(1.) The plaintiff-respondent brought a suit on a ruzu khata against Anant, father of the defendants-appellants, minors, and his brother Hari, the latter being impleaded on the ground that he was a member of a joint Hindu family along with Anant. Subsequently, on Hari s special oath, the claim against Hari was given up and a decree was passed against Anant alone. After the decree the respondent applied for execution by attachment and sale of certain property, and put in an application that in the sale proclamation not only the right, title and interest of Anant should be included as being put up for sale, hut also the interest of Anant s two minor sons, the appellants Ramchandra and Dattatraya. Notice was issued to the minors and their grandfather appointed guardian ad litem. After framing issues and recording evidence, the Executing Court held that the debt in dispute was not immoral as the appellants alleged, and granted the application of the decree-holder-respondent. The appeal of the minors to the District Court failed, and they now appeal here.
(2.) Three points are taken by the appellants, firsty that the respondent having failed to implead the minors in the suit, could not proceed against them in the darkhast under Order XXI, Rule 66, Clause (e), as he purported to do and the Executing Court had no jurisdiction to hold the inquiry. Secondly, that the debt was tainted by immorality. Thirdly, that the judgment of the lower Appellate Court on this question is too summary, and gives no grounds, and cannot, therefore, be accepted in second appeal.
(3.) The first point, as far as I know, is novel. It has not come up previously before the Cour ts. At the same time it is of some importance. There (are a large number of cases in which the sons have failed to be impleaded in the suit or their names included in the proclamation of sale, and they have subsequently filed suits years after the event for a declaration that their interest bad not passed. It suffices to refer to the cases, such as Timmappa Devara-bhatta. Narsinh Timmaya Hebar 21 Ind. Cas. 123 : 37 B. 631 : 15 Bom. L.R.794, Daya-nanU Pandurang v. Daji Narayan and Skrvpat Singh v. Prodyat Kumar Tagore 39 Ind. Cas. 252 : 44 I.A. 1 : 32 M.L.J. 133 : 15 A.L.J. 147; (1917 : M.W.N. 193 : 21 C.W.N. 442 : 25 C.L.J. 220 : 21 M.L.T. 222 : 19 Bom. L.R. 290 : 44 C,524 (P.C.). Except Order XXI, Rule 66, no other section is shown under which an application such as the present can be made. That rule refers to the proclamation of sale, and Sub-rule (2), Clause (e), and directs the Court to specify every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property. In the present case, for instance, the value of the property is intimately connected with the question whether the right, title and interest sold includes or not the interest of the sons. Once the decree-holder makes an application such as Ex. 31 to include the sons interest in the proclamation, it is difficult for the Court todispose of it except upon notice and inquiry such as the present. Can it then be said that such an application itself is such that either the decree-holder is not in law entitled to make it or the Court to dispose of it Confining myself to the case of a Hindu father alleged to be a member of a joint Hindu family with his sons, it is, in my opinion, difficult to hold that such an application is incompetent, and that if once the plaintiff, because perhaps of ignorance has failed to implead minor sons expressly in the suit, he cannot make an application such as the present in the darkhast, but that the matter must be left to be agitated, in all probability, many years afterwards on the sons attaining their majority, when much of the materials and evidence on which the Courts can come to a conclusion will disappear. The balance of convenience is very heavily in favour of an early inquiry and an inquiry in the darkhast, and before the proclamation and sale rather than after, when an innocent third-party purchaser would be exposed to harassment. On the whole, therefore, and in the absence of express enactment or authority to the contrary, lam inclined to hold that while it is preferable that these minor sons should be impleaded in the suit itself, with the father as manager of the joint family, an application such as the present to include their interests in the proclamation of sale in darkhat is not incompetent.;