PARVATIBAI GOPAL DHAMDHERE Vs. MARUTI LUXMAN

JUDGEMENT

(1.) appellant, Parvatibai kom Gopal Dhamdhere, was defendant No. 1 in a suit which was brought by Jaibai kom Patluji in order to avoid the effect of a decree obtained by Parvatibai in a suit instituted by her mother Kashibai, Suit No. 449 of 1916, for redemption of a possessory mortgage of 1872 in respect of the suit property which had originally belonged to Kashibai's father Babaji Ramji. Kashibai died duration the pendency of the suit and her daughter, defendant No. 1, was on application made by her brought on record as Kashibai's legal representative. The original mortgagee was Bahirji Balaji after whose death his son Patluji also died, leaving two widows Jaibai, the plaintiff, and Laxmibai. Jaibai is the daughter of Rahibai, Kashibai's sister, Rahibai being also a daughter of the mortgagor Babaji. In Suit No. 449 of 1916 the defendants were Jaibai, Laxmibai and two other parties named Kadams to whom; Laxmibai was alleged to have sold her half share in the mortgagee's right. In that suit the position of Jaibai was two-fold, first as co-mortgagee with Laxmibai or her vendees, and, secondly, as co-mortgagor with Parvatibai. But she raised no deffence based on her second position and not only did she not contend that with regard to her half share there had been a merger of the mortgagor's and the mortgagee's rights but she omitted even to mention that she had any rights as a granddaughter of the original mortgagor.

(2.) Suit No. 449 of 1916 was decreed in favour of defendant No. 1, and on September 1, 1919, possession of the mortgaged property was delivered to her from the mortgagees- Defendants Nos. 2 to 5, who are brothers of Jaibai, however, remained in actual physical possession and in 1928 defendant No. 1 filed Suit No. 1155 of 1928 for possession. That suit was decreed in her favour and the decree was confirmed in appeal on August 22, 1931. Before that date, on April 18, 1931, the present suit was filed. The plaintiff claimed an injunction restraining defendant No. 1 from taking possession of the northern half of the property of which she stated that she was in possession as owner, having been assigned to her as her share on partition between her and her co-widow Laxmibai. She prayed in the alternative for partition by metes and bounds of the property in suit and allotment to her, as far, as possible, of the northern moiety of the property. She made her brothers defendants Nos. 2 to 5 parties, alleging that they had been in possession as her own tenants.

(3.) The main contentions of the principal defendant, defendant No. 1, were (1) that Kashibai on her mother Bhimabai's death had inherited the entire right of redemption, being the sister " who had been unprovided for," and that, therefore, Jaibai had no interest in the equity of redemption ; (2) that the suit was barred by res judicata ; (3) that it was also barred by estoppel in view of the conduct of Jaibai in the suit of 1916 and the darkhast proceedings consequent thereon ; and (4) that in case partition was ordered, she should be allotted the northern half of the suit property in which she had sunk a well. The trial Court held that the suit was barred by res judicata and estoppel and dismissed the suit. After filing the suit Jaibai executed a registered sale-deed on September 22, 1931, conveying her right, title and interest in the suit property to defendants Nos. 3 and 5. She then applied to get her name struck off as plaintiff and to get the names of defendants Nos. 3 and 5 substituted instead. The application was opposed by defendant No. 1 and the learned Subordinate Judge ordered the names of the plaintiff and defendants Nos. 3 and 5 " to continue as before " at that stage of the suit. The suit was decided without any inquiry: as to the merits of the application.