MOTILAL FULCHAND Vs. GITA RAMA

JUDGEMENT

(1.) THESE two sets of appeals arise out of the judgments of the learned Special Judge of the Special Tribunal Court at Mangalwodha. Suits Nos. 1894 of 1937 and 1822 of 1938 were filed by one Bai Gita, the daughter of Gundi, against the firm of Jaynarayan Jagannath Marwadi, the partners of that firm and the alienees from the firm of certain properties and lands situate at Mangalwedha. One Appa had three sons, Gundi, Rama and Sada. There was a severance of joint status between the members of the joint family in year 1892 and certain documents were executed by and between the parties. Gundi thereafter in years 1898, 1900 and 1901 executed mortgages in favour of defendant 1 to secure repayment of certain monies due and owing by him to the firm. He thus mortgaged seven lands to defendant 1 on three several dates in the years 1898. 1900 and 1901 and his two brothers Rama and Sada were parties to these documents in their capacity as-sureties. Gundi also executed a possessory mortgage of a house at Mangalwedha in favour of defendant l for the consideration of Rs. 25 in the year 1901. Gundi, it appears, was indebted to several parties, and in execution of a money decree obtained against him by a creditor of his an auction sale was held of the house as well as the seven lands in darkhast No. 347 of 1905. Defendant 1 purchased the house and the seven lands at the said auction sale. What had happened, however, in these execution proceedings was that Gundi having died in year 1904 the decree-holder had brought in Sada as the heir and legal, representative of Gundi in the execution proceedings and it was after issuing notice to Sada that the auction sale was held. Gundi had left him surviving two daughters, Bai Gita, the plaintiff and one Tanu, who was defendant 6 and defendant 13 respectively in the above suits. But neither of them was brought on the record as the heir and legal representative of the deceased Gundi. This was the state of the record when the auction sale was held and defendant 1 pur-chased this house and the seven lands at Mangal-wedha at the court sale. Defendant I entered into possession of the properties thus purchased by it. The house at Mangalwodha was sold by defendant 1 to defendants 2 to 6 in Suit No. 1894 of 1937 by a conveyance dated 19- 4-1912. Five lands out of the seven lands at Mangalwedha were sold by defendant 1 to defendants 5, 6, 7, 8 and 9 in Suit No. 1322 of 1938 by several conveyances dating from 11-4-1919 to 26-4-1923. The remaining two lands continued in the possession of defendant 1 and defendant 3 who was the partner in defendant l. The two suits above named were filed by the plaintiff Bai Gita, the daughter of Gundi, who was the common plaintiff in both these suits against defendant 1 the firm, its partners and the respective purchasers of the house and the lands at Mangalwedha in the first instance for accounts of the several mortgage transactions but subsequently under the order of the Appeal Court for redemption of the property and the lands,

(2.) DEFENDANT l who was the common defendant in both these suits contested the suits, con-tending inter alia that the auction sale was validly held and that it acquired a good title to the property as well as the lands which it purchased at the court sale, and that in any event the plaintiff's suits were barred under Article 12, Limitation Act or under Article 134, Limitation Act.

(3.) THE learned trial Judge hold in Suit No. 1894 of 1937 that so far as defendant 1 was concerned the suit property was free from the mortgage in favour of defendant l but the plaintiff was not entitled to get possession of the property from defendants 2 to 5 inasmuch as her claim against them was barred by the law of limitation under Article 134, Limitation Act. Ho, however, allowed so the plaintiff compensation in the sum of Rs. 25 against defendant l, for loss of the mortgaged property. Defendant l filed an appeal being F. A. No. 360 of 1948 against this decision of the learned trial Judge demurring against the award of compensation in the sum of Rs. 25. The plaintiff in her turn filed F. a. No. 362 of 1948 claiming as. 1000 as and by way of compensation for loss of the mortgaged property. These are the two first appeals from the decision of the learned Judge in Suit No. 1894 of 1937.