SATWATI Vs. KALI SHANKER

JUDGEMENT

(1.) THESE two appeals are connected and arise out of the same suit. Raj Kumar on 8-5-1935 had executed a mortgage deed in favour of Uma Shankar. Both the mortgagor and the mortgagee are dead. The mortgagee's legal representatives (sic) the suit out of which these appeals have arisen for sale of the mortgaged property by enforcement of the mortgage transaction. Besides the mortgagor's widows, Satyavati and Ram Dulari, the plaintiffs impleaded two other defendants, kailash Nath Misra defendant 3 and Kalka Prasad defendant 4. Kailash Nath Misra was a half brother of the mortgagor and after the death of the mortgagor Raj Kumar he had sold a half share in the mortgaged property to Kaika Prasad, defendant 4, The plaintiffs alleged in the plaint that the property in suit was the self-acquired property of Raj Kumar of which he was the sole owner and after his death it was inherited by his two widows and defendant 3 had no right, title or interest in the said property which he could transfer and therefore neither he nor defendant 4, the transferee from him, had any interest in the property included in the Mortgage.

(2.) THE defendants contested the suit on various grounds. The only plea taken by defendants 1 and 2 with which we are now concerned is that they had a right of residence in the residential house which had been mortgaged and the property could only to sold subject to their right of residence. Defendants 3 and 4 filed separate written statements and while defendant 4 took up the plea that raj Kumar and Kailash Nath were brothers and members of a joint Hindu family and the mortgage executed by Raj Kumar was not binding on Kailash Nath, Kailash Nath took up the plea that the property belonged half and half to him and Raj Kumar and that Raj Kumar had no right to mortgage anything more than his half share. In the written statement filed by Kailash nath, the second paragraph of the additional pleas was as follows: "no cause of action to file this suit against the contesting defendant accrued to the plaintiffs. " No clear plea was taken in the written statement of Kailash Nath that he was claiming a paramount title to the property, that he had been unnecessarily impleaded and should be discharged. On the date the written statements were filed the learned Munsif framed the issues in the presence of counsel and no issue was framed on the point whether defendants 3 and 4 had been unnecessarily impleaded and should be discharged. The issues framed by the learned Munsif read as follows:

(3.) THE learned Munsif held that Raj Kumar was the sole owner of the property mortgaged and decreed the plaintiffs' suit. The defendants filed appeals before the learned District Judge and in the appeal filed on behalf of defendants 3 and 4, the ground No. 2 was to the following effect :