1. This is an appeal in an action in which the plaintiffs claimed an injunction to restrain the defendants from realising, to use the words of the prayer in the plaint, “the said decretal amount by the sale of the joint family property or by any other means.” Shortly the facts were these. The brother of the plaintiff executed a mortgage in favour of the defendant for a three gandas share of the property of the joint family of which he was a member with the plaintiff. The plaintiff and the mortgagor were brothers. The mortgagor was made a party to this action and is defendant second party. It is important to notice (as it raises a very difficult point in the case) that the mortgagor defendant second party died whilst this appeal was pending in this Court. The share which the deceased mortgaged was admittedly less than the share to which he would be entitled on partition of the joint family property, his share in those circumstances approximately being four gandas.

2. The principal defendant, the mortgagee, obtained a decree against the deceased mortgagor. Another fact which is to be noticed is that the mortgagor was not the karta of the family, and in addition it has been found by the Courts below that there was no question of the mortgage being for family necessity. In short therefore we have a member of a joint Hindu family, governed by the Mitakshara, executing a mortgage of his share or part of his share of the joint family property. The learned Judge of the trial Court gave the plaintiff a decree restraining the principal defendant from selling the property in question in execution of the decree which he had obtained. That decision was upheld by the learned District Judge. In appeal it is argued by the appellant that the action was not maintainable. It is contended that this decree which the principal defendant, the mortgagee, had obtained was a perfectly valid decree and that whatever rights the parties may have no action lies to prevent the defendant-appellant from executing the decree which he had rightly obtained, unless indeed that decree is set aside on the ground of fraud or for some other sufficient cause. It is a somewhat startling proposition to an English lawyer that a plaintiff could maintain an action to prevent a judgment creditor from executing a decree properly obtained. But the matter is not susceptible of so easy a solution as that; we have to deal with the Mitakshara law.

3. On behalf of the respondent plaintiff it is argued in the first place that this being a joint family property and that as under the Mitakshara the interest of one member of a family in the property is the interest in the whole, one member of the family has no right to alienate his portion of the property. Now from the authorities which have been elaborately discussed in the argument which has just concluded, it is quite clear that there are one or two well established principles of law which govern this case. In the first place it has long since been decided that a member of a joint Hindu family governed by the Mitakshara law is powerless to alienate his portion of the joint family property. It is, as I have said, a property in which all the members have an interest and their shares are not defined. In support of this if any authority were required, the case of Sudaburt Pershad Sahoo v. Foolbash Koer (1) may be referred to. There is another proposition which is relevant in connexion with the argument by the appellant that the action is not maintainable, and that is that where a member, whether he be the karta or otherwise of a joint family, has alienated the property of the joint family without need or necessity, then in an action the other members of the joint family can recover that property from the person who is in possession as a result of that alienation. As will be seen from the authorities to which I shall in a moment refer, the last proposition has to some extent been modified by the later decisions. Now the rules to which I have referred are applicable to this part of India. There is a modification of the first principle in so far as Bombay and Madras are concerned. The first case which is relied upon by the defendant-appellant is the well known authority of Deendayal Lal v. Jugdeep Narain Singh (2). That was a case in which the son of the alienor of certain property had brought an action to recover the property which had been sold in execution of the decree obtained by the alienee against the plaintiff's father, and it was there held that the right title and interest of one of the cosharers of the joint family may be attached and sold in execution of the decree obtained against him personally. It was further decided that the purchaser in the execution sale had a right to compel a partition against the other cosharers of the judgment-debtor. But the most important case is that of Suraj Bansi Koer v. Sheo Pershad Singh (3) in which reference was made to the case to which I have just referred, reported in Deendayal Lal v. Jugdeep Narain Singh . It is advisable in this case for me to read a passage from the decision of the Judicial Committee as expressed by Sir James Colvile which was to this effect:

“In Bengal however the law which, prevails in the other Presidencies as regards alienation by private deed has not yet been adopted. In a leading case on the subject, that of Sadabart Prasad Sahu v. Foolbazh Koer the law was carefully reviewed, and the Court, refusing to follow the Madras and Bombay decisions held that, according to the Mitakshara law as received in the Presidency of Fort William one coparcener had not authority, without the consent of his cosharers, to mortgage his undivided share in a portion of the joint family estate, in order to raise money on his own account, and not for the benefit of the family. In another part of the same case, the Chief Justice intimated a doubt upon a question which did not then call for decision, viz., whether, under a decree against one coparcener in his lifetime his share of joint property might be seized and sold in execution; that question must now be taken to have been set at rest by the recent decision of this tribunal in Deendeyal v. Jugdeep Narayan Singh by which the law has so far been assimilated to that prevailing in Madras and Bombay, that it has been ruled that the purchaser of undivided property at an execution sale during the life of the debtor for his separate debt does acquire his share in such property with the power of ascertaining and realizing it by a partition.”

4. So far therefore apart from the complication in this case which arises by reason of the death of the mortgagor whilst this appeal was pending in this Court, it seems clear that the defendant-appellant in this case was entitled to do what he was proceeding to do namely, to put up for sale the share which had been mortgaged. It is clear that this is an inroad upon the fundamental principles of the Mitakshara. But after the declaration of the law as stated in Surajbansi Koer's case , to which I have made reference, there seems, as I have said, no doubt in the matter.

5. Now the very question which has arisen in this case, namely, what effect has the death of the mortgagor or the judgment-debtor during the pendency of the case upon the rights of the parties, arises in this way. It arises by reason of the principle which was referred to and which had long since been established on general principles. In the case of Madho Parshad v. Mehrban Singh (4) it was expressed in two ways: one is that if the plaintiffs are to recover the joint family property they can recover it only subject to certain equities, putting it generally the equity being that they can recover by paying off the debt. In the case of Madho Parshad v. Mehrban Singh , as pointed out however there was no equity by reason of the fact that the person who had alienated the property was dead and had died before the action was brought; in other words the property which he had charged had passed to the survivors, and therefore it was said there could be no equity as against them. The other way in which the same question can be put is indicated by a reference to the case of Madho Pershad , namely that if the alienor died before the action was brought what the plaintiffs were seeking to recover was not the property in which the alienor had an interest but the property which had passed to the other members of the joint family. This question arose in this form. In the case of Suraj Bansi Koer v. Sheo Persad Singh , it was expressed in these words by Sir James Colville:

“But then the question arises, what is the consequence of the debtor dying before the execution is complete, whether in that event the coparceners take his undivided share by survivorship so as to defeat the remedy which the creditor would otherwise have against it.”

6. The question was disposed of by their Lordships in that case in this way. They said:

“Their Lordships are of opinion that it is not necessary in this case to determine that vexed question, which their former decisions have hitherto left open. They think that at the time of Adit Sahai's death (that is the alienor's) the execution proceedings under which the mouza had been attached and ordered to be sold had gone so far as to constitute, in favour of the judgment-creditor, a valid charge upon the land, to the extent of Adit Sahai's undivided share and interest therein, which could not be defeated by his death before the actual sale.”

7. Now it might be said, and I think it is admitted in this case, that although the mortgagee had not proceeded with his execution but was about to proceed and was prevented from proceeding by this action, yet it being a mortgage, the interest of the mortgagor was already charged. The same question came up for decision before the Calcutta High Court in Bunwari Lal v. Sheo Sanharan Misser (5). The argument there was this that as the alienor had died during the pendency of the proceedings it was a matter of which the Court of appeal must take notice, and taking notice to hold that at the time of their judgment the interest of the mortgagor had passed by survivorship to one of the parties in the litigation and Mookerjee, J., in the course of his judgment makes this statement:

“The cases upon which reliance has been placed, however, do not support any such broad contention. In the case of Ram Ratan Sahu v. Mohant Sahu (6), it was pointed out that as a general rule a Court of appeal in considering the correctness of the judgment of the Court below will confine itself to the state of the case at the time such judgment was rendered and will not take notice of any fasts which may have arisen subsequently but the Court will in exceptional cases depart from this rule, and take notice of subsequent events on the principle that it is the duty of the Court which still retains control over the judgment, to take such action as will shorten litigation, preserve the rights of both parties.”

8. Needless to say from the extract which I have read from the judgment of Mookerjee, J., the argument put forward by the advocates was that the Court of appeal should take notice of the death of the party during the pendency of the appeal, and a number of cases were referred to. But as Mookerjee, J., points out the authorities did not support the broad contention which was advanced. The decision of the Court was that they would adhere to the general principles, that is that they would confine themselves to the circumstances of the case at the time that the judgment in appeal was delivered, and Mookerjee, J., points out that to do otherwise would be to place a premium on the protraction of litigation. The manner in which Mookerjee, J., expressed it is this:

“If the opposite view put forward by the respondents were adopted, the consequence would be startling. The rights of the parties would depend, not upon the merits of the controversy between them but upon the length of time over which the litigation might be protracted and upon the accidental circumstances whether a Subordinate Court has or has net taken an erroneous view of the rights and obligations of the parties.”

9. In my judgment it seems to me that the position in this case in substance is the same as that in the case of Suraj Bansi Koer v. Sheo Persad Singh . It is true that there was no attachment in execution as it being a mortgage decree such attachment was unnecessary as there was already a charge upon the property, as in the case to which I have made reference. In my view of the law therefore the plaintiffs were not entitled to succeed in the action which they brought in this case. Therefore for the considerations which I have stated it seems to me that the appeal must be allowed with costs. As the point is a difficult one there will be leave to appeal.

K.S

10. Appeal allowed.