KISHORI LAL Vs. BHAWANI SHANKAR

JUDGEMENT

(1.) THIS appeal is brought by the plaintiffs from a decree of the High Court at Allahabad, dated November 24, 1936. The defendants have not been represented at the hearing of the appeal, but Mr. Rewcastle and Mr. Hyam for the appellants have carefully laid before the Board all the material considerations.

(2.) THE suit was brought on March 21, 1932, in the Court of the Subordinate Judge of Etah, upon a registered mortgage dated September 1, 1926, and claimed the usual relief under Order XXXIV, Civil Procedure Code,-Enforcement of the mortgage by sale of the mortgaged property. THE mortgage deed was in favour of the plaintiffs. It was executed by three persons as mortgagors-Bhawani, Mahadeo, and Sriman Narain-but Bhawani purported to execute on behalf of himself and his minor son Kailash Narain; while Mahadeo purported to execute on behalf of himself and his four minor sons- Tirjugi, Giyanendra, Mathresh and Sat Narain. As will be seen the pedigree hereunder, Bhawani and Mahadeo were brothers and Sriman Narain was their nephew, being the son of their deceased brother Shea Shankar. Pannu Lal | | | | Bhavani Shankar Mahadeo Shankar Sheo Shankar deceased, defendant No.1 defendant No.2 | | Sriman Narain, defendant No.3 Kailash Narain minor | defendant No.8 I Ram Narain minor defendant No. 9 | | | |Sat Narain, Narain, minor Giyanendra Narain, TirjugiNarain,minor Mathresh defendant No.6 defendant No.5 defendant No.7 defendant No.7

(3.) THE plaintiffs suing to enforce this mortgage deed impleaded all the members of the family as well as certain transferees from them, who need not be further mentioned. THE first three defendants were Bhawani, Mahadeo and Sriman Narain. THEre being some difficulty about the appointment of a guardian ad litem for the minors Kailash and Ram Narain, these two were before the trial discharged from the suit at the plaintiffs' instance on August 6, 1932. It was conceded by the defendants at the trial that the three branches of the family were joint and it is not disputed that' Mahadeo was the karta. THE learned Subordinate Judge thought that since two of the minor members of the family were no longer parties to the suit it was not open to him to give a mortgage decree against joint family property, and that the only relief which he could grant was a money decree against the three defendants who had been of full age at the date of the deed-viz., Bhawani, Mahadeo and Sriman Narain. This view was overruled by the High Court who pointed out that in such a suit a minor member of a Hindu joint family is sufficiently represented by the karta.