1. The first point taken is that inasmuch as the plaintiff has died since the date of decree and after the filing of the appeal, leaving only his mother who has been brought on the record as the representative, the father is entitled by survivorship. It is said that the partition effected by the decree is not absolute so long as the decree remains appealable. The rights of the party are accordingly liable to be affected by events happening subsequently. There can be no question that the mother of the plaintiff is the person who represents him on his death and would therefore be entitled to the benefit of the decree. The right to continue a suit for partition after the death of the plaintiff would, of course, not devolve on his widow or other heir not being a co-parcener with the defendant, because immediately on the death happening before decree, the right of survivorship would take effect. It would not be the ordinary case of a suit abating on the ground of the right to sue not surviving, but it would be the case of a right extinguished by confusion owing to the fact that all the rights in respect of the property became vested in one and the same person. The further prosecution of the claim would be as impossible as it is when the right to demand a debt and the liability to pay it coincides in the same individual. But after decree for partition once made it is difficult to understand how the vested right of the plaintiff's representative can be affected or destroyed.
2. The general rule is that, as the representative of a deceased plaintiff can only prosecute the cause of action as originally framed, so the defendant can raise no other defence against him than he could have raised against the deceased.
3. By the decree in all suits relating to property, the rights of the parties are determined and the death of one of them merely has the effect of putting a representative in his place. It seems strangely anomalous to hold that such a representative may be recognized, but that his position is not identical with that enjoyed by the deceased. Authorities were, however, cited in support of the view contended for. In Padarath Singh v. Raja Ram I.L.R. 4 All. 235 it was held that the plaintiff, who sued to set aside an alienation made by his father, having died after decree obtained, his mother, who was made respondent in the appeal, could not continue the suit. The -terms of the decree in the plaintiff's favour are not given, but there can be no doubt that it was a decree for the son's share of the property. More recently in a case, which appears to be precisely similar, the contrary conclusion was arrived at by the Full Bench of the same Court Mohammad Hussain v. Kushelo I.L.R. 9 All. 132. In Bombay in Sakharam Mahadev Dange v. Hari Krishna Dange I.L.R. 6 Bom. 113 upon a different state of facts, the principle has been laid down that a decree for partition so long as it remains under appeal does not effect a severance of joint estate. It was accordingly held that, by reason of the death of one of the defendants during the pendency of the second appeal, the plaintiff's share was enlarged. If this decision is correct, it must follow that, as the share given under the decree may be varied, so it may be extinguished altogether.
4. In the Madras case decided in the Privy Council Chidambaram Chettiar v. Gauri Nachiar I.L.R. 2 Mad. 83 the point did not arise, because there was no appeal against the decree for partition. It is merely an authority for the position that such a decree may operate as a severance of joint estate. The two cases cited appear to us to lay down a rule which is not only inconsistent with the general principle that the rights are fixed by the decree and that the decree can only be attacked on grounds which were available to the unsuccessful party in the Court of First Instance, but would also lead to most inconvenient results.
5. If the decree by itself effects no partition and does not operate as a conveyance to each party of his share in the estate, then however just and right, however unimpeachable it may have been when made by the Court of First Instance, it must, for an indefinite length of time, remain uncertain what rights the parties possess under it. A new peril would be added to the position of a purchaser pendente lite. He would not only have to consider the merits of the case in which the decree had been passed, but would also have to consider the chances of his vendor surviving the period over which the appeal might continue. The purchaser from the party who had obtained a decree for his share of the joint estate would be no better off according to this view than the purchaser from a member of an undivided family in its normal condition. By the birth of children into the family or by the destruction of part of the family estate the share purchased by him might come to be diminished, or, as in the present case, the death of the vendor might put an end to it altogether. These difficulties are avoided by adhering to what we consider the right principle, viz., that, by the decree in a partition suit a severance of the joint ownership is effected, the operation of a decree among parties not consenting to a division being equivalent to that of mutual conveyances among parties consenting to a partition of the joint estate.
6. On the question of fact we agree with the District Judge. The property purchased by the father, it is clearly proved, was not bought by his self-acquired funds. With regard to the property sold by the father before the suit in respect of which the Judge has made the father liable for half the purchase-money, we do not find that it is clear that the proceeds still remain in the father's hands. The plaintiff, therefore, has no claim to a share of them. In this respect, viz., as to Rs. 483-12-0, the appeal must be allowed.
7. As to the mesne profits and moveables, we see no reason to differ from the District Judge. Subject to the above modification we must dismiss this appeal--proportionate costs.