Mohd. Hussain (Dead) By Lrs & Ors vs Gopibai & Ors

4. We may now narrate the relevant facts leading to the filing of this appeal. On 24th of April, 1932, late Hasan Ali entered into a mortgage with possession of the suit premises with late Nandram and his two sons, Manaklal and Motilal for Rs. 300/-. On or about 17th of July, 1967, a suit was brought by Hussainabai, Sugrabai and Mohd. Hussain, being heirs of Hasan Ali, (appellants herein) against Manaklal and Motilal (defendant Nos. 1 and 2) and their sons (proforma defendant Nos. 3 and 7) for redemption of mortgage of the suit premises, as fully described in the schedule of the plaint. At the time of filing of the suit for redemption of mortgage by the plaintiffs/appellants, Nandram was already dead leaving behind his two sons viz., Manaklal and Motilal and two married daughters viz., Annapurna and Pyaribai. It was the case of the plaintiffs/appellants that the respondents were avoiding to let the appellants have the suit premises redeemed and that the respondents had the intention to deprive them of the suit premises. Accordingly, on the allegations made in the plaint, the plaintiffs/appellants sought for a decree in the suit for redemption in respect of the suit premises. The suit was contested by the respondents in which it was, inter alia, alleged that the suit premises was in fact sold by Hasan Ali, since deceased, to them and accordingly, the appellants could not demand account from them. It was further alleged that the suit was bad on account of non-joinder of parties as all the legal heirs of Nandram, namely the two married daughters Annapurna and Pyaribai were not made parties although they were necessary parties. A case of adverse possession was also pleaded by the respondents in respect of the suit premises. Accordingly, the respondents pleaded that the suit must be dismissed not only on merits but also on the ground of non- joinder of parties.

5. The suit of the appellants was decreed in which the trial court found that the appellants were the legal heirs of Hasan Ali and had the right to redeem the mortgage and to recover the suit premises from the respondents. The plea of adverse possession raised by the respondents was rejected and the plea of respondents that the suit was not maintainable in law in the absence of the two married daughters of Nandram, one of the mortgagees, was also rejected.

6. Feeling aggrieved, an appeal was carried to the appellate court, which was also dismissed. The first appellate court held that since the two married daughters were not residing with Nandram at the time of his death, they were not necessary parties in the suit for redemption. It was also the finding of the first appellate court that out of the two married daughters of Nandram, Annapurna was not alive. So far as the other daughter was concerned, the appellate court held that at the time of the death of Nandram, she was not residing with him and, therefore, she was also not a necessary party in the suit. It was further found that the married daughters of Nandram were not in possession of the suit premises and that since the suit was not for partition of the suit premises in which the interest of the married daughters could be considered, they were not necessary parties. Finally, it was held that since Ochchalal-D.W.1 had clearly deposed that the partition of the suit premises was already done and after partition, the suit premises had come to his share and therefore, the married daughters of Nandram had no interest in the same and accordingly, they were not necessary parties.

7. Aggrieved by the decision of the First Appellate court, which affirmed the judgment of the Trial Court, the respondents preferred a second appeal in the High Court. The High Court, as noted herein earlier, had set aside the concurrent judgments of the courts below and held that the suit was bad and liable to be dismissed because the two married daughters of Nandram, who were necessary parties to the suit for redemption, had not been made parties. However, the findings of the courts below to the extent that the two married daughters were not necessary parties on the death of Nandram, one of the mortgagees, for the reasons that at the time of his death, they were neither living with him nor were in occupation of the suit premises and that one of the daughters viz., Annapurna was already dead, were not considered by the High Court. Therefore, so far as the merits of the second appeal were concerned, the High Court had not considered the same and allowed the second appeal on the ground of non-joinder of necessary parties. On the question of theory of substantial representation of the two married daughters of Late Nandram by his two sons, it was held that the same would not salvage the case of the plaintiffs/appellants in the facts and circumstances of the case. It is this judgment of the High Court, which is impugned in this appeal.

13. Before we conclude, we may note that while allowing the second appeal, the High Court had not considered the same on merits but in view of the stand taken by the learned counsel for the respondents before us, we do not find any reason to upset the findings of the courts below on merits viz., the suit premises was mortgaged with the respondents at a sum of Rs. 300/- and therefore, the appellants were entitled to a decree in the suit for redemption. Since, this finding was not challenged before us by the learned counsel for the respondents, it is not necessary for us to remit the case back to the High Court for a decision on merits. Accordingly, the appeal is bound to succeed and is, therefore, allowed. The judgment and decree of the High Court is set aside and that of the courts below are restored. There will be no order as to costs.