JUDGMENT Kanhaiya Lal, J.
1. The dispute in this case relates to a portion of plot No. 44 khasra situated in the village Pipri. That portion belonged to a joint family consisting of Salik Pande and his sons Ram Jag and Gajadhar. Salik Pande was the manager of the joint family. On the 2nd of July 1890 he and his son Ram Jag made a simple mortgage of the Said property in favour of Jagannath. Subsequently, on the 31st of Janaury 1900, he and his co-sharers mortgaged their entire plot No. 44 khasra with Mangru and gave him possession. In 1903, Jagannath filed a suit for the recovery of the money due on his mortgage and obtained a decree in execution of which he purchased the mortgaged property. The other son and grandsons of Salik Pande were not made parties to that suit. Jagannath sold the share purchased by him to Jadubir Pande who got mutation of names effected in his favour in the revenue papers in respect of the same.
2. The present suit was filed by one of the sons and some of the grandsons of Salik Pane for a declaration that the mortgage and auction-sale aforesaid were not binding on them and for the maintenance of their possession over the same. Their allegation was, that the mortgage in question was made without any legal necessity and that they had since acquired the rights of Mangru by paying the money due to him on the subsequent mortgage of the 31st of January 1900. The defendant Jadubir Pande opposed the claim on the ground that he had. purchased the property in question in satisfaction of a prior mortgage which was made for a valid family necessity. He denied that the plaintiff was in proprietary possession of the disputed property and pleaded that the claim was barred by limitation and Section 42 of the Specific Relief Act. The Courts below repelled those contentions and decreed the claim. They form I that the plaintiffs were in possession of the disputed property by virtue of their redemption of the subsequent mortgage and that the contesting defendant-appellant had failed to establish that the mortgage of the 2nd of July 1890 was made for a legal necessity.
3. They, however, overlooked the fact that the mortgaged property had already been sold in satisfaction of that mortgage, and rights of a third party had come into existence, which could not be displaced unless the sons and grandsons of Salik Pande, the mortgagor, were prepared to establish that the mortgage in question was made for illegal or immoral purposes. As observed by their Lordships of the Privy Council in Girdharee Lall v. Kantoo Lal 1 I.A. 321 : 14 B.L.R. 187 : 22 w.R. 56 : 3 Sar. P.C.J. 380 (P.C.), where joint ancestral property has passed out of a joint family cither under a conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt the sons cannot recover that property, unless they show that the debts were contracted for immoral purposes and that the purchasers had notice that they were so contracted. In Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.I.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) their Lordships re-affirmed that view The sale was a public sale, which could have been prevented by the plaintiffs, had they taken steps in time, by an assertion of their rights. They took no such steps and they cannot now be permitted to defeat the rights acquired by a third party by simply questioning the transaction entered into by the head of the family, of which they were members. The Courts below erred in throwing the onus on the defendants, as if no sale had taken place, ana the rights of the third party had not come into existence. It is no use sending the case back for disposal because in the plaint there was no allegation that the debt in question was incurred for ILLEGAL OR IMMORAL PURPOSES. All that was said was, that the mortgage was not taken for family necessity, but that ground is not enough to defeat the auction-purchaser or his assignee of the rights acquired by virtue of the auction-sale. The subsequent redemption made by the plaintiffs of the puisne mortgage cannot give them any higher title. The appeal must, there-fore, be allowed and the claim of the plaintiffs dismissed with costs here and hitherto.