PARVATIBAI GOPAL DHAMDHERE Vs. MARUTI LUXMAN

JUDGEMENT

(1.) THE appellant, Parvatibai kom Gopal Dhamdhere, was defendant No. 1 in a suit which was brought by Jaibai kom Patluji in order to avoid the effect of a decree obtained by Parvatibai in a suit instituted by her mother Kashibai, Suit No. 449 of 1916, for redemption of a possessory mortgage of 1872 in respect of the suit property which had originally belonged to Kashibai's father Babaji Ramji. Kashibai died duration the pendency of the suit and her daughter, defendant No. 1, was on application made by her brought on record as Kashibai's legal representative. THE original mortgagee was Bahirji Balaji after whose death his son Patluji also died, leaving two widows Jaibai, the plaintiff, and Laxmibai. Jaibai is the daughter of Rahibai, Kashibai's sister, Rahibai being also a daughter of the mortgagor Babaji. In Suit No. 449 of 1916 the defendants were Jaibai, Laxmibai and two other parties named Kadams to whom; Laxmibai was alleged to have sold her half share in the mortgagee's right. In that suit the position of Jaibai was two-fold, first as co-mortgagee with Laxmibai or her vendees, and, secondly, as co-mortgagor with Parvatibai. But she raised no deffence based on her second position and not only did she not contend that with regard to her half share there had been a merger of the mortgagor's and the mortgagee's rights but she omitted even to mention that she had any rights as a granddaughter of the original mortgagor.

(2.) SUIT No. 449 of 1916 was decreed in favour of defendant No. 1, and on September 1, 1919, possession of the mortgaged property was delivered to her from the mortgagees-Defendants Nos. 2 to 5, who are brothers of Jaibai, however, remained in actual physical possession and in 1928 defendant No. 1 filed SUIT No. 1155 of 1928 for possession. That suit was decreed in her favour and the decree was confirmed in appeal on August 22, 1931. Before that date, on April 18, 1931, the present suit was filed. The plaintiff claimed an injunction restraining defendant No. 1 from taking possession of the northern half of the property of which she stated that she was in possession as owner, having been assigned to her as her share on partition between her and her co-widow Laxmibai. She prayed in the alternative for partition by metes and bounds of the property in suit and allotment to her, as far, as possible, of the northern moiety of the property. She made her brothers defendants Nos. 2 to 5 parties, alleging that they had been in possession as her own tenants.

(3.) DURING the pendency of the appeal Rahibai died on July 24, 1940, and no application was made to bring her legal representative on record within ninety days of her death. Appellants Nos. 2 and 3, i. e. defendants Nos. S and 5, however, had applied to be-brought on record as Jaibai's heirs ; but as it was found that somebody else was her heir, the application was rejected. Sometime after the expiry of ninety days from Jaibai's death an application was made by appellants Nos. 2 and 3 to enter their names as her legal representatives. The application was rejected on the ground that the appeal, so far as Jaibai was concerned, had already abated.