BALDEO SONAR Vs. MOBARAK ALI KHAN

JUDGEMENT

(1.) In execution of a simple money decree against defendants Nos. 2 and 3, the property in dispute was sold and was purchased by the decree-holder, defendant No. 1. The family of the judgment-debtor, which is governed by the Mitakshara Law, consisted at the date of sale of the plaintiffs and defendants Nos. 2 and 3; plaintiff No. 1, Baldeo Sonar, being a brother, plaintiff No. 2, Mussamut Dukhi Koer, the mother, and plaintiff No. 3, Jugdeo, the son of the judgment-debtor, defendant No. 2. Defendant No. 3 is a cousin of defendant No. 2. The plaintiffs pleaded a partition of the house between themselves and defendant No. 2 on one side and defendant No. 3 on the other, and that the debt for which the sale had taken place was not binding upon them, as they were no parties to it. They had also not been made parties in the suit in which the decree was obtained against defendants, Nos. 2 and 3. It appears that plaintiff No. 1, Baldeo, was a minor at the date of sale. The Munsiff held that the family was divided as alleged by the plaintiffs, and that there had been a partition of the house, the northern portion having been allotted to the plaintiffs and defendant No. 2 and the southern portion to defendant No. 3. He further held that the sale was good as against defendants Nos. 2 and 3; and as plaintiff No. 3 was bound to pay his father's debts, he could not question the sale, unless it was shown that the debt covered by the decree under which the sale had taken place had been incurred for immoral purposes, but that was not shown in the case. He held that plaintiff No. 2, the mother, was not entitled to any share, until there was a partition amongst sons. But as to plaintiff No. 1, he found that the debt was not shown to be of such a nature as to bind him. The Munsiff, therefore, dismissed the suit of the plaintiffs other than plaintiff No. 1, and gave him a decree for a half share of the northern half of the house, confirming his possession to that extent.

(2.) Defendant No. 1 alone appealed, and on his appeal the Subordinate Judge held that there had been no partition of the house as pleaded by the plaintiffs; that the transactions of the plaintiffs and defendants Nes. 2 and 3 were joint; that the debt in question was valid; and that the sale relied upon by defendant No. 1 was binding on all the plaintiffs. As a consequence of these findings, the entire suit was dismissed with costs.

(3.) Plaintiff No. 1 (Baldeo) has appealed to this Court, and it has been contended for him that he was not bound by the decree and the sale thereunder, as he was not a party thereto, and that, even if he was bound, notwithstanding that he had not been a party, the findings of fact arrived at by the Subordinate Judge V were not sufficient for the disposal of the case.