1. The joint family consisted of the 2nd defendant's father, the 2nd defendant, and the plaintiffs who are the sons of the 2nd defendant. In execution of a decree obtained on a mortgage bond executed by the 2nd defendant alone, which admittedly did not bind the family, the right, title and interest of the 2nd defendant in a specific portion of the family property, was sold and was purchased, by the 1st defendant who was the decree-holder, and it may be assumed that right title and interest of the 2nd defendant's sons also.
2. On the principle of the decision reported in Chinna Sanyasi v. Suriya I.L.R. 5 M. 196 it was open to the remaining co-parcener viz., the father of the 2nd defendant, if he so chose to affirm the court sale in respect of the moiety of the specific land, and thus become divided in respect of such portion only of the family land, in which case the purchaser need not be driven to enforce his purchase by bringing a suit for a general partition of the whole of the family property.
3. In the present case, the 2nd defendant's father, by subsequently making a gift of his moiety in such portion has, in effect, ratified the court sale as effecting a partition of the property to which the sale related between himself and his son under whom the purchaser claims in this view, the gift is really one made by a member of an undivided family who had become divided in respect of a portion of the family property, a moiety of which was the subject of the gift. The gift, moreover, was not of an undivided moiety but of a specific moiety, purporting to be equal in quality and extent to the remaining moiety.
4. The plaintiffs brought their suit to recover such specific moiety and applied to the District Munsif for an amendment of the plaint, so as to give them a fair moiety, if the claim to the specific moiety was not granted. The Courts below acted irregularly in giving them a decree for joint possession with the 1st defendant as an equal co-sharer with themselves of the whole of the land instead of giving them the sole possession of the specific half claimed, or of a fair half of the land.
5. We must, therefore, ask the District Judge to allow the plaint to be amended as prayed for and to submit a finding on this issue, viz: Whether the specific lands claimed in the plaint are a fair half of the lands to which 1st defendant's sale relates and if not, what lands should be allotted to the plaintiffs as their half share.
6. Fresh evidence may be taken on both sides. The District Judge should submit his finding within two months from this date. Ten days will be allowed for filing objections.
7. This second appeal coming on for hearing after the return of the finding of the lower appellate court upon the issue referred by this Court for trial, the court delivered the following final.
8. The finding is not objected to. Reversing the decrees of both the courts we direct that a fresh decree be drawn up in the terms stated by the District Judge at the end of para. 3 of his finding. Each party will bear his own costs throughout.