TIMMAPPA DEVARABHATTA Vs. NARSINH TIMMAYA HEBAR

JUDGEMENT

(1.) The appellants before us were in the suit defendants 7 to 14, 16 and 17 to 19, and the facts upon which this appeal has to be decided are these:-

(2.) On the 31st May 1887 the defendants ancestor, Ganpaya, and two out of his six sons forming an undivided family mortgaged the property in suit to the plaintiffs father. In J900 the mortgagee brought a suit upon his mortgage against Ganpaya, all his living sons and three grandsons. A decree was made in favour of the mortgagee for Rs. 1,561-2-0. Next, the property was put to sale and was purchased with permission by the plaintiffs acting through their agent, their pleader.

(3.) The question before us is whether the present appellants interests passed to the plaintiffs in this sale. Both the Courts below have answered this question in the affirmative on the grounds, first, that the original mortgage was made for the benefit of the whole joint family, and, secondly, that the present appellants, though not parties to the original suit, were sufficiently represented in that suit by their fathers. These two propositions must be accepted, but the appellants contend that, in the special circumstances of this particular sale, their interests in the property did not pass to the purchasers. The special circumstances relied upon are two. In the first place, in the proclamation of sale 12 defendants, other persons than these appellants, were alone named, while the 11 appellants were not named or referred to, and one condition of the sale was that it covered only the right, title and interest of the " defendants" in the mortgaged property. Secondly, among the conditions of the sale was embodied class. (I) of sub-rule is of Rule 96 of the High Court Circular Rules framed under the provisions of Sections 287 and 652 of the old Code of Civil Procedure. That clause runs as follows :- No interest of any son, brother or other co-parcener of the said judgment-debtor shall pass unless hereinbefore by name expressly specified for sale.