1. In this case the first point is, whether at this stage of the case it is proper to allow the appellants to make a change in the plaint of so material a nature as that asked for by them. Such an amendment would entirely alter the points of contention between the parties. It is not the practice to allow such a change after a cause has been disposed of, and we are not inclined to permit it in the present instance.
2. Those who have gone to issue on one aspect of the case cannot ask for a new decision on a different aspect of the case. The only circumstance in which the Courts have departed from this rule is in the case of a merely formal point of amendment. The appellants here are not persons who have for the first time been engaged in litigation. In suing in the form they chose, they, doubtless, intended to take the chance of getting a greater advantage than they would have obtained if they had sued merely as separated sons. They sought to liberate the property altogether from the liability, on the ground that the debt was immoral, and, therefore, that the estate could not be bound by the decree at all. That being so, and the plaintiffs having omitted to allege partition, not only in their plaint, but in the statement of their pleaders, they cannot noW come and ask the Court to have the suit put on a different footing.
3. We have, therefore, to consider what was the position of the plaintiffs with reference to the original suit. The original suit Was brought against the father on a mortgage for a limited time. The decree in that suit handed over the property to the mortgagee for a definite time, and awarded payment of interest and costs by the father. The payment of the interest and costs consequently became a debt upon the whole estate, from which it could not escape, unless it were clearly made out that the debt Was the result of fraud or immorality. The possession given to the mortgagee was certainly valid, as the father was alive. The question of its validity, indeed, could not arise until the father's death, although the father alone was sued, and he alone was primarily liable for the fulfillment of the Court's decree; still the debt was one which was rightly chargeable to the whole estate, and the sons would be liable, just as they would also have been liable if the father had compromised the suit, unless the transaction were tainted with fraud or immorality. This is the view held by the Privy Council in a recent decision.
4. The ruling in Simbhunath Pande v. Golapsingh I.L.R., 14 Cal 572 might suggest a contrary decision. There the Privy Council determined the father had a right to deal with his sons' shares in the family property, but that the terms of the transaction might show that it was not his intention to do so in that particular case. The question of the sons' assent was raised, and the Privy Council held that it would be bound by the assent, if the sons intended their own shares to be affected. In calling in the sons to assent to a dealing with the family property by the father, the intention to affect their shares would generally perhaps be presumed; but the creditor ought to take care to make sons parties to execution proceedings if he wishes to make them liable in cases where their assent is a material point in his case as against them.
5. In the present case, the sons' interest as well as that of the father has been attached, and they are made parties to the execution proceedings. The present case differs from the one we have referred to. The sons come in during the pendency of the execution proceedings and make themselves parties to it. We are, therefore, left very much in the same position as if the case already cited had not been decided. If we go back to the case of Nanomi Babuasin v. Modhun Mohun I.L.R., 13 Cal 21 we are bound to consider that in an united family the father is capable of acting as the representative of the family, except in the case of borrowing for fraudulent or immoral purposes. In the present case he entered into litigation, which resulted in loss to himself and to the family which he represented, and he can make the family responsible for any loss so incurred. The judgment-creditor can also make them liable.
6. The precise case which is before us now has not been dealt with heretofore, but the principles applicable to it have. In a recent appeal, Jagabhai Lalubhai v. Vijbhukandas Jagjivandas I.L.R., 11 Bom., 37 we set forth the principles applicable to such cases, and we based our decision on the ruling in Nanomi Babuasin v. Modhun Mohun I.L.R., 13 Cal 21. The principles enunciated in the case decided by this Court; which has been already referred to, are correct so far as they go, but that decision is to be supplemented by the following principle; that is to say that although where the father desires to represent the whole estate he can do so, yet he is not necessarily bound to do so, nor is the whole estate liable when he explicitly or impliedly binds only his own portion.
7. The question as to the litigation having only affected the father's interests not having been raised and decided in favour of the present appellants in such a way as to liberate them from the responsibility of the decree against the father, we must confirm the decree of the lower Court with costs.