BHAJANDAS Vs. NANURAM

JUDGEMENT

(1.) THIS is the second part of the judgment in this appeal, the first part of which was delivered by us on the 18th November, 1952. ( (See Bhajandas vs. Nanuram (1953 RLW. 92)) The facts have all been given in that judgment and it is, therefore, unnecessary to repeat points which have been urged before us and give our decision on them.

(2.) THE first point, that is urged, is that one Sitaram, who was adopted by Budhraj's widow Mst. Shanti was a necessary party to the suit, and as he had not been made a party and this was a suit based on mortgage, it should be dismissed. We find, however, that Sitaram was adopted pendente lite by Mst. Shanti. He applied for being made a party on the ground of adoption, That application was opposed by the plaintiff and was dismissed. Bhajandas, appellant, neither supported nor opposed that application. Bhajanda's case therefore, never was either in the trial court or in the first appellate court, that Sitarani was a necessary party, and that the suit should be dismissed because Sitaram was not made a party by the trial court. THE question then arises whether we should permit the appellant to raise this point relating to Sitaram, for the first time, in second appeal. We are of opinion that we should not permit this, because the questions whether Sitaram is a necessary party in this suit or not depends upon the decision of mixed questions of fact and law which have not yet been decided, namely whether Sitaram was in fact adopted by Mst. Shanti, and whether that adoption was valid. In this view of the matter we refuse to allow this point to be raised, and hold that the suit cannot be dismissed on this point.