Tottenham and Norris, JJ.
1. On second appeal the defendants Nos. 1 and 2 urged that the parties to the suit being all Hindus the Court below ought to have held that the present suit to enforce the right of pre-emption is not maintainable. As to this it is sufficient to say that the point was not raised in either of the lower Courts, and is not such an one as we can allow to be raised now for the first time.
2. Another point urged by the Counsel for the appellants was that, as there had been no actual partition of the disputed properties by metes and bounds, the lower appellate Court ought not to have held that there was such a separation as to entitle the plaintiff to maintain the suit. In support of this contention two cases were relied upon, viz., Farzand Ali v. Alimullah 1 A. 272; and Lalla Nowbut Khan v. Lalla Jewan Lall 4 C. 831. In the first case the facts were these: The plaintiff brought his suit for a declaration of right to, and to obtain possession of, a certain share in a puttidari estate; he had purchased the share at a sale held in execution of a decree ; he was a co-sharer in the estate but not in the putti in which the share in suit was situated. The defendant, who was a co-sharer in that putti, had claimed to take the share sold under the provisions of 4 Section 14, Act XXIII of 1861 (which gave a co-sharer in a puttidari estate, paying revenue to Government as defined in Act II of 1841, not being the judgment-debtor, a right of pre-emption, and enable him to come in after the property had been knocked down to a stranger and claim it at the price he bid, provided he made the claim on the day of the sale and fulfilled the conditions of the sale). The officer conducting the sale had allowed the defendant's claim, and the Court executing the decree had confirmed the sale in his favour. The Court of first instance held that the plaintiff was a 'stranger' within the meaning of the section, and that defendant was, therefore, entitled to take the share, and dismissed the suit. The lower appellate Court reversed this decision, and holding that plaintiff was not a 'stranger' save him a decree. On second appeal the High Court held that plaintiff was not a 'stranger.' Oldfield, J., says: 'the plaintiffs himself a member of the co-parcenary, being a sharer in another putti of the estate. The right of preemption can only be asserted against a stranger, i.e., one who is not a sharer or member of the coparcenary.A sharer in one of the puttis in a puttidari estate cannot be said to be a stranger, with reference to the co-sharers in another putti, and the section gives no preferential rights of pre-emption among themselves between co-sharers in the same putti and sharers in other puttis, who come under the denomination of members of the coparcenary.' This case does not afford us much assistance, for there was no finding, as in this case, 'that the two puttis are separate.' The second case cited does not carry the matter further; it simply held 'that by the Mahomedan law one coparcener has no right of pre-emotion against another coparcener.' The question we have to decide is whether before a coparcenary can be said to have ceased to exist, and those who were coparceners have become 'strangers' to one another, something more than a private partition, viz., partition by metes and bounds, it necessary.
3. We are of opinion that no partition by metes and bounds is necessary. Lord Westbury, in the case of Appovier v. Rama Subba Aiyan 11 M.I.A. 75, says: 'When the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not bean actually severed and divided.' And at page 92 his Lordship says: 'Then, if there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property than is the subject of that agreement, and that is a separation in interest and in right, although not immediatelv followed by a de facta actual division of the subject-matter. This may; at any time, be claimed by virtue of the separate right.'
4. In Gopal Saha v. Ojoodheapershad 2 W.R. 47 it was held that a private partition, though not sanctioned by official authority, if full and final, as among the parties to it, will have the same effect as the most formal partition on the right of pre-emption. We think these two cases establish the view we hold.
5. The next point raised by counsel for the appellants was that plaintiff's claim was barred by limitation. It was urged that the District Judge was right in holding on the authority of Nath Parsad v. Ram Paltan Ram 4 A. 218 that Article 120 of Schedule. II of the Limitation Act, and not article 10, governed the case; but it was argued that the District Judge had erred in fixing the time from which the period of limitation allowed by Article 120 began to run; it was contended that it began to run from the date of the conditional sale, and in support of this view the case of Lachman Prasad v. Bahadur Singh 2 A.884 was relied upon.
6. We are of opinion that the suit is not barred, and that it is immaterial whether Article 10 or Article 120 be applied to it, for the deeds of conditional sale of 1876 did not operate to transfer the property from the owner to the mortgagee. The latter did not become owner of the property until after he had obtained a decree for foreclosure, and until the right of redemption in the vendor had been extinguished. On the 5th of May 1884, the mortgagee obtained possession, and under Article 10 the plaintiff would have a year from that date to bring his suit. We do not see why Article 10 should not govern it, for the sale became absolute by the foreclosure proceedings, and possession was subsequently obtained.
7. On the other hand, if Article 120 applies, we think that plaintiff's right to sue accrued upon the expiry of the six months' grace allowed to the mortgagor after the decree for foreclosure, and there would be six years allowed from that time.
8. Thus come to the conclusion that the plaintiff was entitled to succeed in his suit, and that the appeal fails on each point.
9. It was also contended that, at any rate, the defendants are entitled to interest upon Rs. 399, the amount covered by the two deeds of bai-bil-wufa. We think that that contention must prevail, and it was admitted by Baboo Mohesh Chunder Ohowdhry for the respondent to be a good one.
10. The decree of the lower appellate Court, therefore, will be modified to the extent of directing interest to be paid upon the Rs. 399, at the rate of 6 per cent. per annum from the date of foreclosure till possession.
11. The appeal is dismissed with costs.