JUDGMENT
Ramaswami, J.
1. In this suit the plaintiffs alleged that they and defendant 2 were members of a joint Mitakshara family; that on 15-6-1945 defendant 2 executed a sale deed in favour of defendant 1 with respect to his undivided share of the joint family properties; that the sale deed was without consideration or legal necessity and defendant 1 obtained no title by virtue thereof. The plaintiffs therefore asked for a declaration that the sale deed dated 15-6-1945 was illegal and not binding upon them. Defendant 1 contested the suit on the ground that the sale deed was for consideration and legal necessity. He further alleged that on 3-11-1945 after the institution of the suit defendant 2 executed another sale deed with respect to the same properties. It was also alleged that on 29-8-1945 defendant l had given notice to the plaintiffs that he would separate from the joint family. Defendant 1 therefore pleaded that his title has become perfected in any event. The learned Munsif found that the sale deed was genuine and for consideration. But he held that before the institution of the suit defendant 2 and the plaintiffs were joint and so by executing the sale deed dated 15-6-1945 defendant 2 obtained no title to the undivided share of the joint properties. As regards the second sale deed dated 3-11-1945 the learned Munsif held that by virtue of the notices, Exs. C to C/5, defendant 2 became separate from the plaintiffs and by the execution of the sale deed defendant 2 conveyed a valid title to defendant 1 with respect to the properties in suit. The learned Munsif therefore dismissed the suit.
2. In appeal the learned Subordinate Judge held that “the plaintiffs were in possession and defendant 1 was entitled to seek partition” and therefore “modified the Judgment of the learned Munsif to that extent.”
3. In support of the appeal the main argument addressed is that the lower Courts committed an error of law in taking notice of events which had happened since the institution of the suit. Reference was made to Raicharan Mandal v. Biswanath, 20 C. L. J. 107 : (A I. R. (2) 1915 Cal. 103) where Asutosh Mookerjee J. observed that as a general rule a suit was to be tried in all its stages on the cause of action as it existed at the date of its commencement. As an exception to this rule a Court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions in cases where it is shown that the original relief claimed has by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. In the present case the lower Courts have committed an error of law in holding that the general rule was not applicable. In the plaint the plaintiffs had challenged that the sale deed dated 15-6-45 executed by defendant 2 was illegal and not binding upon them. Having found that the family was joint at the date the kobala was executed it is not clear why the lower Courts held that the grant of the relief asked for in the plaint was inappropriate in the circumstances of the case. It is true that defendant 1 had alleged that by the notices (Exs. C. series) defendant 2 had communicated his intention to separate. He further alleged that on 3-11-1945 after the institution of the suit defendant l executed a second kobala in favour of the plaintiffs for the same properties. These facts were not admitted by the plaintiffs who, on the contrary, denied that defendant 1 sent the alleged notices of separation or that the second kobala was genuine or executed for consideration. There was no specific issue raised or decided by the learned Munsif on the question of separation of defendant 2 after the institution of the suit and also on the validity of the second kobala. In the circumstances proved in this case I hold that the Courts ought not to have taken notion of events which are alleged to have happened since the institution of the suit or afford relief to defendant 1 on the basis of the altered condition alleged.
4. Nevertheless it was argued for the respondents that since the grant of a declaratory decree was discretionary the High Court ought not in second appeal to interfere with that discretion. But it is a well-settled principle that a Court of Justice ought not to exercise its-discretion in arbitrary or capricious manner. As I have shown the lower Courts have committed an error of law in the present ease in taking notice of subsequent events and in refusing to grant relief to the plaintiffs for that reason it must be held that the lower Courts have not exercised the discretion in a legal manner.
5. For these reasons therefore I would allow this appeal and reverse the decree of the lower Courts and decree the suit in favour of the plaintiffs. But in the circumstances of the capes I do not propose to make any order as to costs.
6. Leave to appeal under the Letters Patent is refused.