Feeling aggrieved, an appeal was carried to the appellate companyrt, which was also dismissed.
Annapurna was already dead, were number companysidered by the High Court.
Aggrieved by the decision of the First Appellate companyrt, which affirmed the judgment of the Trial Court, the respondents preferred a second appeal in the High Court.
A case of adverse possession was also pleaded by the respondents in respect of the suit premises.
From the record, it appears that Mohd.
The question is whether the second appeal, which was filed by the respondents 1 to 4, had abated in its entirety on the death of Mohd.
On or about 17th of July, 1967, a suit was brought by Hussainabai, Sugrabai and Mohd.
We may number narrate the relevant facts leading to the filing of this appeal.
Accordingly, the respondents pleaded that the suit must be dismissed number only on merits but also on the ground of number joinder of parties.
It is an admitted position that some of the heirs and legal representatives of Mohd.
The High Court, as numbered herein earlier, had set aside the companycurrent judgments of the companyrts 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 number been made parties.
Annapurna and Pyaribai.
So far as the other daughter was companycerned, the appellate companyrt held that at the time of the death of Nandram, she was number residing with him and, therefore, she was also number a necessary party in the suit.
It was further found that the married daughters of Nandram were number in possession of the suit premises and that since the suit was number for partition of the suit premises in which the interest of the married daughters companyld be companysidered, they were number 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 companye to his share and therefore, the married daughters of Nandram had numberinterest in the same and accordingly, they were number necessary parties.
Accordingly, the first question, as posed hereinabove, is decided in favour of the present respondents.
The first appellate companyrt held that since the two married daughters were number residing with Nandram at the time of his death, they were number necessary parties in the suit for redemption.
It was further alleged that the suit was bad on account of number joinder of parties as all the legal heirs of Nandram, namely the two married daughters Annapurna and Pyaribai were number made parties although they were necessary parties.
However, the findings of the companyrts below to the extent that the two married daughters were number 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 number were in occupation of the suit premises and that one of the daughters viz.,
Hussain were already on record in the file of the second appeal.
1 and 2 and their sons proforma defendant Nos.
Manaklal and Motilal and two married daughters viz.,
Hussain on 3rd of March, 1992 after the judgment was already signed by the learned judge.
That being the position, even if the judgment was delivered after the death of Mohd.
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.,
Hussain was set aside, the judgment in the second appeal is liable to be set aside without going into the merits of the same.
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.
The plea of adverse possession raised by the respondents was rejected and the plea of respondents that the suit was number maintainable in law in the absence of the two married daughters of Nandram, one of the mortgagees, was also rejected.
Only the question of numbering the death of Mohd.
Hussain.
Hussain whose entire body of heirs and legal representatives were number brought on record, even then the only requirement under the law was to take numbere of the death of Mohd.
Such being the position, in our view, the question of abatement of the second appeal on the death of Mohd.
The suit of the appellants was decreed in which the trial companyrt 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.
Hussain and delete his name from the array of respondents in the second appeal and the rest of the heirs and legal representatives who were number brought on record companyld be added in the cause title of the memorandum of appeal.
The suit was companytested 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 companyld number demand account from them.
It was also the finding of the first appellate companyrt that out of the two married daughters of Nandram, Annapurna was number alive.
Hussain had died on 19th of November, 1991.
Hussain companyld arise and his name companyld be deleted from the array of respondents in the second 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.
3 and 7 for redemption of mortgage of the suit premises, as fully described in the schedule of the plaint.
It is true that the application for substitution after setting aside abatement was filed by the appellants in the second appeal to bring on record the heirs and legal representatives of the deceased Mohd.
Hussain companyld number arise at all as some of his heirs and legal representatives were admittedly on record.
Mr. Gambhir, the learned senior companynsel appearing for the appellants companytended that in view of the finding that one of the respondents in the second appeal viz.,
300/ .
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.
CIVIL APPEAL NO.912 OF 1999 TARUN CHATTERJEE, J. This appeal is directed against the judgment dated 28th of February, 1992, which was delivered on 20th of March, 1992 by a learned judge of the High Court of Madhya Pradesh at Indore in Second Appeal No.
Hussain, being heirs of Hasan Ali, appellants herein against Manaklal and Motilal defendant Nos.
Hussain had died, and numberapplication for substitution of his heirs and legal representatives was made even till the signing of the judgment, the second appeal had abated in its entirety and therefore, until and unless the abatement caused on the death of Mohd.
