1. In this suit the plaintiff-appellant seeks to establish his right to the Bagalur Poliem in the Salerh district, and to recover possession of it with mesne profits. The plaintiff is the eldest son of the late Poligar, who died in 1885. The Poliem was sold in execution of a mortgage decree obtained against the late Poligar in Original Suit No. 15 of 1875, and was purchased in February 1881 by the mortgagee, the late Kotha Nunjappa. The defendants Nos. 2 to 14 are the representatives of this Nunjappa. The first defendant (who is a younger son of the late Poligar by a junior wife) purchased the Poliem in 1893 from the heirs of Kotha Nunjappa. Thus, the title of all the defendants depends on the validity and effect of the execution sale in 1881, and it is this which the plaintiff attacks. His case is that the Poliem was impartibly and inalienable by custom and by reason of its character as a military tenure, that the late Poligar, therefore, had only a life interest in it, that only this interest could have passed and did pass to the defendants in consequence of the sale in execution, and that on the death of the late Poligar in 1885 the Poliem passed to him (the plaintiff) as his eldest son.
2. In the lower Court the plaintiff also pleaded that the sale was in execution of a decree obtained for a debt contracted for immoral purposes, and was, therefore, not binding on him, but there was no evidence to support this plea and it was abandoned in this Court. In point of fact the debt was mainly one that had been decreed in Original Suit No. 2 of 1837 against the plaintiff's grandfather; long before the birth of the plaintiff and to a small extent it was money borrowed by the plaintiff's father for payment of peshcush due on the estate. As to the contention that the Poliem was by custom and by reason of its tenure inalienable, we may say that there is no sufficient evidence to prove any such special custom or that the estate was held on condition of military service and was therefore inalienable. The Subordinate Judge has dealt with these questions fully and we concur in his conclusions. He has, moreover, shown that in the past considerable alienations have, in fact, taken place without objection on the part of those who would have been interested to object if the estate had been inalienable.
3. In these circumstances even if the plaintiff as a son were a coparcener with the late Poligar, his interest would be liable to be sold. But it is now settled law Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 272 and the Pittapur case I.L.R. 22 Mad. 383 that the owner for the time being of an impartible estate, such as this Poliem admittedly has the full proprietary title, and the son has no such coparcenary interest by birth as he would have under the mitakshara law in ordinary ancestral property.
4. The appellant, however, contends that, even if the estate were liable to alienation, the sale relied on did not, in fact, extend to more than 'the right, title and interest' of the late Poligar, and that those words must be construed with reference to the law as it was then understood to be by the parties; that a long course of decisions prior to the cases of Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 272 and the Pittapur case I.L.R. 22 Mad. 383 had held that an impartible estate was also inalienable, and that, in consequence, the holder of such an estate could not encumber it after his own life. The appellant argued that this was the view of all parties when the sale of the estate took place and that therefore only the life interest of the Poligar in the estate was intended to be sold and was sold. He relied on the recent decision of the Privy Council in the Kannivadi case Abdul Aziz Khan v. Appayasami Naicker I.L.R. 27 Mad. 131.
5. The principle, however, laid down in that case does not affect the present case, for the debt in the present case was as we have already seen one incurred for necessary purposes such as would bind the interest of the son even if the property were ordinary ancestral joint property of the family. Moreover, in the case of Muttayan Chetty v. San gilt Vira Pandia Chinnatambiar L.R. 9 IndAp 128 :I.L.R. 6 Mad. 1 it was laid down by the Privy Council that the estate which a son takes by heritage from his father constitutes assets by descent for the payment of his father's debts not incurred for any immoral purposes, that such an estate may be attached and sold in execution of a decree upon such a debt and the fact that it is an impartible estate does not alter the case Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar L.R. 9 IndAp 128. This decision was passed in M ay 1882, and the sale in the present case took place only in January 1883. There is no doubt but that the sale certificate (exhibit I) clearly states that the whole Poliem was sold. It was the whole Poliem which was mortgaged (exhibit VI) and exhibits Y and Z show that it was the full proprietary right in the Poliem which the judgment-creditor claimed to sell and which apparently the Court attached and intended to sell. No doubt in the sale proclamation (exhibit CC) it is stated that 'the privileges, the rights and the interests which the said defendant alone possesses in respect of the property will be sold.' This is the English translation of the vernacular version of the clause in the Civil Procedure Code of 1859 which required that 'only the 1 right, title and interest of the judgment-debtor should be said.' In the transitions the word 'only' has been transferred so as to qualify the word defendant, instead of qualifying the phrase 'right, title and interest.' 'No doubt at the time of the sale (1877) the Code of 1877 had just come into force, and in it the clause requiring the Court to sell' only the right, title and interest 'of the judgment-debtor' was omitted, but the old practice of inserting these words as a common form continued in many Courts for sometime after 1877 and it has been frequently held that this phrase does not necessarily imply that the interest sold is less than full proprietary interest. In the present case we agree with the Court below in thinking that it was the full proprietary interest which was intended to be sold and which was sold.
6. The fact that, though the late Poligar died in 1855, the plaintiff did not then claim the property, and in fact, only brought this suit in 1897, indicates clearly tint he did not regard the sale as one that affected only a life interest of his father.
5. We accordingly hold that the suit was rightly dismissed and we dismiss the appeal with costs.