JUGDEEP NARAIN SINGH Vs. DEENDYAL LAL

JUDGEMENT

(1.) THE Respondent in this case is the only son of one Too/am Singh, and, the family being governed by the law of the Mitakshara, is joint in estate, in the strict sense of the term, with his father. On the 28th of January, 1863, the father being indebted to the Appellant to the amount of Rs. 5000, executed to him a Bengali mortgage bond for securing the repayment of that sum with interest at the rate of 12 per cent, per annum. The Appellant afterwards put this bond in suit, and on the 30th of May, 1S(J4, obtained a decree against Toofani Singh for the sum of Rs. 6328 13a. 8p. He took no proceedings to enforce this decree, which was in the form of" an ordinary decree for money, against the property especially hypothecated; but in September, 1870, caused "the rights and proprietary and mokuriuri title and share of Toofani Singh, the judgment debtor " in the joint family property which is the subject of this suit, to be put up for sale in two lots for the realisation of the sum of Rs. 11,144 6a. 4p., the amount alleged to be then due on the decree; and himself became the purchaser of those lots for the sums of Rs. 900 and Rs. 10,100. Objections were taken to this sale by the judgment debtor, which., after going through, all the Courts, were finally overruled, and the Appellant obtained the asual certificate title, and in January, 1871, succeeded in taking possession thereunder of the whole of the property now in dispute. Thereupon, in February, 1871, the Respondent brought the suit out of which this appeal arises for the recovery of the whole property on the ground that being according to the law of the Mitakshara the joint estate of himself and his father, it could not be taken or sold in execution for the debt of the latter, which, had been incurred without any necessity recognised by the Shastras or the law. The father was joined as a Defendant.

(2.) THE issues on the merits settled in the cause were:

(3.) THE subordinate Judge does not appear to have thought it necessary to come to any definite conclusion upon this issue. In one passage of his judgment he says, "The sale being held by the Court, it is unnecessary to see whether it was held under a legal necessity or not." In another passage he says, " The sale held by the Court, according to the laws in force, of the ancestral estate, as the rights and interests of the judgment debtor, cannot be regarded as including the right of the son of the judgment debtor which he derived under the Shastras; and so far as the Plaintiff's share is concerned, the sale cannot be confirmed." This seems to be the ground on which he proceeded; for he gave the Plaintiff a decree for one moiety of all the property claimed, except a small portion which he held was the separate acquisition of the father.