justified by family necessity and could not bind his aunt Mani and her son Subbu who were no parties to it. They held that the sale of an undivided moiety was good, but that the plaintiff was entitled by right of purchase not to the specific moiety in the possession of the defendants as contra-distinguished from the moiety in the possession of the wives of the first and second defendants, but to a moiety of the whole estate as originally mortgaged subject to the payment of a moiety of the mortgage-debt. On the ground, therefore, that the plaintiff did not make the wives of the first and second defendants parties and include the moiety in their possession in this suit, they decreed to plaintiff possession only of a moiety of the properties mentioned in the plaint less certain portions not included in the mortgage, and directed him to pay to the defendants a quarter share of the mortgage-debt viz., Rs. 50. From this decree defendants Nos. 4, 7, 8 and 10 have appealed.
7. As this is a second appeal we must accept the facts as found by the Court below and see if the decree can be supported upon them. Two questions of law arise for deoision, viz., those of limitation and of impartibility of property governed by aliyasantana usage.
8. As to the former, we see no reason to doubt the correctness of the decision of the Courts below. The alienations upon which the appellants Nos. 2--5 rely are less than 12 years old, and the first appellant is the son of Uskunhi Byari. The moiety alienated by Uskunhi Byari to Abdul Kadiri Byari and by the latter to his daughters is included in this suit, and it is unnecessary to consider the question in relation to it. Neither the original mortgagee nor his son can rely on the 12 years' rule unless he proves a subsequent valid sale, in the absence of which his possession must be taken to retain its original character. We are of opinion therefore that the Claim is not barred to the extent to which it has been decreed.
9. As regards the second question, however, we are unable to hold that the sale by Mani and her son can be upheld at all. The Courts below rest their deoision to the contrary on two grounds, viz., (I) that there was an erroneous notion in 1857 that compulsory partition was permitted by the aliyasantana law, and (II) that, as they were entitled to set aside the sale by Putta and Mahalinga in its entirety and to redeem the whole property, they might in their discretion relinquish their right to a moiety and redeem the remainder. Neither of these grounds is tenable. It is now settled law that partibility is not an incident of aliyasantana property, and a mistake of law in 1857 cannot legalize a sale which is really opposed to law and which has not already been enforced. If the sale by Mahalinga and Putta can be set aside by Mani and her son in its entirety on the ground that it was not justified by family necessity, it can only be done by them on behalf of the family and for the purpose of recovering the property for its use. The right so to set aside the sale is not that of any individual member of an aliyasantana family, but it is the right of the family which the individual is taken to represent. This -being so, the right to a half share which Mani and Subbu professed to sell as the separate though undivided interest of their branch in the impartible family property had no legal existence and nothing could pass by such sale. The purchaser could not be permitted to stand in their shoes for the purpose of representing the joint family or enforcing its right because he is a stranger to the family and because the right of the family was not the interest that was sold or that is sought to be realized. If a similar sale by a coparcener is upheld under Hindu law to the extent of the vendor's share, it is upheld not by virtue of the right of interdiction which he has as a representative of the family under paragraph 28, Sec I, Chap. I, Part II of the Mitakshara, but because the coparcener is at liberty to convert his interest into specific separate property by partition, and a purchaser for value has an equity to stand in the shoes of the vendor to that extent. This equity which rests on the partibility of ordinary Hindu property has no place in the aliyasantana law which forbids compulsory partition altogether.
10. The decrees of the Courts below must be reversed and the suit dismissed with costs throughout save so far as it relates to the land which is the subject of the compromise with the ninth defendant.