TRIMBAK RAOJI Vs. LANKARAN

JUDGEMENT

(1.) SONBA , who was the owner of field No. 120 and two other fields at Dhamangaon, mortgaged them on 5- 6-1884, (Ex. B-21) in favour of Gbamji Marwadi. Of the mortgaged fields, field No. 120 was purchased subsequently on-18-4-1900, (Ex. p-18) by Raoji. Raoji died on 18-9-1908, leaving two minor sons Trimbak and Gangadhar as his heirs; the younger (Gangadhar), who was born on 6-4-1906, died on 18-9-1937, leaving behind a widow Sushila who, according to the law in force on 18-9-1937, represented her husband's share in the joint family property for her life.

(2.) THE mortgage, dated 5-6-1884, was the basis of Civil Suit No. 138 of 1910 instituted by the mortgagee against Trimbak treating him as the sole representative of Raoji. Gangadhar was not impleaded as a defendant as his existence was not probably known to the mortgagee. Thimbak was, to begin with, wrongly shown as major but was subsequently shown as a minor aged 10 years and was represented in the suit by his paternal uncle, Daji as his guardian. This suit was contested but it ended in a preliminary decree passed on 30-3-1912. The appeal preferred against it was dismissed, and ultimately the decree was made final on 19-4-1913 and the mortgagee took possession of the mortgaged property on 27-5-1913.

(3.) ON the death of Gangadhar on 18-9-1937, the present suit for possession of field No. 120 on redemption of the mortgage dated 5-6-1884, and for surplus profits was instituted on 2-12-1937 by Trimbak and Sushila, the widow of Gangadhar. The redemption of the mortgage was claimed mainly on the ground that Trimbak, though impleaded in the mortgage suit, was not properly represented as his mother, who was the natural guardian, was not shown as his guardian and one Daji, who was fraudulently shown as guardian, did not make any defence and guard his interests. The other brother, Gangadhar, was not impleaded in this suit. The plaintiffs further pleaded that the mortgage was split up and from the profits of field No. 120 the mortgagee who was in possession had received much more than 1/3rd of the amount due on the mortgage and they therefore claimed the return of the surplus.