1. This is a suit to recover possession of three annas out of four annas of Mouza Bhugwanpore Gidha, a revenue-paying estate, with wasilat. The plaintiff No. 1 is the son of Gondom Dobey, the defendant No. 2; and the plaintiffs Nos. 2 and 3 are mother and grandmother of the plaintiff No. 1. The plaintiff No. 4 is the purchaser of a share of the disputed property from the plaintiffs Nos. 1, 2 and 3.
2. It appears that the aforesaid four annas formed one of the properties belonging jointly to the plaintiff No. 1 and Gondom Dobey. In execution of a decree against Gondom Dobey, the right, title, and interest of the debtor in Mouza Bhugwanpore were sold on the 8th September 1873, and purchased by the first defendant. The purchaser took possession of the whole four annas. The plaintiffs contend, that only the father's interest in the property was sold, and that as, on partition of the joint family property, that share would be one anna, the son, the mother, and the grandmother receiving each one-anna share, the plaintiffs seek to recover possession of three annas.
3. The defendants state that the whole of the family property was sold to satisfy the decree, which was obtained by one Pertab Singh on a bond executed by Gondom, who raised this loan for joint family purposes; that, after purchasing this property, the first defendant took an assignment of a mortgage decree upon the mouza in question from one Gopi Lal; that, under any circumstances, he is not liable for mesne profits.
4. The lower Court finds that the debt incurred to Pertab by Gondom was contracted for immoral purposes; that what was sold in execution of Pertab's decree was only the interest of the father; that the plaintiffs are not entitled to recover mesne profits; and that the decree of Gopi Lal was a valid charge upon the property in dispute. Upon these findings of fact, the lower Court made a decree in the following terms: 'I would therefore pass a contingent decree in favour of the plaintiffs, declaring their title to take a three-fourths share of the property on a partition to be held with the defendants in the execution department, upon their contributing a three-fourths share of the debt discharged, or paying Rs. 718-8 annas to the defendant, auction-purchaser.'
5. The decree, so far as it directs partition to be effected in the course of the execution thereof, is erroneous: because no partition of a revenue-paying estate can be effected through the Civil Court; and also because, even if the partition could be effected through the Civil Court, it should not have been left to be carried out in the course of the execution of the decree. If. the other portion of the decree be correct, the error pointed out above will have to be rectified.
6. The defendants have appealed on the ground that the auction sale mentioned above conveyed the whole of the family property. The plaintiff's, in their appeal, question the decree on two grounds: (i) because it does not award mesne profits, and (ii) because the order of the payment of Rs. 718-8 on account of Gopi Lal's decree is erroneous. The defendants further contend that, even if the finding of the lower Court, that only the father's interest passed by the auction-sale, be correct, the grandmother, the plaintiff No. 3, is not entitled to any share.
7. The first question to be determined is what was sold in the execution of the decree of Pertab. We are of opinion that the decision of the lower Court upon this point is correct.
8. The defendants have produced only the decree and the sale-certificate, which, as usual, recites that only the right and interest of the debtor were sold. There is nothing on the face of the decree which shows that the father was sued as representing the joint family. That being so, we think the decision of the lower Court upon this point is right. We are also of opinion that the decision of the lower Court, as regards the claim for mesne profits, and the liability of the plaintiffs in respect of their share of Gopi Lal's decree, is correct. The plaintiffs, after the auction-purchase, having, without any protest, allowed the defendant Badri Roy to take possession of the whole four annas of the mouza in suit, are not entitled to recover mesne profits from the latter, who honestly believed that he acquired good title to the said share. As regards Gopi Lal's decree, it not having been shown that the debt, which was the foundation of it, was contracted by the father for immoral purposes, the lower Court is right in holding that the plaintiffs are liable for this decree to the extent of their share.
9. We are also of opinion that the grandmother, on partition, is entitled to a share. The latest decision upon the point, the case of Sibbosoondery Dabia v. Bussoomutty Dabia I.L.R. 7 Cal. 191 takes the same view. All the authorities upon this subject are collected in the 2nd Vol. of Vyavastha Chandrika, pp. 356 to 359. They clearly support the view we take of this question. There is one passage, however, upon which appellants' pleader relies, viz., the one in which it is laid down that, when the father makes the partition of his own choice, his mother is not entitled to a share. As regards this passage, it is sufficient to point out that, in this case, the partition is not being effected by the choice of the father. But we are also inclined to think, that this rule of law applies only to the self-acquired property of the father.
10. Both appeals therefore fail; but, for the reasons above given, the decree of the lower Court in its present form cannot stand Instead thereof we make the following decree, viz.: That the plaintiffs do recover possession of three-annas of the property in dispute on payment to the auction-purchaser, defendant, of Rs. 718-8, and the plaintiffs further recover costs in both Courts with interest at the rate of six per cent per annum.