The main legal point established in the judgment is the determination of the extent of defendant 4's share in the houses and the right of redemption for the decreed share.

Bose, Hidayatullah, J—This is an appeal by deft. 4 Gangaram. It arises out of a suit for possession of three houses which belonged to a joint family whose genealogy is given below.

2. The plff. claims title on two scores. First he claims 14 annas 8 pies under a sale in execution of a mortgage decree against all the family except deft. 4 Gangaram whose share was excluded, & secondly 2 annas 8 pies in execution of a money decree against Thama & Ramchandrathe father of deft. 4.. There is an overlap of 1 anna but between the two the plff. claims title to the entire 16 annas. Deft. 4 Gangaram alone contests & the main question in the appeal relates to the extent of his share, whether 1 anna 4 pies, as the plff. says, or 2 annas as deft. 4 contends.

3. The details of the plff.'s two titles are as under. First, as regards the 14 annas 8 pies. A mortgage was executed in favour of the plff. & other members of his family on the 27th May 1921 by Narayan, Thama, Vithoba, Ramchandra & deft. 4 Gangaram. The last of these, Gangaram, was a minor & was represented by his father Ramchandra. This mtge. is Ex. P-1.

4. In due course the plff. sued on his mtge.C. S. No. 49/29.. He joined all his mortgagors including the minor Gangaram but later gave up Gangaram & so Gangaram was discharged. Why this was done has not been explained & as the records have been eliminated we are not in a position to know. The judgment, Ex. P-2, does not help us. All it says is that Gangaramdeft. 6 in that case. was given up.

5. A decreeEx. P-3. was obtained against the remaining mortgagors on 22-4-1920. It states:

''The share of the minor Gangaram, son of Ramchandra Koshti of Nagpur, who was formerly made a deft., & subsequently discharged by plffs., is excluded from the mortgage decree.''

The decree did not, however, specify the extent of this share.

6. When the D. Hs. came to execute their decree, they brought 15 annas 7 pies 'o sale claiming that that was the extent of their J. D's share. On 10-4-1930 the executing Court decided that as Gangaram's share had not been defined in the decree it would be necessary to hear him. Accordingly, it ordered that notice should issue to him & directed that process fees be paid within three days. There is nothing to indicate that the process fees were paid & that the notice was issued. As none of the subsequent order sheets show that Gangaram was served, & as his presence was not recorded, & as no comment is made about his absence, we can only conclude that he was not served. probably because the process fees were not paid. In the circumstances he is not bound by the orders passed in that case & the matter is not 'resjudicata' against him.

7. We turn next to the plff.'s case regarding the 2 annas 8 pies share. His case is that members of his family obtained a simple money decree on a promissory note on 21-6-1928 against Ramchandra & Thama in Civ. Suit No. 827 of 1928. In execution a 2 annas 8 pies share was attached & brought to sale. This was purchased by one Sitaram on 28-10-1931 &, according to the pltf., Sitaram took possession on 28-10-1931. Anyway he later sold his interest to the plff. The plff. contends that Gangaram is bound under the pious obligation rule & so his 1 anna 4 pies interest in the 2 annas 8 pies also came to the plff. in execution of the decree against Gangaram's father Ramchandra. This 1 anna 4 pies coupled with the 14 annas 8 pies under the mortgage, decree gives the plff. a full 16 annas. It will be seen that the plff. gets a right to Ramchandra's interest twice over, once under this sale & once under the other.

8. It was contended before us that Sitaram never got possession but we were not shown anything to substantiate that, & in any case it does not matter because of what happened in the two lower Courts. The first Court held that Gangram's share was never brought to sale in execution of the decree against Ramchandra. Gangaram had a brother Ganpati at that time. The execution application., Ex. P.-6, ask