Coparceners who are not impleaded in a mortgage suit are not bound by the decree and sale and have a right of redemption.

( 1 ) THIS ap-peal is by the plaintiffs and it arises out of a suit for partition which was dismissed by the learned trial Judge on the finding, inter alia, that the plaintiffs had no title to the disputed properties.

( 2 ) THE material facts lie within a short compass and they are as follows:

( 3 ) ACCORDING to the plaintiffs, they, alone with their father, who is defendant No. 1, belonged to a Mitakshara Hindu family and the disputed properties were properties of the said family in which they were interested as coparceners. Defendant No. 2, who was the real contesting defendant in the court below and who is the contesting respondent in this Court, obtained a mortgage of the disputed properties from the father, Jajneswar Bajpai. defendant No. 1, on 28th April, 1934 The mortgage was given by Jajneswar Bajpai alone. It was for an amount of Rs. 2,500.

( 4 ) EVENTUALLY, on that mortgage, a suit was brought by the mortgagee, defendant No. 2, and the same was decreed in a preliminary form on 15th April, 1950. It having been instituted on 16th September 1946. The claim decreed was Rs. 2,500 for principal, Rs. 2,466-10-0 for interest and Rs. 688-15-3 for costs, charges etc. , totalling Rs. 5,655-9-3, at the date of the said preliminary decree. This preliminary decree was, in course of time, followed by a final decree, which was made on 15th April, 1953, and in execution of the same, the mortgaged properties were sold and purchased by the mortgagee decree-holder, defendant No. 2, on 15th September, 1953.

( 5 ) TO the above mortgage suit, the lather mortgagor, defendant No. 1 of the present suit, was alone the defendant. The plaintiffs of the present suit, who claim to be his coparceners, were not impleaded. The instant suit for partition was brought on 14th September, 1953, upon the allegation, inter alia, that the above mortgage was not for justifiable or justifying causes, and so not binding on the plaintiffs, however must it may be or may have been binding on the mortgagor coparcener, namely, the father, defendant No. 1.

( 6 ) IN this suit, the father mortgagor has been impleaded as defendant No. 1, and the mortgagee decree-holder, who had not yet become the purchaser, was

impleaded as defendant No. 2 in his capacity as mortgagee, decree-holder, on the day, following the date of institution of this suit, the mortgaged properties, as we have said above, were sold in execution of the mortgage decree and purchased by the mortgagee decree-holder himself.

( 7 ) THE suit, as we have already indicated, was contested by defendant No. 2 alone, and his defence, in substance, was that the plaintiffs' family was governed by the Dayabhag law, and, accordingly, the father, defendant No. 1, was the sole owner of the disputed properties and the plaintiffs never acquired any interest in the same. This defence, however, was overruled by the learned trial Judge, and, on the materials before the Court, his said finding cannot be challenged, and, as a matter of fact, has not been seriously challenged. We must, therefore, proceed on the footing that the plaintiffs' family was governed by the Mitakshara law. There was a point, raised on behalf of the plaintiffs, that, at least, plaintiff No. 1 had been born prior to the date of the above mortgage and had become a co-sharer with the father mortgagor, and. accordingly the mortgage would not be binding on him unless it was for a justifying necessity or legal necessity On this point, the evidence has been fully discussed by the learned trial Judge, and he has dealt with all the relevant circumstances and has recorded the funding that the plaintiffs have failed to prove that the plaintiff No. 1 had been born or begotten prior to the date of the above mortgage. On that finding, much comment is not necessary, but it may be enough to say that, according to the plaintiffs' own evidence, there was a horoscope of plaintiff No. 1, but that horoscope was not produced before the Court.