Judgement

Appeal from a judgment and decree of the High Court (February 3, 1911) reversing the judgment and decree of the Subordinate Judge of Burdwan.

Beni Madhab Das obtained decrees against Chhatrapat Singh for money borrowed by him, and on his application a patni taluqa was ordered to be sold in execution, the sale being fixed for February 13, 1904. The appellants, Sripat Singh and Jagatpat Singh, who were the only sons of Chhatrapat Singh, thereupon each instituted a suit alleging that the property was that of a Mitakshara joint family, consisting of their father and themselves, and that the decree was in respect of debts contracted, not for lawful purposes of the joint family, but for immoral purposes. They each claimed a third share and prayed for an injunction. An interim injunction was made ex parte restraining the

61 Law. Rep. 44 Ind. App. 1 ( 1916- 1917)

Sripat Singh V. P. K. Tagore 162

execution proceedings. Upon August 13, 1904, Beni Madhab Das showed cause against the injunction and alleged that the property belonged separately to Chhatrapat Singh. The injunction was dissolved ; the judge, however, held that as the insertion of the words " right, title, and interest " in the sale order was not calculated to affect the interest of either party they should be added to the description in the sale notices. The sale notices accordingly described the property to be sold as " all right, title, and interest of the judgment debtor in the said patni, with all its rights and appurtenances." The property was bought by Beni Madhab Das, who afterwards transferred it to the respondents Sarat Chandra Mukerji and Shrish Chandra Mukerji. Neither of the suits above referred to proceeded to trial.

On July 3, 1905, Chhatrapat Singh and his sons, the appellants, instituted the present suit in which, so far as is material to the appeal, the appellants claimed a declaration against Beni Madhab Das that the sale was inoperative as to two thirds of the property, of which portion they claimed possession. They again alleged that the property was joint family property and that the debt was incurred for immoral purposes. The respondent. Sir P. K. Tagore was joined as a defendant, and Chhatrapat Singh as a plaintiff, in relation to a claim to set aside the sale as a whole upon a ground not material to the appeal.

Both Courts in India held that the father and two sons formed a Mitakshara joint family of which the father was managing member.

The Subordinate Judge found that the debts upon which the decrees were founded were for legal necessities and were binding upon the joint family. He held, however, that, since the order and notices only provided for the sale of the debtors " right, title, and interest " in the taluqa, only his share passed to the purchaser.

The High Court upon appeal reversed the decision. The learned judges agreed with the finding that the debts were binding upon the joint family. They were of opinion that what was sold was the whole property over which Chhatrapat Singh had a disposing power, whether that power existed in virtue of sole separate ownership, or under the Mitakshara law as kartah of the joint family. They thought that that was the intention of the Court in making the order, and found that the price paid by the purchaser was the full value of the entire taluqa.

1916. Nov. 9, 10. Be Gruyther, K.C., and Sir W. Garth, for the appellants. The sale being of the " right, title, and interest " of the judgment debtor, only his individual interest in the property passed to the purchaser. The sale was not intended to, and did not, pass the shares of the appellants. [Reference was made to Deendyal Lal v. Jugdeep Narain Singh (( 1877) L. R. 4 Ind. Ap. 247.); Hurdey Narain Saha v. Rooder Perkash Mitter (( 1883) L. R. 11 Ind. Ap. 26.) ; Simbhunath Panday v. Golab Singh. (( 1887) L. R. 14 Ind. Ap. 77.)]

Sir R. Finlay, K.C., and Dunne, for the respondents Mukerji. The effect of the order was that the whole interest over which th