RAMRAO SHAMRAO AND Vs. DATTADAYAL BISHANDAYAL

JUDGEMENT

(1.) THIS is an appeal by defendants 5 to 9 in a suit on a mortgage dated 11-1-1921 (Ex. P-3) for Rs. 30,000 executed by three brothers Shamrao, Govindrao and Shankar. Of these Shankar was a minor and was represented by his eldest brother Shamrao who acted as his guardian. The mortgage was in favour of defendant 1. On 24-4-1934 he and his sons assigned it to the plaintiffs and the plaintiffs sue on it.

(2.) THE following genealogical tree will show the relationship between the defendants, or rather those with whom we are concerned in this appeal. JHANABAPU = Parbatibai _______________ |_________________ | | | Shamrao=Saraswati Govindrao Shankar (Defendant 4) (Defendant 5) (Defendant 6 _______|_______ ______|___________ W. Nanibai.) | | | | Ramrao Ganeshrao Vyankatrao Manekrao (Deft. 6) (Deft. 7) (Deft. 8) (Deft. 9.) Defendants 4 and 5, Shamrao and Govindrao are dead and are represented by. their respective sons who were already on the record. Defendant 6 Shankar is also dead and is represented by his widow Mt. Nanibai.

(3.) THE answer to this contention is that the matter is now res judicata. In the year 1923 Shankar and his mother Parbatibai (Shankar was then still a minor) sued Shamrao and Govindrao for partition; the suit is civil Suit No. 9 of 1923. The mortgagee Narsappa was joined as a defendant to the case. Shanker raised the questions of legal necessity and the like. The plaint is Ex. P-18. The mortgagee did not oppose the partition but pleaded that the mortgage was binding on the whole body of coparceners. This plea was taken in Ex. P-14.