The court clarified that the 12 years lease granted by the Collector to the manager of the joint family was the property of the manager alone and not the joint family property. It also established that the attachment and sale of the unexpired portion of the lease was valid and not in infringement of the Civil Procedure Code.

Kotva—The proved and admitted facts of the case are as follows:

The plaintiffs and their uncle Rajaram are members of a joint family, Rajaram being the manager. Rajaram as manager had borrowed some money from Vithal Sadasheo. The latter in Suit No. 191 of 1903 obtained a decree against him. The execution of the decree was transferred to the Collector who leased the family lands for 12 years to Rajaram on the 3rd October, 1907. Asaram, defendant 1, in execution of his decree in Civil Suit No. 36 of 1912 against Rajaram caused an unexpired term of 2 years out of the 12, years lease to be attached and sold. Subhankhan, defendant 2, purchased the same.

2. The present suit is for a declaration that the lands are joint family lands which defendant 2 is not entitled to take possession of, and for possession, and in the alternative for joint possession to the extent of the plaintiffs' half share. The lower Courts have dismissed the suit.

The points urged in this Court are-

(1) that the 12 years lease by the Collector to Rajaram was the joint family property of the plaintiffs and Rajaram; and

(2) that the attachment and sale of the unexpired part of the lease was in infringement of paragraph 11 of the 3rd Schedule to the Civil Procedure Code.

3. As regards the first point I agree with the lower Appellate Court in holding that the term of 12 years was the property of Rajaram alone. The Collector was arranging for the satisfaction of a decrial debt and it is not likely that he would grant or think of granting a lease to a joint family represented by Rajaram as its manager and thus give rise to complications in connection with the lease and the enforcement of its terms. If there had been any such intention nothing would have been easier than to indicate it in the lease itself.

The 'allegation in ground No. 1 of appeal that the lease was acquired out of joint funds is not attempted to be supported by anything on the record. No premium was paid for the lease and it is not proved that joint funds were used to carry on the lease. If as remarked by the lower Appellate Court the plaintiffs and Rajaram have been behaving as if the lease were a lease to the joint family that fact can make no difference to the legal rights of Rajaram or of the auction-purchaser.

4. As regard the second point reliance is placed upon the provisos of paragraph 11, and it is contended that the attachment and sale of the unexpired portion of the 12 years lease was void as the Collector was exercising in respect of Rajaram's property the powers conferred by paragraphs 1 to 10. This contention is based on the assumption that under paragraph 11 in every case where the Collector exercises any powers or duties under paragraphs 1 to 10 the whole of the judgment debtor's immoveable property comes under the jurisdiction of the Collector and the judgment-debtor becomes incompetent to deal with lit without the Collector's written permission.

5. In my opinion this assumption is not correct. When the execution of a decree has been transferred under S. 68, Civil Procedure Code it is open to the Collector to proceed under either paragraph 1 or paragraph 2. When he proceeds under paragraph 1 he can exercise powers or duties only in respect of the judgment debtor's immoveable property ordered to be sold which may be the whole or a part of ''such property. Where he proceeds under paragraph 2 the whole of his available immoveable property may be dealt with in accordance with paragraphs 3 to 9. As the Collector in the present case was proceeding only under paragraph 1 his jurisdiction only extended to the property ordered to be sold and the 12 years lease granted by him was outside his jurisdiction. The judgment-debtor was under no disability in respect of it.

6. This very lease for 12 years was considered by a Bench in Motiram v. Asaram,1920 53 IndCas 776. It was held that Rajaram's disability under paragraph 11, Sch, III, Civil Procedure Code, did not extend to him in his capacity as les