HANMANDAS RAMDAYAL Vs. VALABHDAS SHANKARDAS

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the First Class Subordinate Judge of Dhulia. The plaintiff was the son of the 5th defendant, these two persons constituting an undivided family. It appears that among the family assets was a firm conducted in the name of Khushaldas Damodardas. In 1904, the present defendants Nos. 6 and 7 filed a suit in the Court of Dhulia to recover a sum of Rs. 22,000 odd, upon certain cotton transactions which they had with the firm of Khushaldas Damodardas. The defendants Nos. 6 and 7, by this suit, sued to recover the money from the present 5th defendant, the father of the plaintiff. It was not then known that the 5th defendant had a son, or that there was any other member of the family, besides the 5th defendant. In March 1905, the claim was decreed against the 5th defendant. In April following, an application was made for execution, and in the course of the execution, the present appellants, who were defendants 1 to 4 at the trial, became the purchasers of two of the properties belonging to the joint, family. In January 1906, the appellants were put into possession of these two properties, and in the following month they obtained a sale certificate. The present plaintiff, who was born in 1900 or 1901, brought this suit against his father, the 5th defendant, and the decree-holders, defendants 6 and 7, as well as against the auction purchasers, the present appellants, claiming a declaration that the plaintiff s half share in the properties did not pass to the appellants at the Court-sale, and claiming also possession of his half share on equitable partition, together with mesne profits.

(2.) The learned Judge of the lower Court has allowed the plaintiff s claim. Upon the view which the learned Judge below took of the case, the terms of his decree are formally correct, except in one particular, and that is, in his description of the plaintiff s share as a "half share" in the plaint houses. It appears to me, that the word "half" occurring in these passages in the decretal order should be altered to the word "undivided" and with this verbal correction, the decree, as it stands, is a correct order, assuming that the learned Judge s view on the law of the case is correct.

(3.) On behalf of the present appellants, two points have been taken by their learned counsel. The first of them may, I think, be disposed of in very few words. The contention here is that on the facts of the case, the lower Court should have held that the son s interest also passed at the Court-sale. The learned Judge below has disallowed the defendants contention upon this point in reliance upon this Court s ruling in Timmappa v. Narsinha Timayya (1913) I.L.R. 37 Bom. 631 : 15 Bom. L.R. 794. I have no doubt that the learned Judge was right in thus disposing of the point, and that no distinction can be drawn between the present facts, and those upon which the case of Timmappa v. Narsinha Timayya was decided. It is unnecessary for us to consider whether the ruling in Timmappa s case could be distinguished, if in fact, the creditor s suit of 1904 had been brought against the joint family firm. For, I am clear upon the facts on this record, that this suit was not so brought, but was brought against the father personally. I hold, therefore, following Timmappa v. Narsinha Timayya, that the learned Judge below was right in deciding that the son s share did not, in fact, pass to the purchasers, at the auction sale.