LODHA, J.—This is a defendants second appeal arising out of a suit for redemption of a house situated in village Giri, District Pali.

2. Plaintiff Banshilal originally filed this suit alleging that the house in question belonged to Fojmal and his sons Kundanmal and Mishrilal, and that the same had been mortgaged by widow of Fojmal, Kundanmal and Mishrilal on Sawan Badi I, Smt 1961 for a sum of Rs. 72 with Ummadmal Ghasiram and Sugan Chand, ancestors of the defendant Budarmal. It was alleged that Mst. Rami respondent No. 2 was the sole surviving heir in Fojmals family and was, therefore, entitled to redeem the house in question It was further averred that Mst. Rami had sold away the equity of redemption in favour of the plaintiff on Maha Sud 18, Smt. 2013 for Rs 99. It was, therefore, prayed that a decree for possession of the house in question by redemption of the mortgage may be granted in favour of the plaintiff. Subsequently the plaint was amended and Mst Rami was also joined as a plaintiff and it was prayed that if for any reason the sale of equity of redemption by Mst. Rami is not recognised, the decree for redemption may be granted in favour of Rami. The suit was resisted by the defendant on a number of grounds. The ownership of Fojmal, Kundanmal and Mishrilal to the house in question was denied. It was also pleaded that Rami was not the heir of Fojmal, Kundanmal and Mishrilal and that in any case if the right of any of the plaintiff to redeem the property is recognised the redemption may be granted on payment of Rs 400 (over and above the mortgage money) which the mortgagee had spent on improvements on the mortgaged property.

3. After recording the evidence produced by the parties the Munsiff, Jetaran decreed the plaintiffs suit for redemption in favour of Mst. Rami only on payment of Rs 72 as mortgage money. The defendant filed appeal but the same as rejected by the Civil Judge, Sojat Consequently the defendant has come in second appeal to this Court

4. Learned counsel for the appellant has urged that Mst. Rami is not proved to be the heir of the mortgagor and therefore the present suit must fail In order to appreciate the contention raised by the learned counsel for the appellant it would be necessary to state that there is now no dispute between the parties that the mortgage of the property in question was made by the mortgage deed Ex. A. 1 of Smt. 1961, Sawan Bad 1 for a sum of Rs. 72 by widow of Fojmal alone, even though the names of Kundanmal and Mishrilal were also mentioned in the body of the document as mortgagors. The mortgage deed was executed by widow of Fojmal only. Evidence on behalf of the plaintiff, it must be said, was got recorded rather carelessly and it was not clearly brought out whether Kundanmal and Mishrilal survived Fojmal besides Fojmals widow. However, from the contents of the mortgage deed Ex. A. 1 it is clear that Fojmal was survived by his widow as well as two sons Kundanmal and Mishrilal. The document has been produced from the custody of the defendant and no objection has rightly been taken to the correctness of the contents of the mortgage deed on behalf of the defendant. Consequently it must be held that Fojmal, who died in or about 1931 A.D. left behind him two sons. According to Mithakshram School of Hindu Law by which the parties are governed the house in question belonging to Fojmal devolved on his two sons Kundanmal and Mishrilal as the heirs and survivors of Fojmal, and widow of Fojmal was not competent to mortgage the house in question in favour of the ancestors of the defendant. It is also not in dispute that Kundanmal was the last male holder of the property in question and after his death Mst. Rami his widow became the sole heir of Kundanmal. In this view of the matter Mst. Rami cannot be said to claim the right of redemption as heir of the mortgagor, namely, the widow of Fojmal. The learned Civil Judge, in my opinion fell into error in holding that Mst. Rami was entitled to rede

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