Judgement Appeal from a decree of the High Court (June 25, 1903), affirming a decree of the Subordinate Judge of Bankipur (March 31, 1900). Gopi Nath was the owner of a village called Dhawlpur Akowna. He died on November 28, 1859, leaving a widow, Gend Koer, and a daughter, Kewal Koer, who subsequently married one Chandan Lal. On the death of Gopi Nath his widow succeeded him and remained in possession of the estate until her death, on December 2, 1868, when she was succeeded by Kewal Koer. Gend Koer in 1868 mortgaged the village to the appellants predecessor, Wahid Ali. Other transactions of borrowing by Gend, and afterwards by her daughter, followed. Eventually on April 23, 1875, Kewal Koer, the daughter, executed a consolidating deed of mortgage, in which all the previous transactions were included. for Rs.30,000 in favour of Zahur Uthuk, the son of Wahid Ali, who in 1878 obtained a decree and herself bought at a sale thereof in execution. On September 14, 1897, the respondents sued as Kewal Koers sons. They alleged that their mother died on February 10, 1897, and they became thereupon entitled in succession to Gopi Naths estate, They challenged the validity of the mortgages executed by Gend Koer and Kewal Koer and the sale in pursuance thereof as binding on them, and prayed for possession of the property in suit. 13 Law. Rep. 35 Ind. App. 38 ( 1907- 1908) Musummat Walihan V. Jogeshwar Narayan 114 In defence the appellants denied that Kewal Koer was dead ; they denied that the plaintiffs were the sons of Kewal Koer, and pleaded that the transactions with Gend Koer and Kewal Koer were binding on the plaintiffs. The following are the issues so far as material (1.) Is Musummat Kewal Koer dead? (2.) Are the plaintiffs the sons of Kewal Koer? (4.) Were the sums mentioned in the bonds not fully paid ? (5.) Were the debts, or any and what portion of them, incurred on account of legal necessities by the widows? The Subordinate Judge found that the alleged death of Kewal Koer, was not proved, but that the plaintiffs were the sons of Kewal Koer and Chandan Lal. (4.) Were the sums mentioned in the bonds not fully paid ? (5.) Were the debts, or any and what portion of them, incurred on account of legal necessities by the widows? The Subordinate Judge found that the alleged death of Kewal Koer, was not proved, but that the plaintiffs were the sons of Kewal Koer and Chandan Lal. On the fourth and fifth issues he decided that the moneys had been paid to Gend Koer and Kewal Koer, but that the transactions were not justified by legal necessity, so as to be binding on the plaintiffs. He made a decree in terms following — " Ordered that this suit be dismissed and it be declared that the plaintiffs are the sons of Musummat Kewal Koer, and that the properties in claim were not sold for valid expenses. The plaintiffs do recover three-fifths of their costs from the con-tending defendants, and the said defendants do recover two-fifths of their costs from the plaintiffs. The decretal amount shall carry interest at 6 per cent. per annum till realization." The High Court affirmed the findings of fact and law as in the judgment of the Court below, and dismissed the appeals which had been instituted by both parties. De Gruyther and Branson, for the appellants, contended that the respondents had no cause of action until the death of Kewal Koer, and, having failed to prove it, their suit should have been dismissed. The Courts had no jurisdiction to make a declaratory decree, and if they had the declarations made were not sustained by the evidence. Reference was made to Doolhun Jankee Kooer v. hall Beharee Roy (( 1872) 19 S. W. R. 32.); Rajessuree Koonwar v. Indurjeet Koonwar. (( 1866) 6 S. W. R.1.) The respondents did not appear. The judgment of their Lordships was delivered by LORD ROBERTSON. Their Lordships are of opinion that this action ought to have been dismissed with costs, and that therefore this appeal should be allowed. The suit was one of the simplest and most plainsailing character, alike in the ground of action and the decree sought. The plain-tiffs (the present respondents) claimed to have possession of their mothers property on the ground that she was dead. The Courts held that it was not proved that the lady had died (and indeed there was positive evidence that she was alive). The plain-tiffs (the present respondents) claimed to have possession of their mothers property on the ground that she was dead. The Courts held that it was not proved that the lady had died (and indeed there was positive evidence that she was alive). The inevitable inference would seem to be that the suit should be dismissed. The Court which tried the case, however, had very naturally tried the whole case at once, and had to deal with some questions as to the paternity of the plaintiffs, and also as to the validity of certain gifts by the mother. These, however, were merely argumentative steps towards the only decree sought, namely, possession ; they were not presented by the plaintiffs as separate and substantive questions affecting rights other than that of possession of their (alleged) deceased mothers estate. As regards one of those questions, it is plain that the validity of the gifts, the lady being alive, could only be determined with her as a party to the suit. Again, the Court might quite 13 Law. Rep. 35 Ind. App. 38 ( 1907- 1908) Musummat Walihan V. Jogeshwar Narayan 115 well have first tried the issue whether the mother was dead ; and, reaching as it did the conclusion that this essential fact was not proved, it is impossible to suggest that it could then have gone on to take up and try the other questions. Yet the present is really the same question. It appears to their Lordships that the circumstance that some of the media concludendi might be the same in other actions does not vest the Court with any right or duty to pronounce upon them in a suit which has gone by the board because of the failure of the ground of action. It is not surprising that no proposal was made in India to amend the record, and the record presents its original plain simplicity. Their Lordships will therefore humbly advise His Majesty that the appeal ought to be allowed, that the decrees in both Courts below ought to be discharged, and that instead thereof the suit ought to be dismissed, with costs in both Courts to be paid by the respondents. The respondents will pay the costs of the appeal.