Non-joinder of necessary parties, in this case the mortgagee's daughters, is a fatal defect that cannot be remedied at a later stage, and the suit is liable to be dismissed.

( 1 ) THE defendants have come up in appeal aggrieved by the judgements and decrees of the Courts below directing a suit for redemption of mortgage to be decreed.

( 2 ) THE suit was filed by the two daughters and a son of late Haidarali. The relationship of Haidarali with late Hasanali as set out in plaint para 1 was as under :- on 24-6-1932, late Hussanali made a mortgage with possession of the house with late Nandram and his two sons namely, Manaklal and Motilal. According to the plaint allegations, late Nandram had expired four to five years prior to the institution of the suit. The suit having been instituted on 19-7-67, the time of death of late Nandram would be somewhere in the year 1962 or 1963. The suit was instituted impleading Manakal and Motilal as defendants Nos. 1 and 2 also joining the sons of Manaklal and Motilal as pro forma defendants Nos. 3 to 7. Puran, the defendant No. 8 was joined as pro forma party being a tenant in the mortgaged house.

( 3 ) THE suit was contested on very many grounds of which only two deserve to be noticed. It was submitted that the pltfs. alone had no right to institute the suit as all the heirs of late Hasanali were not joined as plaintiffs or as pro forma defendants. Secondly, it was submitted that late Nandram was also survived by his two daughters, apart from the two sons, which daughters having not been joined as parties to the suit, the suit was not properly constituted and was liable to be dismissed for want of necessary parties before the Court. The issues Nos. 1 and 2 were specifically framed on the objections raised by the defendants.

( 4 ) ON 20-2-76, on behalf of the defendants an application was filed inviting attention of the Court to the fact that the suit was bad for non joinder of necessary parties and that objection deserved to be decided as a preliminary issue which would enable disposal. of the suit itself. On 23-2-1976, on behalf of the plaintiffs a written reply was filed to the application pleading that the daughters were not required to be joined as parties to the suit; that the plaintiffs were not seeking any relief against the parties not joined and that it was no business of the defendants to insist on anyone to be joined as party to the suit whom the plaintiffs did not think proper of joining.

( 5 ) BOTH the Courts below have overruled the defendants' objections and decreed the suit.

( 6 ) VIDE order dated 29-3-1978, this Court admitted the appeal for hearing on the following two substantial questions of law :- (1) In the absence of any evidence to prove that the plaintiffs were the only nearest legal heirs of deceased Hasan Ali, could the plaintiff's succeed in obtaining the decree of redemption with respect to the mortgage created by deceased Hasan Ali ? (2) Whether the daughters of the mortgagee Nandram were necessary parties to the suit and the suit deserves to be dismissed for non joinder of necessary parties ?question NO. 1 :-

( 7 ) IT is pointed out by the learned counsel for the appellants that the plaintiffs' evidence fell short of proving the enguineness and correctness of the family tree set out in para 1 of the plaint and unless and until the plaintiffs had succeeded in proving that except the plaintiffs there were no other heirs of late Hasan ali, the plaintiffs would not be entitled to succeed. It was also submitted, by reading out the evidence adduced on behalf of the plaintiffs, that the family tree pleaded was demonstrated to be prima facie false inasmuch as one of the witnesses had stated that Rajan Ali was survived by a son Gulam Ali while another witness had stated that Rajan Ali had died issueless. The learned counsel further submitted that the averment of the plaintiffs on which the suit is founded that there was no one else except the plaintiffs entitled to redeem the property mortgaged is positive averment of a negative fact; nevertheless they have to discharge the burden of proof which lies heavily on them and in case