GANESHI LAL Vs. SANWAL SINGH

JUDGEMENT

(1.) This was a suit to recover Rs. 920, the principal and interest due on a mortgage executed by Umrao Singh on the 12th of July, 1880, in favour of the plaintiff s father, by sale of the mortgaged property.

(2.) It was stated in the plaint that Umrao Singh, the mortgagor, died leaving two sons, Mangal Singh and Angad Singh. The plaint recites: "Mangal Singh has not been heard of for a long time, that is, for about twenty-five years, and Angad Singh died childless. In the public khewat the names of Mangal Singh, who has not been heard of, and of Sanwal Singh, defendant, stand recorded in the column of the mortgagor against the property mortgaged. Besides Sanwal Singh, defendant, no other heir of Umrao Singh, principal mortgagor, and of Mangal Singh, who has not been heard of, is in existence." This suit was instituted on the 2nd of August, 1910. In the written statement it was stated that Mangal Singh was alive and was in the service of the Indore State, and that he was a necessary party to the suit and that the claim was bad for non-joinder of a necessary party. This written statement was filed on the 24th of November, 1910. The courts below have decreed the suit and have directed that the whole amount claimed should be recovered by the sale of the property entered in the name of Sanwal Singh, and have excluded the share standing in the name of Mangal Singh. The learned District Judge found, inter alia, (1) that Mangal Singh was alive, (2) that Mangal Singh and Sanwal Singh were separate, (3) that the suit should not be dismissed altogether because he had not been made a party.

(3.) Before us, in second appeal, two only of the pleas taken in the memorandum of appeal, have been pressed; first that on the finding that Mangal Singh was alive the whole suit should have been dismissed, as he had not been made a party, and secondly, that in any event, the half of the property recorded in Sanwal Singh s name ought not to have been made liable for more than half of the money claimed.