NATHU ANANDA GHORPADE Vs. YASHODA JAGANNATH GHORPADE

JUDGEMENT

(1.) On 15/9/2011 I had passed following order :

(2.) Accordingly, Mr. Bodake, Advocate for the Appellants and Mr. Warunjikar, Advocate for Respondent Nos. 3A to 3C and Mr. Ghorpade, Advocate for Respondent Nos. 1 and 2 advanced their respective arguments. I had occasion to consider a more or less identical situation in Second Appeal No. 488 of 2010. In that Judgment I have taken following view :

(3.) In the present case the facts are not in dispute. The suit in the present case was filed by the widow and daughter of Late Jagannath Ghorpade against 7 Defendants for re-conveyance of their half share pursuant to the Agreement dated 8/5/1956. The Defendant No. 7 Eknath was the younger brother of Late Jagannath Ghorpade, predecessor in title of the original Plaintiffs. No relief was claimed against the Defendant No. 7 and relief was claimed against the Defendant Nos. 1 to 6 jointly. Defendant No. 7 however, filed a Written Statement and in the said Written Statement he admitted the claim and though formal counter claim was not filed, it was contended by him that he was also ready to repay the half amount of mortgage deed and get the property reconvened in his favour to the extent of share. In my opinion, mortgage suit is one of the suits where the decree is always joint and indivisible. In the present case, 6 heirs of the original mortgagee/purchaser were joined as Defendant Nos. 1 to 6 and the relief was claimed against them jointly. One of them namely Defendant No. 3 Tanaji Ghorpade died during the pendency of the Appeals and his heirs were admittedly not brought on record. Despite the fact of the death of Tanaji right to sue survived and it was for the Appellants to bring the heirs of Tanaji on record. It is possible that the factum of death of deceased Tanaji may not have been reported to the respective Appellants. However, merely on that count, the legal effect of the abatement of the Appeals as against Tanaji does not cease to take effect. Considering the nature of the controversy, it is necessary to decide whether the Appeals could have proceeded against remaining Defendants being Defendant Nos. 1, 2 and 4 to 6.