1. The facts of this case are briefly these:
2. On the 18th January 1844 the plaintiff's son Abhilukh and defendants Nos. 10 and 11, two sons of Sheo Sohay, the plaintiffs brother, sold one anna five gandas of Mouza Ram Chawra, seven pies ten krants share of which is the subject-matter of this suit. The sale was made to Rungi and Sheo Ram, ancestors of defendants Nos. 7 to 9. Sheo Ram pledged his share as security for revenue payable by one Hera Mohun in respect of the ticca of an akheri mehal. For default in the payment of this revenue the pledged share of Sheo Ram was sold under the provisions of Act I of 1845 on the 17th December 1850, and purchased by defendants Nos. 1 to 4, the appellants before us. Rungi's share was sold by a private bill of sale, dated the 19th July 1870, to defendants Nos. 3 and 5: the latter again sold his share to defendant No. 6 on the 19th August 1872. The plaintiff seeks to recover a seven pies ten krants share of the mouza in dispute, being half of one anna five gandas, the share originally sold. He evidently excludes the share of his brother Sheo Sohay.
3. The defendants Nos. 1 to 4, who only are the appellants before us, defended the suit on the ground of limitation, and also on the ground that a valid title under the bill of sale of 1844 passed to the purchasers.
4. The Subordinate Judge awarded a decree in favour of the plaintiff for a moiety of the share claimed, dismissing the suit as regards the share sold at auction under Act I of 1845.
5. The District Judge in appeal has awarded a full decree. Hence this appeal.
6. The defendants pleaded limitation in the lower Courts, but it was overruled on the ground that the plaintiff was insane at the time of the sale and that he is still insane. But it is quite clear that the rights of the other members of the family are. not only barred, but have been extinguished under the last section of the Limitation Act of 1871, which was in force when this suit was brought. Their rights are vested in the defendants. Under these circumstances, a question arises--viz., whether the plaintiff, an insane person, can maintain this suit for the restoration of the property in dispute to the joint family? The answer to this question depends upon the provisions of the Mitakshara law (which governs this family) relating to the rights of an insane person.
7. Speaking of persons who are under the Hindu law excluded from inheritance (an insane person is in that category), the Mitakshara in Chap. II Sec. X, vv. 6 and 9, says:
They are debarred of their shares if their disqualification arose before the division of the property. But one already separated from his co-heirs is not deprived of his allotment.
But their sons, whether legitimate or the offspring of the wife by a kinsman, are entitled to allotments if free from similar defects.
8. It is clear, therefore, that, on a partition between the plaintiff and his sons, he would not get any share, and his sons would receive the whole property. The rights of those sons have been, as shown above, extinguished, and are now vested in the defendants.
9. 'Partition,' says the author of the Mitakshara, 'is the adjustment of divers rights regarding the whole by distributing them in particular portions of the aggregate.'--Chap. 1, Sec. 1, v. 4.
10. Under the Mitakshara, law the plaintiff is entitled to receive maintenance from the joint family property, but not to a share or a partition of the said property. The definition of 'partition,' as given above, clearly shows that the plaintiff has no such right in the property in dispute as would entitle him to maintain this suit for the purpose of restoring it to the joint family. The plaintiff's suit must fail upon this ground. In Ram Sahye Bhukkut v. Lalla Laljee Sahye ante, p. 149 decided by us on the 19th July last, we held the same view as to the rights of the present plaintiff.
11. The decrees of the lower Courts must, therefore, be reversed, and the plaintiff's suit dismissed. As this point was not taken in the lower Courts, we will not allow any costs to the defendants.