The plaintiff, as a co-mortgagor, was entitled to sue for redemption without impleading the other co-mortgagors.

1. The appellant is the 1st defendant in a suit for redemption. The plaintiff instituted the suit as a junior member for and on behalf of his tarwad since the karnavan who is impleaded as the 2nd defendant failed to redeem the mortgage notwithstanding the alienation effected by the mortgagee in favour of the Ist defendant.

2. The mortgage (Ext. Al) was executed by Padmanabha Pillai Kesava Pillai on 27-9-1113 M. E. (1944) in favour of Kesavan Nambudiri in respect of 17 cents of paddy land for a total consideration of Rs. 100/-. Nambudiri assigned the mortgage right in favour of the Ist defendant.

3. The plaintiff's suit is resisted by the 1st defendant only, the 2nd defendant having remained ex parte throughout. It is contended on behalf of the 1st defendant that the plaintiff was not competent to institute the suit. In support of that contention, various points were urged. It was pointed out that the suit property did not belong to the family, but it was the separate property of Kesava Pillai who executed Ext. Al It was further pointed out that the family had been disrupted long before Ext. Al under Ext. Al partition of 1116 and the suit on behalf of the family was therefore unsustainable. Both these contentions were rejected by the courts below. It was concurrently found that the suit property was family property and that Ext. A4 partition did not include the suit property. Interpreting Ext; A4 the courts held that the suit property which was a service inam was specifically mentioned in that document for exclusion from partition. The document stated that the property was to be maintained as a service inam for the benefit of all the members of the family. Consequently the character of the suit property as family property remained unaffected by Ext. A4. In the light of the concurrent findings, it is unnecessary for me to embark upon an examination of those two points in regard to which counsel has not succeeded in showing that any substantial question of law arises. I therefore confirm the finding on the above points.

4. However, in the course of the proceedings before the lower appellate court an additional ground was allowed to be urged. The Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) came into force with effect from 1-12-1976. The defendant was therefore allowed to amend the pleading to raise the contention that in view of the said Act, the family which had ceased to exist pendente lite could no longer be represented by the plaintiff. This contention was rejected by the lower appellate court stating that on the date of the institution of the suit as well as on the date of passing of the decree by the trial court, the family was intact insofar as the suit property was concerned and the subsequent change in the status of the family did not affect the maintainability of the suit.

5. Counsel for the appellant Shri Sivarajan ably contends before me that the undivided family having gone out of existence by operation of the statute, albeit pendente lite, a suit for redemption by a member cannot be continued in appeal without the other persons having an interest in the mortgage being on the party array. To continue the appeal, counsel points out, would be contrary to the provisions of 0.34 Rule I CPC. Counsel further contends that subsequent events have to be taken note of by the court and relies upon the decision of the Supreme Court in Pasupuleti Venkateswarlu v. The Motor & General Traders (AIR. 1975 SC. 1409).

6. Shri Vyasan Poti appearing for the Ist respondent rightly points put that Act 30 of 1976 is not retrospective and it operates only prospectively. The family represented by the plaintiff was in tact on the date of the suit and continued to be so until the decree of the trial court was obtained. He further points out that, even after the abolition of the joint family system, the plaintiff being one of the co-mortgagors is perfectly entitled to prosecute the appeal for and on behalf of th