BHAIRON SHANKAR SINGH Vs. SHIAM SINGH

JUDGEMENT

(1.) The facts briefly are these: There was a family of mortgagors whose pedigree is given at p. 5 of the paper book. The plaintiff Bhairon Shankar is the youngest person in the family. The family owned a four annas two cowry share and one-half of this was mortgaged in 1869 by all the four branches. Subsequently the three branches (excluding Ram Bali Singh) made four mortgages of their entire interest in the property, one mortgage being of 1871, two of 1873 and one of 1874. Ram Bali's interest in the property subject to the first mortgage was sold and was purchased by the mortgagee. We are, therefore, not concerned with him in this second appeal. The suit related to Ram Bali's share also, but because of the auction-sale mentioned, no point has been urged in support of this portion of the claim. The mortgagee who was the same person in all the five mortgages, brought the suit for sale in 1878 on the last four mortgages and he got a decree for sale. To this suit the three sons of Ram Abheraj Singh were parties. They were minors at the time and one of the questions for consideration in this case is whether there was a proper appointment of a guardian for them. The decree was followed by execution sale and ultimately the mortgagee himself purchased the property. Bhairon Shankar now says that his father and his uncles were not properly represented in Ganga Singh's suit and that, therefore, it is still open to him to redeem the property.

(2.) It has been found in the Court below that there was legal necessity for the loans and that, therefore, the mortgages were binding on the family. Bhairon Shankar's sole ground of claim appears to be this that his father and uncles were not properly represented and, therefore, he is entitled to redeem the property. The District Judge held that there was an appointment of a guardian, but we are not satisfied that such was the case. The only circumstance on which the learned Judge relied was that there was an application on the record placed immediately after the plaint in the file. The application has been weeded out and we do not at all know what the application was for. It is too much to presume that the application was for the appointment of a guardian and further that there was an order of appointment by the Court. The case however, does not rest there. As already stated it has been found that there was legal necessity for the loans. The utmost that can follow from the non-representation of the father and uncles of the plaintiff would be this that they were not at all parties to the suit. But their father was a party and the mortgages being legitimate transactions, the decree obtained against the father would bind the sons: vide Hori Lal V/s. Munnan Kunwar [1912] 34 All. 549. The judgment, therefore, was binding on the father of the present plaintiff and it is equally binding on the plaintiff himself. This is enough for the disposal of the appeal.

(3.) We dismiss this appeal with costs.