Judgment

VAIDIALINGAM, J.: This appeal by defendants Nos. 1 to 7 by special leave is directed against the judgment and decree dated February 14, 1963 of the Bombay High Court in First Appeal No. 718 of 1957, reversing the decree of the trial court and decreeing the suit of the plaintiff, first respondent.

2. At the outset it is to be stated that some of the original parties are dead and their legal representatives have been brought on record. But for the sake of convenience we have given the description of the parties as at the time of the institution of the suit.

3. The plaintiff instituted, in the court of the Civil Judge, Senior Division, Poona, Special Civil Suit No. 38 of 1955 for recovery of possession of the suit property. In the alternative the plaintiff claimed that if it is held that the sale deed Ex. 78 was not binding on the defendants, he should be given his share in the property equitably.

4. 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 Appeal Ramji, Kasabai, mortgaged the property with possession for Rs. 1600/- to Rarmji 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 Bhaguii Kavade for Rs. 900/-. Ramji Krishnaji 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 right as owner of the equity of redemption obtained through his maternal-uncle Ganpati and the rights of the mortgagee obtained by inheritance from his father Ramji Krishnaji. But these rights were subject to the sub-mortgage which had been executed by his father on May 7, 1885.

5. Mahadev under Ex. 78 dated January 9, 1926 sold his rights in the suit property to Balwant Ganesh Bokil, father of the plaintiff for Rupees 1800/- subject to the sub-mortgage dated May 7, 1885. The defendants Nos. 1 to 7 on the basis of the decree stated to have been obtained in Civil Suit No. 80 of 1941 on the file of the Subordinate Judge, Junior Division, poona, claimed to have obtained possession of the suit property. The said defendants had also sold about 3 acres from and out of the said suit property on January 25, 1947 to the 8th defendant and they had also on October 8, 1948 entered into an agreement with defendants Nos. 9 and 10 to sell certain other items forming part of the suit property. On the above allegations the plaintiff claimed to have become the full owner of the suit property and sought recovery of possession or in the alternative for being given a share in the suit property.

6. The appellants contested the claims of the Plaintiff on various grounds. They denied the title of the plaintiff and contended that Mahadev did not succeed to his material uncle Ganpati and in consequence he did not inherit the rights in the equity of redemption, in the suit property. As such they further contended that under Ex. 70 Mahadev could not have sold the rights of the equity of redemption to the plaintiff s father. They further pleaded that even the mortgagee s rights were not transferred under Ex. 78 as it has been held m Civil Suit No. 80 of 1941 that the transaction of sale Ex. 78 is invalid and not binding against the appellants as it was executed by there father without any legal nece