Venkataramana Rao, J.
1. The facts necessary for the disposal of this second appeal may be briefly stated. Plaintiff 1 is the wife and plaintiffs 2 and 3 are the minor sons of one Singaroo Padayachi, defendant 3, in the suit. The plaintiff's case is that defendant 3, defendant 2 and one Ranga-swami Padayachi formed members of a joint Hindu family, lived and acquired properties together, that at a partition effected in 1911, some lands fell to the share of defendant 2, that the plaint house fell to the share of defendant 3 and one Rangaswami Padayachi, that Rangaswami Padayachi died in 1922 and thereafter there were disputes in the family and there was a settlement of those disputes, and in consequence of the settlement a release deed was executed by defendant 2, by which defendant 3 became the sole owner of the plaint house, that in execution of a decree in Small Cause Suit No. 1126 of 1921 of Mayavaram Sub-Court the plaint house was attached and the plaintiffs by reason of the fact that defendant 3 was an the Isles preferred a claim under Order 21, Rule 58, Civil P.C. The said claim having been disallowed, they have filed the present suit for a declaration that the suit house is not liable to be attached in execution of the said decree. It may be stated that defendant 3 was impleaded as a defendant in the small cause suit but the suit against him was dismissed. Both the lower Courts have found that the partition in 1911 was true and that defendant 3 became the sole owner of the plaint house under Ex. A. I see no reason to disturb the said findings.
2. Two questions of law have been urged before me by Mr. Sankara Ayyar. He argues that? the suit property is not joint family property but only joint property acquired by the three brothers and the plaintiffs did not acquire any right by birth therein, and they are not competent to maintain this suit. He relies on a ruling in Magan Lal v. Mt. Krishna Bibi 1935 All 303. It is a well settled principle of Hindu law that when members of a joint family live to getherand acquire properties together by their joint exertions, in the absence of an indication to the contrary, such property would be joint family property wherein the male issue would acquire a right by birth. See the observations of Bhashyam Ayyangar, J., in Sudarsanam Maistri v. Narasimhalu Maistri (1902) 25 Mad 149 So far as I know this proposition was never doubted and canvassed in this Court. The Allahabad ruling on which Mr. Sankara Ayyar relied may be distinguished on the facts of that particular case, But with some of the observations therein which run counter to the view above expressed I do not agree. In this case the brothers lived in commonalty as members of a joint family and acquired properties together and there can be no doubt that the plaint house is joint family property in which the minor plaintiffs have acquired a right by birth.
3. The next contention urged by Mr. Sankara Ayyar is this : The claim of the minor plaintiffs must be confined to their two-thirds share in the property. Defendant 3 was a party to the small cause suit. Though the suit against him was dismissed, he is still a party to the suit within the meaning of Section 47, Civil P.C., and not having chosen to prefer a claim will be precluded from agitating any right to the property by way of a separate suit and therefore his share must be deemed to have passed to the purchaser. I do not agree with this contention. The execution was against; defendant 2. The property was attached as his property. What did and could pass at the execution sale was the right, title and interest of defendant 2. The fact that defendant 3 may be precluded from asserting any claim by virtue of Section 47, Civil P.C., does not extinguish his right therein and would not convey his interest to the purchaser. The other members of the family are not affected by the bar of Section 47. If the managing member is disabled as in this case by reason of his absence in the Isles or fails and neglects to take steps to preserve the property which is being lost to the family, it is competent to the other members to do so and so long as the rights of defendant 3 are not put an end to by way of execution or otherwise, there is nothing to preclude the 'claim being made by the other members on behalf of the joint family and to recover the property for the family. In my opinion, the suit is properly laid for a declaration that the plaint house is not liable to be attached in execution of the decree. But in this case the finding is that defendant 3 still continues in possession of the property. He was not a party to the execution petition, and it was not obligatory upon him to prefer any claim and the bar under Section 47 has not come into operation and therefore even the contention put forward by Mr. Sankara Ayyar would not affect any rights of defendant 3.
4. Assuming that defendant 3 is affected by the bar of Section 47, Mr. Govinda Pillai cites the cases in China Dandasi v. Pedda Tatiah : AIR1921Mad279 Thathu Naick v. Kondu. Reddi (1909) 32 Mad 242 and Venkataramanachariar v. Meenatchisundaramaiyer (1909) 19 MLJ 1 for the position that he as defendant can resist the claim of the auction-purchaser in a suit for possession. I find a contrary view is taken by a Full Bench of the Calcutta High Court. But I think it is unnecessary to deal with this point for the purpose of deciding this second appeal. The second appeal therefore fails and is dismissed with costs.