MOTIRAM MESAJI MARATHE Vs. MANKARNIKABAI BALIRAM MARATHE

JUDGEMENT

(1.) In this appeal a point of law has been raised on a preliminary objection as to whether the appeal abates as a whole in view of thefact that the present respondent No. 2 Anusuya died sometime in December 1955 and the appellant has not brought her heirs on the record within time. It appears that on February 19 last this appeal came up for hearing before Mr. Justice Mudholkar, and at the request of Mr. D.T. Mangalmurti, the learned advocate for the appellant, it was adjourned for a fortnight to enable him to take steps to bring on record the legal representatives of Anusuya, and the order further stated that if no steps were taken, the appeal should be put up for hearing on the Board. When this appeal came on for hearing Mr. Jakatdar, the learned advocate who appears for respondent No. 1, has raised a preliminary objection that the appeal cannot proceed because it has abated as a whole as Anusuyabai's legal representatives have not been brought on record. This preliminary objection is met by Mr. Mangalmurti who says that the appeal would not abate as a whole, and since the appellant has not brought on record within time the legal representatives of respondent Nos. 2, under Order XXII, Rule 4, of the Civil Procedure Code, the appeal has abated as against respondent No. 2 only.

(2.) IN order to appreciate the point which has been raised, a few facts will have to be stated. One Govinda died, leaving behind two widows Gendabai and Mirabai. Gendabai had two daughters, Mankarnikabai and Anusuyabai, respondents Nos. 1 and 2 in this appeal. Govinda died in 1915, and a few months after his death, Gendabai adopted in June 1915 Sakharam who is the present respondent No. 3. Govinda owned movable as well as immovable property and he had a one -third share in Survey No. 18. About five years after his death, that is to say in 1920, the remaining two -third share in Survey No. 18 was acquired by Gendabai in the names of her daughters Mankarnikabai and Anusuyabai. Mirabai, the other widow of Govinda, filed a suit for maintenance in 1926 against Sakharam, the adopted son, who then being a minor, was represented by his guardian -ad -litem Gendabai. The Court granted her maintenance which was made a charge on Sakharam's property. That charge extended to one -third share in Survey No. 18. In 1927 Sakharam filed a suit against his adoptive mother Gendabai and the two daughters Mankarnikabai and Anusuyabai and some others for possession of the property belonging to the deceased Govinda on the basis of his title as an adopted son. Mirabai was not a party to this suit. Sakharam succeeded in the trial Court, and, against that decree Gendabai and others went in appeal. In the appeal there was a compromise between Sakharam and Gendabai and there was a decree in terms of the compromise passed on January 8, 1931. As a result of that compromise, Gendabai obtained in absolute ownership certain fields including the whole of Survey No. 18. Gendabai died in 1940 and, in 1944 because Mirabai was not paid her maintenance, she sought to execute the decree for maintenance obtained by her, and the whole of Survey No. 18 came to be attached and it was sold by her in execution of the decree. The entire Survey No. 18 was purchased in auction sale by the present appellant -plaintiff. Mankarnikabai and Anusuyabai filed an objection under Order XXI, Rule 100, of the Civil Procedure Code, saying that they were in possession of Survey No. 18 and they asked for its release as heirs of Gendabai.

(3.) THE trial Court dismissed the plaintiff's suit holding that the compromise between Gendabai and Sakharam was not fraudulent and collusive and only one -third share in Survey No. 18 could be sold in execution of the maintenance decree of Mirabai and that, therefore, plaintiff could get title with respect to one -third share only. That decision was confirmed in appeal by the Third Additional District Judge, Akola. That is why the plaintiff has filed this second appeal, and the question before me is whether Anusuyabai having died during the pendency of the appeal and her heirs having not been brought on record, whether the appeal would abate only in so far as the interest of Anusuyabai is concerned or whether it would abate as a whole as contended by Mr. Jakatdar.