1. These appeals arise out of an apportionment case in land acquisition proceedings and relate to the 1/12th share of Heera Lal Chowdhury in the property acquired. The appellants are Sakhi Lal Chowdhury and others, claimants Nos. 1, 2 and 3, the brothers and nephew of Heera Lal. They are supporting their own case and that of the mortgagees from Sakhi Lal, who do not appear in these appeals. The respondent Munshi Wajid Ali, claimant No. 4, claims the share of Heera Lal by a purchase, dated 28th August 1900 (Exhibit A) The only question is, whether Heera Lal had power to sell his share in 1900, the brothers having before that time formed members of a joint Hindu family governed by the Mitakshara School of Hindu Law.
2. On 28th July 1889, Sakhi Lal Choudhury, acting as karta, had mortgaged the whole property for Rs. 8,000. The sale by Heera Lal, as we have said, was in 1903, following very closely after the mortgage and further charge executed by him in favour of his vendee. Sakhi Lal again purported to mortgage the property on 28th January 1904 for Rs. 17,000 and by this mortgage, the first mortgage was paid off. Though he described himself as the karta of the joint family in the second mortgage, he was joined in that mortgage by his brother Ram Lal and no mention was made of Heera Lal. The sons of Shyam Lal were mentioned but they were not parties to the deed.
3. On the facts stated by the learned Land Acquisition Judge, which are now in dispute, there can be no doubt that, between the mortgage of 1889 and the sale by Heera Lal in 1900, the joint family had become separate. We find that on 11th February 1899, Sakhi Lal himself made a Will which was registered, in which he purported to leave his one-third share in the property to his widow. Then we have Heera Lal's dealings with his one-third share and we also have the fact that, on 12th September 1900, Sakhi Lal took a bainapatra from Heera Lal by which he agreed to purchase Heera Lal's share in the properly for Rs. 6,000. There is the further fact on the evidence that Sakhi Lal brought a suit against Heera Lal and attached his property in that suit. All these circumstances show clearly that the family was no longer joint at the date of Heera Lal's sale.
4. It was suggested that Heera Lal's 1/12th share in the whole of the property might be subject to the mortgage of 23th July 1889. But this cannot be so, inasmuch as that mortgage had been paid off in 1904 by the second mortgage, which Sakhi Lal executed in favour of the previous mortgagee and another person. He had no power at that time to bind Heera Lal's share and it cannot, therefore, be said that Heera Lal's shire, was any longer subject to the first mortgage.
5. These two appeals must accordingly be dismissed with costs. We assess the hearing fee at two gold mohurs and one gold mohur respectively.