TMI Blog1971 (2) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... . The circumstances under which, according to the plaintiff, the suit was instituted may be stated : The suit property belonged to one Savitribai who sold it in 1864 to one Appaji Ramji. On November 7, 1867 the widow of Appaji Ramji, Kasabai, mortgaged the property with possession for ₹ 1600/ to Ramji Krishnaji. On June 6, 1869. Kasabai sold the property to Thakuji Hariba Bhandavalkar. Ramji Krishnaji sub mortgaged the property with possession on May 7, 1885 to one Bhaguji Kavade for ₹ 900/-. Ramji Krishanaji died leaving his only son Mahadev, the father of defendants 1 to 7 Mahadev, as heir of Ramji Krishnaji, became the owner of the mortgagee's rights in the property. Thakuji Hariba Bhandavalkar died leaving his brother Naguji. Naguji died leaving his son Ganpati. Ganpati died leaving no issues. Mahadev, the father of defendants Nos, 1 to 7 was the sister's son of Ganpati and he inherited, as such, the estate of Ganpati. Ganpati had inherited the rights in the equity of redemption in the suit property owned by Thakuji Hariba Bhandavalkar and that right was inherited by Mahadev. Thus Mahadev became the owner of both the rights in the suit property, namely, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the appellants. The learned Civil Judge held that the suit was not barred by limitation nor was it barred by res-judicata by virtue of the decision in Civil Suit No. 80 of 1941. The learned Judge held that as the defendants had not raised any plea that Ex. 78 was not executed for legal necessity and as such not binding on them, the plaintiff was justified in not adducing any evidence to prove that the said document was executed for legal necessity. The learned Judge held that Ex. 78 was binding on the appellants. As the mortgagee's rights had been obtained by Mahadev along with his sons, the said right belonged to the entire family and therefore the plaintiff's father under Ex. 78 could have become only the owner of 8/10th share of the mortgagee's rights in the family. But the learned Judge held that the plaintiff has not established that Mahadev inherited the rights in the equity of redemption as heir to his maternal-uncle Ganpati. According to the learned Judge there was only evidence on record to show that Naguji succeeded to these rights as the brother of the deceased Thakuji Hariba Bhandavalkar. In this view the trial Court held that the plaintiff has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an event the finding in Civil Suit No. 80 of 1941 that Ex. 78 was not executed for legal necessity and as such not binding on the appellants, operates as res-judicata and hence the plaintiff is not entitled to any relief. 10. On the other hand, Mr. R. B Kotwal, learned counsel for the plaintiff, first respondent supported the judgn.ent of the High Court on all aspects. 11. From the above contentions it is to be noted that the appellants do not challenge the finding of the High Court that Mahadev inherited the rights in the equity of redemption as heir to his maternal-uncle, Ganpati. In fact the first contention is raised on the basis that Mahadev had become the owner of the equity of redemption. 12. The first question that arises for consideration is regarding the nature of the rights conveyed by Mahadev under Ex. 78. Great emphasis has been laid by the learned Counsel for the appellants on the recital in the said document made by Mahadev that he was conveying the property which I have inherited from my maternal-uncle as the heir . Based upon this recital it is argued that under this document Mahadev sold to the plaintiff's father only those rights which he had in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessity and as such binding on the minor member of the family. But in this case, both the trial Court as well as the High Court have concurrently held that the appellants did not plead that Ex. 78 is not binding on them on the ground that it has not been executed by their father Mahadev for. legal necessity It has been found both by the trial Court as well as the High Court that in the absence of such a plea it was unnecessary for the plaintiff to have adduced evidence on this aspect. 15. Mr. Sarjoo Prasad pointed out that the plaintiff himself has specifically referred in the plaint to the finding given in Civil Suit No. 80 of 1941 that Ex. 78 has not been executed for legal necessity and as such was not binding on the appellants. In view of this specific statement, the Counsel urged, it was the duty of the plaintiff to have adduced evidence to prove that Ex. 78 had been executed by Mahadev for purposes binding on his sons, the appellants. We are not inclined to accept this contention of the learned Counsel. The recitals relied on by the appellant have been made with reference to the plaintiff's plea that the decision in Civil Suit No. 80 of 1941 is not binding on him and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stified in contending that a finding has been recorded against the present plaintiff in Civil Suit No. 80 of 1941 and Ex. 78 is not binding on them. If that decision operates as res-judicata, the plaintiff will have to fail. The question is whether the said decision is res-judicata in the present proceedings. There is no controversy that the Court of the Civil Judge, Junior Division, which tried the civil suit No. 80 of 1941 was a Court of limited jurisdiction. The pecuniary jurisdiction of that Court was limited to ₹ 5000/-. On the other hand, the present suit, which is for recovery of possession, has been valued for the purpose of jurisdiction at ₹ 11,001/-. In order to operate as res-judicata it must be established that the previous decision was given by a Court which had jurisdiction to try the present suit. So far as we could see the defendants have no where in the written statement alleged that the value of the property, for the recovery of which the plaintiff has now sued was worth in 1941 only ₹ 5000/-or less, in which case the Civil Judge, junior division would have jurisdiction to try the present suit. The High Court has quite rightly pointed out, with r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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