Judgement

APPEAL from a decree of the High Court (July 21, 1875), which reversed a decree of the Subordinate Judge of Tirhoot (April 27, 1874).

The Respondents were purchasers at a sale in execution of a decree upon a mortgage bond, obtained by Bolaki Chowdhry against Adit Sahai, the deceased husband of the Appellant and father of the infants, of a share of an ancestral village standing in his (Adit Sahai) name, and the main question decided in this appeal was whether, under the circumstances stated in their Lordships judgment, as appearing in the suit;, any and what interest passed to the purchasers. The Appellant claimed that inasmuch as the property sold was the joint family estate of Adit Sahai and his sons, the latter did not, under the Mitakshara law and the circumstances of the case, take the same as survivors and without liability to the decree.

The suit was instituted on the 27th of August, 1873, and the substantial allegations in the plaint were, that Bissum-bhurpore (the village above referred to) was ancestral property, in which Adit Sahai’s minor sons were jointly interested with him in his lifetime, and that their estate could not be sold for his personal debts, contracted under no legal necessity, and for mere purposes of extravagance, and that the purchasers bought, with full knowledge of the objection, for small prices. And the prayer was, that the order to give possession to the purchasers, as against the Plaintiff, should be restrained, and the possession of the latter confirmed.

The purchasers and Bolaki Chowdhry put in separate written statements.

They contended that Adit Sahai was a very careful person, but much hampered by ancestral debts and necessary family expenses, to meet which his income was insufficient, and that he borrowed from Bolaki Chowdhry to meet those debts and expenses, as he was justified in doing by Hindu law.

The purchaser Defendants also contended that one of the minors had not been born when the mortgage to Bolaki Chowdhry was executed, and the other, the elder, had not been born when the debts had been incurred by Adit Sahai, to discharge which that mortgage was executed.

The judgment of the subordinate Judge, after condemning Bolaki for lending so large a sum without inquiry as to the necessity, and holding the debt legally invalid so far as the survi- vors were concerned, proceeded as follows, with regard to the Respondents—

" A few words will do to dispose of the case of the auction-purchaser Defendants. They say that they are innocent purchasers for a valuable consideration, and as such they ought not to suffer; but I hold that they are not innocent purchasers in the proper sense of the term, for notice was given before the sale by the Plaintiff that the family property advertised for sale could not legally be sold for the debt of one of the joint members of the family. Notwithstanding this notice, they purchased the property, of course with their eyes wide open. When the record contained such a protest, it was the province of the intending purchasers to inquire whether or not the decree, in execution of which the property was to be sold, was a valid decree against the family ancestral property. When they came forward to purchase, it was to be presumed that they knew the nature of the decree and circumstances surrounding the sale of the property attached. There was no pressure on the family property when Bolaki’s loan was contracted, no recital in his bond as to necessity. Even recital per se is not sufficient. They knew that a son, under the Mitakshara law, is a joint owner with his father in ancestral property, and that without his consent no alienation could be legal. Even if they did not know it, still they had a notice of it before the sale took place. Therefore they are to blame themselves if they suffer for their want of due diligence in instituting inquiry as to the existence of a necessity justifying the debt, in satisfaction of which the proposed sale was to take place