NATHU ALIAS KABLI Vs. GHISIA

JUDGEMENT

(1.) THIS is a Civil Second Appeal in a suit for sale of mortgaged property brought by the plaintiff appellant against Mst. Gattu and her sons Ghisia and Dhalia. The case of the plaintiff-appellant is that the defendants had a house situated in the town of Pali in Paliwalon-ka-bas. Mst. Gattu borrowed Rs. 1,000 on 12th Jane 1952 and executed a mortgage-deed (Ex. 3) in favour of Ghisulal on behalf of herself and as guardian of her two minor sons. Thereafter, Mst. Gattu further borrowed Rs. 99/- and Rs. 100/- in the year 1952 from the same Ghisulal. Ghisulal brought two suits one for the sale of the mortgage property on the basis of Ex. 3 and the other for the recovery of the loans advanced by him. These were compromised for Rs. 1650/ -. It is alleged by the plaintiff that he purchased the rights of Ghisulal for Rs. 1650/- on 18. 6. 1955 and paid off Ghisulal On 10. 10. 1955 Mst. Gattu further borrowed Rs. 500/- from the plaintiff and executed a promissory note in his favour. The plaintiff filed the suit out of which this appeal has arisen for the recovery of Rs, 2421/- on the basis of Ex. 3, the two loans advanced by Ghisulal and the promissory note. At the time of the filing of the suit, Ghisia and Dhalia were minors and the plaintiff applied that Mst. Gattu be appointed as their guardian-ad-litem. She refused to act as guardian-at-litem, and an advocate of the Court was appointed as guardian-at-litem. All the three defendants denied the case of the plaintiff in its entirety. The trial court decreed the suit to the extent of Rs. 2024/- against the defendants. The trial court did not pass any decree for the sale of the mortgaged property as it held that Ex. 3 was not validly attested and therefore it could was not operate as mortgage-deed. Ghisia and Dhalia preferred an appeal against the decree passed against them, while the plaintiff preferred an appeal against all the defendants and prayed for obtaining a decree for the sale of mortgage property. The appeal of Ghisia and Dhalia respondents was accepted and the decree awarded by the trial court against these defendants was set aside and the plaintiff's suit was dismissed as against them. The plaintiff's appeal was partly accepted but the only amendment made in the decree was that interest was awarded at 3% per annum on the decree of the trial court which was maintained against Mst. Gattu alone. The learned Judge of the lower appellate court held that Ex. 3 was properly attested and operated as mortgage-deed, but it was not proved that the mortgage amount was borrowed for the benefit of the minors. Hence this second appeal on behalf of the plaintiff.

(2.) DURING the pendency of the appeal, respondents Ghisia and Dhalia attained majority and the memorandum of appeal was accordingly amended.