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22. This, in view of the above discussion, circumstances and facts of the case before me, it would be quite clear that the case of Nana Tukaram Jaikar v. Sonabai Madhav Saindate, 1982 Mh.L.J. 538 is not applicable to the facts before me. I thus hold that the transaction between the parties was that of a mortgage by conditional sale.

23. Next contention raised by Shri Gole, the learned advocate for the appellant is two-fold. According to the learned advocate, by the Gift Deed (Exh. 52) and the Will (Exh. 53) plaintiff has got 1/4th share in the property in question and as to whether his suit will amount to a suit for partial redemption of the property in question. Mr. Gole further contended that if the provisions of Rule 1 of Order 34 of the Code of Civil Procedure are seen, then it would be quite clear that under the provisions of the said rule, all the parties who are interested in the mortgaged security or in the right of redemption shall be joined. As the plaintiff has not joined the others, the plaintiff's present suit is not tenable in law. At the outset, it must be said that no such contention was raised by the appellant either in the trial Court or in the first appellate Court. If the provisions of Order I, Rule 9 of the Code of Civil Procedure are seen, then it would be quite clear that if any objection is to the non-joinder of necessary parties is to be raised, it must be raised at the first instance. Now, apart from this technical side of the said contention, I proceed to consider as to whether there is any substance in the contention of the learned advocate for the appellant or whether by accepting the said contention, the plaintiff could be non-suited.