Ram Labhaya J.-This is an appeal from the judgment and decree of the Subordinate Judge, Oachar, dated 31-1-1949 by which plaintiffs' suit for a declaration of title and for confirmation or in the alternative for recovery of possession was dismissed with costs. [2] The facts giving rise to this litigation are as follows : Plaintiffs are the sons of one Jagannath Sukul, who had two brothers Bisweswar Prasad and Baijnath. Bisweswar had three sons. They are pro forma defendants 3 to 5. Baijnath had also 3 sons. They are pro forma defendants 6 to 8. Jagannath, father of the plaintiffs, is alive and he is pro forma defendant 9. Maugli Prasad Sukal, the father of Jagannath and his brothers, came to Assam from TJttar Pradesh more than 70 years ago. Is admitted that the family of Mongli Pxosad (plaintiffs' grandfather-the origi­nal ancestor) is governed by the Blitakshira School of Hindu Law. [3] The plaintiffs' ease was that Mongliprosad purchased the suit property from Mr. Bullen and Mr. Berry by a registered kabila dated 24-4-1899 for a sum of Rs. 6000. Mongliprosad died in 1918 leaving his three sons Bisweswar, Baijnath and Jagannath. The three sons inherited the properties. In 1919, the three sons of Mongliprosad mort­gage the properties in suit for a sum of Bs. 7,000, which was advanced to them by Messrs. Walker Goward and Company of Calcutta. The mortgage was made on 28-11 1919. Thereafter Monmal Buia and Baijnath Baia of Calcutta purchased the rights of Messrs. Walker Goward and Company as mortgagees and obtained a decree for sale against the 3 sons of Mongliprosad, who were the mortgagors. The property was put to sale in execution of the decree and the decree-holders purchased it on 21-1 1935. It is alleged that they did not recover khas possession of the suit lands. There was a partition of the properties belonging to Buia brothers. The suit property fell to the share of Monmall Buia. Monmall died and his son Mathuraprosad sold the properties in suit to defendants 1 and 2. [4] The case set up by the plaintiffs was that the original mortgage by the three sons of Mongli­prosad was not for legal necessity. The joint family property, in these circumstances, could not have been mortgaged. Monmall died and his son Mathuraprosad sold the properties in suit to defendants 1 and 2. [4] The case set up by the plaintiffs was that the original mortgage by the three sons of Mongli­prosad was not for legal necessity. The joint family property, in these circumstances, could not have been mortgaged. The mortgage decree and the auction sale, therefore, were not binding on them in their capacity as members of a joint Hindu family governed by the Mitakara's School of Hindu law. They are thus entitled to a decla ration of title and confirmation of possession which they claim. In 'the alternative, they also asked for recovery of possession. [5] The defendants raised several pleas. We are concerned at this stage only with one of these pleas. It was pleaded by them that the original mortgage was for necessity and for antecedent debts and as the property had passed out of the family, plaintiffs could challenge the mortgage only if they could show that the debt was in­curred for illegal or immoral purpose. [6] The learned Subordinate Judge came to the conclusion that defendants could not prove that there was any necessity; nor could they establish that any antecedent debts existed. He, however, agreed with the defendants that inspite of the fact that family necessity and the existence of antecedent debts had not been proved, the plain­tiffs could not succeed as they were under a pious obligation to pay their father's debts, if not illegal or immoral. Ha found that the debt existed and it was not shown that it was incurred for illegal or immoral purpose. He, therefore, held that the plaintiffs were bound by the sale and dismissed their suit. [7] The learned counsel for plaintiff - appellants has first raised the contention that the doctrine of pious obligation of the son could not have been invoked by the contesting defendants in this case, since there was an alienation of the joint family property which was not supported by any antecedent debt or necessity. The estate was mortgaged as a security for the loan raised. The mortgagor of a joint family property, even if he happens to be the father of the other members of the family, has no power to burden the estate except for necessity or for his own antecedent debts not incurred for illegal or immoral purposes. The estate was mortgaged as a security for the loan raised. The mortgagor of a joint family property, even if he happens to be the father of the other members of the family, has no power to burden the estate except for necessity or for his own antecedent debts not incurred for illegal or immoral purposes. According to him, the pious obligation of the son arises only when the debt is personal and has not been advanced on the security of the joint family pro­perty. In support of his contention he has relied on two Privy Council oases Sahu Bam Chandra v. Bhup Singh, 21 Cal. W. N. 698 (P. 0.) and Brij Naram Rai v. Mangla Prasad, 28 Cal W. N. 253 (P. o.). He has also relied on Jagdish Prasai v. Hosiyzr Singh, 51 ALL, 136, Bharmappa v. Hanmantappa, A. I. R. (30) 1943 Bom. 451 and Ganpati Pandurang v. Rameshwir Moti Ram, A. I. B. (34) 1947 Nig. 69. Ha argues that proposi­tion No. 2 laid down by their Lordships in Brij Narain's case relates to unsecured debts only and wherever there is a secured debt even though incurred by the father, the transaction is govern­ed by proposition No. 3. A mortgage in such a case would bind the family estate only if it is for necessity or for an antecedent debt of the father not incurred for illegal or immoral purposes. [8] There has been considerable divergence of judicial opinion on the interpretation of proposition No. 2 laid down in Brij Narain's case (28 0. W. N. 253). It is, however, not necessary for the purposes of this case to decide which out of the two possible interpretations that can be placed on proposition No. 2 should be adopted. The question that we have to decide in this case is whether joint family property which has passed out of the family by reason of a sale in pursuance of a decree passed against the father, even though the decree was on the basis of a mortgage, can be recovered by the sons without proving that the mortgage debt which merged in She decree for sale wa3 either illegal or immoral. This question did not arise in either of the two Privy Council cases relied on by the learned counsel for the appellants, But, we think the question is otherwise conclud­ed by authority which is all one way. Their Lord­ships of the Privy Council hid consistently adhered to the view that when the joint family property has been sold at court auction, the auction purchaser is entitled to protect himself against the sons unless they can establish that the debt had been contracted for an immoral or an illegal purpose and it is immaterial whether the auction sale was in execution of a mortgage decree or a simple money decree. In Suraj Bansi Koer v. Sheo Prashad Singh, 5 cal. 148 (P.C.), Sir Jimea Colvile in delivering the judgment of their Lordships of the Privy Council observed as follows : '1st-that where joint ancestral property bas passed out of a joint family either under a conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they show that the debts were contracted for immoral pur­poses, and that the purchasers had notice that they were so contracted; and 2udly, that the purchasers at an exe­cution sale, being strangers to the suit, if they have not notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings." [9] These observations were made in a case where the suit had been brought on behalf of the minor eons to set aside a sale in execution of a decree obtained upon a mortgage executed by their father of certain immoveable property be-longing to a joint family governed by the Mitakshara law. The property was sold in auction on 29-7-1870 and the suit was instituted within a month of that date, namely, 27 8-1870. [10] In Muddun Thakoor v. Kantoo Lall, l Ind App. The property was sold in auction on 29-7-1870 and the suit was instituted within a month of that date, namely, 27 8-1870. [10] In Muddun Thakoor v. Kantoo Lall, l Ind App. 321 it was laid down by their Lordships of the Privy Council that : "A purchaser under an execution is not bound to go further back than to see that there was a decree against tie father; and that the property was liable to satisfy the decree, if the decree has been given properly against the father. In such a case one who has bona fide purchased the estate under the execution, and bona fide paid a valu­able consideration for it, is protected against the suit of the sons seeking to set aside all that has been done under the decree and execution and to recover book the estate as joint ancestral property." The pronouncement was approved in 5 Cal. 148 (P. 0.). [11] In Bhagbut Pershad Singh v. Girja Koer, 15 Gal. 717 the suit had been brought on behalf of the infant children of the mortgagors to recover possession of the property which had been sold in execution of a mortgage decree obtained by the mortgagee under a bond under which the property had been charged as security for the amount ad­vanced. Their Lordships held that as it was a joint family consisting of father and children, and the sons would be liable to pay the debts of their father unless incurred for immoral or illegal purposes. The pronouncements made in the two earlier cases were quoted with approval. [12] In Nanomi Babuasin v. Modhun Mohun, 13 Cal. 21 it was laid down by their Lordships of the Judicial Committee that the principle was well established that the sons cannot set up their rights against their father's alienation for antecedent debt or against his creditors' remedies for their debts if not tainted with immorality.' The conclusion arrived at in this case was that if the sons claim against a purchaser of an ancestral estate under an execution against their father upon a debt contracted by him, it is necessary for the sons to prove that the debt was contracted for an immoral purpose, and it is not necessary for the creditors to show that there was a proper inquiry, or to prove that the money was borrow­ed in a case of necessity. Lord Hobhouse observed as follows: "Destructive as it may be of the principle of indepen­dent coparcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's aliena­tion for an antecedent debt, or against his creditors' remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate their Lordships think that there is now no conflict of authority." [13] Brij Narain's case, (28 0. W. K. 253 p. c.) does not seem at all to overrule the decision m Nanomi Babuasin's case, (13 Cal. 21 p. c.). The words 'creditors' remedies' would apparently include the creditors' right to bring the property to sale for realisation of the debt. [14] In Bai Babu Mahabir Pershad v. Bai Markunda Nath Sahai, (17 ind. App. 11), Lord Hobhouse, who delivered the judgment of their Lordships of the Privy Council observed : "but the question is whether the plaintiff, who is the son of the judgment-debtor, can set up his right as a co-sharer to impeach a sale decreed against his father for the purpose of defraying the debts of his father and grandfather. He can only do so on condition that he shows the debts to have been contracted for immoral pur­poses, and that issue has been found against him in this suit." [15] In this case also the two previous deci­sions-13 ind. App. 1 and 15 Ind, App.99-were quoted with approval. In this connection Lord Hobhouse observed as follows : "There have been of late years a great number of suits of this kind and some difficulties have been felt as to the proper mode of treating them. It is to be hoped that recent decisions by this Committee have lessened these difficulties. At all events, their Lordships feel none in this ease, treating it on the principles laid down in the cases reported in Nanomi Babuasin v. Modhun Mohun, 13 Cal. 21 (P. C.) and Bhagbut Pershad v. Girja Koer, 15 Gal 717, and addressing themselves to the question of fact whether tie thing meant to be sold and bought was the entirety of the estate, or only a share of it." [16] All the cases discussed above were decided long before the two Privy Council cases relied on by Mr. Ghose. Ghose. The first of these cases is the case of Sahu Bam Chandra v. Bhup Singh, 21 c.w.N. 698 (P. o.). This was decided in 1917. In this case it was held that "under the law of Mitakshara, the family property owned by all the members of the family as coparceners cannot be the subject of a gift, sale or mortgage by one coparcener except with the consent, express or implied, of all the other coparceners. Any deed of gift, sale or mortgage granted by one coparcener on his own account of or over the joint family property is invalid, the estate is wholly unaffected by it, and its entirety stands free of it. The power of the father in the capacity of manager and head of the family to alienate joint property for family neces­sity is no .exception to this rule, since it is proper to imply a consent of all coparceners to that act of the one which such necessity has demanded." [17] The suit in the above case was on the took of a mortgage. The original amount secured was BS. 200. At the time of the suit, the amount due on the mortgage had swelled to Rs. 22,131-9 0. The plaintiffs sued to recover Rs. 15,000 only. The suit was resisted but the property had not yet gone out of the joint family. The question whe­ther a sale in execution of a money decree against the father alone can be successfully challenged by the son without proving that the debt was illegal or immoral did not arise in the case. Their Lord­ships had occasion to refer to the earlier authori­ties in the case and the principles laid down therein were approved. Lord Shaw, who deliver­ed the judgment of their Lordships of the Judicial Committee observed as follows: "As has been already observed, too little weight has been attached to the consideration that, so far as the joint family estate is concerned the law has bean invoked for the protection of third parties, whose rights in or with regard to it have been acquired in good faith. A perusal of the numerous authorities will show that where a joint family property has been sold out and out and where a decree In execution of the mortgage has been obtained against the property, and rights have thus sprung up with regard to the joint family estate, these rights are not to be defeated by the members of the joint family simply questioning the transaction entered into by its head. In the case of Suraj Dansi Koer v. Shea Pershad Singh, 5 Cal. 148 (P C ) already referred to, Sir James Colvile, referring to the case of Girdhari Lall v. Kantoo Lall. 1 lad. App. 321 observed: '1st. That where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay of! an antecedent debt, or under a sale in execution of a decree for the father's debt, his BODS, by reason of their duty to pay their father's debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted; and secondly, that the purchasers at an execution sale, being stranger to the suit, if they have not notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings.' Their Lordships desire to record their adhesion to the following comments made on this pronouncement be Sir John Stanley in the case of Cliandradeo Singh v. Mata Perlhad, 31 All. 176. The learned Chief Justice stated, 'The first of these propositions, it will be observed, deals with cases where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt. It deals with cases in which ancestral property has passed out of the family, and with no other cases, and the words antecedent debt seem to have been used advisedly. Likewise the second proposition deals with the case of a purchase at an execution sale. It deals with cases in which ancestral property has passed out of the family, and with no other cases, and the words antecedent debt seem to have been used advisedly. Likewise the second proposition deals with the case of a purchase at an execution sale. Neither proposition touches a case in which a mortgagee of-a Hindu father seeks to enforce his mortgage as against the sons.' In their Lordships opinion this is a correct and useful statement of the law." [18] It is obvious from the above passage that the decision in the two earlier eases, namely, 6 Ind. App. 83 and 1 Ind App. 321, were fully ap­proved, They were, however, distinguished. This case, therefore, is no authority for the proposition that merely because the mortgage in this case has been found to be not for necessity or for an antecedent debt, it is open to challenge without proof of the illegality or immorality of the debt even though the property has been sold in execu­tion of a mortgage decree against the father and the property has passed out of the family. On the other hand it supports the view which has prevail­ed in the Court below. [19] The second Privy Council case relied on by the learned counsel for the appellants is Brij Narain Bai v. Mangla Prashad, 28 c. w. N. 253 (P. C.). In this case the suit had been filed on behalf of Mangla Prasad and Jamna Prasad, minors, by their mother for a declaration that a mortgage executed by their father and a decree obtained on that mortgage were void as against them. Even in this case the property had not passed out of the family; the sale had not taken place. The question that we have now to decide, therefore, was not before their Lordships of the Privy Council even in this case. It was in this case that their Lordships laid down the five famous proposition bearing on the rights of the manager and the father if he happens to be the manager, to alienate joint family property. These propositions were meant to clarify the law on the point. The clarification did not achieve its pur­pose. The propositions were variously interpreted as stated above. These propositions were meant to clarify the law on the point. The clarification did not achieve its pur­pose. The propositions were variously interpreted as stated above. In regard to the remedies of the sons where family property had been sold in execu­tion of a decree against the father alone no decision could be given by their Lordships of the Privy Council in this case as the point was not before them. When dealing with the question whether pious obligation of the son to pay off the father's debt could be enforced by a creditor while the father was alive, their Lordships relied on Gir­dhari Lall v. Kantoo Lall, 11. A. 321, Deendyal Lall v. Jugieep Narain Singh, 4 Ind. App. 247, Nanomi Babuasin v. Modun Mohun, 13 Ind. App. 1, Bhagbut Pershad v. Girja Koer, 15 Ind. App. 99 and Bai Babu Mahabir Pershad v. Bai Markunda Nath Saliai, 17 Ind. App. 11. Belying on these authorities, their Lordships found that the pious obligation could be enforced even during the lifetime of the father. The principle laid down in these authorities was accepted by neces­sary implication though they were used for a limited purpose only. In any case, it cannot be said that proposition No. 2 in this case, which lays down that if the manager is the father and the other members are the sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execu­tion proceeding upon a decree for payment of that debt, was meant to lay down anything con­trary to the propositions laid down in the previous Privy Council cases referred to in the judgment. If a different opinion was intended to be taken, it would have been clearly expressed particularly as the authorities were being relied on and their Lordships also intended to clarify the law on the question before them. The clarifi­cation should be deemed limited in its application to the situation that arose in the case before them. If a different opinion was intended to be taken, it would have been clearly expressed particularly as the authorities were being relied on and their Lordships also intended to clarify the law on the question before them. The clarifi­cation should be deemed limited in its application to the situation that arose in the case before them. The propositions laid down in the case, therefore, can have no application to a case where the property has passed out of the joint family and the question is whether the sons can succeed merely by saying that the mortgage which formed the basis of the decree in pursuance of which the property was sold was without necessity and was not for an antecedent debt without proving the immoral or illegal nature of the debt. This case also is not helpful to us for the decision of the main question that arises in this appeal. [20] The three other cases relied on by Mr. Ghose (51 All. 130, A. I.R. (30) 1943 Bom. 451 and A.I.R. (31) 1947 Nag. 69) are all cases where there had b3en no eale of the property and the property had not passed out of the family. They have also no bearing on the question now before us. [21] In Jahan Singh v. Hardat Singh, 57 ALL. 357, important authorities bearing on this question were examined. In this case joint family property was sold in execution of a decree on a mortgage executed by the father and it was purchased by the mortgagee decree holder. After the sale and its confirmation, but before posses­sion was delivered to the auction purchaser, the son brought a suit for a declaration that the mortgage, on which the decree and the sale had taken place, was not binding on the family for want of legal necessity. It was held that the son could not succeed in his suit without proving that the debt was one tainted with immorality: "As soon as the joint family property had passed to the auction purchaser by virtue of the sale and its con­firmation, then, whether delivery of possession had taken place of not, the property ha3 "passed out of the joint family under a sale in execution of a decree" within the scopo of the rule laid down by the Privy Council in Suraj Bansi Koer v. Shea Pershad Singh, (5 Oal. 148 P. 0.) and the auction-purchaser was entitled to protect himself against a suit by the son unless the latter esta­blished that the debt had been contracted for an immoral or illegal purpose; and where the auction purchaser was a stranger, it mast further be established that he had notice of the nature of the debt." The learned Chief Justice referring to Brij Narain's case, (28 Cal. W. N. 233) the principal authority relied on behalf of the appellants obser­ved as follows : "It seem? to me that their Lordships of the Privy Council in the case of Brij Narain v. Mangal Pershad (28 Gal. W. N. 253 P. 0.) were summarising the proposi­tions of law which followed from the authorities quoted by their Lordships. The ease of Bhagbut Pershad Singh v. Girja Koer (15 Oal. 717) which was that of an auction purchase in elocution of a mortgage decree, was one of the cases quoted by their Lordship a with approval. It, therefore, appears to me impossible to infer that their Lordships intended to overrule their own previous deci­sions and intended to lay down that an auction purcha­ser in execution of a mortgage decree must further establish, whether he is stranger or the mortgages him­self, that the mortgage debt had been taken for legal necessity. In the case before their Lordships, the mort­gagee had only obtained a decree for sale and had not proceeded to get the property sold, and the sons' suit was for the avoidance of the mortgage decree and not for the setting aside of any Court sale. It is, therefore, still more unlikely that their Lordship a would overrule the previous decision on the question of auction sales when that point was not directly raised in Brij Narain's case (28 0. W. N. 253 P. C.). I am, therefore, of opinion that the case decided in Gajadhar Pande v. Jadubir Panda, 47 All. 122 is in accordance with the rule of law laid down by their Lordships of the Privy Council in Suraj Bansi Koer's case (5 Cal. 148) and Bkagbut Pershad Singh's case and must be followed." [22] I am in respectful agreement with the learned Chief Justice of the Allahabad High Court in the interpretation that he placed on Brij Narain's case (28 cal. 148) and Bkagbut Pershad Singh's case and must be followed." [22] I am in respectful agreement with the learned Chief Justice of the Allahabad High Court in the interpretation that he placed on Brij Narain's case (28 cal. W. N. 253 P. C.) That case is clearly distinguishable and has no application to the case of an auction purchaser who has purchased the property in execution of a mortgage decree. There is no distinction between a secured debt and an unsecured debt so far as an auction purchaser is concerned though there is a distinction between a stranger purchaser and a mortgagee purchaser. In the case of a stranger purchaser, the sons must further show that he had notice that the debt was tainted with illega­lity or immorality, whereas in the case of a mortgagee purchaser, constructive notice is pre­sumed and they can succeed against him by merely showing that the debt was either illegal or immoral. The proposition of law laid down in 57 ALL. 357 is based on the rule enunciated by their Lordships in Suraj Bansi Eoer v. Sheo Prashad Singh (5 cal. 148 P. C.) and there is nothing that was said in Brij Narain's casa which would show even remotely that their Lord­ships had intended to overrule or differ from the view taken in Suraj Bansi's case. All cases in which mortgages or mortgage decrees were chal­lenged by the sons before sales had taken place in execution of mortgage decrees including 51 ALB, 136, therefore, are distinguishable. [23] The learned counsel for the appellants has not been able to cite a single case in which a son was permitted to succeed against an auction purchaser whether the mortgagee himself or a stran­ger without proving illegality or immorality of the debs. In Sugnomal Kirpaldas v. Chuhermal Lilaram, A. I. B. (26) 1939 sind 297, the learned Judges following the case of Suraj Bansi Koer, (5 cal. 148 P. c.) held that the plaintiff, in the case before them, who was the son and who had failed to prove that the father's debt was for an immoral or an illegal purpose could not successfully challenge the sale which was complete. The father had mortgaged the joint family property. In execu­tion of the mortgage decree, the property was auctioned. The father had mortgaged the joint family property. In execu­tion of the mortgage decree, the property was auctioned. As the auction sale was complete, the son was not allowed to challenge the sale without proving the illegality or the immorality of the secured debt. The view taken was the same that prevailed in 57 ALL 357. [24] The proposition of law recognised in the Allahabad and Sind oases may be regarded as firmly established. The law on the points as summed up in Mulla's Hindu Law, Edn. 10, S. 294 B at pf. SG5 fully supports it. [25] There is no proof that the mortgage debt in this case was for an illegal or immoral purpose. The debt existed; it was not shown to have been tainted with illegality or immorality. The plain­tiffs, in these circumstances, could not succeed as held by the Senior Subordinate Judge and we find ourselves in full agreement with him on this point;. [26] The learned counsel for the appellants has also urged that what was sold at the auction was 00 more than the right, title and interest of the mortgagors and, therefore, plaintiffs could succeed at least to the extent of their shares in the pro­perty. No alternative relief was claimed in the plaint on this basis. The case set up by the plain, tiffs was that the property in suit was mortgaged, A decree for sale of the property was also passed and the property was sold in execution of the mortgage decree. There is no suggestion in the plaint that the right, title and interest of the judgment debtor alone was sold. There was no issue on this point. The question was not raised given in the grounds of appeal. As held by their Lordships of the Privy Council in 17 Ind. App. 11, it is a question of fact in each case whether what sold was the property itself or merely the right, title and interest of the judgment-debtor. It is even now conceded that the property in suit was mortgaged. The decree was also for sale of the mortgaged property. But it is pointed out that the certificate of sale contains the recital that the right, title and possession which vested with the judgment, debtor over the properties mentioned in the Sch. 1 has been purchased in open sale. The schedule includes the entire pro­perty in suit. The decree was also for sale of the mortgaged property. But it is pointed out that the certificate of sale contains the recital that the right, title and possession which vested with the judgment, debtor over the properties mentioned in the Sch. 1 has been purchased in open sale. The schedule includes the entire pro­perty in suit. The certificate is in accordance with the requirements of the Civil Procedure Code. The description of the property as the right, title and interest of the judgment-debtor is con­sistent with the sale of every interest which the judgment-debtor might have sold and does not necessarily import that when the father of a joint family is the judgment-debtor, nothing is sold but his interest as a co sharer. This was the view taken by their Lordships of the Privy Council in the case referred to above (17 Ind. App. 11). In the light of this decision, even the certificate does not help the plaintiffs and if the matter in decided on the material now available, the con­tention cannot prevail. It is, however, more appropriate to rule out this contention on the ground that it essentially raises a question of fact which was not raised in the Court below and on which we have got no finding from the trial Court. If it is allowed to be raised at this stage, defendants would be taken by surprise. We, therefore, decline to entertain it. [27] For reasons given above the appeal is dis­missed with costs. [28] Thadani C. J.-I agree. Appeal dismissed.