MAHADEO Vs. SHANTILAL

JUDGEMENT

(1.) THIS is an appeal by the defendants 1 to 5 to a suit for possession of two houses situate at Nagpur and for mesne profits.

(2.) THE facts which are no longer in dispute arc as follows: On the foot of a mortgage deed executed by the defendant No. 1, Mahadeo, his brother Narayan, now deceased and his father Budhaji also now deceased, the plaintiff obtained a preliminary decree for sale of two houses belonging to them on 31-10-1933. He obtained a final decree for sale on 18-9-1939. It would appear that subsequent to the passing of the final decree but previous to the execution of the decree, Budhaji as well as Narayan died. Narayan left behind him two widows. Yamuna, defendant No. 4, and Parwati, defendant No. 6, and two sons Babusingh, defendant No. 2, and Harisingh, defendant No. 3, as his personal heirs. It is not clear as to the exact date on which Budhaji died, but it would appear that after his death his name was struck off apparently on the ground that his interest devolved upon his sons, who were already defendants to the suit and against whom a decree had been passed.

(3.) ON 16-1-1940, the plaintiff made an application, Exhibit P-20, to the Court which passed the decree stating that Narayan died on 10-10-1939, leaving behind him two sons, Bhayya, aged 7 years and Nathu, aged 3 years, as his legal representatives and were in possession of his assets. He also stated that their guardian was their uncle defendant No. 1 Mahadeo, who was then the manager of the joint family consisting of himself and the sons of Narayan and that therefore Bhayya and Nathu be substituted in place of Narayan and Mahadeo appointed as their guardian-ad-litem. Notices were issued upon this application. Mahadeo, however, refused to act as guardian of these two persons and, therefore, the Court reader was appointed as their guardian-ad-litem and they were brought on record. Thereafter, the plaintiff filed an application for the execution of the decree against Mahadeo, defendant No. 1, and against Nathu and Bhayya, who had been brought on record as the sons of Narayan. Subsequent to that sale notices were issued to Mahadeo as well as Nathu and Bhayya and eventually the property was ordered to be sold by Court auction on 29-4-1942.