Bansidhar Upadhya and Another vs Mt. Gujrati and Another

Verma, J.—This is an appeal by the plaintiffs in a suit for sale on foot of a simple mortgage. Both the Courts below have dismissed the suit. The mortgage in suit was executed by one Bhagwati Upadhya on 18th June 1923. The case of the plaintiffs was that Bhagwati was a separated Hindu and was the sole owner of the property mortgaged. Bhagwati is dead and the plaintiffs impleaded Mt. Gujrati, the widow of Bhagwati, as the sole defendant to the suit. The only plea of the defendant with which we are concerned was the plea that Bhagwati was not a separated Hindu but was a member of a joint Hindu family with his brother Ram Tawakkal Upadhya, and died in a state of jointness. The defendant therefore pleaded that on Bhagwati''s death no right of inheritance arose in her favour and that the entire property belonging to the family devolved on Ram Tawakkul Upadhya alone by survivorship. Accord. Ingly she contended that she could not represent the estate and no decree could be passed in a suit in which she alone was the defendant. Both the Courts below have agreed in finding that the brothers Earn Tawakkul Upadhya and Bhagwati Upadhya were members of a joint Hindu family and that on Bhagwati''s death Earn Tawakkul Upadhya became the sole owner of the entire property by right of survivorship. It seems to us that on this finding of fact the only course open to the Courts below was to dismiss the suit as it had been brought against a person who had no interest in the property in question. The appeal fails and is dismissed with costs.