Richard Garth, C.J.

1. The two plaintiffs in this case are the brothers of GuptaLal, the defendant No. 4, and they bring this suit to recover from thedefendant No. 1 possession of their shares of an ancestral tenure whichbelonged 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 theother zamindar to the residue, the collections of the two zamindars being madeseparately.

3. The defendant Gupta Lal was the eldest of the threebrothers and the manager of the property, and his name only was registered asthe proprietor of it in the zamindars sherista.

4. The rent being in arrear, Adhikari Koer sued him (GuptaLal) for her share of it, and obtained a decree. But being only apart-proprietor, she could not sell the entire tenure under Section 59 of theRent Law, but she brought to sale under Section 64 the right and interest ofGupta Lal, the judgment-debtor, and Jeo Lal Singh alias Kushi Singh, thedefendant No. 1, became the purchaser.

. Under this purchase the defendant No. 1 obtainedpossession of the whole tenure, whereupon the two plaintiffs, the brothers ofGupta 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 andinterest of Gupta Lal, his share only in it passed to the purchaser.

7. The defendant No. 1, on the other hand, says that, as thedecree was for rent due from all the brothers, and as the defendant No. 1 wasthe manager and sole registered owner, representing all the brothers, the wholeinterest in the tenure passed by the sale.

8. The first Court dismissed the suit; but the Judge hasgiven the plaintiffs a decree.

9. Against this the defendant No. 1 has appealed, and theonly question is, what passed by the sale to defendant No. 1.

10. Upon this point we have been referred to two casesdecided by the Privy Council.

11. The first of these, which is relied upon by theplaintiffs 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 wereentitled as heirs to their father Bachoo Khan to a tenure consisting of acertain mouzah, Gooder Khans share being 7 annas odd, and his sisters beingentitled in separate shares to the residue.

13. The rent of this tenure being in arrear, the zamindarbrought 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 thetenure itself, which he might have done, but "for an attachment" andsale of the "judgment-debtors property in it."

14. An order was made in accordance with that petition, andthe sale notification expressly stated: "The rights and interests of otherpersons in the said property will not be sold by auction, besides that of thejudgment-debtors." Doolar Chand and others became the purchasers at thesale, 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, thatwhatever rights and interests the judgment-debtor has in the property aforesaidhave 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 theentire tenure, and a suit was afterwards brought against them by a person whohad acquired the shares of the three sisters to recover possession of thoseshares.

16. In that suit the question arose, whether by the sale inexecution the whole tenure passed to the purchasers, or only Gooder Khansshare in it.

17. It was one important element in that suit (which appearsfrom the report of the High Courts judgment, but does not appear in the reportof the case before the Privy Council) that the name of the registered owner ofthe tenure in the zamindars sherista was Bachoo Khan, the father, who wasdead; and as the parties were Mahomedans, Gooder Khan and his sisters did notconstitute a joint undivided family, as they might have done if they had beenHindus.

18. Their Lordships held, under these circumstances, that asthe zamindar, the decree-holder, sued Gooder Khan alone; and as instead ofselling the whole tenure, as he might have done, he sold only the right andinterest of one of the heirs, Gooder Khan; and as the sale notification andsale certificate expressly confined the sale to the right of Gooder Khan, theshares of the sisters did not pass to the purchasers.

19. The other case to which we were referred is Bissessurhall Sahoo v. Maharajah Luchmessur Singh L.R. 6 IndAp 233.

20. In that case two decrees had been obtained against onemember 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 ofthe family. Under these decrees certain property, which belonged to the jointfamily, was sold in execution: and the question afterwards arose in the case towhich we are now referring, whether, under that sale, the whole of the propertypassed to the purchaser, or only the share of the member of the family againstwhom the suits were brought, and it was held by their Lordships, that althoughthere was some informality with regard to the form of the decrees, still as thedecrees were obtained against the representative of the family in respect of afamily debt, they could properly be executed against the joint property of thefamily.

21. Their Lordships, after referring to some otherauthorities in support of that view, say, "that in execution proceedingsthe Court will look at the substance of the transaction, and will not bedisposed to set aside an execution on mere technical grounds when they findthat it is substantially right."

22. We think that these two cases afford an apt illustrationof the principle by which we should be guided in the decision of the presentcase.

23. Where it is clear from the proceedings that what issold, and intended to be sold, is the interest of the judgment-debtor only, thesale must be confined to that interest, although the decree-holder might havesold the whole tenure if he had taken proper steps to do so, or although thepurchasers may have obtained possession of the whole tenure under the sale.

24. But if, on the other hand, it appears that thejudgment-debtor has been sued as representing the, ownership of the wholetenure, and that the sale, although purporting to be of the right and interestof the judgment-debtor only, was intended to be, and in justice and equityought to operate, as a sale of the tenure, the whole tenure then must beconsidered as having passed by the sale. And if the question is a doubtful oneon the face of the proceedings or one part of those proceedings may appearinconsistent 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 thesepropositions; 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; andAdhikari 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 zamindarssherista represented the entire tenure.

27. Moreover, when she had obtained her decree, she wasunable, as she only owned a share in the zamindari interest, to sell the wholetenure under Section 59. She could only obtain her execution in the way inwhich she proceeded to enforce it, namely, by selling the right and interest ofthe judgment-debtor under Section 64.

28. But as between her and the persons interested in thetenure she had a right to treat Gupta Lal as the sole owner of the tenure, andwhen 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 thetenure, he represented his brothers interests in it as well as his own. Therent was due from them all, though he alone was sued for it, and as they wereequitably liable to pay the amount of the decree, it was only just that theirinterests as well as his should be sold to satisfy it.

30. We think, therefore, that the judgment of the DistrictJudge should be reversed, and that of the Subordinate Judge restored, withcosts in both Courts.

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Gunga Pershad and Ors. vs. Jeo Lal Singh and Ors.(30.07.1884 - CALHC)