Mohamad Noor, J.This appeal arises out of a suit instituted by one Jugeshra Kuer, (now dead) for declarations that the properties in suit are hers and were not liable to be sold in execution of the decree of defendant 5 against defendants 1 to 3; that sale of a portion of it which had already been effected was not binding upon her, and for injunction. The properties in suit admittedly belonged to one Madho Singh who had three daughters, Bhagwati Kuer, Phuleshra Kuer and Jugeshra Kuer (the plaintiff). Bhagwati Kuer died in his life time leaving a son Surat Singh. Phuleshra Kuer died after the death of her father and her sons are defendants 1 to 3 in the suit. Jugeshra died during the pendency of this appeal leaving a son Satnarain. It appears that defendants 1 to 3, sons of Phuleshra Kuer, executed first a simple mortgage and then a usufructuary mortgage of 1 bigha 3 cothas of land of the estate of Madho Singh which is described in Schedule. A of the plaint in favour of defendant 4. Some time later, this land was sold in execution of a decree of the superior landlord and defendant 4, the mortgagee, was dispossessed. He brought a suit for enforcing the mortgage making defendants 1 to 3 and the superior landlord parties to the suit. The suit was decreed and a decree for sale of the mortgaged property was passed. Defendant 4 thereafter transferred the decree to defendant 5. He took out execution of it and brought to sale the mortgaged property and purchased it himself. Thereafter he obtained a personal decree against defendants 1 to 3 and proceeded to attach some portion of the property mentioned in Schedule B. Therefore the present suit was instituted by Jugeshra Kuer, the surviving daughter of Madho Singh, for the reliefs mentioned above.

2. The case of the plaintiff was that on the death of Madho Singh his properties devolved upon Phuleshra Kuer and Jugeshra Kuer and on the death of Phuleshra Kuer, she as the surviving daughter of Madho Singh was his sole heir and therefore was the owner of the entire property. Consequently, defendants 1 to 3 had no right whatsoever to create the mortgage in favour of defendant 4. She sought a declaration that the sale of the property mentioned in Schedule A in execution of the decree was not binding upon her and that other property could not be sold in execution of the decree. She asked for injunction against defendant 5 restraining him from selling these properties. The suit was resisted by the principal defendant 5 on the ground that on the death of Madho Singh by soma arrangement defendants 1 to 3 were in possession of the properties and therefore the mortgage was perfectly valid and that the sale held in execution of the decree obtained there under was good. The trial Court dismissed the suit; but the lower Appellate Court has decreed it and hence this second appeal.

3. I have said before that since the institution of the present appeal Jugeshra Kuer died and the estate of Madho Singh has now devolved upon his five maternal grand, sons, namely Surat Singh, son of Bhagwati Kuer, Satnarain, son of Jugeshra Kuer (the original plaintiff) and defendants 1 to 3, sons of Phulesfira Kuer. The position therefore is that now the interest which the plaintiff represented as the life-holder of the estate of Madho Singh is now represented by these five maternal grandsons. Three of them are parties to the mortgage and as it is clear that they either fraudulently or erroneously represented to defendant 4 that they were in possession of the property and were entitled to create mortgage of a portion of it, they. u/s 43, T.P. Act, cannot retain their share in the mortgaged property and defendant 5 can insist that though these defendants were not entitled to transfer the property which they did, but now as a portion of [the estate had devolved upon them the .transfer ,and sale should be held good to the extent of their shares.

4. Mr. Ganesh Sharma appearing on behalf of respondents 1(a) and 1(b) contended that the circumstances which have happened since the institution of the suit should not govern the decision. In my opinion the correct law is otherwise. It is the duty of the Court while passing a decree to take notice of the circumstances which happened since the institution of the suit and to frame the decree so as to fit in as far as practicable with the altered conditions. Mr. Sharma further contended that transfer by defendants 1 to 3 was a transfer of spes successionis and therefore entirely void. It was not so. In fact it was a transfer of an interest in the property however erroneous and fraudulent the representation may have been.

5. Therefore the decree of the learned Subordinate Judge so far as it affects the share which has now devolved upon these three defendants (1 to 3) in the property mentioned in Schedule A of the plaint must be reversed. Regarding the other properties there is absolutely no difficulty. The decree which defendant 5 wants to execute is a personal decree against defendants 1 to 3 and it can be executed against any property belonging to them. These defendants have now admittedly succeeded to three-fifths of the estate of their maternal grandfather. Therefore it can, without any objection, be now executed against three-fifths of the property mentioned in Schedule B.

6. Mr. Dutt for the appellant contended that the entire suit should be dismissed on the ground that the plaintiff not being in possession of the property mentioned in Schedule A has asked for a mere declaration. The plaintiff had stated that she was in possession of it and the question of the suit being barred u/s 42, Specific Relief Act, requires the consideration of evidence of possession and dispossession. This plea was not raised and the question was not gone into. In my opinion it cannot be raised in this second appeal.

7. The result is that the decree of the learned Subordinate Judge will be modified to the extent that the declaration granted will be in respect of two fifths of the properties mentioned in Schedules. A and B, namely to the extent of the share which has devolved upon Surat Singh and Satnarain (respondents 1-A and 1-B) and the suit so far as three-fifths is concerned which has devolved upon defendants 1 to 3 will be dismissed. The parties will bear their own costs throughout.

Chatterji J.

I agree.