D. Chatterjee, J.:— The plaintiff purchased the disputed lands in execution of a decree against one Harihar in 1899 and took delivery of possession, but was resisted in the actual possession of the same by the defendants who claim the same under a zar-i-peshgi deed executed by one Kripal Narain in 1892. The defendants in their written statement pleaded that the lands were not the lands of Harihar and the plaintiff had therefore no right to the same. The main issues therefore were whether the disputed land formed part of the lands purchased by the plaintiff and whether the defendants held the same under a zar-i-peshgi from Kripal Narain. It appears that Kripal Narain with Harihar and others formed a joint family. Harihar brought a suit for partition in 1888 in which Kripal filed his written statement in 1889; pending the suit the zar-i-peshgi was executed by Kripal Narain, who was evidently the managing member of the family, before the partition suit which was decreed in 1893, the disputed lands falling to the share of Harihar.
2. The Court of first instance held that the principle of lis pendens applied and the zar-i-peshgi being executed pending the suit for partition could not prevail against the ultimate decree. The defendants never pleaded that the zar-i-peshgi was executed by Kripal Narain as the karta of the family, and even if they had taken such a plea it would be at once met by the fact that after the suit for partition Kripal could not be said to be the karta, and in fact Kripal, so far from stating in the zar-i-peshgi deed that he was granting it as the karta, stated that he was entering into the transaction for his own necessity. The learned Judicial Commissioner however raised the plea in appeal and called upon the parties to adduce evidence as to the transaction being on behalf of the family for family necessity.
3. Two previous zar-i-peshgi leases, one executed by Kripal, Anant and Birinchi for Rs. 100 and another executed by Kripal for Ss. 50, were put in and a co-sharer examined as a witness. As the defendant had been misled as to the existence of these documents when the case was in the first Court, the admission of these documents may have been competent and also the examination of any witness as to the formal proof of these documents.
4. That would not have materially affected the case as originally made, but the learned Judge relies on the evidence of the co-sharar witness as proving that the debt was for meeting family necessity, and in doing so I think he has gone beyond what the law authorises him to do. Section 568 of the CPC, does authorize him to admit evidence in appeal when on hearing the case he thinks that such evidence is required to enable him to pronounce judgment; it does not authorize him to make a new case not justified by the pleadings; See Kessowji Issur v. G.I.P Ry. Co. . 1907 31 Bom 381. The evidence of Beni Narain therefore so far as it goes beyond making out a formal proof of the new documents must be left out of consideration. Then the documents proved show that a part of the consideration was borrowed jointly by Kripal, Anant and Brinchi at a time when the family was admittedly joint. That alone however does not affect Harihar who was not a party to the same, and the very fact that Kripal took the whole debt upon himself after the partition suit shows that the debt was not treated as a joint family debt. Apart from the question of lis pendens therefore the zar-i-peshgi of 1892 could not bind the share of Harihar. Coming to the question of lis pendens it is contended on the authority of Shaik Khan Ali v. Pestonji Eduljee Guydar . 1897 1 CWN 62. that the principle is not attracted by a partition suit in which there is no dispute as to shares. This case has been distinguished in Joy Sanhari Gupta v. Bharat Chandra Birdhan . 1899 26 Cal 434. and Jogendra Chunder Ghoes v. Fulkumari Dasi . 1900 27 Cal 77., and it may be distinguished here as limited to the facts of the case which related to a lease pending a partition suit in which the existence of the lease may have been taken into consideration in making the allotments. The present is a case of mortgage. In the case of Byjnath Lall v. Ramoodeen Chowdhry . 1873-74 1 IA 103, their Lordships of the Privy Council held that a person taking a mortgage from one co-sharer takes the security subject to the right of other sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty. He would take the subject of the pledge in the new form which it had assumed (by the partition). The same principle was followed in the cases of Hem Chunder Ghose v. Thalco Moni Dei . 1893 20 Cal 533., Lakshman v. Gopal . 1899 23 Bom 385. and Joy Sanhari Gupta v. Bharat Chandra Birdhan. If that be the law in respect of mortgages before a partition suit is put in, there can be no doubt that a mortgage executed during a partition suit must be followed against the share allotted to the mortgagor and cannot affect the share of a non-mortgagor. The judgment of the lower appellate Court therefore is set aside and the decree of the first Court restored with costs.
JUDGMENT
5. The sole point in this case is a very simple one and it is whether the learned Judge of the lower appellate Court was justified in admitting evidence which became relevant because of the discovery of two documents which had previously been out of the reach of defendant 2, who is the appellant before us. We can entertain no doubt that the Judge was entitled to admit the documents. Indeed that is conceded before us. The oral evidence that was admitted was a natural consequence of the admission of the documentary evidence, and we think there can be no legal objection to its admission. If that be so, it is conceded that the findings of the lower appellate Court are conclusive. We must therefore reverse the judgment of Digambar Chatterjse, J., and restore the decree of the Judicial Commissioner. The respondent before us must pay the costs of both appeals in the High Court.
V.B/R.K
6. Appeal allowed.