CHHANGANI, J. —This first appeal by the defendant-mortgagor is directed against both a preliminary decree dated 23-7-1962 and a final decree dated 23.11.1962 passed in a suit for the realisation of mortgage-money by sale of the mortgaged property.

2. The plaintiff Gulabchand, now dead, and represented by respondents Kanhaiyalal and Ramdas, as also by Smt Kanta Kumari,instituted a suit in the Court of Senior Civil Judge, Jaipur City, on 9-5-1957, praying for a decree for an amount of Rs. 25,799/11/- and its realisation by sale of the mortgaged property. The plaintiffs case was that the defendant appellant mortgaged his property detailed in para 1 of the plaint on 6-5-1952 for an amount of Rs. 24,999/- and executed a mortgage deed and got it registered on 12-6 52. The defendant agreed to pay interest at Rs. 0/12/-per cent per month with six monthly rest. There was also an agreement to pay interest on the amount of interest in case the amount of interest was not paid in time. The mortgage debt was to be repaid in five years and in case of default, the mortgagor was to pay interest at the rate of 1% per month from the date of default. According to the plaintiff, the defendant paid Rs. 3,200/- on account of interest. The plaintiff consequently filed a suit for the realisation of Rs, 24,999/- as principal and Rs. 80,956/11/- as interest, total Rs. 35,955/11/-.

3. The defendant admitted the execution of the mortgage deed. He however, pleaded that besides Rs. 3,200/- he paid further amount of Rs. 4,850/- upto Chet Suid 9 Samvat year 2914. The defendant also pleaded that the plaintiffs were not entitled to compound interest as the condition relating to compound interest in the mortgage deed was got inserted on account of undue influence. The defendant also denied the liability to pay interest at the increased rate of Rs. 1% per month. The defendant also prayed for payment of decree by instalments.

4. The trial court, on 17.9.57, framed the following four issues:

(1) If the defendant paid Rs. 4850/- to the plaintiff upto Chaitra Sudi 9th, Smt, 2014 besides Rs. 3200/-? (D).

(2) Whether the instalment decree can be passed in mortgage suit. If so, whether the defendant is entitled to any instalments and what instalments should be fixed? (D)

(3) Whether the condition of adding compound interest was written by the defendant in the mortgage under undue influence of the plaintiff, and so the plaintiff is not entitled to get compound interest? (D)

(4) To what relief the plaintiff is entitled?

5. The plaintiff Gulabchand died on 12-1-58 and the respondents Nos. 1 & 2 Kanhaiyalal and Ramdas claiming under a will executed by Gulabchand in their favour on 6.1.58, applied for being substituted as the legal representatives of the deceased Gulabchand. The defendant contested the valid execution of the will by Gulabchand and also its admissibility in evidence without a probate. The defendants objection was over ruled and the respondent Nos. 1 & 2 Kanhaiyalal and Ramdas were brought on record in place of Gulabchand deceased. Thereafter, an amended plaint was filed on behalf of the present plaintiff. In the written statement filed after the amended plaint, the defendant raised the following further pleas: —

(1) That Gulabchands daughter Smt. Dhapan Bai and son Gopi Chand were necessary parties and

(2) that no decree can be passed in the suit without obtaining a probate.

On 19.7.61, on the pleadings of the parties, the following two additional issues were framed:—

(1) Whether without a probate the decree cannot be passed in the suit?

(2) Whether Smt. Dhapan Bai and Gopi Chand are necessary parties?

6. The trial court decided the additional issues against the defendant on 13.12.61 and 5.2.1962 respectively. Taking up the remaining issues, the trial court rejected the defendants plea relating to repayment of an amount of Rs. 4,850/- and decided issue No. 1 against the defendant. Issue No. 2 was also decided against the defendant that no instalments could be fixed in a mo

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