1. This was a suit for sale upon a mortgage of the 21st of November 1894 executed by one Musammat Sahodra. It was brought against the nephews of her husband, she having in the meantime died. The defendants contested the claim on the ground that Sahodra had no interest in the property as her husband died as a member of a joint Hindu family and the property passed by right of survivorship to the other members.
2. The Court of first instance found that the family was joint and that, therefore, Musammat Sahodra had no right to make the mortgage and that the mortgage could not be enforced as against the property now in the hands of the defendants. That Court dismissed the suit. The decree of that Court has been affirmed by the lower Appellate Court on the ground that in a suit between Sahodra and Gaya Prasad, the ancestor of the defendants, it was held in 1895 that Gaya Prasad, father of Beni Prasad, and Ganga Prasad, husband of Musammat Sahodra, were joint at the time of Ganga Prasad's death, and that this judgment operates as res judicata. It is contended on behalf of the appellant that as the mortgage in her favour was executed before the date of the judgment and she was not a party to the litigation in which the judgment was passed it could not operate as res judicata as against her. It appears that Musammat Sahodra had applied to the Revenue Court for partition. In that case Gaya Prasad, the ancestor of the defendants, raised the objection that Sahodra had no interest in the property, the family being joint. The question whether the family was joint or separate was in issue in that case and this question was decided in favour of Sahodra by the Court of first instance, but an appeal was preferred to the District Judge from the decision of that Court. It was during the pendency of that appeal that the mortgage in favour of the plaintiff was executed. As the question of the mortgagor's title was then in litigation and the plaintiff took a mortgage from the mortgagor daring the pendency of the litigation she took the 'mortgage subject to the result of that litigation. Under the rule of lis pendens the decision in that case is binding on the plaintiff and the Court below is right in holding that it operates as res judicata upon the question of Sahodra's title. Of course, had the mortgage in favour of the plaintiff been executed before the institution of the partition-case, the judgment in the partition-case would not have been binding on the plaintiff, but, under the circumstances stated above, it is clearly binding. This is the only ground urged in appeal, and as it has no force I dismiss the appeal with costs including fees on the higher scale.