Henry Thoby Princep and S.C. Ghose, JJ.

1. The subject-matter of this suit is a three annas fourdams share of mouza Simrora Boreni. This mouza, with various other properties,originally belonged to one Murl Mhar, the common ancestor of the parties to thesuit. A genealogical table of the family is set out at page 6 of the printedpaper-book. It appears that Murlidhar died in the year 1224 F.S. (1817),leaving a widow, Rup Dai, and four sons : Rai Bishnath, Rai Gunga Bishen, RaiLuchmi Narain and Rai Kunjbehari Lal. Gunga Bishen died in 1254 (1847), leavingfour sons : Rai Bholi Prasad, Rai Chet Bahadur alias Sheo Prasad, Rai DeokiNandan and Rai Gauri Sankar. Luchmi Narain died childless in 1258(1851),leaving a widow, Mussamat Ayodbya Dai; Kunjbehari Lal also died childless in1260 (1853), leaving a widow Mussamat Ratan Dai; and Rai Bishnath died in 1262(1855), leaving two sons : Rai Rasbehari Lal and Rai Bissessur Nath. The widowof Murlidhar, namely, Mussamat Rup Dai, died in 1264 F.S. (1857). It wouldappear that during her life-time she was in possession of mouza Simrora Boreniand some other properties, and one of the matters that were discussed in thecase, to which we are presently going to refer, is whether she was inpossession of those properties as an absolute owner under a gift by herhusband, Murlidhar, or whether they were in her possession in lieu ofmaintenance for her life-time. We ought here to mention that of the four sonsof Rai Gunga Bisben, Bholi Prasad and Deoki Nandan died childless in the years1255 and 1263, respectively, leaving their widows Munni Bibi and Lalti Bibi:and it does not appear that these two ladies inherited any property of the family.It would appear, that the family was possessed of various properties which haddescended to them from Murlidhar; and Raigunga Bishen, Rai Luchmi Narain andRai Kunjbehari Lal were apparently possessed of certain separate properties. Inthe year 1864, a suit was instituted by Rai Gauri Sankar against Rai RasbehariLal, Rai Bissessur Nath, Mussamat Ratan Dai, widow of Rai Kunjbehari Lal, andRai Sheo Prasad alias Chet Bahadur, to recover, first, one-fourth share of theproperties left by Kunjbehari and Luchmi Narain; secondly, one-fourth share ofthe properties left by Rup Dai; thirdly, one-half share of the properties(self-acquired) left by Gunga Bishen; and the plaintiff further asked that adeed of tamliknama, said to have been executed by Kunjbehari Lal and his wife,Mussamat Ratan Dai, an ikrarnama by the same lady, a ticca, lease purporting tohave been executed by Ayodhya Dai, and a mukarari lease by Rup Dai, might beset aside as either untrue or not bond fide transactions. We might here mentionthat Rai Rasbehari Lal claimed to hold those properties under thoseinstruments, and as regards the properties held and enjoyed by Mussamat RupDai, the allegation of Rai Gauri Sankar, the plaintiff, was that they had beenassigned to her by Murlidhar for her maintenance; while, on the other hand, thedefendants contended that she had an absolute title in them under a gift byMurlidhar. The Court of first instance decreed the plaintiffs suit on the 10thJanuary 1865, holding that the deeds set up by Rasbehari Lal were eitherinoperative or untrue. And as regards the title of Sup Dai, it was found thatthere was no gift in her favour by Murlidhar, and that the properties in herpossession were ancestral properties of Murlidhar. No relief was given to the plaintiffagainst Sheo Prasad, as none could be given against him, because, as theprincipal Sadar Amin remarked, the plaintiffs right had been injured by theother defendants, and not by Sheo Prasad, who had been made a defendant simplyto, meet any possible objection that might be raised by the principaldefendants to the suit, and accordingly the costs of that defendant werecharged against the defeated defendants.

2. On appeal by Ratan Dai and Rai Rasbehari Lal, the HighCourt affirmed the decree of the lower Court on the 29th November 1865 withthis slight modification. It was held that, as regards the properties which hadbeen transferred to Rasbehari Lal by Ratan Dai, he was entitled to hold themduring the ladys life-time, and that the plaintiff was entitled to adeclaration that this transfer was only valid during her life-time (see 4 W.R.page 72).

3. In the meantime, that is to say, on the 28th January1865, Sheo Prasad instituted a suit against Rasbehari Lal, Mussamat Ratan Daiand Parameshar Nath, son of Bissessur Nath, for the same relief which had beenrecovered in his suit by Rai Gauri Sankar, and he obtained judgment on the 14thDecember 1866. The Subordinate Judge of Shahabad, in following the decision ofthe High Court in the suit of Gauri Sankar, gave a decree to the plaintiff forthe properties other than those claimed by Mussamat Ratan Dai, with adeclaration that the plaintiff would be entitled to recover them to the extentof his share upon the death of that lady. On appeal by the defendant, thisjudgment was affirmed by the High Court on the 24th January 1868.

4. Ratan Dai, the widow of Kunjbehari, died in 1278 (1871);and Gauri Sankar then brought a suit in May 1874, in the first instance,against Rai Monohur Lal, the son of Rasbehari Lal then deceased; and by apetition, presented on the 21st June 1874, Sheo Prasad was added a defendant tothat suit. It would appear upon reference to the plaint itself that the claimthat was preferred by Gauri Sankar was in respect of mesne profits of theproperties loft by Luchmi Narain by Rup Dai and by Kunjbehari Lal. There was noallegation whatsoever that Sheo Prasad had kept the plaintiff out ofpossession; but, on the contrary, it was distinctly alleged that the defendant(meaning thereby Rai Monohar Lal) and his ancestor had been holding possessionof the properties in question by appropriating their profits without any rightor title. In the petition, however, that was subsequently presented,introducing the name of Sheo Prasad as a defendant, it was stated that heshould be brought in as a principal defendant as an heir of Mussamat Ratan Dai,deceased, and that his name had by mistake been omitted from the list ofdefendants in the plaint.

5. The only defendant that contested the suit was RaiMonohar Lal: and the Subordinate Judge of Patna, before whom the suit wasinstituted, after disposing of the various objections that were raised by thatdefendant, and after determining the amount of mesne profits of the variousproperties, passed a decree as follows: "That a modified decree be passedwith this direction that the defendants Nos. 1 and 2 do pay the sum of Rs.2,353-1-1, being the amount of wasilal for the years 1279 to 1281 F.S. inrespect of the property left by Rai Kunj-behari Lal, and that the defendant No.1 alone do pay Rs. 10,066-10-9 as wasilat of other properties, and that thedefendants should pay interest from this date at the rate of eight annas percent, per month, and that the costs in proportion to the amount proved shouldbe borne by defendants with interest thereon; and that they should get theircosts from plaintiffs with interest in proportion to the amount notproved." It would appear from the body of the judgment itself that therewas no finding or determination that Sheo Prasad had by any act of his madehimself liable for any mesne profits in respect of the properties left by RaiKunjbehari Lal, though, as already stated in the ordering portion, theSubordinate Judge made a decree against Sheo Prasad as well. It appears fromthe record that a petition was presented on behalf of Chet Bahadur on the 25thSeptember 1875, praying that the decree, which was an ex parte one, againsthim, might be set aside, upon the ground that no summons had ever been servedupon him; but when the matter came on for hearing, no witnesses were present onhis behalf, the result being that his petition was rejected on the 15th January1876. Gauri Sankar, having thus secured a decree against Chet Bahadur, appliedfor execution on the 1st March 1877; and he caused the interest of Sheo Prasadin a four annas share of mouza Simrora Boreni to be attached, and sold on the16th June 1877, and he purchased the property himself for Rs. 2,010. On the12th July 1877 a petition was presented on behalf of Chet Bahadur for settingaside this sale, upon the ground that the proceedings had been taken outsurreptitiously without his knowledge; that the sale was irregular; and thatthe property, which was worth more than Rs. 40,000, had been improperly soldfor the small price of Rs. 2,010. This petition was not, however, prosecuted.The petitioner produced no evidence on the date fixed for trial, andaccordingly the objection to the sale was disallowed, and the sale wasconfirmed on the 5th of September 1877. The purchaser then obtained the usualcertificate of sale, and also obtained from the Court the usual writ ofdelivery of possession; and formal possession was delivered to him on the 19thDecember 1878 (10th Pous 1286 F.S.),

6. The present suit was instituted on the 18th December1890, just within twelve years from the date when the defendant was put inpossession of the property in question by the Court. The plaintiffs- in thissuit are Rai Puran Chand, Rai Gopi Chand and Rai Bal Kissen, the three sons ofRai Chet Bahadur alias Sheo Prasad, and the principal defendants are the twosons of Rai Gauri Sankar, who is now dead. The plaintiffs in their plaintshortly refer to the genealogical table of the family, and to some of theproceedings to which we have already adverted; and they allege that, althoughtheir father was not liable to pay any metae profits in the suit by Rai GauriSankar, still a decree was, improperly and out of mistake, made against him,and that no portion of the property could be rightly sold in execution of thatdecree. They allege that the plaintiff No. 1 was born in October 1861, theplaintiff No. 2 in June 1864, and the plaintiff No. 3 in June 1876, and theyaver that the defendants father, Gauri Sankar, took advantage of the weakintellect of Rai Chet Bahadur and of their (the plaintiffs) youth, andwrongfully took possession of the entire four annas share of the property onthe 10th Pous 1286, so that he could not be regarded as having acquired underthe sale any more than the fathers share, which was but one-fifth, theremaining four-fifths belonging to the plaintiffs and their mother, and thatshe having since died in 1885 her share has devolved upon thorn. The plaintiffsaccordingly seek to recover possession of a four-fifth share of the four annas,i, c, a three annas four dams share of the property.

7. We should here mention that the plaint also refers to adeed of sale, bearing date 12th September 1881, executed by the plaintiffs 1and 2 and their mother in respect of a one anna six dams share of this propertyin favour of the defendants 4 and 5; and the plaintiffs allege that theconsideration mentioned therein did not pass, and that it was a champertoustransaction, and there fore inoperative.

8. The suit was defended by the two sons of Rai GauriSankar, who are the principal defendants, upon the ground that the suit wasbarred by limitation; that they and their predecessor had been in adversepossession of the property for more than twelve years; that Chet Bahadur Singhhad an absolute title to this property; that as regards a two annas share ofthe property, it was inherited by Chet Bahadur from his uncles, Kunjbehari andLuchmi Narain, that is to say, from two collateral branches of the family; and,therefore, the plaintiffs were not entitled to participate in that share; thatthe debt for which the decree was obtained by Rai Gauri Sankar was notcontracted for any immoral purpose; and that the decree was rightly obtained,and therefore they were entitled to the entire property, namely, the four annasshare which was sold in June 1877. It was further pleaded that the plaintiffNo. 3 was not born, as alleged in the plaint, in 1933 Sumbat (June 1876), butthat the birth took place two years after that, namely, in 1935 Sumbat (correspondingwith 1878), that is to say on a date subsequent to the sale in question, and,therefore, he was not entitled to any share in this property. It was alsocontended that the plaintiffs mother was not entitled to any share, becauseshe died before any partition took place. The defendant No. 4, Mussamat SaukhaKoer, also put in a written statement insisting upon her rights under the deedof sale of the 12th September 1881 mentioned in the plaint, and she allegedthat it was a genuine and operative transaction; that the considerationmentioned therein actually passed; and, therefore, the plaintiffs were notentitled to claim the share conveyed by that document.

9. The Subordinate Judge has given the plaintiffs a modifieddecree. He is of opinion that the suit is not barred by the law of limitation,because, after Chet Bahadur had obtained his decree in December 1866, RaiRasbehari Lal, the defendant, against whom that decree was obtained, made overpossession of the properties without the intervention of the Court, and thathe, Chet Bahadur, was in possession of the property in suit until thedefendant, on the 19th December 1878, obtained possession thereof under processof the Court: and that supposing that Rasbehari Lal, or his son Monohar Lal,was in possession of the property in the interval, the adverse possession ofGauri Sankar did not commence until the 19th December 1878, when possession wasdelivered to him by the Court, and the suit having been commenced within twelveyears from that time, it was not barred by limitation.

10. In regard to the question raised as to the character ofthe debt for which the property was sold in June 1877, the Subordinate Judgeheld that Chet Bahadur was not liable for the mesne profits in respect of whichthe decree was obtained by Gauri Sankar, and, therefore, the defendants couldnot claim under the purchase any more than Chet Bahadurs interest in thefamily property. He was, however, of opinion, having regard to the proceedingsin connection with the sale held in June 1877, that the whole of the four annasshare of Simrora Boreni was sold.

11. In regard to the question of the time of the birth ofthe plaintiff No. 3, the Subordinate Judge found upon the evidence that he wasborn in Assar 1933 (June 1876), that is to say, on a date previous to the sale,and that the mother of the plaintiffs Mussamat Mohan Dai died in 1292 (1885),that is to say, after the sale. Upon the question raised as to the character ofthe title which Chet Bahadur" derived in this property by succession, theSubordinate Judge has expressed the opinion that the whole of it was ancestralproperty, and that it was only upon Rup Dais death that mouza Simrora Borenidevolved upon the then surviving heirs of Murlidhar, viz., Rasbehari Lal,Bissessur Nath, Gauri Sankar and Chet Bahadur, the share of each beingone-fourth, and that this property was held by Mussamat Rup Dai during herlifetime in lieu of maintenance. In regard to the kabala of the 12th September1881, he was of opinion that it was a bond fide and operative transaction, and,therefore, the plaintiffs could not recover the share covered thereby, save andexcept the interest of the mother, namely, half anna, which on her deathdevolved upon the plaintiffs. The Subordinate Judge has accordingly given tothe plaintiffs a decree for a two annas four dams, share of the village. Wemight here mention that the Court below has further found that the value of thefour annas share of the property would be Rs. 10,000 at the lowest.

12. The present appeal is by the defendants Beni Prasad andRai Binda Saran, the two sons of Rai Gauri Sankar, and the main grounds thathave been pressed upon us by the learned vakil on their behalf are: first, thatthe suit is barred by limitation; second, that a two annas share of theproperty having been derived by Chet Bahadur from Luchmi Narain and Kunjbehari,his uncles, could not be regarded as ancestral, and, therefore, the plaintiffscould not be entitled to claim any share therein; third, that the father, Chet Bahadur,in the suit for mesne profits, was sued in his representative character, andthe plaintiffs not having proved that the debt for which the said decree wasobtained was of an immoral character, the whole property passed under the sale;fourth, that the plaintiff No. 3 was not born before the sale; fifth, that theplaintiffs cannot claim the share of the mother, because she died before thesuit was brought; sixth, that under the kabala of the 12th September 1881, anabsolute estate was sold, and therefore, the share, which the mother sold,could not, upon her death, devolve upon the plaintiffs.

13. We shall discuss the points raised by the appellants inthe order stated.

14. As regards the question of limitation, the defendantscase seems to have been this : That after the sale of the 16th June 1877 wasconfirmed in September 1877, Gauri Sankar, without waiting for formal deliveryof possession through the Court, which was effected on the 10th Pous 1286, tookpossession from the hands of Rai Monohar Lal, the son of Rai Rasbehari Lal,without the intervention of the Court in Aswin 1285; and their contention wasthat, up to Aawin 1285, the possession of Chet Bahadurs four annas share ofSimrora Boreni was with Rasbehari, and then with his son Rai Monohar Lal, andthat, therefore, both under Article 142 and Article 144 of the IndianLimitation Act, the claim is barred. We, however, agree with the SubordinateJudge in holding that, after Chet Bahadur had obtained his decree of a fourannas share, Rasbehari Lal gave up possession of that share in the same manneras he surrendered possession to Gauri Sankar when he took out a writ from Courtfor delivery of possession, and this was in Jaisth 1281. It would appear fromthe evidence of one of the defendants witnesses, Chakan Mahton, that down tothe year 1274 F.S., Rasbehari was in possession of sixteen annas share ofSimrora Boreni; that subsequently he gave a four annas share to his nephewParnmeshar Nath; and that up to Jaisth 1281 he had only twelve annas share inhis possession, and that after that, his son Monohar Lal had only four annasleft to himself, and no other share, and that in the same year (1281) MonoharLal sold his four annas share to one Chowdhry Saheb, This evidence supports thestory told by the plaintiffs witnesses that Chet Bahadur was in possession ofhis share in the property from the year 1282; and this is further supported bythe, evidence of the defendants witness, Lala Mahton, who deposed that"when Gauri Sankar obtained a decree of his four annas share againstRasbehari, then Rasbehari gave up possession of that share, and similarly whenChet Bahadur got a decree for his four annas share, Rasbehari gave uppossession of that share." It also appears from the evidence of ChakanMahton that Gauri Sankar took out a writ for delivery of possession in Jaisth1281, and according to the evidence of the plaintiffs witness, Girdhar Lal, itseems that, when Gauri Sankar took out the order for delivery of possession,Monohar Lal surrendered possession to Gauri Sankar in the same way as he did toChet Bahadur in respect of his four annas share. If then Chet Bahadur obtainedpossession of his share of the property from the hands of Monohar Lal in Jaisth1281, we may well presume, and that is the evidence on the part of theplaintiffs, that this possession continued until Gauri Sankar obtained deliveryof possession through the Court in Pous 1286 (December 1878), and if that isso, it is obvious that neither under Article 142, nor under Article 144 of theLimitation Act, is the suit barred by limitation, it having been institutedwithin twelve years from the date when, under the writ for delivery ofpossession in favour of Gauri Sankar, the plaintiffs lost possession.

15. As regards the second question raised before us, namely,whether the two annas share of the property is ancestral within the meaning ofthe Mitakshara Law, the first observation that we have to make is that itappears upon the judgment of the Court of First Instance in the suit of RaiGauri Sankar, dated 10th January 1865, as already mentioned, that theproperties in the possession of Mussamat Rup Dai were the ancestral propertiesof Murlidhar, and that it was the case of Gauri Sankar himself that they hadbeen assigned to her by Murlidhar in lieu of maintenance. It is quite clearthat during Rup Dais lifetime no portion of the property came into the handsof Luchmi Narain or Kunjbehari Lal, and no member of the family was entitled toclaim it until after her death. It retained throughout the character ofancestral property. Luchmi Narain and Kunjbehari predeceased her, andtherefore, it seems to us that when, upon the death of Rup Dai, the propertydevolved upon Rai Gauri Sankar, Rai Chet Bahadur, Rai Rasbehari and RaiBissessur Nath, it came to them as ancestral property, and not as propertyderived by collateral succession from either Kunjbehari Lal or Luchmi Narain.

16. We next proceed to discuss the question regarding thecharacter of the decree passed against Rai Chet Bahadur. As has already beenmentioned in the plaint presented by Gauri Sankar on the 30th May 1874 formesne profits, there was no allegation whatsoever that Rai Chet Bahadur Singh wasin possession of his share of the property, or that he had in any way madehimself liable for mesne profits, and there was no finding by the Court that hewas in such possession. There is no evidence whatsoever on the part of thedefendants in this case that Chet Bahadur kept Gauri Sankar out of possession,or was in possession of his share of the properties left by Rafcan Dai for asingle day. On the contrary, we find upon the evidence of Nanku Singh, awitness for the defendants, that as regards Muggerpal, one of the propertiesheld by Ratlin Dai, and in respect of which mesne profits were decreed, GauriSaokar was in possession of a one anna share during 1279 and 1280, Monohar Lalof a half-anna and Parmeshar Nath of a three annas share of the property, andthat no one else of this family was in possession of any share in that villageduring those two years. We find it also stated in the written statementpresented by Gauri Sankar in the suit of one Proon Dayal Singh on the 21stApril 1885, that after the death of Mussamat Ratan Dai" the shares in suit(by which we understand the shares of the properties claimed in that suit)never came into the possession of Chet Bahadur, but all along remained in thewrongful possession of Rai Monohar Lal, and that they came into the possessionof Gauri Sankar from the hands of Monohar Lal. One of the properties claimed inthat suit was Balwakhas, which is a property that was in the possession ofRatan Dai, and in respect of which also mesne profits were decreed against ChetBahadur.

17. We observe that the record of the suit for mesne profitswas before the Court below, and the Subordinate Judge remarks that there was noevidence whatever in that case, showing that Chet Bahadur was liable for mesneprofits. In order, however, to satisfy ourselves that there was really noevidence showing the liability of Chet Bahadur, we sent for that record; andthe learned vakil for the appellant has been unable to point to any evidenceshowing that Chet Bahadur was in possession of any of the properties left byRatan Dai in respect of which mesne profits were decreed against him in thatsuit. That being so, we may take it that there was no debt, properly so called,due from Chet Bahadur, though no doubt a decree was obtained by Gauri Sankarfor a debt said to have been due.

18. The question then arises whether the decree isconclusive upon the question of the liability of Chet Bahadur, or whether it isopen to the plaintiffs in this case to show that there was really no debt forwhich a decree could have been obtained. Now there can be no doubt that if thepurchaser at the sale in June 1877 were a third party, a stranger to the suitin which the decree was obtained, he need not have looked behind the decree andsatisfied himself that there was really a debt due. But the defendants father,Rai Gauri Sankar Lal who purchased the property, was the decree-holder in thesuit, and therefore he was not entitled to claim the position which a thirdparty might have taken. In the case of Suraj Bunsi Koer v. Sheo Persad SinghI.L.R. Cal. 148 : IL.R. IndAp 88, the Judicial Committee, after referring tothe case of Girdhari Lal v. Kantoo Lal IL.R. IndAp 321 : 14 B.L.R. 187 : 22W.R. 56, and to a decision of the Sudder Diwani Adalat of 1861, observed asfollows:

The decision of this tribunal in the before mentioned caseof Kantoo Lal has, however, gone beyond this decision of the Sudder DiwaniAdalat, because it treats the obligation of a son to pay his fathers debt,unless contracted for an immoral purpose, as affording of itself a sufficientanswer to a suit brought by a son either to impeach sales by private contractfor the purpose of raising money in order to satisfy pre-existing debts, or torecover property sold in execution of decrees of Court. The judgment, moreover(and this is the portion of it that is chiefly material to the determination ofthe present appeal), affirms the principle laid down in the judgment of theSudder Diwani Adalat, that a purchaser under an execution is not bound to gofurther back than to see that there was a decree against the father : and thatthe property was properly liable to satisfy the decree if the decree had beengiven properly against the lather. In such a case one who has bond fidepurchased the estate under the execution, and bond fide paid a valuableconsideration for it, is protected against the suit of the sons seeking to setaside all that has been done under the decree and execution, and to recoverback the estate as joint ancestral property.

" This case then, which is a decision of this tribunal,is undoubtedly an authority for these propositions: first, that where jointancestral property has passed out of a joint family, either under a conveyanceexecuted by a father in consideration of an antecedent debt, or in order toraise money to pay off sin antecedent debt, or under a sale in execution of adecree for the fathers debt, his sons, by reason of their duty to pay theirfathers debts, cannot recover that property, unless they shew that the debtswere contracted for immoral purposes, and that the purchaser had notice thatthey were so contracted; and, secondly, that the purchasers at an executionsale, being strangers to the suit, if they have not notice that the debts wereso contracted, are not bound to make enquiry beyond what appears on the face ofthe proceedings.

19. In the case of Luchmun Dass v. Giridhur Chowdhry I.L.R.Cal. 855, decided by a Full Bench of this Court, one of the questions that werereferred to the Full Bench was as follows:

If the mortgagee under such circumstances "(i.e., whereit is not proved, on the one hand, that there was any legal necessity for thefather raising the money, nor, on the other hand, that the money was raised orexpended for immoral or illegal purposes, or that the lender made any inquiryas to the purpose for which it was required)" brings a suit against thefather alone, obtains a decree for payment and for sale of the property, and atthe sale buys the property himself, is he entitled, as a bona fide purchaserfor value, to hold the property as against the infant son either daring thelife or after the death of the father" And the answer to that questionwas, "We think that, under such circumstances, the mortgagee could not beconsidered as a bond fide purchaser for value, and would not be entitled to theproperty except to the extent of the fathers interest as against the infantson." In the case of Nanomi Babuasin v. Modun Mohan I.L.R. Cal. 21 : IL.R.IndAp 1, where the father having executed a zurpeshgi lease in favour of aperson who had lent him a considerable sum of money, kept the zurpeshgidar outof possession, and where that person obtained a decree against the father formesne profits, and in execution of that decree caused certain property to besold, the Judicial Committee observed as follows:

If his debt "(i.e., the fathers debt)" was of anature to support a sale of the entirety, he might legally have sold it withoutsuit, or the creditor might legally procure a sale of it by suit. All the sonscan claim is that not being parties to the sale or execution proceedings, theyought not to be barred from trying the fact or the nature of the debt in a suitof their own: "and later on, they addressed themselves to theconsideration of "the nature of the debt," and they held that thedebt in question must be taken as joint-family debt: and then looking into theproceedings terminating in the sale, they were of opinion that the purchasermust be taken to have purchased the entire property.

20. Having regard to the authorities we have just referredto, we are clearly of opinion that the plaintiffs are not precluded by thedecree obtained by Gauri Sankar against Chet Bahadur, and that the questionwhether the debt really existed or not is a question which may well be goneinto, as it has been gone into in this case. And as we have already stated,there being no evidence that Chet Bahadur was in any way liable for the mesneprofits decreed to Gauri Sankar, it follows that, at the sale which took place,the interest of no other member of the family, save and except that of thefather who did not choose to contest it, could have passed to the purchaser.

21. We might here observe that the evidence in this caseshows that Chet Bahadur was a person of weak intellect, and, at the time of thesale, the present plaintiffs were very young, and it is no wonder that theapplications that had been made by Chet Bahadur to contest the ex parte decreeand the sale were not prosecuted.

22. As bearing upon the question what was acquired by GauriSankar under the sale, we would refer to his deposition, dated 23rd April 1884,a copy of which has been filed in this case, and in which, referring to thissale, he stated as follows: "I have purchased the share of Chet Bahadurfor over Rs. 2,000 in execution of my decree. I did not make Puran Chand orGopi Chand defendants in the case, in which I obtained the decree against ChetBahadur. It was a money decree against the person of Chet Bahadur." In theview, therefore, which Gauri Sankar himself took of the decree, it was but apersonal decree against the father and not against him in his representativecapacity, and, therefore, according to the view enunciated by the JudicialCommittee in the cases of Deendyal Lal v. Jugdeep Narain Singh I.L.R. Cal. 198: IL.R. IndAp 247, Hurdey Narain Sahu v. Rooderperkash Misser I.L.R. Cal. 626 :IL.R. IndAp 26, Simbhunath Panday v. Golap Singh I.L.R. Cal. 572 : IL.R. IndAp77, what really passed to the defendants was but the limited interest of ChetBahadur, and not the interest of other members of the joint-family. We should,however, say that so, far as concerns the question what was sold at theexecution sale, the proceedings leading up to the sale purport to have been asale of the entire four annas share, though no doubt described as "theright, title and interest" of the father therein. The property was,however, sold for Rs. 2,010, just one-fifth of the value which the SubordinateJudge finds is the lowest value of the property, and it is: this one-fifthshare that the plaintiffs contend really passed under the sale.

23. The next question that we have to consider is whetherthe plaintiff No. 3 was born before the sale in June 1877. The SubordinateJudge has found upon the evidence that he was so born, and we concur with him.The plaintiff No. 3 is, therefore, entitled to a share in this property.

24. We next proceed to consider what is the exact sharewhich the defendants under the sale are entitled to claim, and what is therelief to which the plaintiffs are entitled in this case. According to the caseof Deendyal Lal v. Jug-deep Narain Singh I.L.R. Cal. 198 : IL.R. IndAp 247, theplaintiffs were entitled in this suit to claim the entire four annas share,leaving the defendants as purchasers of the share of the father to have thatshare and interest ascertained by partition. But they have chosen to regard thesale as operating as a partition, and they have claimed a four-fifth share ofthe property, dividing it into five equal parts between the father, three sonsand the mother, and assigning to the purchaser the share of the father. It wascontended by the appellants before us that the shares, which the parties tothis suit are respectively entitled to claim, must be regulated with referenceto the date of the present suit (this being regarded as a suit for partition),and not with reference to the date of the sale at which the defendants fatherpurchased the property, and that the mother having died previous to the suit,the property is divisible into four parts only. But we are clearly of opinionthat this contention cannot be sustained; for there can be no doubt upon theauthorities that the defendants, could only claim that share which, if apartition had taken place on or before the date of sale, would be allotted tothe father [see Hurdey Narain Sahu v. Rooderperkash Misser I.L.R. Cal. 626 : IL.R.IndAp 26 and Suraj Bunsi Koer v. Sheo Persad Singh I.L.R. Cal. 148 : IL.R.IndAp 88] : what then would be the share which, if a partition had then takenplace, would be the fathers share The property would be divisible into fiveparts between the three sons, the mother and the father, he obtaining only aone-fifth share and that would be the share which the defendants have acquiredunder the sale. It has, however, been contended before us that as regards, atany rate, a six pies share (i.e., one-third of the eighteen pies sold), whichthe mother assigned away by the kabala, dated the 12th September 1881, itpassed absolutely to the purchaser, and therefore the plaintiffs cannot claimit. We are, however, unable to accept this contention as correct; for themother was entitled to hold her one-fifth share in lieu of maintenance only,and had, therefore, no absolute power of disposal, though, no doubt, theMitakshara describes such property (i.e., property acquired by partition) as"womans property" [see Judoonath Tewaree v. Bishonath Tewaree 9 W.R.61, Lalljeet Singh v. Raj Coomar Singh 12 B.L.R. 372 : 20 W.R. 336, MaynesHindu Law, paras. 614 to 617, Viramitro-daya (Babu Golap Chunder SarkarsTranslation), pp. 224, 225J; and there has been no contention raised before usas to the correctness of the decision of the Subordinate Judge that upon thedeath of the mother, her share devolved upon her sons.

25. We have now dealt with all the questions that wereraised before us in the course of this appeal; and the conclusion that wearrive at is that the decree of the Court below is right, and that this appealmust be dismissed with costs.

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Puran Chand vs. BeniParshad and Ors. (06.08.1895 - CALHC)