JUDGMENT

Banerji, J. - The circumstances which have given rise to the suit in this case are these. One Pemi, with his five sons, formed a joint Hindu family governed by the Mitakshara law, owning a share in a grove which has been found to be the ancestral property of the joint family. He and his brother, since deceased, borrowed some money from Bhawani Pre gad, the appellant, and for the amount so borrowed they executed a simple mortgage of the grove in favour of Bhawani Prasad. Bhawani Prasad brought a suit on his mortgage, making Pemi and the legal representative of his brother the only defendants to the suit, and on the 23rd of February 1892 he obtained a decree for the sale of the mortgaged property u/s 88 of the Transfer of Property Act, 1882. On his applying u/s 89 of the Act for an order absolute for sale, three of the sons of Pemi. the respondents to this appeal, objected to the making of the order. Their objection having been disallowed, they brought the present suit claiming a declaration that their interests in the mortgaged property were exempt from liability for the decree. The main ground of their claim was that they were not parties to the suit in which the decree was passed. They did not deny the fact of the debt, and they did not allege that the debt was incurred by Pemi for immoral or impious purposes. The Court of First Instance dismissed the suit, on the ground that the plaintiffs had not even asserted, much less proved, that the debt of their father was tainted with immorality. On appeal, the Lower Appellate Court set aside the decree of the Munsif and decreed the claim, holding that, as the plaintiffs were not joined as parties to Bhawani Prasad's suit, the decree obtained by him was not capable of execution as against their interests in the mortgaged property.

2. The correctness of this decision has been assailed in this second appeal, and the question which we have to consider upon this reference to the Full Bench is substantially this: Whether the plaintiffs can succeed in their suit on the solitary ground that they were not parties to Bhawani Prasad's suit against their father, or they must also establish, either that their father did not incur any debt, or that the debt was one which by reason of their pious obligation as Hindu sons they were not legally bound to pay.

3. The question is one of difficulty, and my difficulty in considering it has been enhanced by reason of certain observations contained in the judgment of the learned Chief Justice in the case of Badri Prasad v. Madan Lal ILR 15 All. 75 which, it is said, have practically decided it. At page 83 the learned Chief Justice is reported to have said: "If the plaintiffs in this suit, which was commenced after the Transfer of Property Act, 1882, came into force, having notice that the sons had an interest in the property had omitted to join them, they could have obtained a decree against the father's interest only and could not have obtained a decree for sale which would have affected the interests of the sons in the mortgaged property." These observations are not in my judgment conclusive of the question which we have to decide upon this reference. This particular question did not arise nor was it involved in the case of Badrt Prasad v. Madan Lal, and could not consequently be determined in that case. The questions which were considered and decided in that case were, first, whether "the sons in a joint Hindu family could be sued along with their father upon a mortgage bond given by the father alone," and, secondly, what was the nature of the decree to which the mortgagee was entitled. In dealing with the second question the learned Chief Justice made the observations to which I have referred above, and it seems to me that they were only some of the reasons which induced him to make the decree which was passed in that case. As such, they can only be treated as expressions of opinion and not as a judicial determination of the question now under co