Judgment

SHAH, J.: Khader Miran, Muhammad Abdul Kassim and Muhammad Labhai mortgaged on August 21, 1933, certain immoveable property in favour of Narsimha Reddy to secure repayment of Rs. 20,000. Khader Miran died on November 19, 1937. On July 12, 1940 Narsimha Reddy commenced an action for enforcement of the mortgage against Muhammad Abdul Kasim, Muhammad Labhai, and three widows of Khader Miran Fathima Bi, Amina Bi and Mahaboob Bi, and a daughter Muhammad Marriyam Bi. A preliminary mortgage decree passed in the action on November 25, 1940 was made absolute on October 11, 1941, and in execution of the decree the properties mortgaged were sold at a Court auction and were purchased by the mortgage Narsimha Reddy on October 16, 1942, with leave of the Court. Narsimha Reddy thereafter transferred the properties to P. Chinnamma Reddi and the latter in his turn alienated portions thereof.

2. N. K. Mohammad Sulaiman -hereinafter referred to as the plaintiff - claiming that he was the son of Khader Miran instituted suit No. 125 of 1950 in the Court of the Subordinate Judge, Chittoor for a decree for partition of the mortgaged properties by metes and bounds and in the alternative for a declaration that he was entitled to redeem the mortgage or portion thereof equal to his share in the mortgaged properties and for an order against Narsimha Reddy and the aliences from him to render a true and correct account of the income of the properties, and for a further declaration that the decree and judgment in suit No. 87 of 1940 and the execution proceedings thereon were null and void, and if necessary to set aside the same . To this suit were impleaded Mohammad Ismail who, it was claimed, was also the son of Khader Miran, and was not impleaded in the earlier suit, Mahaboob Bi the mother of the plaintiff, Mariyam Bi his step sister, Narsimha Reddy and twenty-two alienees of the property. The suit was resisted by Narsimha Reddy and the alienees on two principal grounds-that the plaintiff was not the son of Khader Miran, and that the decree in suit No. 87 of 1940 was in any event binding upon the plaintiff for the estate of Khader Miran was fully represented in the suit by those who were in possession of the estate of Khader Miran. On the second plea, it was submitted that Narsimha Reddy had made full and bona fide inquiry and had come to learn that only the three widows and daughter of Khader Miran were the surviving members of the family of Khader Miran and that they were in possession of his estate, and that it was not brought to the notice of Narsimha Reddy at any time that there were, beside those impleaded, other heirs to the estate of Khader Miran.

3. The Trial Court held that the plaintiff who was the son of Khader Miran was sufficiently represented by the three widows and the daughter of Khader Miran in suit No. 87 of 1940, and that the plaintiff and his brother Mohammed Ismail were bound by the decree and the sale in execution thereof even though they were not impleaded as parties eo nomine. In appeal to the High Court of Andhra Pradesh, the decree passed by the Trial Court, dismissing the plaintiff s suit, was confirmed. With certificate granted by the High Court, this appeal is preferred in forma pauperis by the plaintiff.

4. The Trial Court and the High Court have held that Narsimha Reddy had instituted the mortgage suit after making bona fide enquiry and being satisfied that the only heirs of Khader Miran were his three widows and his daughter, and that the entire estate was in their possession, and that there were no other heirs. This finding is not challenged before us, but counsel for the plaintiff argues that when in a suit to enforce a mortgage instituted after the death of a muslim debtor one or more out of the heirs of the deceased debtor is or are not impleaded in the suit and decree is obtained, what passes to the auction-purchaser at the Court sale is only the right, title and interest in the properties of