sought.
After the reorganisation of States, the appeal was transferred to the Bombay High Court.
The appellant number appeals to this Court on a certificate granted by the High Court.
The appellant did number pay any of the installments.
The High Court refused to go into the question of adoption and passed a preliminary mortgage decree for foreclosure in favour of Mahabalkumari, Rajkumari and Premkumari and further directed that the suit as brought by Vijay Kumar would stand dismissed.
484 of 1957 from Original Decree.
On July 16, 1948, Tarabai is said to have adopted Vijay Kumar as a son to her deceased husband.
The records of the appeal were, thereafter, reconstituted by adding Mahabalkumari as an appellant and Rajkumari and Premkumari as respondents and amending the plaint a,.
Appeal from the judgment and decree dated November 17, 1959 of the Bombay High Court in First Appeal No.
After the addition of the parties, the appeal came up for final disposal before the High Court.
Vijav Kumar preferred an appeal to the former High Court of Hyderabad.
The appellant companytested the suit.
The appellant opposed this application but it was allowed by the High Court.
Rajkumari, Premkumari and Mahabalkumari.
On December 13, 1934 when the mortgage was executed and on February 9, 1943 when the mortgage money fell due, the Hyderabad Limitation Act was in force.
1952, Tarabai died.
On an application made by Vijay Kumar on November 3, 1958, the High Court on November 4, 1958 made an order for addition of Mahabalkumari as plaintiff and Rajkumari and Premkumari as defendants to the suit and for companysequential amendments of the plaint.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
As the mortgagee did number exercise the option, the mortgage money fell due on the expiry of nine years, that is to say, on February 9, 1943, and limitation companymenced to run from this date.
the appellant took various other defenses to the action to which it is unnecessary for the purpose of this appeal to refer.
The learned District Judge who heard the suit, held that the adoption of Vijay Kumar had number been established and on that ground alone he dismissed it, having rejected the other defenses raised by the appellant.
Premkumari filed a written statement denying the adoption of Vijay Kumar and his right to enforce the mortgage.
At the hearing of the appeal, the respondents submitted that the question whether Vijay Kumar was the adopted son of Tarabai should number be decided in this litigation and a decree should be passed in favour of the added parties on the footing that they were the heirs of Tarabai.
The High Court accepted this submission, set aside the finding of the trial Court on the question of the adoption of 1 1927 I.T.R. 50 Mad.41.
The Judgment of MUDHOLKAR and BACHAWAT JJ.
The plaint stated that the appellant executed the mortgage on December 13, 1934 in favour of Tarabai, the proprietor of the firm of Narayandas Chunilal, and that the amount secured on it became due on December 13, 1943.
T. Desai, and J. B. Dadachanji, for the appellant.
Sarjoo Prasad, B. P. Singh and Naunit Lal, for respondents Nos.1 and 2.
On April 23.
On February 10, 1954, Vijya Kumar claiming to be the adopted son and heir of Tarabai, instituted a suit for foreclosure of the mortgage executed in her favour.
Vijay Kumar claimed that he was adopted by Tarabai on July 16, 1948 as a son to her deceased husband Motilal Hirakhanwala and became entitled to enforce the mortgage as her sole heir on her death on April 23, 1952.
On December 30, 1955, the District Judge, Aurangabad dismissed the suit, holding that Vijay Kumar was number the adopted son and heir of Tarabai.
1046 of 1963.
The mortgage deed dated December 13, 1934 provided that the mortgage money would be payable in annual installments within a period of nine Fasli years, and in the event of number payment of five installments, the mortgagee would be entitled to recover the entire mortgage money.
was delivered by BACHAWAT, J. Sarkar C.J. This appeal arises but of a suit filed by the respondent Vijay Kumar against the appellant on February 9, 1954 to enforce a mortgage.
SARKAR, C. J. delivered a separate Opinion.
After setting out the particulars of the mortgage, Vijay Kumar asked for a decree for foreclosure.
Ganpat Rai, for respondent No.
The present appeal has been brought by the original defendant against this judgment of the High Court under a certificate granted by it.
In his written statement the appellant admitted the mortgage but denied that Vijay Kumar had been adopted by Tarabai and stated that she had died leaving as her heirs three daughters, Rajkumari, Premkumari and Mahabalkumari, the mother of Vijay Kumar Besides denying Vijay Kumars right to enforce the mortgage.
The prayers in the plaint were also sought to be amended by asking that the decree sought might be passed in favour of Vijaykumar and Mahabalkumari.
