JUDGMENT

1. This is a defendant's appeal against the decree dated 11th November 1932 of the learned Additional Subordinate Judge of Gonda reversing the decree dated 30th November 1931, of the learned Munsif of that place. It arises out of a suit based on a mortgage dated 17th November 1917. This mortgage was executed by Shambhu Dat, defendant 1, and his brother, Tajeshwari Dat, who was represented in the litigation by his two sons, defendants 2 and 3, in favour of Ramphal, the predecessor-intitle of the plaintiffs. The mortgaged property consisted of Borne joint ancestral property of the family and of a 9 pies share in respect of which a decree for pre-emption had been obtained by Shambhu Dat. The suit was contested by defendants 2 and 3 on the ground that the mortgage was invalid and not binding on them. Both the lower Courts have found that the mortgage, in so far as it related to the joint family property, was illegal and invalid. As regards the mortgage, in so far as it related to the 9 pies share, it is common ground that ultimately Shambhu Dat's claim for pre-emption was unsuccessful and he lost the property.

2. In the course of oral pleadings it was admitted by the plaintiffs