1. In this case plaintiff sues for possession of his share in certain properties sold in execution of a decree against his father and purchased by the defendant, or, if that cannot be done, he wishes that possession of the entire property may be given up to him, and that a decree, somewhat in the form of the decree given in the case of Deendyal Lal v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 I.A. 247 should be passed in his favour. His mother is also a party to the suit on the ground that, according to Hindu law, when a partition of joint property is made, she is entitled to a share of the property in lieu of maintenance. The lands in dispute may be divided into two classes. In the first class fall parcels 1 to 6, which were purchased by the defendant in execution of his own decree; in the second class parcel No. 7, which the defendant purchased in execution of the decree of a third party. For the defence it was contended that the debts were debts due by the family; that their entire interest in the property was sold; and that the plaintiffs could not succeed.
2. In regard to the lady it was also contended that, having been out of possession for more than twelve years, she could have no right to any share even if the partition were allowed.
3. The Subordinate Judge, relying on the case of Deendyal Lal v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 I.A. 247 declined to allow the defendant to go into the question of necessity, and gave the plaintiffs a decree for possession of their shares in all the plots 1 to 7. He made no distinction whatever between plots 1 to 6 on the one hand and plot 7 on the other, but treated them alike. He seems not to have taken into consideration that in the one case the decree-holder purchased, and in the other case he did not. The defendant first party, purchaser of those properties, appealed against that decision and he has urged before us the same argument that he raised in the lower Court; and first, he contends that the suit is not governed by Deendyal's case at all, and that the son of the person against whom the decree was executed has no right to obtain any part of the property.
4. Before the decision of Deendyal's case it had been decided in this Court that, where a father mortgaged property and the mortgage was not binding upon his son, yet although the son could recover the property, still the purchaser at a sale under a mortgage decree in such a case was entitled in equity to a lien on the share of the father for the amount of his debt. The leading case on this point is that of Mohabeer Parshad v. Bamyad Singh 12 B.L.R. 90.
5. Now, in Deendyal's case the purchase was not a purchase of the mortgaged property, and when the case came to be argued before the Honourable Judges of this Court, they declined to extend the equitable relief which had been allowed to purchasers at sales in execution of mortgaged property to the case of purchasers under an ordinary money decree, and indeed that had never been done.
6. The case went to the Privy Council, and their Lordships said:
It is difficult to see upon what principle the hypothecation of property in question can be taken to improve the position of the creditor.' Then, acting on that principle, namely, that a hypothecation could have no important bearing oft the decision of the case, they did more than extend the equitable relief that had been given in the case of Mohabeer Pershad to a purchaser under an ordinary personal money decree, for they declared, as had previously been the law in Madras, that the purchaser had a legal right to the share of his vendor. This is the construction that their Lordships themselves have put upon their decision.
7. In the case of Suraj Bunsi Koer v. Sheo Prosad Singh L.R. 6 I.A. 88 at p. 102 their Lordships, referring to the case of Deendyal, said: 'That question must now be taken to have been set at rest by the recent decision of this tribunal in Deendyal Lal v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 I.A. 247 by which the law has so far been assimilated to that prevailing in Madras and Bombay, that it has been ruled that the purchaser of undivided property at an execution sale during the life of the debtor, for his separate debt, does acquire his share in such property with power of ascertaining and realizing it by a partition.
8. In a subsequent appeal from the decision of the High Court at Madras, Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar L.R. 9 I.A. 144 : I.L.R. 6 Mad. 1 the Members of the Judicial Committee referred to what they had stated in Suraj. Bunsi's case and adhered to it.
9. When one member of a Mitakshara family contracts a debt which is binding not only on the person executing the contract, but on the other members of the joint family to which he belongs, the creditor may deal with them in either of two ways. He may elect to treat the debt as a personal debt, and confine his suit to the person who actually contracted it. In such a suit he obtains, and only obtains, a mere personal decree not binding on the family, and in execution of the decree he merely sells the right, title and interest of the debtor, which in this case is the person who actually borrowed the money. Or he may treat the borrower as acting for the family, sue him as representing the joint family, and when he has obtained a decree against the borrower in that capacity, proceed to sell the right, title and interest of his judgment-debtors, i.e., all the members of the joint family or of any of them. Deendyal's case is an example of the one kind of case, and Bissessur hall Sahoo v. Maharaja Luchmessur Singh L.R. 6 I.A. 233 is an example of the other. In this last case, as in the case of Deva Singh v. Ram Manohar I.L.R. 2 All. 746 one member of the family was treated as representing the whole family. The decree was hot against the man personally. The family property was joint, and it was held that the sale in execution of the decree carried with it the whole property. But in the case of Deendyal, as was pointed out during the argument by Sir Barnes Peacock, the suit and decree were against the man himself. There was nothing to show that he was sued in his representative capacity; the decree was a personal decree, and the sale proceeding did not carry the matter any further.
10. Looking at the case from this point of view, it is not difficult to understand why their Lordships treated the question of necessity as immaterial. Being of opinion that the plaintiff in the original proceedings had elected to treat the defendant as the sole and only debtor, and had purchased his right, title and interest under the personal decree, they declined to allow him to turn round and obtain the benefit of a suit which he had never, instituted (and could not institute after the first decree), and enlarge his decree at the expense of persons who were not on the record either in name or by representation. In such a case evidence of necessity would be irrelevant, for the purchaser had by the form of his first action, deprived himself of all power to sue new parties who may be called by analogy the principals in the transaction.
11. I asked Mr. Gasper more than once what was the distinction between this case and the case of Deendyal. So far as I can see, the facts of the two cases are exactly similar. Mr. Gasper has not attempted to draw any distinction. He has confined himself to showing that different views of Deendyal's case have been taken by different Divisional Benches of this Court. I certainly know of no case in this Court in which it has been stated that, if the facts are the same as those in the case of Deendyal, that decision should hot be followed.
12. In this case the facts, so far as plots 1 to 6 are concerned, are the same, and I think we are bound by that decision in regard to them.
13. But in regard to plot 7 the case is different. There the person who purchased the property was not the decree-holder. He had not the carriage of the suit. The form in which it was instituted could not have been determined by him. Neither had he carriage of the execution proceeding. All that he is required to do is to point to the decree and say, 'this decree shows that the property in dispute was liable to be sold for the debt of the father. I have bought on the faith of that decree, and I am entitled to hold the property.' This, I understand, is the decision in Kantoo hall's case; therefore in regard to plot No. 7 I think the appeal should be dismissed [allowed?].
14. Sudaburt's case 3 B.L.R. F.B. 31 is to the effect that one member of the joint family could not sue for a share, but to get back the whole property. This was thought to be a great hardship in Mohabeer Pershad's case, and the Judges, on the ground of equitable relief, decided that the share of the purchaser should be subject to the mortgage lien. In Deendyal's case the decree was not that the joint family should hold the property subject to a lien, but that the members should obtain possession of the property subject to a declaration that the purchaser was entitled to his vendors' share. This declaration runs as follows: 'Their Lordships think that the decree should be varied by adding a declaration that the appellant, as purchaser at the execution sale, has acquired the share and interest of Toofan Singh in that property, and is entitled to take such proceedings as he shall be advised to have that share and interest ascertained by partition.' Similarly, in the present case, all I understand the purchaser of these plots 1 to 6 is entitled to is, the share of the father. Until partition, and until the widow's share is taken into account, no member of the family can predicate his share of the family property. I, therefore, think the plaintiff is entitled to the whole property, except the share of the husband of the lady (the father of the minor), and that the defendant purchaser is only entitled to the excepted share, which must be determined on taking the share of the lady into consideration.
15. I am of the same opinion. I concur in the distinction drawn by my learned colleague between the cases which follow the rule laid down in Deendyal's case and in the other cases in which the question arose, whether the father was not proceeded against in a representative capacity, that is to say, that he acted on behalf of himself and all the members of the family, and was so treated in proceedings taken against him to enforce the particular debt.
16. The case of Deendyal seems to be, as has already been pointed out, one in which the creditor elected to proceed against the father alone, and to sell what would properly be regarded as his sole share in the ancestral family property. The present case is on all fours with the facts in Deendyal's case, and, therefore, in my opinion, we are bound to act in accordance with the rule therein laid down.
17. These is, however, a distinction between the properties 1 to 6 and property No. 7. In the former the decree-holder was himself the purchaser; in the latter, that is to say in property No. 7, a third party was the purchaser. As regards this latter property, under the authority of the judgment of the Privy Council in the case of Girdharee Lall v. Kantoo Lall 14 B.L.R. 187 : L.R. 1 I.A. 321 the purchaser would be entitled to retain the entire property sold. As regards the other properties the rule laid down in Deendyal's case must be followed, that is to say, that the plaintiffs must receive possession of the entire property subject to the right which the defendants first party can enforce to obtain partition of the particular share of the judgment-debtor, Gobind Dyal Singh. That share would be one-third under the Mitakshara law, which has been rightly found by the lower Court to apply to the present case.
18. As the rights of the parties are ascertained in this case, it is unnecessary to require the defendants first party to bring another suit for partition, and accordingly the decree will be drawn up thus: that the plaintiffs do recover two-thirds of the. properties Nos. 1 to 6, their claim as regards property No. 7 being dismissed.
19. Mesne profits will be given on the same principle.
20. Costs will be given in proportion to the amounts decreed, and dismissed both in this and the lower Court.