Chapman, J.:— I have had the advantage of reading the judgment about to be delivered by Jwala Prasad, J. I prefer not to express any opinion upon the question whether a member of a joint family can impugn a mortgage made before he was born by the managing member. A daughter's son is the equivalent of a son according to the Mitakshara. He is therefore a member of his mother's father's family, but a daughter's son's son is not in any practical sense regarded as member of any family but his own. I am of opinion that when Mathura Prasad in the present case inherited the estate of his mother's father the estate did not then vest as an ancestral property so far as the sons of Mathura Prasad are concerned. Mathura Prasad inherited the property in the capacity of being by fiction an immediate member of his mother's father's family. But that fiction while it includes Mathura's brothers does not extend to his eons and so far as they are concerned it is not ancestral property. On the death of Mathura Prasad the property so inherited was his assets in the hands of his sons and could be proceeded against in execution of the decree obtained against him. It was not open to the sons to object on the ground of immorality. I agree that the appeal should be dismissed with costs.

2. Jwala Prasad, J.:— This is an appeal from the order of the Subordinate Judge of Muzaffarpur, dated 5th August, 1916, rejecting an objection of the appellants under Section 47 of the CPC, to the sale of the property in dispute in execution of a decree. The appellants are sons of one Mathura Prasad. Appellant 1, Bishwanath was born on 29th April, 1907, and appellant 2, Bharat Prasad, was born on 4th January, 1912. The mortgage bond was executed by the appellants' father Mathura Prasad in favour of the respondent on 14th March, 1900, i.e, prior to the birth of the appellants. On 2nd August, 1913, the respondent obtained a compromise decree against the father of the appellants on the basis of the aforesaid mortgage bond. The appellants were not made parties to the suit. Mathura Prasad, the mortgagor judgment-debtor, died some time in 1914. The mother of the appellants was appointed their guardian under Act 8 of 1890 by the District Judge of Muzafferpore. On 3rd August, 1915 the decree in question was executed substituting the appellants in place of the deceased father and praying for the sale of the property mortgaged. The property mortgaged is the property which originally belonged to the maternal grandfather of Mathura Prasad, the father of the appellants, and was inherited by Mathura Prasad upon the death of his maternal grandfather who died without any male issue. The appellants filed objection under Section 47 of the CPC, objecting to the execution of the decree and the sale of the property mortgaged. The objection has been overruled by the Subordinate Judge. The principal contentions raised by the appellants before us are as follows:

(1) that the property mortgaged was the ancestral property of the appellants' father which after the death of their father has come into the hands of the appellants by right of survivorship under the Mitakshara law. It is not an asset in their hands and cannot be liable to be sold in execution of the mortgage decree against their father; (2) that the debt for which the mortgage-bond was executed was illegal and illusory and was tainted with immorality, for which the appellants or the mortgaged property cannot be made liable; (3) that the mortgage-decree dated 2nd August, 1913 was not made final or absolute under the Code of Civil Procedure and is not capable of execution. As to the first contention the mortgage-bond dated 14th March, 1900 was executed prior to the birth of both the appellants. By the mortgage-bond the interest of the appellants' father was completely transferred to the mortgagee, subject to the right of redemption in the mortgagor. The appellants obtained a vested interest in the equity of redemption only which was left in their father at the time of their birth. A son under the Mitakshara law obtains a vested interest in the ancestral property at his birth and by his birth and con-not object to alienations validly made by his father before he was born or begotten: vide Mayne's Hindu law, S. 342. In Ch. 8, S. 1, Ch. 1 of the Mitakshara dealing with the right of partition of property it is said:

“for if the property vested in the son by birth alone, the estate would be common to the son as soon as born.”

3. Thus assuming that the property was ancestral and that the mortgage was improper or that the money was raised by the appellants' father for immoral purposes, it is obvious that the mortgage is good against the appellants as they had no interest in the property prior to their birth. This was the view taken by the Calcutta High Court in Bholanath Khettry v. Kartick Kissen Das Khettry(1), by the Allahabad High Court in Chuttan Lal v. Kallu(2). Their Lordships of the Privy Council in Girdhari Lall v. Kantoo Lall(3) applied the principles of Mitakshara law in Cl. 1, S. 1, paras. 22 and 27, to Mithila, and held that:

“a son is not entitled to any interest in the ancestral property sold by the father before his birth.”

4. Therefore under the text of the Mitakshara law and according to the interpretations thereof by the judicial pronouncements, the appellants cannot question the validity of the mortgage or the liability of the property to be sold in execution of the mortgage decree in question, even if the property was ancestral and the debt incurred was tainted with immorality, or was illegal or illusory, as the transfer by mortgage was prior to any right in the property having accrued to the appellants by their birth. Now the property in question which was inherited by the appellants' father from his maternal grandfather could not be said to be an ancestral property in the limited sense of it under the Hindu law, in which the appellants acquired by birth an interest jointly with their father. In Cl. 5, S. 5, Ch. 1 of the Mitakshara it is said that in the property which:

“was acquired by the paternal grandfather… the ownership of father and son is notorious and therefore partition does take place. For, or because, the right is equal or alike, therefore partition is not restricted to be made by the father's choice; nor has he a double share.”

5. The son's right to the partition is declared to be in the paternal grandfather's effect. A son by birth does not acquire a right equal to his father in property which has come to the father from his maternal grandfather. In Cl. 3, S. 1, Ch. 1 of the Mitakshara it is said:

“the wealth of the father or of the paternal grandfather becomes the property of his son or of his grandson in right of their being his son or grandson.”

6. Clause 27, S. 1, Ch. 1, says:

“Therefore it is a settled point that in the “paternal” or “ancestral” estate the right is by birth.”

7. The word “ancestral” is a translation of the Sanskrit word “pitameh” which literally maans father's father, and not mother's father nor any ancestor generally. The ancestral property under the Hindu law is therefore used in the technical sense to mean:

“property which a man inherits from a direct male ancestor not exceeding three degrees higher than himself in coparcenary with his own issue (Mayne's Hindu'law, para. 275).”

8. Further down in the same paragraph the author says:

“on the same principle the property which a man inherits from a female or through a female as for instance a daughter's son, or which he has taken from an ancestor more remote than three degrees, or which he has taken as heir to a priest or a fellow-student, would not be ancestral property.”

9. Recently their Lordships of the Privy Council in Atar Singh v. Thakar Singh(4) have defined the meaning of ancestral property in Hindu law in the following word:

“It is through their father as an heir of the above named Dhana Singh that the plaintiff claimed, and unless the lands came to Dhana by descent from a lineal mala ancestor in the male line through whom the plaintiffs also in like manner claimed, they are not deemed ancestral in Hindu law.”

10. Accordingly the suit by the sons of Dhana Singh to set aside the alienations made by him of the properties inherited from his maternal grandfather was nonsuited. Therefore, in the present case the property inherited by the appellants' father was not an ancestral property in the sense that they acquired a joint interest in the property with their father so as to question the alienation made by him. This was the view also taken in an exactly similar case in Jamna Prasad v. Ram Partap(5). The appellants have relied upon the Privy Council ruling in Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu(6) followed in Vythinaiha Ayyar v. Yeggia Narayana Ayyar(7). But the point that arises in this case did not arise in the Privy Council case, where two brothers, who were joint in estate, inherited the property of their maternal grandfather and held the property jointly till the death of one of the brothers. The principle of joint ownership in that case applied and it was held that after the death of one of the brothers the other succeeded by law of survivorship. Here the appellants being the grandsons of the daughter of the maternal great-grandfather, the last owner of the property, are not at all heirs under the Hindu law. They could succeed in the absence of any heir only as distant bandhus. At the time when the succession to the property of the maternal greatgrand father opened, the appellants did not inherit nor were owners of the property with their father. In fact they did not exist even at the time the succession opened. The rule therefore laid down in the Privy Council case: Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu does not apply to the present case. A Full Bench of the Madras High Court: [Karupai Nachiar v. Sankaranarayanan Chetty(8)] held that the rule in the Privy Council case did not apply to the descent of stridhanam from a mother to her son, or the descent of the property of a maternal uncle to the sons of his sister. Similar was the view taken by the Bombay High Court in Bai Parson v. Bai Somli(9). But these decisions related to the succession to stridhan, etc., and have no bearing on the present case. I am therefore of opinion that the appellants did not acquire any interest in the property in dispute jointly with their father and cannot dispute the mortgage of the property by their father. The Subordinate Judge is therefore right in holding that the appellants have no locus standi. In this view the Subordinate Judge did not consider it necessary to go into the question whether the debt was immoral or illegal, although evidence was adduced by the parties in the case. On the evidence the Subordinate Judge would have been justified in holding that it has not been proved that the debt was incurred by the appellants' father for immoral purposes. The oral evidence is worthless on this point. The onus was upon the appellants to prove that the debts were applied for immoral purposes. The mortgage bond sets out the purpose for which the loan was taken as a proper one. The debt was shown as a proper and binding debt by the guardian of the appellants in the application for guardianship to the District Judge after the death of their father, and permission was sought to take loans in order to pay off the decree in question.

11. In these circumstances it cannot be held that the debt was not a proper one, or was illusory or in any way tainted with immorality. This disposes of the second contention of the appellants. The last contention of the appellants that the decree in question was not made absolute was not pressed by the learned counsel for the appellants. There is also a direction in para. 4 of the compromise petition which is incorporated with and made a part of the decree, and after the date of payment fixed in the decree the decree-holder would be entitled to raise any objection on the ground that the decree was not made absolute. The objection raised is of a technical nature and has not been pressed, and is therefore overruled. The result is that the appeal is dismissed with costs.

V.S/R.K

12. Appeal dismissed.