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TMI Blog1879 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e district. He had afterwards two sons, who are the infant Plaintiffs. Of these, Ram Sahai was born in 1862, and Bhuggobutti in October, 1869. These dates were disputed, but have, in their Lordships' opinion, been conclusively established in the suit. On the 21st of January, 1870, Adit Sahai executed, in favour of one Bolaki Chowdhry, a Defendant in the suit, though not a Respondent on this appeal, an instrument in the form of a bond and Bengali mortgage, whereby he bound himself to repay the sum of ₹ 13,000, which he had borrowed from Bolaki, with interest at the rate of 15 per cent per annum, and pledged as security for such repayment the whole and entire proprietary shares owned and possessed by him in mouzah Surakdeeha (also part of the ancestral estate) and mouzah Bissumbhurpore. This bond does not expressly state any reason for incurring the debt, but it refers to a negotiation for a loan of a smaller sum from another party, which had fallen through, and says that that sum was not then sufficient to meet the payments of the obligor's several creditors. It was registered on the 21st of January, 1870. 3. On the 30th of December, 1872, Bolaki Chowdhry, suing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father in his lifetime in the property; and the order passed on that petition was in effect that the objections could not be heard and decided in the execution department, but that if the Petitioners had any interest in the property attached apart from and other than what their late father possessed, they could obtain their remedy by bringing a regular suit. The execution accordingly proceeded, the sale took place on the 28th of July, and the lot described as the eight anna share of the judgment debtor in mouzah Bissumbhurpore, part of the mortgaged property as per inventory of the decree-holder was purchased by the Respondents for ₹ 6600. The sale proceeding was ordered to be duly kept with the record, Whether the usual certificate was afterwards issued to the purchasers, or in what terms, if issued, it was expressed, does not clearly appear on the record; but it is certain that they had not been put into possession on the 27th of August, 1873, when the present suit was commenced. 5. That is a suit by the infant Appellants, suing, by their mother and guardian, against the Respondents as the purchasers of the eight annas of Bissumbhurpore at the execution sale, and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the High Court the learned Judges, in their judgment of the 21st of July, 1875, said: The Subordinate Judge has decided (in the words of the well-known case of Hunooman Pershad 6 Moore, Ind. Ap. Ca. 421) that although the creditor would have been justified in advancing his money if he had made such inquiry as was open to him, and satisfied himself, as well as he could, as to the existence of the necessity, he did not in this case make such inquiry; or rather, perhaps, his words may be taken to mean that the result of any inquiry must have shewn him quite clearly that the only necessity of Adit Sahai was his own improper and immoral way of life, which required the expenditure of funds not derivable from his regular income. And this decision would, we think, have been perfectly fair and right, were we dealing with Bolaki Chowdhry only; for he appears to have acted as the family mahajun for a long time previous, and must necessarily have been acquainted with Adit's circumstances and way of life. 9. The learned Judges, however, proceeded to rule that the purchasers (the Respondents) stood on higher ground; that under the authority of the case of Muddun Thakoor v. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the course of decision has been altogether uniform and consistent. 15. That under the law of the Mitakshara each son upon his birth takes a share equal to that of his father in ancestral Immovable estate is indisputable. Upon the questions whether he has the same right in the self-acquired Immovable estate of his father, and what are the extent and nature of the father's power over ancestral moveable property, there has been greater diversity of opinion. But these questions do not arise upon this appeal. The material texts of the Mitakshara are to be found in the 27th and following slokas of the first section of the first chapter. It was argued at the bar that, because in the third sloka of the above section it is said that the wealth of the father becomes the property of his sons, in right of their being his sons, and that that is an inheritance not liable to obstruction, their rights in the family estate must be taken to be only inchoate and imperfect during their father's life, and in particular that they cannot, without his consent, have a partition even of Immovable ancestral property. There was some authority in favour of this proposition, notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lienation can be impeached by coparceners is a more important question, and one upon which there has been a greater conflict of authorities. Nor can it be said that the same law even yet prevails in all parts of India upon it. 20. A distinction has been often made, both by Courts of Justice and by text writers, between alienations by private contract and conveyance, and alienations under legal process, as in the case of joint family property seized and sold in execution of a decree against one member of the family for his separate debt. 21. Since the decision, however, of the cases of Virasvami Gramini v. Ayyasvami Gramini 1 Madras, H.C.R. 471, of Peddamuthuluty and Ors. v. N. Timma Reddy 2 Madras, H.C.R. 270, Palanivelappa-Kaundan v. Manndru Naikan and Anr. 2 Madras, H.C.R. 416, and J. Rayacharlu v. J.V. Venkataramaniah 4 Madras, H.C.R. 60, it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his separate debt. 22. That the same law now obtains in the presidency of Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h property with the power of ascertaining and realizing it by a partition. 24. But then the question arises, what is the consequence of the debtor dying before the execution is complete; whether in that event the coparceners take his undivided share by survivorship, so as to defeat the remedy which the creditor would otherwise have against it. 25. This was much considered in the case of Udaram Sitaram v. Ranee Panduji and Anr. already cited from the 11 Bombay H. C. Report, p. 76. There the debt was the separate debt of a son joint in estate with his father. The suit was brought, after the death of the son, against the father. A decree was obtained against the father and the son's widow, and it was sought, in a supplemental suit, to enforce that decree against the son's undivided share in joint property, treating that share as liable, in the father's hands, for the son's debt. It was ruled that this could not be done; that, though a son might be liable to pay his father's separate debts, there was no corresponding obligation on a father to pay his son's debts; that the right of a son to a share in the joint ancestral property had died with him; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. And as authorities for this proposition he cites Colebrooke's Digest, Book I., chap. v., par. 167, and Girdhari Lall v. Kantoo Lall Law Rep. 1 Ind. Ap. 321. One of the earlier authorities cited at the bar upon this point was a case decided by the late Suddur Court of Lower Bengal in 1861, which is reported at p. 213 of the Decisions of the Suddur Dewanny Adawlut of Bengal for that year. In it an infant son sued by his guardian, in the lifetime of his father, to set aside various conveyances which had been made by the father of portions of the joint family estate, and to recover the property sold under them, and also to recover other portions of the estate which had been sold under orders of the Court in execution of decrees. The family was governed by the Mithila law, and the first point decided was that the restrictions on a father's power of alienation over ancestral Immovable estate under that law were the same as those imposed by the law of the Mitakshara. 31. This case recognised the distinction between alienations by conveyance and those made under process of execution. The Court set aside the sales by conveyance because no justifying necessity for them had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is a decision of this tribunal, is undoubtedly an authority for these propositions: 1st. That where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they shew that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted; and 2ndly, that the purchasers at an execution sale, being strangers to the suit, if they have not notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings. 34. Their Lordships have now to apply the principles to be extracted from the authorities which have been considered in the case before them. 35. It has been found by both the Indian Courts, and, in their Lordships' opinion, properly found, that the Plaintiffs, as between them and Bolaki Chowdhry, the judgment creditor of Adit Sahai, had established t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity of Muddun Thakoor's Case, or of the cases which may have since been decided in India in conformity with it. The material passage of the judgment in Muddun Thakoor' s Case is in these words: A purchaser under an execution is surely not bound to go back beyond the decree to ascertain whether the Court was right in giving the decree, or, having given it, in putting up the property for sale under an execution upon it. It has already been shewn that if the decree was a proper one, the interest of the .sons as well as the interest of the fathers in the property, although it was ancestral, was liable for the payment of the father's debts:. The purchaser under the execution, it appears to their Lordships, was not bound to go further back than to see that there was a decree against the fathers; that the property was property liable to satisfy the decree, if the decree had been given properly against them; and he having inquired into that, and bona fide purchased the estate under the execution, and bona fide paid a valuable consideration for it, the Plaintiffs are not entitled to come in, and to sot aside all that has been done under the decree and execution, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death, the execution proceedings under which the mouzah had been attached and ordered to be sold had gone so far as to constitute in favour of the judgment creditor, a valid charge upon the land, to the extent of Adit Sahai's undivided share and interest therein, which could not be defeated by his death before the actual sale. They are aware that this opinion is opposed to that of the High Court of the North-Western Provinces 4 N. W. Prov. Rep. 137, already referred to. But it is to be observed that the Court by which that decision was passed does not seem to have recognised the seizable character of an undivided share in joint property which has since been established by the before-mentioned decision of this tribunal in the case of Deendyal Lal. If this be so, the effect of the execution sale was to transfer to the Respondents the undivided share in eight annas of mouzah Bissumbhurpore, which had formerly belonged to Adit Sahai in his lifetime; and their Lordships are of opinion that, notwithstanding his death, the Respondents are entitled to work out the rights which they have thus acquired by means of a partition. 40. They will therefore humbly advise Her Majesty to al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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