Sir Barnes Peacock, Kt., C.J.@mdashThe parties to this suit not having consented that this Bench should decide the whole of the case upon regular appeal, it is necessary for us to decide the question which has been referred to us by the Division Bench. I do not mean to Bay that the Full Bench cannot decide this regular appeal, but all that we can properly do under the circumstances is to decide the case upon the facts as stated to us, and answer the question which was propounded by the Division Bench. The question is: "A member of a Hindu family living under the Mitakshara law, and having joint family property, died entitled to an undivided share in such property, leaving two widows, him surviving. After his death his widows were sued in their representative capacity in respect of debts incurred by him during his life-time on his own account, and decrees were obtained against the widows. In execution, an interest in certain portions of the joint family property, to the extent of the share to which the deceased was entitled in his lifetime, was sold, and the auction-purchasers obtained possession of it. Can the nephew of the deceased who is one of the surviving members of the joint family, recover possession of such interests, or any portion thereof, from the auction-purchasers."
2. That I think is the only question which is raised in this case. The second question as I understand it refers to other cases, to which we shall presently come.
3. It is stated the widows were sued in their representative capacity, and that the sale took place under a decree against them in their representative capacity. We must assume that the sale took place under decree in that suit. The certificate of sale simply says that the rights and interests of the widows were sold; but assuming that the widows were sued in their representative capacity, the certificate must be considered to apply to such property of the deceased as they took in their representative character. It is contended that, u/s 203 of the Code of Civil Procedure, the execution-creditor was entitled to seize Bhagwan''s share of the undivided joint estate and to sell it. The section is as follows:-- "If the decree be against a party as the representative of the deceased person, and such decree be for money to be paid out of the property of the deceased person, it may be executed by the attachment and sale of any such property. But I apprehend that the meaning of this is that where the decree is against a representative of a deceased person, and the decree is for money to be paid out of the property of the deceased, it must be paid out of such of the property of the deceased person as passed to the representative. If, for instance, under the English law, an executor should be sued for a debt, and a decree obtained against him, I apprehend that as a general rule, you could not, under that decree, seize property which passed to the heir, and not to the executor.
4. Whatever may be the construction of section 203, the property which was seized in execution and sold was not the property of the deceased person at the time it was seized. It was his neither legally, nor equitably, nor had his heirs any legal or equitable interest whatever in it.
5. According to the Mitakshara law, if a member of a joint undivided family dies without a son, and leaving a brother, his widow does not take his share by descent. If he leaves a son, the son takes by descent; but if he leaves only a widow, the survivors take by survivorship, and they hold the property which they take by survivorship legally and equitably for themselves, and not in trust for the heirs of the deceased. The deceased''s heirs have no interest either legally or equitably in the share which passes by survivorship to the surviving co-sharers. That will be made very clear if you suppose the case of a joint family consisting of father and two sons and two uncles, the brothers of the father taking property by descent from the father of the father and of the two uncles. The father and the two sons take one-third, and two uncles each take one-third, that is, they take that which upon partition, would be allotted. Then, suppose that one of the sons dies without issue, leaving a widow, his widow, according to the Mitakshara law, would not take his share in the estate. Then the question is, would it go to the person who would be heir if the widow was dead or had not existed? It clearly does not go to the heir, because the heir would be the surviving brother, and not the father. If it would go to the heir, the surviving brother, would take the whole of the interest of the deceased brother, but the law is that it goes by survivorship, and the survivors take legally and equitably for themselves, and not in trust for the brother of the deceased. Neither the widow of the deceased, nor his brother would take any interest by inheritance from the deceased in the joint family estate. Then, if the estate of the deceased goes over by survivorship, how can it be said, when you seize the share of the deceased after his death, that you are seizing the property of the deceased, or the property of his heirs or representatives? You are seizing the interest which has passed to the survivors by survivorship. That the estate survives, and does not pass to the widow by inheritance, has been held by the Privy Council to be the law. They held that, in the absence of a son, the share of a deceased member of a joint family, under the Mitakshara law, does not go to the widow or to the person who would be next heir of the deceased if the widow were not in existence. It appears to me to be clear that the property seized was not the property of the deceased in the hands of his widows as his representatives, nor was it property over which the widows had any power whatever, or with regard to which they had any legal or equitable right; it was property which belonged wholly, both legally and equitably, to the survivors. If the deceased had left a son, his interest would have gone to the son as his heir, and then his interest, no doubt, would have been assets in the hands of the son for the purpose of paying the father''s debts.
6. It may be that the law does not make any difference as to the liability of the property to satisfy the debts of the deceased, whether it passes to heirs by inheritance, or to survivors by survivorship; and that the survivors take it charged with the debts of the deceased, in the event of his having no other assets. I express no opinion upon that point. It is stated in the Treatise of Yajnavalkya (I am not reading now from the Law of Inheritance, but from that part of the work of the author which treats of the payment of debts, published by Mr. Roer and Mr. Montriou), in text No. 51:-- "He who takes the property of one who leaves no (capable) son, shall pay the debts, that is the debts of the deceased; so he who takes, or marries, the widow; also that son whose personal estate no other has appropriated, and who in such case shall always be deemed fit to inherit property," that is to say, he who marries the widow is also liable to pay the debts out of the assets which would have been available if he had not married her. Also he says, "If one die without any son then, whosoever succeeds to the property."
7. According to this doctrine, whosoever succeeds to the property is liable to the extent of that property to pay the debts.
8. I express no opinion upon the subject, because the case has not been argued, and does not arise in the present suit. If the survivors who take the property by survivorship are liable to pay the debts, they can only be made liable by a suit against them, and not in a suit against the widows. If survivors are liable to payment of debts out of the property taken by survivorship, it is only just and reasonable that they should have an opportunity of showing that no debts were due. If they were sued for the debts in consequence of their taking the interest of the deceased by survivorship, they might show that the deceased left no debts.
9. In this case the interest of the deceased was seized and sold in execution of a decree against the widows. But if the property is to be seized in execution of such a decree, the persons who took by survivorship, and whose property is to be seized, cannot come in the execution case, and show that there was no debt due. When execution issues, and property is rightly seized under a decree, the person whose property is liable to be seized and sold under the decree cannot dispute the validity of the decree; therefore, if this property could be seized under the decree against the widows, the survivors to whom the property passed would be liable to have their property sold for the payment of debt, without having an opportunity of showing that the debt claimed was not due.
10. It is unnecessary for us to decide whether, under a decree against Bhagwan in his life-time, his share of the property might have been seized, for that case has not arisen. According to a decision in Stokes'' Reports, it might have been seized; but the case as against Bhagwan and that against the survivors is very different. So long as Bhagwan lived, he had an interest in this property which entitled him, if he had pleased, to have demanded a partition, and to have had his share of the joint estate converted into a separate estate.
11. The case of Ishan Chandra Mitter v. Buksh Ali Sowdagur Mar. Rep. 614 was quoted as an authority, but that appears to ma to be a very different case. There the widow was sued. The plaintiff alleged that the husband had died, and that he had left a widow and a minor son. In that suit the son being a minor, the question was whether the decree was not in substance a decree against him represented by his mother as his guardian.
12. Great injustice might be done by holding parties too strictly to their statements, and it might fairly be contended that, when a man sued a widow as guardian of her minor son, the suit was in substance against the son. If that suit had been brought against the son, and the widow had come in as guardian to defend it, there would have been no doubt that the property inherited by the son was liable.
13. The same argument applied indirectly, but substantially, to the case of Tarakant Buttacharjee v. Wise 1 Hay''s Rep. 8.
14. I think therefore that this property not being the property of the widow, and not being the property of the heirs of the deceased, could not be made available under the decree against the widow; that if it could be made available at all for payment of the debts of the deceased, it must be in a suit against the survivors to charge the share of the deceased in the joint estate with the payment of the decree, or by suing the survivors for the debt, and asking to have the deceased''s share of the estate made-available in the hands of the survivors to the same extent as that to which it would have been made available if the deceased had left a son, and the estate had gone to him by inheritance instead of to the survivors by survivorship.
15. I think then that the question must be answered in the affirmative, that the plaintiff has a right to sue the purchaser under that decree, to recover back the estate, inasmuch as the property belongs to him, and the title of the defendant, as a purchaser under the decree against the widows, is an invalid title.
Kemp, J.
16. I never entertained any doubt that the plaintiff took the estate of Bhagwan Lal in right of survivorship. My doubt was whether he took the estate of Bhagwan cum onere that is to say, burdened with the payment of Bhagwan''s debt or not? Unfortunately our reference has been so worded that this point, which is of the utmost importance, has not been decided. The judgment of His Lordship the Chief Justice though it approaches the question very closely, does not solve it. For the rest, I concur in the judgment which has been delivered by the learned Chief Justice.
Jackson, J.
17. I also concur in the answer which it is proposed to give to the first of the two questions referred to the Full Bench.
18. I think that the right, title, and interest of the widows alone were sold to the plaintiff, and that we cannot supply the inference that the right and interest whatever that may have been of the deceased husband passed by that sale. I come to this conclusion for several reasons: firstly, because that interest, whatever it was had passed to the survivors of the joint family, because that interest was not assets in the hands of the widows who were defendants in that suit; and because that interest, if chargeable with the separate debt of Bhagwan in the hands of the survivors, could only be so charged in a suit properly framed to which those survivors were parties.
19. I think therefore that the defendant in this case acquired no title, and that the plaintiff was entitled to judgment.
20. I also think that the case of Ishan Chandra Mitter v. Buksh Ali Sowdagur Mar. Rep. 614 is clearly distinguishable from the present case. Everything in the report of that case, as I read it, points to the supposition that; the widow was sued as guardian of the minor; in other words, it is, as if the suit had been against the minor son who appeared by his mother as guardian. The mother was not in the position of a widow who had taken a separate estate or assets of any kind, and therefore she could not have been made personally liable for the debts for which she was sued in her character of guardian.
21. I therefore concur in making this answer to the question referred to the Full Bench.
Macpherson, J.
22. I concur.
Glover, J.
23. I am of the same opinion.
24. The first question has already been answered. The second question raises the point whether a member of a joint Hindu family, governed by the Mitakshara law, can mortgage his undivided share in a portion of the joint family property, in order to raise money on his own account, and not for the benefit of the family. There are conflicting decisions upon the subject, as pointed out by the Division Bench, by which the question was referred. The cases referred to from Dunbar''s Bombay Reports, and that from the reports of the High Court at Madras, are in support of the affirmative. The case of Cosserat v. Sudaburt Pershad Sahoo 3 W.R. 210 is an authority in support of the negative. This case has been very ably argued by the pleaders on both sides; and in addition to the Mitakshara on Inheritance, translated by Mr. Colebrooke, numerous passages have been cited from the Sanskrit of other parts of the Dharma-Shastra of Yajnavalkya, together with several cases in addition to those referred to by the Division Bench. Amongst others, the pleaders, in support of the affirmative, have referred to the case of Virasvami Gramini v. Ayyasami Gramini 1 M.H.C.R. 471. In that case it was held that, according to the Hindu law, as it prevails in Southern India, one member of a joint Hindu family may sell his undivided share of joint property, and that such share is liable to be seized and sold in execution for the separate debts of the sharer.
25. The decisions founded on the doctrine of the Schools of Southern India and of Bombay, though entitled to great weight are not sufficient to justify this Court in a case governed by the Mitakshara law in overruling a long series of decisions expressly founded upon that law.
26. In Appoovier v. Rama Subha Aiyan and others 11 M.I.A. 75, it was held that an actual partition by metes and bounds was not necessary to render a division of undivided property complete; but that when the members of an undivided family agree among themselves, with regard to a particular property, that it shall henceforth be the subject of ownership in certain defined shares, then the character of undivided property is taken away from the subject-matter so agreed to be dealt with; and each member thenceforth has in the estate a definite and certain share which he may claim the right to receive and enjoy in severalty, although the property itself has not been actually severed and divided.
27. In that case, however, their Lordships stated that they would be unwilling to reverse any rule of property which had been long and consistently acted upon in the Courts of the Presidency; and we must, I think, be guided by the same principle.
28. Now the case referred to in support of the negative of the question, namely, Cosserat v. Sudaburt Pershad Sahoo 3 W.R. 210, was not the first case in which it was held that, according to the Mitakshara law, one member of a joint family cannot alienate his own share of joint family property, without the consent of all the other members. That decision was founded upon a current of authorities supported by the Vyavasthas of Pandits, which it is too late now for the Courts to overrule, even if it were disinclined to agree in the principle established by them.
29. In Nundram v. Kashee Pandee 3 Sel. Rep. (1822), 232 : 6 I.D. (O.S.) 906, the question was put to the Hindu Law Officers of the Court whether it was lawful according to the law current in Tirhoot, for any one of several coparceners, to transfer his share either by sale or gift; to which the Pandits replied that a gift of joint undivided property, whether real or personal, was not valid even to the extent of the donor''s share, and that the property could not be sold or given away, until it was defined and ascertained, which cannot be done without a division; and they referred to the Mitakshara, by which it was said that "partition is the act of ascertaining several individual rights." The Court, acting upon that opinion, affirmed the decision of the lower Court. Afterwards a review having been applied for upon suspicion that the Pandit who had delivered the Vyavastha had been bribed, a fresh Vyavastha was called for from other Pandits of the Court, who answered that property being held in joint tenancy by several sharers, whether it be real or personal, no one of the said sharers has authority, without the permission of the co-sharers, to call any part of the said property his share and to give it away; and they cited as authorities, first Vyasa in Mitakshara:-- "In immoveable property, whether divided or undivided, all the sharers share alike: among them one person cannot sell, mortgage, or give it away; secondly, Narada in the Dattaka Mimansa:-- "Property held in common among many sons cannot, under any circumstances, be alienated." Upon considering the above Vyavastha, the Court ultimately upheld, upon review, the former decision.
30. The Vyavastha given in the original case is quoted as an authority in Macnaghten''s Hindu Law, page 224, Case XVII.
31. The principle of the above case was adopted in the case of Sheo Surn Misser v. Sheo Sahoy 4 Sel. Rep. (1826), 158 : 7 I.D. (O.S.) 150 decided in 1826, upwards of 40 years ago. In that case the Judges of the Sudder Dewanny recorded their opinion as follows:--
The Hindu law, as laid down in Vyavasthas delivered in former cases (referring to the cases above cited), does not permit alienation of lands held jointly by several patnidars or owners to be made by one, without the assent of the others; nor indeed does such alienation hold good even for the aliening partner''s individual share, without the assent of the rest.
In a note to the last case, it is said:-- "The same doctrine was also maintained in a Tirhoot case, wherein Rajah Bedeanand was appellant, against Jay Dutt Jha and others, respondents. The Pandits there also held the sale of joint undivided property to be invalid, without the consent of all the sharers, and not valid even for the seller''s own share while undivided.
32. A Vyavastha similar in effect, and a decision founded upon a similar principle, were given in 1832 in the case of Jivan Lall Sing v. Ram Gobind Sing 5 Sel. Rep. 163 : 7 I.D. (O.S.) 479.
33. The above principle was again acted upon in Sheo Surn Lall v. Jumun Lall 6 Sel. Rep. (1837), 176 : 7 I.D. (O.S.) 827, and in Mussamut, Roopna v. Roy Reotee Rumun S.D. (1853), 344.
33. A similar rule was followed and acted upon in the late Sudder Court of the North-Western Provinces, in the case of Joynarain Sing and others v. Roshun Sing and others 2 S.D.A., N.W. (1860), 162; and in the case of Byjnath Sing v. Ramessur Dyal and others, decided in 1864, the same Court held that, in Provinces where the succession among Hindus is governed by the Benares Shastras, alienation of joint property, even to the extent of the alienor''s own share, is invalid; but that if the property be partitioned, the transfer is legal.
34. In the Vivada Chintamani, by Prasanna Kumar Tagore, page 77, it is laid down that "what belongs to many may be given with their assent." "Joint ancestral immoveable property may be given with the assent of all the heirs." "The assent of all the heirs is required for a gift of joint ancestral property, whether moveable or immoveable."--Page 78. "When the whole property is actually divided, the individual action of the share-holders is valid."--Page 79.
35. In the Mitakshara on Inheritance, it is said, Chapter I, section 1, verse 30:-- "Among un-separated kinsmen, the consent of all is indispensably requisite, because no one is fully empowered to make an alienation, since the estate is in common."
36. I was at one time disposed to think that as one of several members of a joint family can compel partition of ancestral property against the will of others (see Mitakshara, chapter I, section 5, verse 8), so he might, without the will of the others, alienate that share to which he would be entitled upon partition; but upon reflection. I feel that that opinion cannot be maintained according to the true principle of the Mitakshara law. In the case of Appoovier v. Rama Subha Aiyan 11 M.I.A. 57 to which I have already referred, and which was a case governed by the Mitakshara, the Lords of the Judicial Committee say:-- "According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property that he, that particular member, has a certain definite share. No individual of an undivided family could go to the place of receipt of rent, and claim to take from the Collector or Bailiff of the rents a certain definite share. The proceeds of undivided property must be brought, according to the theory of an undivided family, to the common chest or purse, and then dealt with according to the modes of employment of the members of an undivided family. But when the members of an undivided family agree among themselves with regard to particular property that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with, and in the estate each member has henceforth a definite and certain share which he may claim a right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided."
37. According to the law of England, if there be two joint tenants a severance is effected by one of them conveying his share to a stranger as well as by partition, but joint tenants under the English law are in a different position from members of a joint Hindu family under the Mitakshara law; for instance, if a Hindu family consist of a father and three sons, any one of the sons has a right to compel a partition of the joint ancestral property; but upon partition during the life of the father, his wives are entitled to share; and if partition is made after the death of the father, his widows are entitled to shares, and daughters are entitled to participate; see Mitakshara, Chapter VII. If partition be made during the life of the father, and another brother is afterwards born, that brother alone will be entitled to succeed to the share allotted to the father upon partition,--Mitakshara, chapter I, section 6; but so long as the family remains joint, and separation has not been effected either by partition or by agreement, such as that recognised in the case above cited from the Privy Council, every son who is born becomes, upon his birth, entitled to an interest in the undivided ancestral property. In such a case, neither the father, nor any of the sons can at any particular moment, say what share he will be entitled to when partition takes place. The shares to which the members of a joint family would be entitled on partition are constantly varying by births, deaths, marriages, &c., and the principle of the Mitakshara law seems to be that no sharer, before partition, can, without the assent of all the co-sharers, determine the joint character of the property by conveying away his share. If he could do so, he would have the power by his own will, without resorting to partition, the only means known to the law for the purpose, to exclude from participation in the portion conveyed away those who, by subsequent birth, would become members of the joint family, and entitled to shares upon partition. "They who are born, and they who are yet un-begotten, and they who are still in the womb, require the means of support, no gift or sale should therefore be made."--Mitakshara, chapter I, section 1, verse 27.
38. The Court has very carefully referred to the passages quoted from the Sanskrit of the Dharma Shastra of Yajnavalkya; and in addition to the translation which was handed in, they have had a translation made by Baboo Shama Charan Sirkar, the chief sworn interpreter of the Court, as suggested at the time of the argument. The Court sees nothing in those extracts at variance with the opinions above expressed.
39. We are called upon to decide this case according to the Mitakshara law as we find it, and not according to our own views of policy. Whatever our opinions might be, in the absence of the decided cases to which I have referred, I am of opinion that we should not be justified in unsettling the law by overruling that current of authorities by which, for nearly half a century, the law appears to have been settled, and in accordance with the principles of which it appears to have been generally understood and acted upon.
40. I am of opinion that upon the simple fact stated in the second question, Bhagwan Lal had no authority, without the consent of his co-sharers, to mortgage his undivided share in a portion of the joint family property, in order to raise money on his own account, and not for the benefit of the family. The facts are not sufficiently stated to enable this Bench to say whether the nephew of Bhagwan Lal can recover from the mortgagee, without redeeming the same, possession of the mortgaged share, or any portion of it.
