- (1.) This second appeal filed by the Plaintiffs has been referred by a Bench to a Full Bench of three Judges for decision.
(2.) On September 14, 1909, a possessory mortgage was made by one Lao Singh to Kallu Singh and Kamal Singh (sons of Rudan Singh) and Sheo Prasad Singh (son of Sheo Singh). Sheo Singh and Rudan Singh were brothers. The mortgage was for Rs. 925/- with interest at one per cent per mensem. The period fixed for redemption was 20 years. Although the mortgage was possessory, it is common ground that possession was not delivered. The suit out of which the present appeal arises was filed on September 15, 1941 - the last date of limitation - by the sons of Kallu singh against the sons of the mortgagor for recovery of Rs. 1,850/- which was the double of the original consideration of the mortgaged deed by sale of the entire mortgaged property. The representatives of the other two mortgagees were not impleaded but it was stated that the Plaintiffs are the representatives of the original mortgagees.
(3.) The defence was that Kamal Singh died leaving two daughters and She Prasad Singh died leaving a sister, who also died leaving a son, who is alive. The Plaintiffs, it was alleged, are not the theirs and representatives of Sheo Prasad Singh or Kamal Singh. It was pleaded that the non joinder of the heirs of Kamal Singh and Sheo Prasad Singh was fatal to the maintainability of the suit.;