Suit by sons for possession of their shares.

The following three questions have been referred to the Full Bench by a Divisional Bench of this Court, of which I was a member:

(i) Whether a mortgage decree for sale simpliciter, without any personal liability, obtained against a father alone on a mortgage of the joint family property created by him for a purpose not binding on the family is binding on the son’s share by the application of the principle of pious obligation;

(ii) Whether a sale held of the joint family property in execution of such a decree is binding on the son’s share and

(iii) What is the period of limitation for the son’s suit to set aside the said decree and the sale held in execution thereof.

The relevant and short statement of facts which led up to this reference may be stated:-Hajee Abdul Rahiman, the 2nd defendant in the suit, obtained in a partition effected with the other sharers items 2 to 7 and 9 to 11 of the plaint schedule. Subsequently he acquired items 1 and 8 from his brother Hajee Muhammad Ibrahim Sait. On 5th December, 1929, the 2nd defendant executed a mortgage deed hypothecating items 1 to 9 for a sum of Rs.1,50,000 in favour of the 1st defendant company, the Provident Investment Company, Ltd., Bombay. As the mortgage amount was not paid, the company filed O.S. No.1442 of 1932 on the original side of the Bombay High Court and obtained a preliminary decree for sale on 16th November, 1932. In due course, final decree for sale was passed on nth July, 1933. During the execution proceedings, in order to prevent the sale and to gain time, the 2nd defendant offered two more items, items 10 and 11 of the plaint schedule as collateral security. The High Court, by a consent order dated 30th August, 1934, accepted the arrangement and adjourned the sale. But as the decree amount was not paid within the extended time, the items mortgaged as well as the two items given as additional security were brought to sale. The decree-holder became the auction-purchaser. The sale of items 1 to 9 was confirmed on 22nd November, 1935, and that of item 10 was confirmed on 26th June, 1936. The auction-purchaser took delivery in April, 1936. Thereafter, the company sold the 9th item to third parties. As the sale proceeds were insufficient to discharge the decree amount, on 16th March, 1937, a personal decree was passed against the 2nd defendant for the balance.

Abdul Hameed Sait, a son of the 2nd defendant and his son Adam Sait, minor represented by his father, filed O.S. No.17 of 1946 on the file of the Court of the Subordinate Judge of Ootacamund in forma pauperis for a declaration that the decree in O.S. No.1442 of 1932 on the file of the High Court, Bombay, and the sale held in execution thereof were not binding on them, for possession, of the properties for mesne profits and for other incidental reliefs. The learned Subordinate Judge dismissed the suit. The plaintiffs preferred A.S. No.619 of 1948 to this Court in forma pauperis. It may also be mentioned at this stage that the reference was made on the assumption that Hindu Law governs the parties. It is also admitted that the mortgage executed by the 2nd defendant was neither for necessity nor for the benefit of the joint family estate. It is not disputed that the entire mortgaged property was sold in execution of the mortgage decree for sale.

On the aforesaid facts and the admissions made by the parties, the aforesaid three questions were formulated for decision. The first two points may be taken up together. The learned counsel for the appellants contended that the mortgage deed executed by the 2nd defendant for purposes not binding on the joint family estate was illegal and, therefore, the decree obtained on the foot of that mortgage and the sale held in execution thereof were equally bad and not binding on the other members of the family as the mortgage decree and the sale held were only the mode of working out of the rights conferred under the mortgage deed. The learned counsel for the respondents