JUDGEMENT - A.A. Desai, J.:---These appeals are directed against a judgment and decree dated 25-1-1979 passed by the Civil Judge, Senior Division, Amravati. They are heard together and decided by this common judgment. 2. The litigation has chequred history. It also carries intricate questions of facts and law. Relevant for the purposes of adjudication is thus : One Balkrishna Bodhankar acquired the suit property, namely, house at Amravati and agricultural field at Mouza Rahatgaon. In 1918, he died. His son Shankarrao (defendant No. 1) took the possession and management of the suit property on behalf of Hindu undivided family which consisted of self and sons - Deodatta (plaintiff), Jagdish (defendant No. 3) and Jaiprakash (defendant No. 4). On 24-1-1951, Shankarrao entered into agreement to sell suit house in favour of Chimotes. On 14-3-1951, one Dhapubai, in execution of decree obtained against Shankarrao (defendant No. 1), attached the suit house and put to auction. On 9-7-1951, Shankarrao pursuant to the agreement vide Exh. 230, executed a Deed of Sale for total consideration of Rs. 25,000/- in favour of Chimote. Defendant No. 6 Chimote filed Civil Suit No. 13-A/53 purported to be under Order XXI Rule 63 of the Code of Civil Procedure against Dhapubai and Shankarrao. He sought declaration that suit house belonged to him and not liable to be attached and sold. On 21-6-1956, the suit house was auctioned and the sale was confirmed in favour of Nathu Bhedaji. He was, therefore, impleaded as a co-defendant. On 30-11-1956, the trial Court decreed the suit claim of Chimotes, which ultimately, on 8-2-1967, was confirmed by the Supreme Court. In 1969, defendant No. 6 Chimote (purchaser) filed various civil suits against occupants of the suit house for recovery of possession and damages. Shankarrao (defendant No. 1) was impleaded in all these suit proceedings. As regards suit fields, defendant No. 1 Shankarrao mortgaged the same with a condition of sale with defendant No. 7 Shingore. For realisation of Government dues, the suit fields were auctioned and on 22-6-1960, sale was confirmed in favour of defendant No. 8 Dr. Kuthe. 3. On 24-4-1949, plaintiff was born to defendant No. 1 Shankarrao. In 1970, he attained majority. According to him, alienation of the suit property was not for legal necessity, but to satisfy the Ayayahrik debts. He, therefore, filed Special Civil Suit No. 20/72. Kuthe. 3. On 24-4-1949, plaintiff was born to defendant No. 1 Shankarrao. In 1970, he attained majority. According to him, alienation of the suit property was not for legal necessity, but to satisfy the Ayayahrik debts. He, therefore, filed Special Civil Suit No. 20/72. He did not claim setting aside of alienation of suit property by Shankarrao, but sought composite declaration that suit property is a joint family. He also claimed redemption of mortgage, partition, separate possession and enquiry into mesne profit. The Civil Judge, by the impugned judgment and decree, dismissed the suit claim relating to partition, separate possession, redemption of mortgage and mesne profit by holding the same as beyond the period or limitation in view of Article 99 or the Limitation Act. The learned Judge has also rejected the plea of Ayayahrik debt and want of legal necessity for sale of suit house. He held in answer to issue No. 11 that defendant No. 1 Shankarrao proved that sale dated 9-7-1951 in favour of Chimote was nominal and not to be acted upon. The learned Judge in paras 17 to 28 while answering issue Nos. 9 and 10 further held that alienator Shankarrao proved that decree dated 30-11-1956 in the former suit No. 13-A/1953 was obtained in collusion and he did not contest the litigation against Dhapubail. In answer to issue No. 7, the learned Judge held that the findings in the former suit do not operate as res judicata. Accordingly, the learned Judge decreed the claim of declaration that the suit house was a joint family property of plaintiff and defendants 1 to 4. In view of this declaration, the learned Judge dismissed the various suits filed by Chimotes for recovery of possession. Hence, these appeals. 4. The main question involved in these appeals to which the parties have addressed at length, is whether the findings in a former suit bearing No. 13-A/53 operate as res judicata. In the earlier suit, as discussed, Chimotes claimed a declaration that suit house belonged to them and was not liable to be attached and sold in execution of a decree against defendant No. 1 Shankarrao. The issues than involved were thus : Issue No. 2 : Whether the Sale Deed dated 9-7-1951 was executed by the defendant No. 2 in favour of plaintiff for a consideration as alleged by the plaintiff ? The issues than involved were thus : Issue No. 2 : Whether the Sale Deed dated 9-7-1951 was executed by the defendant No. 2 in favour of plaintiff for a consideration as alleged by the plaintiff ? Issue No. 3 : Whether the above transfer is bogus and was made in collusion between plaintiff and defendant No. 2 with an intent to defeat and delay the debt due from defendant No. 2 to defendant No. 1 ? There could be hardly any debate that the issues involved in the instant suit were identical. 5. Shri Deshpande, the learned Counsel appearing for respondent No. 1 Bodhankar, tried to contend that even otherwise, findings on those issues in the earlier suit, could not operate as res judicata since they were not tried between the same parties. According to the learned Counsel, plaintiff Deodatta was not a party to the earlier proceedings and defendant Shankarrao was impleaded as a party in his individual capacity and not as a Karta. The submission holds no merit. Undisputedly, defendant No. 1 Shankarrao was a Karta of the joint family and the suit house was a property of joint family. Even in the instant suit, plaintiff has referred the acts of Shankarrao as of a Karta. In view of dictum laid down by the Supreme Court in (Amrit Sagar Gupta and others v. Sudesh Behari Lal and others)1, A.I.R. 1970 S.C. 5, such description as a Karta need not be in a specific or distinct term. Defendant No. 1 Shankarrao in the former suit was impleaded as alienator, who being a Karta alienated the property of the joint family. Shankarrao acted on behalf of the joint family and represented the coparcenary. Plaintiff Deodatta is a member of that coparcenary. He is litigating under the same title. As such, issues were between the same parties. Even in the instant suit, plaintiff as a member of coparcenary, questioned the act of alienation of Shankarrao which he did on behalf of the coparcenary. Issue Nos. 2 and 3 in the former suit are, therefore, between the same parties. The plaintiff claimed declaration that the suit property is a joint family property and hence, he is litigating under the same title. 6. Issue Nos. 2 and 3 in the former suit are, therefore, between the same parties. The plaintiff claimed declaration that the suit property is a joint family property and hence, he is litigating under the same title. 6. Shri Deshpande then contended that the former suit being under Order XXI Rule 63 of the Code, the Court has a very limited jurisdiction to examine whether the attachment was proper or not. The findings, therefore, cannot operate as res judicata in the instant case. In support, he placed reliance on decisions in (Tharu Cheru and another v. Mary and others)2, A.I.R. 1973 Kerala 125 and (Bibi Amar Kaur v. Shiv Karan and others)3, A.I.R. 1965 Punjab 206. Undisputedly, both these decisions are earlier to 1976. By amendment of 1976, Explanation VIII has been incorporated to section 11 of the Code, which reads as thus : "An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently revised." This is a complete answer to the plea as raised. Even otherwise, under Order XXI Rule 58 of the Code, the Court has to decide all questions including question of title. As such, the civil Court was competent to decide the question of title between the parties and those findings are otherwise binding in the subsequent suit between the same parties. Shri Deshpande invited my attention to a decision in (Smt. Gangabai v. Smt. Chhabubai)4, A.I.R. 1982 S.C. 20 wherein it is laid down that the finding of the small cause Court on a question of title is not binding in a subsequent suit where question of the interest in the immovable property is involved. According to me, the decision has no application to the present case. Undisputedly, the small cause Court was not competent to decide the question of title. 7. The learned Civil Judge in paras (21) and (22) has observed that former suit being under Order XXI Rule 63 of the Code by unsuccessful claimant,. judgment-debtor Shankarrao (defendant No. 1) was not a necessary party. No issue was involved between Chimote and Shankarrao. Undisputedly, the small cause Court was not competent to decide the question of title. 7. The learned Civil Judge in paras (21) and (22) has observed that former suit being under Order XXI Rule 63 of the Code by unsuccessful claimant,. judgment-debtor Shankarrao (defendant No. 1) was not a necessary party. No issue was involved between Chimote and Shankarrao. Shri Deshpande, therefore, contended that in a claim for setting aside attachment was against Dhapubai and no relief was claimed against Shankarrao. He was, therefore, not a contesting party. He was merely a proforma defendant. Findings thus recorded do not operate as res judicata. Dhapubai attached the suit house being of the judgment-debtor Shankarrao. In the former suit, Chimote, on the strength of the sale deed executed by Shankarrao, sought a declaration that house belongs to them (Chimotes). So, the relief claimed was specifically against Shankarrao. More-over, Shankarrao was not merely a judgment-debtor, but also a predecessor in title of Chimotes. To the plaintiff, the relief was not legally admissible without impleading Shankarrao as a party. He was not a formal party, but necessary and was entitled to contest. As such, issues Nos. 2 and 3 in the former suit were directly and substantially involved between them. 8. Shri Deshpande then pointed out section 44 of the Evidence Act and invited my attention to decisions in (Beli Ram and Brothers and others v. Chaudri Mohammad Afzal and others)5, A.I.R. (35) 1948 Privy Council 168 and (Kiran Singh and others v. Chaman Paswan and others)6, A.I.R. 1964 S.C. 340. It is laid down that decree passed by a Court without jurisdiction is a nullity and its invalidity could be questioned whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and also in collateral proceedings. Shri Deshpande then invited my attention to a decision in (S.P. Chengalvaraya Naidu v. Jagannath and others)7, 1994 S.C.C. 1. It is explained therein that non-disclosure of relevant and material documents with a view to obtain advantage amounts to fraud. The decree obtained by fraud is a nullity. It can be questioned in collateral proceedings, such as application for final decree in a partition suit. The ration has no application to the instant case in view of the facts enumerated in paras (2) and (3) of the report. The decree obtained by fraud is a nullity. It can be questioned in collateral proceedings, such as application for final decree in a partition suit. The ration has no application to the instant case in view of the facts enumerated in paras (2) and (3) of the report. It is pertinent to note that collusion in obtaining decree in former suit does not appear to be a case of the plaintiff. Defendant No. 1 Shankarrao being a father, with a design to render support to the claim of the plaintiff, has introduced the plea of collusion. However, defendant Shankarrao has not questioned the decree or made any attempt to get it set aside. Even otherwise, collusion if any, was to the advantage of Shankarrao. In answer to issue No. 12, the Court below held that defendant Shankarrao executed the sale deed in favour of Chimote to save the property from the creditors. Defendant Shankarrao now cannot be allowed to turn round to take advantage on the ground of collusion. He cannot be allowed to approbate and reprobate. Reference is being made to decision in (Ramrao and others v. Fattechand Dharamchand and others)8, A.I.R. 1956 Nagpur 241. (Shripadgouda Venkangouda Aparanji v. Govind gouda Narayangouda Aparanji)9, A.I.R. 1941 Bom. 77, (Kondi Ravji Fadtare v. Chunilal Rupchand Marwadi)10, A.I.R. 1929 Bom. 1, (Ramchandra Manohar v. Vasant Narayan and others)11, A.I.R. 1955 Nagpur 221, (Mt. Parbati v. Gajraj Singh)12, A.I.R 1937 Allahabad 28, (Narayanan Nair Govindan Nair v. Narayanana Nair Narayanan Nair and others)13, A.I.R 1956 Travancore 266 and (Bishunath Tewari and others v. Mst. Mirchi)14, A.I.R 1955 Patna 66. The trial Court in para (30) referred to certain instances and drew an inference that there was collusion between Shankarrao (defendant No. 1) and Wasudeorao. However, as observed, plaintiff has not pleaded the case of collusion. On the contrary, trial Court in answer to issue No. 20, recorded a positive finding that the instant suit is collusive and got filed by defendant No. 1 through his son plaintiff Deodatta. There is no serious challenge to the finding. Even otherwise, finding on issue No. 3 in the former suit is binding and cannot be re-opened, or re-agitated in the absence of Dhapubai the decree-holder against Shankarrao, and Nathu Bhendaji the auction purchaser. 10. Shri Deshpande then agitated at length that the sale of the suit house was not for legal necessity. Even otherwise, finding on issue No. 3 in the former suit is binding and cannot be re-opened, or re-agitated in the absence of Dhapubai the decree-holder against Shankarrao, and Nathu Bhendaji the auction purchaser. 10. Shri Deshpande then agitated at length that the sale of the suit house was not for legal necessity. It was a part of the continuous transaction. The sale was not independent, but co-related to the earlier debts and sale deed was executed to repay the debts incurred. The sale being not for antecedent debts, not binding on the plaintiff. There is no appropriate pleading in this regard. On the contrary, plaintiff pleaded that the sale of suit house was nominal. There is no debate that sale for antecedent debts is binding on other members of coparcenary. The Supreme Court in (Prasad and others v. V. Govindaswami Mudaliar and others)15, A.I.R 1982 S.C. 84 lays down that for being antecedent debt, transaction must be independent. The question is, therefore, whether sale was a consideration for repayment of the debts. This question is to be examined having regard to the circumstances as prevalent. Undisputedly, sale dated 9-7-1951 of the suit house was for a total consideration of Rs. 25,000/-. Undisputedly further, out of the sale consideration, amount was paid to Kewle, Chimote and Dhapubai, who were creditors of Shankarrao. Besides this, amount of Rs. 3000/- was deducted towards advance rent for occupation of Shankarrao. Shankarrao was paid cash amount of Rs. 3,279/-. It is thus evident that sale of the suit house was not the consideration when various debts from various persons were incurred by Shankarrao. The debts were independent and had no proximity in any manner with the sale and as such, they were antecedent and hence, binding on other coparceners. 11. Shri Deshpande then contended that the suit property was ancestral and in 1936, came to the management of the defendant No. 1. In 1949, he entered into the business of cinema and also started a grains shop. These were not the traditional businesses of the family. They were altogether new. The defendant No. 1 as a Karta suffered loss in the business. The joint family is, therefore, no liable for the losses incurred by the Manager. In support, Shri Deshpande placed reliance on decisions in (Sanyasi Charan Mandal v. Krishnadhan Banerji)16, A.I.R. 1922 Privy Council 237. These were not the traditional businesses of the family. They were altogether new. The defendant No. 1 as a Karta suffered loss in the business. The joint family is, therefore, no liable for the losses incurred by the Manager. In support, Shri Deshpande placed reliance on decisions in (Sanyasi Charan Mandal v. Krishnadhan Banerji)16, A.I.R. 1922 Privy Council 237. (The Benares Bank Ltd. v. Hari Narain and others)17, A.I.R 1932 Privy Council 182, (Jaykant Harikishandas Shah v. Durgashankar Valji Pandya)18, A.I.R 1970 Gujarat 106, (Sankaranayanan and another v. The Official Receiver, Tirunelveli and others)19, A.I.R 1977 Madras, 171, (Arakkal Rohini and another v. Arakkal Koottappanakkal A.K. Sethumadhavan, Kozhikode and others)20, A.I.R 1978 Kerala, 119, (Malkarjun Annarao Gambhire v. Sarubai Shivyogi)21, A.I.R 1943 Bombay 187 and (Gurmukh Singh and others v. Malik Shiv Ram and others)22, A.I.R 1935 Lahore 482. Paras 57, 58 and 59 or a decision in Prasad and others v. V. Govindswami Mudaliar and others, A.I.R 1982 S.C. 84 are the complete answers to the argument as advanced. Shri Deshpande tried to distinguish the authority by making a submission that defendants family was not a trading family and as such, authority has no application. No family can carry trade or occupation with perpetuity. It has at some point of time, without previous background to make beginning in trade or business. And after lapse of time, it becomes a trading family. Even if Bodhankar was not a trading family, it is not pointed out what was the occupation of the family earlier to managership of Shankarrao. It is reported that Shankarrao obtained a law degree and became a legal practitioner. It is not reported that earlier, anybody was practising in law. Shri Deshpande submitted that acts of Shankarrao of taking loan of Rs. 7000/- for licence of Sabnis or signing pro-note not knowing the consequences, were reckless. Shankarrao had no previous experience and indulged in a business of speculation and carried the business recklessly, and therefore, suffered losses. The liability, therefore, cannot be foisted on the joint family. 12. The plaintiff could not substantiate the plea as canvassed. Shankarrao might be unsuccessful in the business. He was a judge in the situation. There could be error in his judgment. However, he could not fairly be condemned that his acts were reckless. According to Shri Deshpande, Shankarrao indulged in a game known as American futures. 12. The plaintiff could not substantiate the plea as canvassed. Shankarrao might be unsuccessful in the business. He was a judge in the situation. There could be error in his judgment. However, he could not fairly be condemned that his acts were reckless. According to Shri Deshpande, Shankarrao indulged in a game known as American futures. PW 5 Anant deposed that bookies used to come to him at Amravati. The further submission of the learned counsel is that Chimote and Kewle were aware about the immoral activity of Shankarrao. They advanced loan for the immoral purpose and hence, plaintiff is not liable. Pleading in this regard is defunct. Evidence is also not satisfactory that the amount of loan taken was spent for American futures. The plea, therefore, must fail. The trial Court in answer to issue No. 4 rightly held that sale of suit house was for legal necessity. 13. Shri Deshpande then contended that the sale consideration of Rs. 25,000/- was inadequate. The suit house was worth Rs. 60,000/-. In support, he placed reliance on the evidence of D.Ws. Kewle, Shankarrao (defendant No. 1) and Gujar, Architect. This question is not available as the issue thereof has been settled in the former suit. Even otherwise, in the auction dated 21-6-1956, sale price settled in favour of Nathu Bhendaji was Rs. 15,000/-. 14. Now coming to this suit field, it was mortgaged on 12-11-1951 in favour of defendant No. 7. For realisation of Government dues, it was auctioned. The sale was confirmed on 22-6-1960 in favour of defendant No. 8. Defendant No. 1 Shankarrao, i.e. mortgagor has not raised any objection under Order XX Rule 57 of the Code to the auction. The objection of defendant No. 7, the mortgagee, to the auction was rejected. As such, sale became absolute in terms of section 65 read with Order XXI Rule 92 of the Code. The acts of defendant No. 1 Shankarrao were on behalf of the joint family. The plaintiff being a member cannot challenge the same. Even otherwise, plaintiff has not claimed any relief of setting aside the auction sale. The suit is merely claiming a declaration that the property including agricultural field is of joint family and redemption. The same cannot be granted unless the auction in favour of defendant No. 8 is set aside. The plaintiff being a member cannot challenge the same. Even otherwise, plaintiff has not claimed any relief of setting aside the auction sale. The suit is merely claiming a declaration that the property including agricultural field is of joint family and redemption. The same cannot be granted unless the auction in favour of defendant No. 8 is set aside. The defendant No. 8 is not holding the land as a mortgagee, but as a complete owner being auction purchaser. Even otherwise, as rightly held by the trial Court, the claim for redemption is barred by limitation in view of Article 99 of the Limitation Act. 15. Shri Deshpande tried to urge that what was sold in auction is only in the interest of the defendant No. 1. Interest of the joint family could not be sold. In support, he placed reliance on the decisions in (Lakshmadu v. Ramudu and others)23, A.I.R 1939 Madras 867, (Lakshmandas v. Karunakaran and others)24, A.I.R 1957 Kerala 126 and (Nani Bai v. Gita Bai Kom Rama Gunge)25, A.I.R 1958 S.C. 706. The contention of Shri Deshpande, therefore, is that Article 99 has no application. The learned Judge in answer to issue No. 18 rightly held that plaintiff has no right of redemption of mortgage dated 12-11-1951 and he failed to prove that his right, title and interest in the suit land was not sold in the Court auction. Even otherwise, there is no need to go into the merit of the contention. The relief claimed by the plaintiff is not articulated to suit the plea. He sought a declaration that entire property is of joint family, which includes interest of defendant No. 1, who is a mortgagor. He has also not asked for partition and setting aside of the sale to the extent of his share. 16. Shri Kapre, the learned Counsel for the defendant No. 1 Shankarrao, contended that tenancy of Shankarrao relating to suit house was terminated on 7-7-1952. However, Shankarrao, even thereafter, continued in possession in his own right. This possession was adverse to the interest of Chimotes and as held by the Supreme Court in (Rajendar Singh and other v. Santa Singh and others)26, A.I.R 1973 S.C. 2537, lis pendens does not postpone the period. He, therefore, contended that even after sale, title is perfected in defendant No. 1 Shankarrao by adverse possession. This possession was adverse to the interest of Chimotes and as held by the Supreme Court in (Rajendar Singh and other v. Santa Singh and others)26, A.I.R 1973 S.C. 2537, lis pendens does not postpone the period. He, therefore, contended that even after sale, title is perfected in defendant No. 1 Shankarrao by adverse possession. To substantiate this plea, he placed reliance on (A) Exh. 270 dated 28-2-1952- application filed by defendant No. 1 Shankarrao for postponement of auction sale. This is the assertion of title even after sale in favour of Chimotes. (B) Certain pleadings in the suits filed by Chimotes. (C) The finding in Special Civil Suit No. 7/65 vide judgment dated 16-8-1966 that the sale deed was nominal and fictitious. There was no relationship of landlord and tenant and the pro-note was without consideration. (D) Deposition of Wasudeo Chimote in the former suit wherein he stated that besides Rs. 3,000/- he had not received anything by way of rent. (E) In Exh. 428, property was shown of Bodhankar. 17. Undisputedly, Civil Suit No. 7/65 was for recovery of amount based on pro-note. Issue regarding title was not directly or substantially involved. Even otherwise, in view of finding in former suit, the issue was no more open. The plaintiff has not pleaded the case of adverse possession. There was no issue between the parties. As such, he cannot be permitted to agitate. Even otherwise, Rs. 3000/- were deducted from the sale consideration towards future rent. The possession of Shankarrao since then, ceased to be of an owner. At the most, he could be a tenant in arrears of rent or without paying the rent, or in case of termination of tenancy, he would be a tenant holding over but it cannot be fairly stated that he was holding the possession in his own right. Moreover, Exh. 200 and 201 are the rent receipts dated 18-4-1959 and 3-6-1959 of rent paid by Shankarrao. Undisputedly, till 1959, Shankarrao had not asserted any title in himself. Exhs. 299 and 300 are the rent receipts. These are the receipts of rent paid by other tenants. Exh. 428 is extract of account of rent due from Shankarrao. Exhs. 321 is notice of Municipal Council for taxes issued as per letter dated 5-11-1955 of Shankarrao to Municipal Council. Exh. Exhs. 299 and 300 are the rent receipts. These are the receipts of rent paid by other tenants. Exh. 428 is extract of account of rent due from Shankarrao. Exhs. 321 is notice of Municipal Council for taxes issued as per letter dated 5-11-1955 of Shankarrao to Municipal Council. Exh. 320 is a draft letter dated 20-6-1959 for recovery of taxes from Chimotes as per sale dated 9-7-1951. The important feature which completely negates the claim of adverse possession is that defendant No. 1 Shankarrao under section 6 of Specific Relief Act, filed Regular Civil Suit No. 127/68 to restore possession. The suit was dismissed on 31-10-1969. This also indicates that defendant No. 1 was not in possession as asserted. The plea of adverse possession, therefore, cannot be sustained. 18. In the result, First Appeal No. 22 of 1980 is allowed. Decree passed in Civil Suit No. 20 of 1972 granting declaration that the suit house at Amaravati still belongs to the joint family of the plaintiff and defendant No. 2 is hereby set aside. The claim to that extent is dismissed. First Appeal No. 23 of 1980 is dismissed. Decree dismissing the rest of the claim in Civil Suit No. 20 of 1972 relating to partition, possession and redemption is hereby confirmed. First Appeals Nos. 328, 329, 330 and 331 of 1989 are partly allowed. Dismissal of the suits since view of the declaration in Civil Suit No. 20 of 1972 are hereby set aside, the matters are remitted back to the Civil Court to decide the suit claim for possession and damages afresh in the light of the findings recorded by this Court.