JUDGMENT 1. On the 5th May 1905, Defendants Nos. 1 and 2, Daudoong and Gunamoni, executed a mortgage in favour of the Plaintiff. The mortgage covered property which, it is alleged in the present case by the Defendants other than the Defendants Nos. 1 and 2, was the property of one Kali Charan who died 12 or 13 years ago leaving two sons, Kamini Kumar and Krishna Charan. As regards the execution of the mortgage and the passing of consideration, the evidence is quite satisfactory, though the learned Judge has not come to any express decision on the points On the question of the bond fides of document and the passing of consideration, the evidence is such that we cannot disregard it. We must hold that Daudoong and Gunamoni executed the mortgage on the 5th May 1895 and received consideration for it. The property mortgaged is, therefore, liable to be sold and no question would have arisen as regards the right of the Plaintiff to ask for a sale of the property if Kali Charan's sons and heirs had not been made parties. They were unnecessarily made parties because they did not claim the property through the mortgagors. Their claim is adverse to the mortgagors. Sec. 85 of the Transfer of Property Act does not make it necessary for persons who claim adversely to the mortgagor to be made parties. As authority for the proposition, we may refer to the case of Monmohini Ghose v. Parbati Nath Ghose I.L.R, 32 Cal. 746, (1905). In the view we take, Defendants Nos. 3 and 4, the heirs of Kali Charan, are not necessary parties and we direct that their names be expunged from the record. Any question arising between the mortgagors and the mortgagee on one side, and the heirs of Kali Charan, on the other, relating to the title to the mortgaged property must be decided in a future suit properly framed. The issue, therefore, as to whether the mortgaged property belonged to the mortgagors or to Kali Charan does not exist and that issue with the finding on it must also he expunged. 2. The Plaintiff has, however, admitted before us through his counsel-vakil, that the mortgagors were entitled to a half share of the property and not the whole. He should be entitled to get a decree under the provisions of sec. 2. The Plaintiff has, however, admitted before us through his counsel-vakil, that the mortgagors were entitled to a half share of the property and not the whole. He should be entitled to get a decree under the provisions of sec. 58 of the Transfer of Property Act, for the sale of a half share of the property covered by the mortgage. 3. The learned District Judge has referred to sec. 23, sub sec. (4) of the Indian Contract Act as invalidating the contract The contract is certainly invalid so far as Kali Charan's heirs are concerned But so far as the mortgagors and the mortgagee are concerned, it is perfectly valid. Sec. 23, sub-sec (4) of the Contract Act has no application to the present case, neither does sec. 33 of the Assam Land and Revenue Regulations affect the right of the Plaintiff to ask for the sale of a half share of the property in question. 4. On the facts stated in the judgment, it appears that in 1881-82 Kali Charan and Daudoong were recorded as joint proprietors of the properly. Prima facie, therefore, Daudoong had a half share in the property. Whether he lost that right, or had not that right at all, the question must be decided in a future suit. We therefore direct that a decree be drawn up under the Transfer of Property Act for sale of a half share of the property covered by the mortgage. Each party will bear his own costs in all the. Courts. So far as the Defendant No. 1 is concerned, he must pay the costs of the Plaintiff in the first Court and that sum must be added to the mortgage money.