Sidhu, J. - (1.) This- special appeal by a defendant under Section 16, Rajas-than High Court Ordinance, 1949, is directed against the judgment and decree passed by a learned Single Judge of this Court on May 13, 1970, thereby affirming the judgment and decree passed by the court of first instance (Senior Civil Judge, Ajmer) in Civil Suit No. 1 of 1961, on April 30, 1962.
(2.) Civil Suit No. 1 of 1961 was instituted by Gyan Chand Jain (hereinafter to be referred to as the plaintiff) against Magna Bar Bir Chand and Nasirabad Urban Co-operative Bank Ltd. (hereinafter to be referred to as defendant 1, defendant 2 and defendant 3, respectively) for declaration that the mortgage deed executed by defendant 1 in favour of defendant 3, in respect of a bungalow and a factory, described in detail in para 3 of the plaint, is null and void, and, as such, does not bind the plaintiff or the said property and that the said property is not liable to be sold in execution of the award obtained by defendant 3, and for a perpetual injunction restraining defendant 3 from getting the said property sold in execution of the said award. The plaintiffs averment in the plaint may be recapitulated here. The plaintiff and defendant 2 are sons of one Paras Das Jain, who died in 1941. Defendant 1 is the widow of Paras Das Jain. Paras Das and his two sons were coparceners in a Hindu Coparcenary consisting of three branches, headed respectively, by Paras Das and his two brothers, namely, Kishanlal and Bishan-lal. Paras Das filed a: suit (No. 10 of 1939) for partition, and for allotment of one-third share in the entire coparcenary property both movable ' and immovable. He died on May 4, 1941, when the suit was still pending. The plaintiff and defendant 2, who, as already stated, are his sons and who were apparently minor at the material time, were brought on the record as legal representatives of the deceased through their mother (defendant 1 herein) acting as their next friend. Eventually, a final decree for partition was passed in that suit on May 19, 1951. The bungalow and the factory which is the property in dispute in the instant case were among the properties allotted to the branch of Paras Das deceased. The plaintiff's case is that as a consequence of the final decree for partition, the properties so allotted became the coparcenary property of the joint Hindu family consisting of the plaintiff and defendant 2 as coparceners.
(3.) The plaintiffs grievancee is that on May 19, 1952, when he was still a minor, defendant 1 contracted a loan of Rs. 10.000/-from defendant 3, charged the coparcenary property in suit for the repayment of the loan and executed mortgage deed for this purpose on the even date. On the failure of defendant 1 to repay the amount, defendant 3 obtained an award from an arbitrator appointed under the Co-operative Societies Act, 1912, and the rules framed thereunder on Sept. 11, 1954. The said award is deemed to be a decree of a civil court and can be executed as such. The plaintiff attained the age of majority on December 9, 1954. He instituted the present suit on December 20, 1960, challenging the validity of the mortgage. He pleaded that he came to know about the mortgage only on Dec. 17, 1959, and that thus the suit was within limitation. He described the mortgage and the award in question as null and void on the ground that defendant 1 was not competent to alienate the coparcenary property.;