Bimalendra Nath Maitra, J. - (1.) According to the plaintiff, the disputed property belonged to one Hem Chandra Modak. On the 28th February, 1927, he mortgaged the disputed property with one Radha Gobinda Dutta, father of defendants Nos. 1 to 3, and took a loan of Rs. 399/-. On the 2nd Pous, 1346 B.S. , be breathed his last leaving his son, proforma defendant No. 6, widow, proforma defendant No. 2, predeceased son's son, proforma defendant No. 7, and two predeceased sons' widows, proforma defendant Nos. 4 and 8. Subsequently, on the footing of an amicable partition, the disputed property was exclusively allotted to the share of proforma defendant No. 4, who was in constructive possession of the same through proforma defendant No. 9, who held that property as a tenant. Then by a registered sale deed dated 28th May, 1968, she sold that property along with the right of redemption to the plaintiff. In Ashar, 1375 B.S., she told the defendant to render accounts, but they declined to do so and claimed that they had purchased that property in an auction sale arising out of the decree passed in Mortgage Suit No. 54 of 1940. The plaintiff's allegation is that proforma defendant No. 4 was not made a party to that mortgage suit and hence, that decree was not binding on her and on the plaintiff as well because she is a transferee from proforma defendant No. 4. The suit is for redemption after necessary accounting and for execution of necessary documents.
(2.) Defendant Nos. 1 to 3 filed a written statement. The defence is that proforma defendant No. 4 was not an heir of Hem Chandra Modal as it was an agricultural property and not a non-agricultural one. They filed Mortgage Suit No. 54 of 1940 for foreclosure against all the heirs of Hem Chandra Modak. Proforma defendant No. 4 was appointed guardian mother of her minor son, Sankar, proforma defendant No. 7. A preliminary decree was passed and then the decree was made find The decree was put into execution in Mortgage Execution Case No. 1559 of 1941. On the 7th November, 1944, they auction-purchased that property and the sale was confirmed on the 13th December, 1944. The judgment-debtors filed Misc. Case No. 224 of 1945 for setting aside the sale. That Misc. Case was dismissed on compromise. Then they instituted Title Suit No. 251 of 1956 against proforma defendant Nos. 5 to 9, and on the 31st May, 1962, obtained a decree for their eviction. After proforma defendant No. 7 attained majority, he filed Misc. Case No. 22 of 1958 under Order 21, Rule 9 of the Civil Procedure Code for setting aside the auction sale made in that Mortgage Execution Case No. 1550 of 1941. But he became unsuccessful up to the High Court. Since proforma defendant No. 4 was not an heir of Hem Chandra, the plaintiff did not acquire any interest in the alleged equity of redemption.
(3.) The learned Munsif accepted the plaintiff's version and state that the widow, Sarala Bala, proforma defendant No. 4, had 1/8th share. The suit was, therefore, decreed fora sum of Rs. 728/- against defendant Nos. 1 to 3. An appeal was preferred. The appellate court has state that proforma defendant No. 4 inherited a share in Hem Chandra's property as a son's son and not like a son, as held by the learned Munsif. In other respects, he accepted the learned Munsif's decision. But sine; the trial court did not comply with the provisions of Order 34, Rule 7(1) (c)(ii) of the Code, the decree was only modified and the appeal dismissed, Hence this second appeal.;