1. The judge has dismissed the suit on the ground that the hypothecation bonds sued on created no right which could be enforced against the share of Pichuvier, the maker of the bonds, after his death. We cannot agree with this view of the law.
2. It is clear law in the Madras Presidency that a sale or mortgage for value by a Hindu coparcener of his share in the family property will be enforced after his death against his (surviving) coparcener. It is sought to make a distinction in the case of a hypothecation which, it is said, transfers no interest in land but merely creates a charge. We see no reason for such a distinction. The principles of equity which have led the Madras Courts to enforce alienations for value of the share of an undivided coparcener against the family property after his death apply equally to a charge created by him. This was held in S. A. No. 49 of 1888 to be the law and we shall follow that decision.
3. It is argued for respondent that the District Judge was wrong in holding that Pichuvier had at the date of the hypothecation bonds any alienable interest in the family property and that the suit should have been dismissed on the ground that he had not.
4. Assuming for the sake of the argument that it is law that when there are two or more branches of an undivided family the junior members of any one branch cannot enforce partition of the family property without the consent of the head of the branch, which we are not prepared to decide, we think the judge is right in holding that when the right to partition arises, as in this case admittedly it did, subsequently to the execution of the bonds the courts will enforce a partition in favor of the alienee. This also follows from, the principles of equity which have been held in this Presidency to govern transactions between an undivided coparcener and his alienees for value.
5. The decree of the lower court must be reversed and the suit remanded for disposal on the merits.
6. Costs to abide and follow the result.