DAYANAND PANDURANG NERKAR Vs. DAJI NARAYAN NERKAR

JUDGEMENT

(1.) This suit arises out of two decrees obtained against the plaintiffs father Pandurang. He and his brothers, Defendants Nos. 1 and 5, formed a joint Hindu family, at any rate, till about 1902. The decrees were against the plaintiffs father alone, without his sons being made parties to the suit. The plaintiffs are those sons. In execution of those decrees the properties mentioned in Schedule A and B to the plaint were put up for sale. The plaintiffs father, admittedly, had a half-share in these properties, his larger share being due to the fact of his having been given in adoption to his uncle. But, under Hindu law, his sons were joint with him in regard to that half share. Defendants Nos. 8 and 9 were the auction-purchasers, and Defendant No. 10 now holds the rights of Defendant No. 9.

(2.) The plaintiffs sued to recover their separate share by partition in those sold properties on the ground that only the share of their father, Pandurang, actually passed to the auction- purchasers. The First Glass Subordinate Judge has held that the sons interest was also auctioned by the Court and passed to the auction-purchasers. The plaintiffs have appealed. It is not disputed that under Hindu law the sons interest could have been also auctioned, although the decrees had been passed against Pandurang alone. Nor is there any allegation of the debts being for immoral purposes or otherwise not binding on the sons. The sole question really is one of fact, namely, whether the Court did intend by its proceedings that the interest of the sons should be auctioned as well as that of the father, and also whether the conduct of the persons concerned shows that the sons interests was in fact auctioned.

(3.) The main contention on the part of the appellants is based on the High Court Civil Circular No. 69, i (vii), at p. 99 of the Manual of Civil Circulars, which, in effect, says that the proclamation of sale should show the name of any other member of a Hindu family whose interest it is desired to sell. It runs as follows: If in the case of a Hindu judgment-debtor it is desired to sell the interest of any other member of the family (e.g., that of a minor son or brother), the name of such member and the fact that his interest is being sold must be stated in the proclamation, or otherwise his interest will not pass to the purchaser.