GOPIBAI MANAKLAL Vs. MOHAMMED HUSSAIN

JUDGEMENT

(1.) The defendants have come up in appeal aggrieved by the judgements and decrees of the Courts below directing a suit for redemption of mortgage to be decreed.

(2.) The suit was filed by the two daughters and a son of late Haidarali. The relationship of Haidarali with late Hasanali as set out in plaint para 1 was as under :- On 24-6-1932, late Hussanali made a mortgage with possession of the house with late Nandram and his two sons namely, Manaklal and Motilal. According to the plaint allegations, late Nandram had expired four to five years prior to the institution of the suit. The suit having been instituted on 19-7-67, the time of death of late Nandram would be somewhere in the year 1962 or 1963. The suit was instituted impleading Manakal and Motilal as defendants Nos. 1 and 2 also joining the sons of Manaklal and Motilal as pro forma defendants Nos. 3 to 7. Puran, the defendant No. 8 was joined as pro forma party being a tenant in the mortgaged house.

(3.) The suit was contested on very many grounds of which only two deserve to be noticed. It was submitted that the pltfs. alone had no right to institute the suit as all the heirs of late Hasanali were not joined as plaintiffs or as pro forma defendants. Secondly, it was submitted that late Nandram was also survived by his two daughters, apart from the two sons, which daughters having not been joined as parties to the suit, the suit was not properly constituted and was liable to be dismissed for want of necessary parties before the Court. The issues Nos. 1 and 2 were specifically framed on the objections raised by the defendants.