Richard Garth, C.J.
1. The two plaintiffs in this case are the brothers of Gupta Lal, the defendant No. 4, and they bring this suit to recover from the defendant No. 1 possession of their shares of an ancestral tenure which belonged to their father Jugrup Mahton.
2. This tenure was held under two zamindars, one of whom, Mussumat Adhikari Koer, was entitled to an 8 annas odd share in it, and the other zamindar to the residue, the collections of the two zamindars being made separately.
3. The defendant Gupta Lal was the eldest of the three brothers and the manager of the property, and his name only was registered as the proprietor of it in the zamindar's sherista.
4. The rent being in arrear, Adhikari Koer sued him (Gupta Lal) for her share of it, and obtained a decree. But being only a part-proprietor, she could not sell the entire tenure under Section 59 of the Rent Law, but she brought to sale under Section 64 the right and interest of Gupta Lal, the judgment-debtor, and Jeo Lal Singh alias Kushi Singh, the defendant No. 1, became the purchaser.
. Under this purchase the defendant No. 1 obtained possession of the whole tenure, whereupon the two plaintiffs, the brothers of Gupta Lal, who were each undoubtedly entitled to a share in the property, brought this suit to recover possession of their shares.
6. They contend that, as the sale was only of the right and interest of Gupta Lal, his share only in it passed to the purchaser.
7. The defendant No. 1, on the other hand, says that, as the decree was for rent due from all the brothers, and as the defendant No. 1 was the manager and sole registered owner, representing all the brothers, the whole interest in the tenure passed by the sale.
8. The first Court dismissed the suit; but the Judge has given the plaintiffs a decree.
9. Against this the defendant No. 1 has appealed, and the only question is, what passed by the sale to defendant No. 1.
10. Upon this point we have been referred to two cases decided by the Privy Council.
11. The first of these, which is relied upon by the plaintiffs is Doolar Chand Sahoo v. Lalla Chabeel Ghand L.E. 6 I.A. 47.
12. In that case one Gooder Khan and his three sisters were entitled as heirs to their father Bachoo Khan to a tenure consisting of a certain mouzah, Gooder Khan's share being 7 annas odd, and his sisters being entitled in separate shares to the residue.
13. The rent of this tenure being in arrear, the zamindar brought a suit against Gooder Khan for the whole rent, and obtained a decree; and in execution of that decree he applied by petition for a sale, not of the tenure itself, which hemight have done, but 'for an attachment' and sale of the 'judgment-debtor's property in it.'
14. An order was made in accordance with that petition, and the sale notification expressly stated: 'The rights and interests of other persons in the said property will not be sold by auction, besides that of the judgment-debtors.' Doolar Chand and others became the purchasers at the sale, and the sale certificate was in these terms:
Hence this certificate being made over to Doolar Chand, Baijnath and Ram Saran Sahoo, the auction-purchasers, it is proclaimed, that whatever rights and interests the judgment-debtor has in the property aforesaid have ceased to exist from the 25th of July 1872, the date of the auction sale, and become vested in the auction-purchasers.
15. Thereupon the purchasers were let into possession of the entire tenure, and a suit was afterwards brought against them by a person who had acquired the shares of the three sisters to recover possession of those shares.
16. In that suit the question arose, whether by the sale in execution the whole tenure passed to the purchasers, or only Gooder Khan's share in it.
17. It was one important element in that suit (which appears from the report of the High Court's judgment, but does not appear in the report of the case before the Privy Council) that the name of the registered owner of the tenure in the zamindar's sherista was Bachoo Khan, the father, who was dead; and as the parties were Mahomedans, Gooder Khan and his sisters did not constitute a joint undivided family, as they might have done if they had been Hindus.
18. Their Lordships held, under these circumstances, that as the zamindar, the decree-holder, sued Gooder Khan alone; and as instead of selling the whole tenure, as he might have done, he sold only the right and interest of one of the heirs, Gooder Khan; and as the sale notification and sale certificate expressly confined the sale to the right of Gooder Khan, the shares of the sisters did not pass to the purchasers.
19. The other case to which we were referred is Bissessur hall Sahoo v. Maharajah Luchmessur Singh L.R. 6 I.A. 233.
20. In that ease two decrees had been obtained against one member only of a joint Hindu family for sums due for the rent of a mouzah, which had been taken on lease, as the Privy Council found, for the benefit of the family. Under these decrees certain property, which belonged to the joint family, was sold in execution: and the question afterwards arose in the ease to which we are now referring, whether, under that sale, the whole of the property passed to the purchaser, or only the share of the member of the family against whom the suits were brought, and it was held by their Lordships, that although there was some informality with regard to the form of the decrees, still as the decrees were obtained against the representative of the family in respect of a family debt, they could properly be executed against the joint property of the family.
21. Their Lordships, after referring to some other authorities in support of that view, say, 'that in execution proceedings the Court will look at the substance of the transaction, and will not be disposed to set aside an execution on mere technical grounds when they find that it is substantially right.'
22. We think that these two cases afford an apt illustration of the principle by which we should be guided in the decision of the present case.
23. Where it is clear from the proceedings that what is sold, and intended to be sold, is the interest of the judgment-debtor only, the sale must be confined to that interest, although the decree-holder might have sold the whole tenure if he had taken proper steps to do so, or although the purchasers may have obtained possession of the whole tenure under the sale.
24. But if, on the other hand, it appears that the judgment-debtor has been sued as representing the, ownership of the whole tenure, and that the sale, although purporting to be of the right and interest of the judgment-debtor only, was intended to be, and in justice and equity ought to operate, as a sale of the tenure, the whole tenure then must be considered as having passed by the sale. And if the question is a doubtful one on the face of the proceedings or one part of those proceedings may appear inconsistent with another, the Court must look to the substance of the matter, and not the form or language of the proceedings.
25. The case of Doolar Chand illustrates the first of these propositions; the case of Bissessur Lall Sahoo illustrates the second.
26. Now, in the present case, Gupta Lal, the defendant No. 4, was not only the manager, but the sole registered owner of the tenure; and Adhikari Koer, in claiming against him the entirety of her share of the rent, took the ordinary and proper course of suing the tenant, who in the zamindar's sherista represented the entire tenure.
27. Moreover, when she had obtained her decree, she was unable, as she only owned a share in the zamindari interest, to sell the whole tenure under Section 59. She could only obtain her execution in the way in which she proceeded to enforce it, namely, by selling the right and interest of the judgment-debtor under Section 64.
28. But as between her and the persons interested in the tenure she had a right to treat Gupta Lal as the sole owner of the tenure, and when she sold his right and interest for the rent due, she was, in our opinion, selling the tenure itself.
29. As his name was registered as the sole owner of the tenure, he represented his brother's interests in it as well as his own. The rent was due from them all, though he alone was sued for it, and as they were equitably liable to pay the amount of the decree, it was only just that their interests as well as his should be sold to satisfy it.
30. We think, therefore, that the judgment of the Djstrict Judge should be reversed, and that of the Subordinate Judge restored, with costs in both Courts.