JUDGMENT

1. This is the plaintiff's appeal. The following pedigree will be helpful in appreciating the facts of the case:

TABLE

2. Parag Dutt, shown in the pedigree, was owner of 16 annas share in village Charera and 6 annas share in village Chain. On his death his two sons, Bhikhari and Jadunath, succeeded to the property in equal shares. Later the two brothers separated from each other and Jadunath and his son, Ram Achraj, died one after the other and Mt. Parag Dei, the widow of Ram Achraj, succeeded to the eight annas share in village Charera and three annas share in village Chain as a Hindu widow. Jadunath in his lifetime with his brother, Bhikhari, had executed a mortgage deed with possession for a consideration of Rs. 9885-11-11/2 in favour of one Tirbhuwan Datt in respect of the entire 16 annas share of village Charera: vide Ex. A-16.

3. On 4th August 1913, i. e. after the death of Jadunath and Ram Achraj and Bhikhari, Mt. Parag Dei and the sons of Bhikhari executed a simple deed of mortgage for a sum of Rs. 5000 in favour of Bhagwan Das Pande in respect of eight annas share of Charera: vide Ex. A-17. It appears that this mortagage was executed by Mt. Parag Dei in respect of her eight annas share in village Charera in order to redeem the share mortgaged by her husband in 1893, and the sons of Bhikhari who were the nearest male collaterals seem to have joined the execution of the deed merely to signify their assent to the transfer. It is admitted that the eight annas share was redeemed and came into the possession of Mt. Parag Dei. The interest stipulated in this deed was 1 per cent. Per mensem compoundable yearly. On 11th August 1916 Mt. Parag Dei, the widow, and the sons of Bhikhari, again executed another mortgage deed (Ex. A-18) in respect of four annas share out of the eight annas share with possession for a sum of Rupees 6000. This mortgage was executed in favour of Bhagwan Das, the defendant-respondent in this case. Out of the consideration of Rs. 6000, a sum of Rs. 5421 was left with the mortgagee for redeeming the earlier mortgage dated 4th August 1913. The mortgagee was put in possession of the share mortgaged. It is admitted that the defendant-respondent, Bhagwan Das, ultimately deposited a sum of Rs. 7341 and succeeded in redeeming the mortgage of 1913 on 9th December 1916.

4. From the above narration it would appear that the defendant-respondent paid a sum of Rs. 1920 in excess of the amount left with him for redemption. On 15th March 1934, Mt. Parag Dei alone executed a mortgage deed with possession in respect of the remaining four annas share of village Charera, redeemed from Bhagwan Daa Pande, and three annas share of village Chain to the defendant-respondent for a sum of Rs. 12,000. This amount of Rs. 12,000 consists of the excess amount of Rs. 1920 paid by the respondent for redemption and Rs. 10,080 interest thereon from December 1916 up to the date of the mortgage. It must be noticed that at the date of this mortgage a claim to Rs. 1920 and interest thereon had become barred by time. The widow died in July 1934, and the plaintiff filed the present suit for possession of the four-annas share of Charera and the three annas share of Chain mortgaged by the deed of 1934 by the widow on the allegation that the mortgage was neither justified by legal necessity nor was executed for the benefit of the estate.

5. The defendant contested the suit. His defence was that plaintiff 1 was not the reversionary heir of the husband of Mt. Parag Dei and was not entitled to sue in the presence of Mt. Bachchi, the daughter of Ram Achraj. It was further pleaded that under a family custom Mt. Parag Dei was entitled to an absolute estate in the property of her husband and that the mortgage was made for legal necessity. The trial Court impleaded Mt. Bachchi as a necessary party to the suit and later as a result of the compromise between her and the plaintiff she was made a co-plaintiff as plaintiff 2 in the suit in consequence o