YESHWANT RAO Vs. MT. TULSDBAI

JUDGEMENT

(1.) ONE , Buddhu was the owner of the property in dispute. He died several years ago leaving behind three sons Mukunda, Munda, Lilloo. The sons separated and the property in suit fell to the share of Mukunda on whose death his son Sitaram succeeded to the inheritance : Sitaram died in 1865 leaving behind two widows Mt. Godha and Mt. Mankuriya. Mt. Godha subsequently died; and thus Mt. Mankuriya was the sole-surviving widow in whom the whole inheritance vested. She died in 1920. At her death Plaintiffs Nos. 3 to 12 became the actual reversioners to the estate. They have brought this suit to recover possession of the property from the defendants alienees who for-closed the same in 1900 Exhibits D-l and

(2.) ON the basis of a mortgage deed of 1896 Exhibit P-10, which is challenged on the ground of want of legal necessity. Plaintiffs 1 and 2 have joined in the sale as assignees of a moiety from the rest of the plaintiffs. The defence is that the mortgage was supported by legal necessity and was further consented by one Keshao the father of Plaintiff No. 12, and that Plaintiff No. 12 was estopped from asserting his claim to avoid the mortgage owing to his father's consent. 2. At to the rest of the 'plaintiffs' right to sue was denied on the ground that they were not the reversionary heirs of Mukunda. As many as 15 issues were framed, on 9th September 1922 by Mr. Choubal, Sub-Judge and Mr. Mohgaonkar added one more issue No. 16. The latter Judge tried the case and dismissed the suit holding that plaintiffs had no right to recover the property as the mortgage was for legal necessity and the consent of Keshao was binding on his son Plaintiff No. 12, and showed that the transaction was unimpeachable as a whole at the instance of the rest of the Plaintiffs Nos. 3 to 11 even though they had proved their relationship and rights as reversioners of Sitaram's estate. The first Court's findings on the question of legal necessity are principally incorporated in paragraph 18 of the judgment wherein the decision on Issues 8, 9 and 10 which deal with that question is given. Against this dismissal of the suit, the plaintiffs filed an appeal to the lower appellate Court, but that Court recorded a final judgment endorsing the views of the lower Court and ultimately dismissed the appeal. Hence this second appeal by the plaintiffs.

(3.) ABOUT the year 1873 Mt. Mankuriya sold half the village for no legal necessity. She had also turned out unchaste and therefore the then existing five reversionary heirs-Nandram, Soma, Pandamsing, Shiam and Kesho instituted two suits, Nos. 16/73, 13/76 respectively against Mankuriya and her alieness Anna and Fadali Exhibit P-2. The grandsons of Soma and the sons of the rest of the plaintiffs to those suits are parties to this suit. The first was a suit for possession on the ground of her unchastity and the second was for avoiding the sale. The first claim was dismissed Exhibit P-1, whereas in the other suit a decree declaring the alienation by way of sale void beyond Mt. Mankuriya's lifetime was passed Exhibit P-2. The appeal preferred by the alienees against the decree in Suit No. 13/76 was dismissed on 29th August 1876, Exhibit P-3.