HIRAGAURI RATILAL Vs. HAJAM SUMAR LADHA

JUDGEMENT

(1.) Mr. S.M. Shah, learned counsel for the appellants and Mr. B.Y. Mankad, learned counsel for the respondent. Parties are finally heard. This Second Appeal is admitted for hearing on 15th October, 1984 on the following substantial question of law. "Whether suit is bad on account of non-joinder of one of the heirs of the deceased mortgagor""

(2.) The facts necessary for disposal of the present appeal are that, the present respondent filed a suit for redemption, submitting inter alia, that his father had mortgaged a property with the defendants. Some of the defendant died during course of the proceedings, therefore, their legal representatives have been substituted in this case. The plaintiff submitted that he was ready and willing to discharge the loan amount and he was entitled to redeem the property with a direction to the defendants to receive money and return back the possession. The defendants contested the suit on almost every point. Sheet anchor of the defendants' argument was that as one of the co-owner was not being joined as party-plaintiff, the suit was bad in view of the express language employed in Rule 1 of Order XXXIV of the Code of Civil Procedure. The trial court decreed the suit and directed preliminary decree under Order XXXIV Rule 1 of the Code. The defendant, who happened to be in possession of the property and was not ready and willing to hand over possession, took up the matter in appeal. The appeal was dismissed, therefore, the defendant has come before this Court. It is to be noted that the suit came to be filed in the year 1978.

(3.) The submission of the learned counsel for the appellant is that as one of the heir of the deceased mortgagor is not joined as party-plaintiff, the suit is bad and is worth dismissal. On the other hand, placing reliance upon the judgment of the Supreme Court and Patna High Court, learned counsel for the plaintiff-respondent submits that the suit by one of the mortgagor is maintainable, because, such mortgagor, who is partially interested in the property is entitled to redeem the entire property and the mortgagee cannot say that he would not redeem the property in favour of any one who undisputedly holds the rights.