1. This is an appeal on behalf of the plaintiff in a suit for recovery of possession of property which at one time belonged to his brother. The case for the plaintiff is that the property has been sold in execution of a decree obtained against the widow of his brother under circumstances which do not make the sale binding upon him as the reversionary heir. The Subordinate Judge, in concurrence with the Court of first instance, has found that the sale was held for legal necessity and that the effect of the sale was to transfer the entire interest in the. property to the execution purchaser. In this view, the suit of the plaintiff has been dismissed, and that decree has been affirmed by a learned Judge of this Court. We are now invited under Section 15 of the Letters Patent) to set aside the concurrent decisions of three Courts. The grounds urged against the view which has prevailed in all the Courts are threefold; first, that the legal effect of the sale has not been properly appreciated; secondly, that the question of fraud which, it is alleged, vitiated the sale, has not been properly tried; and thirdly, that the sale was, as a matter of fact, set aside in substance by an arbitrator chosen by the partias, and effect ought to have been given to his decision.
2. In support of the first of these grounds, it has been arged by the learned Vakil for the appellant, that although the debt to secure which the mortgage was executed by the widow of the brother of the plaintiff, had been originally incurred by her husband, and was consequently leviable out of the estate in her hands, yet the effect of the decree in the mortgage suit was to direct the sale of her limited interest only. To establish this position, our attention has been drawn to the mortgage decree which, it is said, directs the sale of the interest of the widow of the brother of the plaintiff. It may be observed that the original mortgage was executed not merely by the widow of the brother of the plaintiff bat also by the plaintiff himself and another brother of his. They were jointly sued by the mortgagee and their mother, who had succeeded to the interest of one of her sons who had died in the meanwhile, was also brought on the record. A decree was made by consent, the effect of which was to apportion the liability of each of the defendants. Such apportionment was made undoubtedly for the benefit of the defendants. Possibly, they apprehended that upon failure on the part of one of them to pay a proportionate share of the decree, the entire property might be brought to sale. But the mere fact of the apportionment of their liability, does not show that the intention of the Court was to make a personal decree against the widow. The learned Vakil for the appellant has, however, pressed upon our attention the circumstance that in so far as the mother of the plaintiff was concerned, provision was made in the decree for the sale of the absolute interest, and we have been asked to hold that inasmuch as no such provision was made in the case of the widow of the brother of the plaintiff, the intention of the parties was that the decree should be personal in so far as she was concerned. In our opinion, there is no substance whatever in this contention. In so far as the mother of the plaintiff was concerned, she was not one of the executants of the mortgage-deed, and the parties might have thought that in respect of the share vested in her, it was necessary to make an express provision that the absolute interest might pass by the sale. It appears from an examination of the decree, that this provision was made only with reference to a possible sale by her, and it was laid down that in such a contingency, her sons and the widow of her predeceased son would have to join with her so that the absolute interest might pass; but no such provision was made in the contingency of an execution sale; and it was merely said that if an execution, sale took place, the absolute interest would pass. It may be remarked that the decree expressly provides that the absolute interest would pass is the event of a sale by the mother if her daughter-in-law joined her in the sale; if her daughter-in-law could transfer merely a qualified interest, it is difficult to appreciate how the fact of her joining in the sale by the mother, could improve matters. We have no doubt, upon an examination of the decree, that it was not the intention of the mortgagee or any of the parties that merely the qualified interest of Bindu Bashini should be sold. This view is amply supported by numerous decisions which will be found reviewed in the judgment of this Court in the case of Roy Radha Kissen v. Nauratan Lall 6 C.L.J. 490 at p. 519. It is there pointed out that the test to be applied, in order to determine the exact interest which passe3 at a sale in execution of a decree against a Hindu widow or a qualified proprietor, is, whether the suit in which the sale was directed was one brought against the widow upon a cause of action personal to herself or one which affects the whole inheritance of the property in her hands. It was further pointed out that it might be an important element also to take into consideration the form of the suit and to determine whether the suit was framed so as to include only a claim for a personal decree against a limited owner or to obtain a decree which would bind the entire inheritance. The learned Vakil for the appellant has invited our attention to the case of Prosanna Kumar Nandi v. Umedar Raja Chowdhary 9 C.L.J. 88 : 13 C.W.N. 353 : 3 Ind. Cas. 692 which does not, however, lay down any different principle. If we apply this test to the case before us, what is the position? The mortgagee had unquestionably taken a mortgage of the entire interest represented by Bindu Bashini. When he commenced his action to enforce the security, he undoubtedly asked for a decree for the sale of the entire interest. But it is suggested that in the course of the litigation, when a consent decree was made, the mortgagee gave up the substantial right which he possessed, and took a decree for the sale of the limited interest of Bindu Bashini alone. In our opinion, there i3 no foundation for this contention, and the first argument addressed to us on behalf of the appellant must be overruled.
3. In so far as the second question is concerned, it does not arise upon the facts found by the Courts below. The learned Vakil for the appellant has suggested that there are materials on the record to show that the decree-holder took out execution as against Bindu Bashini in respect of a larger amount than what was really due under the decree, and that in substance he failed to allow credit for payments which had been made. Even if this be assumed to be true, it does not follow that the conduct of the decree holder was fraudulent The decree-holder, in substance, alleges that if there was any irregularity, it was due to mistake. We may farther point out that under Section 258 of the Code of Civil Procedure, any payment, so made out of Court and not certified in due course, could not be taken into account in execution proceedings. It does not, therefore, necessarily follow that a sale at the instance of the decree-holder, who took out execution for a larger amount than what was due, is necessarily fraudulent and is vitiated by that circumstance alone.
4. The second ground must, therefore, be also overruled.
5. In so far as the third ground is concerned, there is no substance in it. The learned Vakil for the appellant suggested at one stage of the argument that the sale had been, as a matter of fact, set aside by an arbitrator appointed by the parties. But when he was invited to point out the passage in the award by which the sale was set aside, he said that the sale must be taken to have been set aside by implication. It is sufficient to observe that if the sale has been set aside, this suit need not have b8en brought. There is, therefore, no substance in the third ground.
6. The result is, that the decrees made by the Courts below must be affirmed and this appeal dismissed with costs. As the appeal is obviously frivolous, we assess the hearing fee at five gold mohurs.