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1883 Supreme(SC) 22
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD FITZGERALD, SIR BARNES PEACOCK, SIR ROBERT P. COLLIER, SIR RICHARD COUCH, AND SIR ARTHUR HOBHOUSE.
BABOO HURDEY NARAIN SAHU - Appellant
Versus
PUNDIT BABOO ROODER PERKASH MISSER - Respondents
On Appeal from the High Court in Bengal.
Decided On : December 5, 1883.
Solicitor for the Appellant: T. L. Wilson.
Solicitor for the above-named Respondent: H. Treasure.
In a simple money decree execution sale of a father's interest in a Mitakshara joint family estate, the purchaser acquires only the share the father would have received upon partition, not the entire joint property.
Headnote:(A) Mitakshara law - Joint family estate - Execution of simple money decree - Rights of purchaser - Where a decree is obtained for the payment of money and the "rights and interests" of a father in a joint family estate are sold in execution, the purchaser acquires only the interest the father would have been entitled to upon partition.
(B) Execution sale - Distinction between simple money decree and mortgage decree - In the case of a simple money decree, the sale of the judgment debtor's interest in joint property does not transfer the entire property but only the debtor's share as determined by the laws of succession and partition.
Facts of the case:
A simple money decree was executed against a father who held an interest in a joint family estate governed by Mitakshara law. The property, described as an eight-annas share, was attached and sold. The sale certificate specified that the purchaser acquired whatever rights and interests the judgment debtor had in the property. A dispute arose as to whether the purchaser acquired the entire eight-annas share or only the father's undivided interest therein.
Findings of Court:
The court found that the purchaser acquired only the father's right to demand partition and the share he would have received upon such partition. Given the presence of a mother and a son, the father's interest was determined to be one-third of the eight-annas share.
Issues: The primary issue was whether the purchaser of the judgment debtor's rights and interests in a joint family estate under Mitakshara law acquires the entire property or only the share the debtor would be entitled to upon partition.
Ratio Decidendi: The court held that the purchase of a father's "rights and interests" in joint family property via a simple money decree operates as a partition at the time of sale. The purchaser steps into the shoes of the judgment debtor and is entitled only to the share the debtor would have received if a partition had been made.
Result: Appeal dismissed; decree of the High Court affirmed.
Act Referred
Act X. of 1877: S.578
APPEAL from a decree of the High Court (April 23, 1881, and Sept. 9, 1881, in review) reversing a decree of the Judge of Bhagulpore (July 25, 1877) whereby the suit was dismissed.
The facts of the case appear in the judgment of their Lordships.
The main question was as to the rights in joint family estate, which, under Mitakshara law, accrue to a purchaser of the fathers right, title, and interest therein, sold in satisfaction of debts incurred by the father.
Doyne, and G. W. Arathoon, for the Appellant, contended that the manager who brought this suit on behalf of the infant Plaintiff had not been properly appointed by the Collector, and that an order in that behalf made by the District Judge was ultra vires under Act XL. of 1858 . [Sir Richard Couch —The point has not been taken in the Courts below, and is purely formal. Sir Barnes
Law. Rep. 11 Ind. App. 26 ( 1883- 1884) Baboo Hurdey Narain Sahu v. Pundit Baboo Rooder
104
Peacock referred to sect 578 of Act X. of 1877 ]. There has been no waiver of the defence that it was necessary to see whether this suit was instituted by a person legally competent to do so and represent the minor. [Mayne-—He is at least guardian ad litem.] See sect. 12 of Act XL. of 1858 . The thing sold here was the whole of the eight-annas share. The father was manager of the estate and guardian of the son. His debts, unless contracted for illegal and immoral purposes, bind the estate Suraj Bunsi Koer v. Sheo Proshad Singh (Law Rep. 6 Ind. Ap. 88, 94, 106.); Girdharee Lall v. Kantolall (Law Rep. 1 Ind. Ap. 321.). [Sir Barnes Peacock —Here there was only the fathers interest sold, what was it ? Has the mother a share ?] There is a difference as to that in the three Presidencies. See Sumrun Thakoor v. Chundun Mun Misser (Ind. L. R. 8 Calc. 17.); Badri Roy v. Bhugwat Narain Dobey (Ibid. p. 649.). Without a partition a widow could take no title to a share, only maintenance, and a mother can be in no higher position.
Mayne, and Macrae, for the above-named Respondent, contended that the Appellant, by his purchase, obtained the fathers interest in the eight-annas share, which was an undivided one-third share thereof only. The Respondent was entitled to a decree for possession of the whole eight annas, subject to a declaration that the Appellant had acquired the said undivided one-third share Deendyal Lai v. Jugdeep Narain Singh (Law Rep. 4 Ind. Ap. 247.).
Doyne replied.
The judgment of their Lordships was delivered by
SIR BARNES PEACOCK —
Three questions have been raised before their Lordships in the hearing of this appeal. The first was disposed of in the course of the argument. It was this that the suit was brought by the manager appointed by the Court of Wards on behalf of the infant Plaintiff; and that the manager had not authority to represent the Plaintiff in it. Without considering whether he had authority or not, their Lordships were of opinion that, if the Plaintiff had a right to sue, the objection was only a formal one, and could not be allowed to be raised in the present appeal. The next and the principal question in the case, was, what right or interest in the property which is the subject of the suit was acquired by the Appellant, Hurdey Narain, by his purchase at the sale in execution of a decree which he had obtained against the father of the Respondents, Shib Perkash Misser. It appears that Shib Perkash Misser was indebted to Hurdey Narain, partly on account of a mortgage, and partly for further advances; and that Hurdey Narain brought a suit against him in order to recover the debt, and obtained a decree on the 4th of March, 1873. The decree was the ordinary one for the payment of the money; and this case is distinguishable from the cases where the father, being a member of a joint family governed by the Mitakshara law, had mortgaged the family property to secure a debt, and the decree had been obtained upon the mortgage and for a realisation of the debt by means of the sale of th
