CHIMANLAL GANPATRAM GHANCHI Vs. NATVARLAL MAGANLAL

JUDGEMENT

(1.) In the action which has given rise to this appeal the plaintiff sued for a declaration that a deed of mortgage executed in 1921 by a widow Bai Muli in favour of defendant No. 1 is not binding upon him as reversioner, and for possession of the suit property after the eviction of the person who is in possession of the property as tenant of the mortgagee of 1921. The property in suit is a shop. This property and several others belonged to one Balgovind, who died many years ago leaving a widow Kashi, and three sons, Chimanlal, Himatlal, and Maganlal. After a suit for partition between the sons in the year 1894 certain of the properties were divided but certain other properties (including the suit property) were left undivided. The eldest son Chimanlal died two years later (in 1896) and left no heirs. The second son Himatlal died in 1905 leaving a widow Muli and a daughter Shivlakshmi. The third Maganlal died in 1917 leaving a widow Divali. A month after Maganlal's death Kashi also died. Muli's daughter Shivlakshmi was married in 1910 and died in 1920.

(2.) In 1918 Muli brought a suit against Diwali for partition of such of the family property as remained undivided except the property in the present suit. That suit was compromised as the result of a settlement, exhibit 23. The main term of this settlement was that each widow should have absolute power to dispose of her own share in the suit property subject to her giving the other widow the right of making the first offer for it. A decree followed in the terms of the compromise ; but, as the property in this suit was not concerned in that suit, naturally no reference to the suit shop was made in the decree. On July 21, 1919, Divali adopted the present plaintiff. In October, 1921, Muli mortgaged the suit property for 999 years to the present defendant No. 1 ; but on the day after the mortgage both Muli and Divali are said to have taken registered rent note from one Kalidas for three years. This appears to have been in continuation of a previous rent-note for three years admittedly executed by Kalidas in favour of both the widows in 1918. In 1922 Divali on behalf of the present plaintiff sued both the tenant Kalidas and Muli, claiming that the plaintiff was owner of the whole shop and not only of half, and also stating that the tenant was holding over under the previous rent note of 1918. The second rent-note purporting to have been executed jointly in favour of the mortgagee and Divali was repudiated in that suit by Divali, The suit was, however, dismissed for multifariousness and for misjoinder or non-joinder of parties, and the Court did not go into the merits. In 1928 Muli died, and towards the end of 1929 plaintiff has brought this suit to set aside Muli's mortgage of her half share and to evict the tenant.

(3.) Defendant No. 1 contended that the plaintiff's adoption was not proved, or, if proved, was not valid, and that by the arrangement of 1918 between the two widows Muli had absolute authority to dispose of her property as she liked. He further contended that the suit of 1922 was conclusive against plaintiff as regards his title to the property and that it was not open to him to raise that question again in this suit. Lastly, he contended that the alienation of 1921 by Muli to defendant No. 1 was justified by legal necessity and was, therefore, binding upon the plaintiff.