1. The plaintiffs brought this suit to recover the money due under a mortgage-bond and for an order for the sale of the mortgaged premises for the satisfaction of the mortgage-debt. The bond was executed on the 29th March 1873, by the defendant Sheodyal, and the claim for the sale of the whole of the mortgaged property is resisted by some of the sons of Sheodyal.
2. The lower Court holding the defence valid, decreed only the sale of Sheodyal's interest. The plaintiffs appealed; and this Court, on the 7th July 1879, decided that the decision of the lower Court would be right if the property mortgaged was not the self-acquired property of Sheodyal. It appears that the plaintiffs alleged that the mortgaged property had been acquired by Sheodyal alone, and therefore the sons of Sheodyal could not claim any share in it. This point was overlooked by the lower Court. Hence the case was remanded to try the issue
"whether the property mortgaged was the self-acquired property of Sheodyal or the ancestral property of the family."
3. The lower Court has decided this issue against the plaintiffs. It was pressed upon us, that we are not bound by the decision of this Court dated the 7th July 1879.
4. As regards the issue directed to be tried, the facts found are these: Mouza Majhi Ilburpore, eight annas of which was mortgaged in the bond, the basis of this suit, was a lakheraj property. It was resumed by Government, and temporarily settled with one Debee Prosad for twenty years. Debee Prosad was the minahidar of the mouza, and in the settlement-proceeding he was treated as its owner. On the 3rd June 1845, Debee Prosad granted it in zurpeshgee to one Teknarain and the mother of Sheodyal, Jeet Koer. The latter, in this transaction, acted as Sheodyal's guardian, Sheodyal being then a minor. For the money due under the zurpeshgee and other mortgage instruments, and also for cash advances received, Debee Prosad again, on the 16th November 1846, conditionally sold to Teknarain and Sheodyal respectively eight-annas of the mouza in question. The equity of redemption of Debee Prosad was brought to sale in execution of a decree; and on the 10th May 1847, was purchased in the same shares by Gunga, son of Teknarain, and Sheodyal. On the expiration of the twenty-year settlement, the property was permanently settled with the purchasers in the year 1859. In this settlement-proceeding also, Sheodyal and Gunga were treated as owners in the place of Debee Prosad. The lower Court, upon these facts, finds that the property was purchased with the income of the ancestral property. In that finding I concur. Originally the zurpeshgee advance was made when Sheodyal was a minor, and the property was purchased when he had just attained majority. It is not shown that Sheodyal at that time was possessed of any separate funds. Under these circumstances, it would be but reasonable to draw the inference that the purchse-money and the money advanced upon mortgage came from the income of the ancestral property, which is proved to be pretty large.
5. Having come to this conclusion, the lower Court holds, that the property in question comes within the category of ancestral property, in which the sons of Sheodyal are co-owners with him. In this opinion I do not concur, because, when the property was acquired out of the income of the ancestral property, none of the sons was born. Bia Singh, one of the witnesses examined by the defendants on the 5th January 1880, says: Rughu Nath Singh, the eldest son of Sheodyal, died last year, when he was twenty-five years of age. The eldest son was, therefore, born in the year 1854. Therefore the question which we have to determine is, whether, under the Mitakshara law, a son on his birth becomes a joint owner with his father in a property purchased by the father before his birth out of the income of the ancestral property. I think this question should be answered in the negative. An examination of the Mitakshara law will show that the son on his birth becomes a co-owner only in a property which was inherited by the father from his father or other lineal ancestor within three degrees.
6. The author of the Mitakshara, treating of the subject of equal rights of father and son, says: "In such property, which was acquired by the paternal grandfather, through acceptance of gifts, or by conquest or other means [as commerce, agriculture, or service (Balam Bhatta) ] 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.
7. Thus, while the mother is capable of bearing more-sons, and the father retains his worldly affections, and does not desire partition, a distribution of the grandfather's estate does, nevertheless take place by the will of the son.
8. So, likewise, the grandson has a right of prohibition, if his unseparated father is making a donation, or a sale, of effects inherited from his grandfather; but he has no right of interference, if the effects were acquired by the father. On the contrary, he must acquiesce, because he is dependent.
9.
"Consequently the difference is this, although he has a right by birth in his father's and his grandfather's property, still, since he is dependent on his father in regard to the paternal estate, and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father's disposal of his own acquired property; but since both have indiscriminately a right in the grandfather's estate, the son has a power of interdiction if the father be dissipating the property"
(Subodhini).
10. It is quite clear from these passages that a son has the right to interfere with the father's alienation in properties inherited from his father; but he has no right of interference if the property is acquired by the father.
11. That this property was acquired, and not inherited, according to the Mitakshara, will appear from the following passages:
12. An owner is by inheritance, purchase, partition, seizure, or finding," p. 8, chap. 1, Section 1. He then explains these words thus:
13. Unobstructed heritage is here denominated 'inheritance.' 'Purchase' is well known. Partition, intended heritage subject to obstruction," etc., p. 13, chap. 1, Section 1.
14. Unobstructed heritage' is defined thus,--
"the wealth of the father or of the paternal grandfather becomes the property of his sons or of his grandsons in right of their being his sons or grandsons; and that is an inheritance not liable to obstruction,"
p. 3, chap. 1, Section 1.
15. Speaking of the right of the father to make unequal partition, the author of the Mitakshara says:
"When a father wishes to make a partition, he may, at his pleasure, separate his children from himself, whether one, two, or more sons."
No rule being suggested (for the will is unrestrained), the author adds, by way of, restriction,--he may separate (for this term is again understood) the eldest with the best shares; the middlemost with a middle share; and the youngest with the worst share.
This unequal distribution supposes property by himself acquired. But if the wealth descended to him from his father, an unequal partition at his pleasure is not proper, for equal ownership will be declared.
16. These passages show that the father has no right to make unequal distribution in respect of "property descended to him from his father." But in respect of any other property he can make an unequal distribution.
17. The result is, that a son becomes co-owner with his father only in a property which was inherited from the father of the latter. But a property acquired out of the income of the ancestral property is not a property inherited. It is true that if a property be purchased out of such income after the birth of the son, the latter acquires a joint interest in it. But this is so, not under any especial texts of the Mitakshara, but because he is jointly interested in the profits arising out of the ancestral property after his birth. But he has no such interest in the profits of such property before his birth.
18. This view of the Mitakshara law, however, is contrary to the ruling in Sudanand Mohapattur v. Soorjoomonee Dayee 11 W.R. 436. We cannot, therefore, dispose of this case upon the ground mentioned above without reference to a Full Bench; but this is not necessary, as we arrive at the same conclusion upon another ground.
19. Assuming that the property in dispute is ancestral, and the mortgage executed by the father is not valid against the sons, the plaintiff is still entitled to recover the debt by the sale of the ancestral joint property of the father and the sons, because, supposing that the debt was contracted for personal purposes of the father, still the ancestral property in the hands of the sons is liable for the debt, it being not proved to have been contracted for immoral purposes Luchmun Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855.
20. But it has been said that this point is no longer open for decision, the remand order of this Court having decided that the plaintiff would be entitled to a decree only in the event of his establishing that the mortgage-property was the self-acquired property of the father. But we find that the learned Judges who remanded the case did not express any final opinion on it. No decree was drawn up, and we are of opinion that, under the circumstances, we can deal with the case as if it came up for decision before us for the first time.
21. We, therefore, set aside the decree of the lower Court, and direct that the plaintiff shall recover the amount claimed, with interest upon the principal at the rate of 6 per cent, from the date of the suit to this date, and with further interest at the same rate upon the aggregate sum adjudged in favour of the plaintiff from this date to the date of payment, by the sale of the mortgaged premises or any other joint ancestral property belonging to the defendant. The defendants other than Sheodyal Singh shall not be personally liable. The plaintiff is entitled to recover costs incurred in both Courts from the defendants.
MaClean, J.
22. Although I am disposed to concur with the Subordinate Judge in thinking that the debt secured by the mortgage of 1873 was not wholly justified by necessity, I think that the answer to the first question in Luchman Dass v. Giridhur Chowdhry I.L.R. 5 Cal. 855 is binding upon us, and governs this case That decision was passed after the opinion of the Division Bench was pronounced in this case on the 7th July 1879, and, under the circumstances explained in my learned colleague's judgment, we are not bound by that opinion. I therefore concur in the proposed decree rendering the whole estate, ancestral or otherwise, inclusive of the mortgaged property, liable for the debt.
23. As the conflict between the cases of Sudanand Mohapattur v. Bonomallee Doss 6 W.R. 256 and Sudanand Mohapattur v. Soorjoomonee Dayee 11 W.R. 436 has reference to a point which is immaterial to the case now before us, I think it unnecessary to express any opinion as to whether property purchased from the income of ancestral property and not alienated before the birth of a son becomes vested in the latter on his birth.