NAND KISHORE Vs. BOHRA NET RAM

JUDGEMENT

(1.) The appeal arises out of a suit for sale based on a mortgage-deed, dated 18th April 1377, brought on 26th February 1910, i.e., practically 33 years after the band was executed, by four persons, by Har Sukh, Parfcab, Deo Hans and Deo Kunwar, in favour of the plaintiff Net Ram and one Mansukh Das, deceased, and covered the sum of Rs. 4,000.

(2.) Among the present defendants are prior mortgagees and subsequent transferees When the plaint was first filed, the plaintiff who sues alone, claimed therein to be the sole heir and representative of the deceased Mansukh Das and, therefore, entitled to sue alone. He, however, amended his plaint and by the amendment claimed to have acquired the interest of Mansukh Das by survivorship they having constituted a joint Hindu family.

(3.) Among other defences, the defendants raise the plea that the plaintiff was not the sole mortgagee and not entitled to sue alone It appears that a copy of the original plaint was served on the defendants and not one of the plaint as amended and so in their written statement there was only a denial of the allegation that he was Mansukh s heir coupled with a plea that he could not sue without first obtaining a succession certificate but after the amendment, the following issue among others, was framed: "Whether the plaintiff has a right to sue and is he the sole survivor of the joint family if any, of himself and Mansukh?" The point for decision, therefore, was whether or not the plaintiff and Mansukh Das constituted a joint Hindu family in which the plaintiff on the death of the latter, took by survivorship.