1. The first and second defendants in this case are brothers living jointly and undivided in the house which is the subject of this suit. There were two other brothers, who separated from the defendants long ago. The minor sons of the second defendant are represented by their mother and guardian the third defendant. In the year 1872 the second defendant hypothecated the house in question to the plaintiff's father. Afterwards the plaintiff's father brought a suit upon the hypothecation against the second defendant alone (No. 458 of 1878); and as the remedy against the person of the second defendant was barred, the plain-tiff's father obtained a decree against the hypothecated house. In execution the house was attached. The first defendant and his brother's wife, the third defendant, on behalf of her minor sons, objected, and their shares were released from attachment, because they were no parties to the decree. The one-sixth share of the second defendant alone was sold in execution of that decree, and that share was purchased by the plaintiff. The plaintiff's father having died, the plaintiff has brought this suit alleging that the house was the self-acquisition of the second defendant, but that the money was borrowed for family purposes. The prayer of the plaint is for a decree holding the five-sixth shares, which were released from attachment, liable for the amount due under the decree which was passed in Suit No. 458 of 1878 and for costs.
2. The first and third defendants contended that the house was the joint ancestral property of the family; and that the family being undivided, the second defendant had no right to hypothecate more than his own interest for his personal debt.
3. The District Munsif found that the first and second defendants were undivided; and that the house in question was their joint ancestral property. He observed that the plaintiff's father had brought the former suit against the Second defendant alone, without alleging that the debt was a family debt binding upon the other members of the family; and he therefore held that the plaintiff's father by his decree acquired the right to seize only the second defendant's share in execution. The first defendant claiming only one-quarter of the house, the District Munsif held that the second defendant and his two sons were entitled to the other three-quarters, and that no more than the quarter share of the second defendant was liable under the decree in the former suit.
4. On appeal made by the plaintiff, the Subordinate Judge confirmed the decree of the District Munsif. The plaintiff has now made this second appeal on the ground that the first defendant had no interest in the house, and that the interests of the minor sons of the second defendant were liable. Upon an issue referred to him, the Subordinate Judge has found that the hypothecation of the house was for such family purposes as would render it binding on the defendants, the debt having been incurred in order to rebuild the house, and for the marriage of one of the second defendant's sons.
5. It has been found, as already stated, that the house is not the self-acquisition of the second defendant as alleged in the plaint, but that the first defendant and the second defendant's minor sons had an interest in it: and these facts having been found upon the evidence, there is no reason why we should not accept them as true.
6. It has been found that the debt in question was incurred by the managing member for purposes which would render the debt binding on the family. It may further be said that the minor sons at all events would be liable to pay their father's debt, which was neither illegal nor immoral. But the plaintiff's father allowed the time for the personal remedy to slip by, and he could recover only upon the hypothecation. And, in order to bind the coparceners by a decree upon the hypothecation, it was necessary to make them parties to the suit, so as to give them an opportunity of redeeming the ancestral estate. [See the observation of the Chief Justice in Ponnappa Pillai v. Papuvayyangar I.L.R. 4 Mad. 1 decided by the Full Bench.] But neither the first defendant nor the minor sons of the second defendant were made parties to Suit No. 458 of 1878. It follows that their interest in the property cannot be affected by the decree in that suit.
7. This suit being in form a suit to have the property of the second defendant's coparceners declared liable under the decree passed upon the hypothecation, and to declare the first defendant to be divided from the other defendants, it is unnecessary to decide the question, which presented itself at the hearing, whether a second suit would lie to make the coparceners liable under the hypothecation. In the cases of Gurusami v. Chinna Mannar and Gurusami v. Sadasiva I.L.R. 5 Mad. 37 where the decree in the first suit had been a simple decree for money, it was held that 'If a suit is brought against one coparcener on an obligation entered into by him, and a decree obtained against him, and it is afterwards sought in another suit to extend the scope of the decree by making other coparceners liable upon the obligation, according to the authorities this course is not permissible, because the cause of action on the obligation is one and indivisible, and a second suit cannot be entertained upon the same cause of action.' The same doctrine was laid down by the High Court of Calcutta in the case of Hemendro Coomar Mullick v. Rajendro Lall Moonshee I.L.R. 3 Cal. 353.
8. But in the case now before us, it having been found that the first and second defendants are not divided in interest, but are jointly interested with the second defendant's sons in the house in question, and the decree upon the hypothecation having been passed against the second defendant alone, we are unable to declare that the interest of the first defendant and those of the second defendant's minor sons are liable under that decree.
9. Therefore, we dismiss this appeal with costs.