JUDGMENT According to the plaintiff, the disputed property belonged to one Hem Chandra Modak. On the 28th February, 1927, he mortgaged the disputed property with one Radha Gobinda Dutta, father of defendants nos. 1 to 3, and took a loan of Rs. 399/-. On the 2nd Pous 1346 B.S., he breathed his last leaving his son, proforma defendant no. 6, widow, proforma defendant no. 2, predeceased son’s son, proforma defendant no. 7, and two predeceased sons’ widows, proforma defendant nos. 4 and 8. Subsequently, on the footing of an amicable partition, the disputed property was exclusively allotted to the share of proforma defendant no. 4, who was in construction possession of the same through proforma defendant no. 9, who held that property as a tenant. Then by a registered sale deed dated 28th May, 1968, she sold that property along with the right of redemption to the plaintiff. In Ashar, 1375 B.S., she told the defendant to render accounts, but they declined to do so and claimed that they had purchased that property in an auction sale arising out of the decree passed in Mortgage Suit No. 54 of 1940. The plaintiff’s allegation is that profoma defendant no. 4 was not made a party to that mortgage suit and hence, that decree was not binding on her and on the plaintiff as well became she is a transferee from proforma defendant no. 4. The suit is for redemption after necessary accounting and for execution of necessary documents. 2. Defendants nos. 1 to 3 filed a written statement. The defence is that proforma defendant no. 4 was not an heir of Hem Chandra Modak, as it was an agricultural property and not a non-agricultural one. They filed Mortgage Suit No 54 of 1940 for foreclosure against all the heirs of Hem Chandra Modak. Proforma defendant no. 4 was appointed guardian mother of her minor son, Sankar, proforma defendant no. 7. A preliminary decree was passed and then the decree was made final. The decree was put into execution in Mortgage Execution Case No. 1550 of 1941. On the 7th November, 1944, they auction-purchased that property and the sale was confirmed on the 13th December, 1944. The judgment debtors filed Misc. Case No. 224 of 1945 for setting aside the sale. That misc case was dismissed on compromise. Then they instituted Title Suit No. 251 of 1956 against proforma defendants nos. On the 7th November, 1944, they auction-purchased that property and the sale was confirmed on the 13th December, 1944. The judgment debtors filed Misc. Case No. 224 of 1945 for setting aside the sale. That misc case was dismissed on compromise. Then they instituted Title Suit No. 251 of 1956 against proforma defendants nos. 5 to 9, and on the 31st May, 1962, obtained a docree for their auction. After proforma defendant no. 7 attained majority, he filed Misc. Case No. 22 of 1958 under Order 21 Rule 9 of the Civil Procedure Code for setting aside the auction sale made in that Mortgage Execution Case No. 1550 of 1941. But he became unsuccessful up to the High Court. Since proforma defendant no. 4 was not an heir of Hem Chandra, the plaintiff did not acquire any interest in the alleged equity of redemption. 3. The learned Munsif accepted the plaintiff's version and staled that the widow, Sarala Baja, proforma defendant no 4, had 1/8th share. The suit was, therefore, decreed for a sum of Rs. 728/- against defendants nos. 1 to 3. An appeal was preferred. The appellate court has stated that proforma defendant no. 4 inherited the share in Hem Chandra's property as a son's son and not like a son as held by the learned Munsif. In other respects, he accepted the learned Munsif's decision. But since the trial court did not comply with the provisions of Order 34 Rule 7(1)(c)(ii) of the Code, the decree was only modified and the appeal dismissed, Hence this second appeal. 4. It has been argued on behalf of the appellant that the question of limitation will not be pressed. Then mortgage was executed by Hem Chandra in February, 1927. Then in 1940, the suit for mortgage was instituted. But the mortgagees had no laches, when the suit for foreclosure was instituted. A bona fide enquiry was made. At that time, they did not know that proforma defendant no. 4 also an heir of Hem Chandra. So, everything was done in a bona fide manner Consequently, that decree is binding on proforma defendant no. 4 also because the decree was binding on the estate left by Hem Chandra. So, it was a good decree and in the eye of law, it will have full effect. 4 also an heir of Hem Chandra. So, everything was done in a bona fide manner Consequently, that decree is binding on proforma defendant no. 4 also because the decree was binding on the estate left by Hem Chandra. So, it was a good decree and in the eye of law, it will have full effect. Reference has been made to the Bench case of F. Chettiar v. Gobinda Swami in AIR 1961 Mad 428 and of Sulaiman Sahib v. Md Ismail in AIR 1966 SC 792 . After the auction-purchase was made, possession was obtained through Court. In that decree, the minor proforma defendant no. 7 was represented by her widowed mother, proforma defendant no. 4. Then a misc. case was filed to set as de the sale and it was dismissed on compromise. When the minor attained majority, he also filed a misc case to set aside the sale and he became unsuccessful even up to the High Court. Then when the other side disturbed the auction-purchaser’s possession in the property, they filed Title Suit No. 251 of 1956 and that suit was decreed. The auction sale has not been set aside. Reference has been made to the Full Bench case of Uttam Chandra v. Rajkrishna in 24 CWN 229 to show that where a mortgage in contravention of S. 89 of the Transfer of Property Act has attached the mortgagor or his transferee cannot maintain a suit for redemption of the property without first getting the sale set aside. So, the suit is not maintainable. Moreover, the finally published record of rights, Ext, F series, show that it is an agricultural property. When it is an agricultural property, under the Hindu Women’s Right to Property Act, proforma defendant no. 4 cannot acquire any interest in the agricultural property left by Hem Chandra. 5. The learned Advocate appearing on behalf of the respondent has stated that it is a non-agricultural property. Reference has been made to the provisions of Order 34 Rules 4, 5 and 7 of the Code. those provisions have not been complied with because proforma defendant no. 4, who had an interest in the equity of redemption, was not impleaded as a party to the previous Mortgage Suit No. 54 of 1940. Reference has been made to the provisions of Order 34 Rules 4, 5 and 7 of the Code. those provisions have not been complied with because proforma defendant no. 4, who had an interest in the equity of redemption, was not impleaded as a party to the previous Mortgage Suit No. 54 of 1940. The case of Nogubai v. B. Shama Rao in AIR 1956 SC 593 at page 603 shows that a sale in execution of a decree, which was passed in a defectively constituted mortgage sale, does not effect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under Order 34 Rule 1 of the Code. But that decree is valid and effective as against the parties to the action. The decision of Sir Bijan Kumar Mookerji, who presided over the Bench case of Kaiser Khan v. Abdul Gani in AIR 1942 Cal 138 at page 140, has been referred to show that where the defendant, who was the puisne mortgagee of that suit, was not a party to the mortgage suit of Girish Dus, purchaser of the mortgage property in such cases, acquired the property subject to the rights of the parties, who had been omitted from the suit. Reference has also been made to the Bench case of Bisweswar v. Jajneswar in AIR 1968 Cal 213 to show that where the plaintiffs had a right in the equity of redemption when the suit for mortgage was filed, but they were not impleaded as parties to that, suit, it was held that they were necessary parties to the suit for mortgage. It has, thus, been contended that 1/8th interest of proforma defendant no. 4, who held such interest in the equity of redemption, was not affected by the mortgage sale. Consequently, the plaintiff also can ask for redemption. 6. The first question arises whether the disputed property is an agricultural or non-agricultural one. The finally published R.S. Khatians, Ext. F. series, are on the record. 4, who held such interest in the equity of redemption, was not affected by the mortgage sale. Consequently, the plaintiff also can ask for redemption. 6. The first question arises whether the disputed property is an agricultural or non-agricultural one. The finally published R.S. Khatians, Ext. F. series, are on the record. But this important aspect of the case was completely lost sight of by the final court of fact Sir George Rankin has stated in the case of Shankar Rao v. Sambhu reported in 45 CWN 57 PC that where in coming to a finding of fact, the first appellate court gave no effect to the statutory presumption arising out of S. 135J of the Bombay Land Revenue Code (Corresponding presumption under S. 103B of the Bengal Tenancy Act). such finding is not binding on the High Court in second appeal. This is the most important aspect of the case because the question whether proforma defendant no. 4 was an heir of Hem Chandra, depends on the important question whether it is an agricultural or non-agricultural property. If it is an agricultural property, then according to the well-known decision of Federal Court, she will not inherit any share in the agricultural property in spite of the provisions of Hindu Women’s Right to Property Act. If, on the other hand, it is a non-agricultural property, she would get 1/8th share therein. So, for the ends of justice, the case has to be remitted to the trial court for arriving at a decision whether it is an agricultural or non-agricultural property or partly agricultural and partly non-agricultural property. 7. Then about the other points raised in this case. It is true that in the bench cases in AIR 1942 Cal. 138 and AIR 1968 Cal. 213 (Bisweswar v. Jajnewar) (supra), the question arose as to the effect of non-joinder of one of the persons interested in the equity of redemption.. This matter was also considered by the Supreme Court in the aforesaid case of Nagubai v. B. Shama Rao (supra). But there is a distinguishing feature because this is not a case where the determination of this important point turns on the mere effect of non-joinder of one of the persons interested in the equity of redemption. 8. This matter was also considered by the Supreme Court in the aforesaid case of Nagubai v. B. Shama Rao (supra). But there is a distinguishing feature because this is not a case where the determination of this important point turns on the mere effect of non-joinder of one of the persons interested in the equity of redemption. 8. It frequently happens that after death of a defendant or respondent, even when a diligent and bona fide enquiry is made, some of his heirs are joined and some left out due to ignorance or bona fide mistake. The courts have consistently held that/if after a bona fide enquiry, where there is no fraud or collusion, the plaintiff or appellant ascertains that only some persons are the heirs of the defendant or of the respondent, then the non-joinder of the other heirs, whose names could not be ascertained after a proper enquiry, would not cause an abatement, vide the principles of the cases of Dayaram in AIR 1965 SC 1049 , Dolai in AIR 1967 SC 49 and Hurihar in AIR 1975 SC 733 . 9. The same principles can apply in a case of this type. The question arises if due to a bona fide mistake, any such person was left out as a party to a previous suit for mortgage, whether the decree passed in that suit will have full effect or that decree will nor be bit, ding on the person, who was left out. In the bench case of Haridas Roy in 76 CWN 575 the answer given was that the decree would bind the absent heirs.. This question was considered by a bench of Madras High Court in the case of F. Chettiar v. Gobinda Swami (supra). This decision was approved by the Supreme Court in the case of Sulaiman Sahib v. Md. Ismail (supra). It will appear from the pages 797 and 798 of the Report that in the case of Dayaram v. Shyam Sundari reported in AIR 1965 SC 1049 , it has been observed that the failure to bring the other heirs on record, if there is bona fide enquiry as to the existence of the heirs, does not affect the validity of the decree and the proceedings taken thereunder. The Supreme Court has further stated that where certain persons are implelded after diligent and bona fide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly kept by those persons, who are brought on the record or impleaded, and the decree will be binding upon the entire estate. There is an exception, for this rule will not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial or the absent heir has a special defence. 10. In this case, the aforesaid four exceptions do not apply. Nevertheless there is no enquiry or finding whether a bona fide enquiry was made by defendants nos. 1 to 3 that defendant no. 4 was also an heir and if, in good faith, they filed that suit. So, for the ends of justice this matter must also be enquired into by the trial court in the light of the aforesaid observations made by the Supreme Court. If the court finds that it is a non-agricultural property, but still the defendant nos. 1 to 3 made a bona fide enquiry and instituted the suit in the bona fide belief that the persons impleaded in that suit were the only heirs and legal representatives of Hem Chandra, then the decree passed in that mortgage suit no. 54 of 1940 will be binding on his estate and that decree will be valid in law. If, on the other hand, that court arrives at a decision that no such bona fide enquiry was made or there was fraud or collusion etc, as discussed before, then the court will dismiss the suit as not maintainable. So the two bench cases of this Court and the case in AIR 1956 SC 593 are clearly distinguishable from the fact of the present one. The full bench case of Uttam v. Rajkrishna (supra) is on a different point and so the suit cannot fail on the principles decided in that case. 11. The appeal is allowed. The judgment and decree appealed against he set aside. The suit is remitted to the trial court for disposal according to law in the light of the observations made hereinbefore. 11. The appeal is allowed. The judgment and decree appealed against he set aside. The suit is remitted to the trial court for disposal according to law in the light of the observations made hereinbefore. There will be no order as to costs Appeal allowed; Suit remitted to trial court.