Pollock, J—This appeal arises out of a suit to enforce a mortgage which was executed by Ratan Singh, defendant 1, on 23rd July 1930. The other defendants, who are the wife and minor son of Ratan Singh, claimed that they separated from Ratan Singh before the date of the mortgage and-that their shares in the property are not bound by the mortgage. The lower Appellate Court, differing from the trial Court, held that the entire property was bound by the mortgage. The facts are not in dispute; On 28th February 1930 Ratan Singh's minor son through his next friend filed a plaint in the Court of the Second Additional District Judge, Nagpur, in which he asked for partition. The defendants in that suit were his father and mother. That suit was returned by the Court on 4th October 1930 for presentation in the proper Court, and it was presented some time in 1931 in the Court of the Additional Subordinate Judge of the First Class. Later, that Court decided that it was for the benefit of the minor that there should be a partition and passed a preliminary decree for partition, allotting a third share in the family estate to each of the parties in that suit.

2. It will be observed that the