K. MUTHURAMAKRISHNA CHETTIAR Vs. K.V. NARAYANAN KUTTY

JUDGEMENT

(1.) THE defendant is the appellant before this Court. On 5th July, 1962, the defendant executed a mortgage in favour of K.N. Vasudevan, for Rs. 17,000/ - agreeing to repay with interest at 9% per annum and in default to pay interest on the defaulted interest at 9 per cent per annum on 19th October, 1963, the original mortgagee Vasudevan died, leaving a will under which he bequeathed 1/3rd right in the suit mortgage in favour of his wife. The plaintiffs are the sons of the deceased mortgagee Vasudevan. They have filed the present suit for recovery of the amount due under the mortgage alleging that 1/3rd right in the suit mortgage bequeathed by their deceased father in favour of his wife, have been assigned to them and the remaining 2/3rd rights in the suit mortgage have devolved on them by succession after the death of their father and hence, they are entitled to recover the entire sum due under the suit mortgage. The plaintiffs have also further alleged in the plaint that excepting the payments on four occasions to the extent of Rs. 3,627/50, no amount has been paid by the defendant. The defendant filed a written statement alleging that over and above the payments admitted in the plaint, he has paid a further sum of Rs. 3,000 and the principal amount of Rs. 17,000 claimed in the plaint is not correct and the rate of interest claimed and calculated is excessive, penal and usurious. On these pleadings, as many as 8 issues were framed. However the suit proceeded for trial only on one issue viz., "whether the claim for interest is excessive in view of the provisions of the Usurious Loans Act of 1918 as amended by the Usurious Loans (Madras Amendment) Act, 1936." The other issues were given up by the defendant by making an endorsement to that effect in the plaint. The trial Court held that the claim for interest is not excessive under the provisions of the Usurious Loans Act of 1918 as amended in 1937. The trial Court granted a preliminary decree for Rs. 41,311 -80 against the defendant for sale of the mortgaged properties with costs. Aggrieved against the decree and judgment of the trial Court, the defendant has filed the present appeal before this Court.

(2.) THE learned Counsel for the defendant/appellant contended that the mortgagee Vasudevan had bequeathed 1/3rd rights in the suit mortgage in favour of his wife and the remaining 2/3rd rights in the suit mortgage will devolve under Section 8 of the Hindu Succession Act on his two sons, the plaintiffs herein and the wife and daughter of the deceased mortgagee, and since they have not been impleaded, the suit is bad for non -joinder of parties. It is further contended by the learned Counsel for the appellant that the mortgage, by its nature being one and indivisible, both in regard to amount as well as security, and the interest of the mortgagee having devolved on all his heirs jointly, the plaintiffs without impleading their mother and sister cannot file the suit to enforce the mortgage, and the suit as framed is not maintainable. The learned Counsel for the appellant further contended that in view of Order 34, Rule 1, Civil Procedure Code all the persons having interest in the mortgage shall be joined as parties in the suit, and the present suit without impleading the mother and sister of the plaintiffs is defective In support of his contentions the learned Counsel relied on the following four decisions, viz., Adiveppa Channappa Kittur v/s. Rachappa Balappa Hosmane A.I.R. 1948 Bom. 211, Rameshwar Bux Singh and Ors. v/s. Ganga Bux Singh and Ors. : AIR1950All598 , Mohamad Ismail Maracair and Ors. v/s. Doraisami Mudaliar and Ors. : (1959) 2 MLJ 74 , and P. Govida Reddy and Ors. v/s. Golla Obulamma : AIR1971AP363 . The present contention was not raised in the written statement and even in the grounds of appeal filed before this Court. However, as the objection raised by the learned Counsel for the appellant goes to the root of the matter, and affects the maintainability of the suit, the plea was permitted to be raised, by this Court especially when the question as to whether the plaintiffs who have filed the suit can give an effective discharge to the defendant on payment of mortgage money has to be considered by the Court, whether such an objection is raised by the plaintiffs or not.

(3.) AIDIVEPPA Channappa Kittur v/s. Rachappa Ballappa Hosmane A.I.R. 1948 Bom. 211 is a case where a mortgage was executed in favour of on "S" as karta of a joint Hindu family, and subsequent to the death of "S" the family became divided into three branches each of which had its karta. The suit was filed by only one of those kartas without impleading the other two kartas and it was held that the mortgage being indivisible, the suit by one karta for recovery of the mortgage debt without joining the other co -mortgagees as parties, is not maintainable in law. In the case reported in Raneshwar Bux Singh and Ors. v/s. Ganga Bux Singh and Ors. : AIR1950All598 the suit was filed on a mortgage, by one of the mortgagees, without impleading the other co -mortgagees and it was held that it is not possible to split up the mortgage and permit one of the mortgagees to enforce his claim either for the whole or for a part, nor is it possible for him as one of the joint promisees to enforce the claim without impleading his co -promises either as plaintiffs or, in the case of their refusal, as defendants within the period of limitation. In Mohammad Ismail Maracair and Ors. v/s. Doraisami Mudaliar and Ors. : (1959) 2 MLJ 74 the mortgage was executed in favour of a single individual who was a Mohamedan lady and after her death the right devolved on several heirs under the Muhammadan Law and one of the heirs filed a suit for his share in the mortgage right. It was held that even though the heirs were co -owners under the Muhammadan Law, some of them alone cannot represent others and the absence of the other heirs from the array of parties in the suit would render the suit defective and the suit as laid was incompetent. In the decision reported in Govinda Reddy and Ors. v/s. Golla Obulamma : AIR1971AP363 it held was that the mortgage by its nature being one and indivisible both in regard to amount as well as security and if the interest of the mortgage has devolved on all his heirs jointly, no suit for enforcement of the mortgage can be validly brought without impleading all the heirs for recovery of the amount due under the mortgage. It was further pointed out that all the persons entitled to a share in the amount due on the mortgage must joint in the action and be made parties thereto and the frame of the suit will be defective if all of them have not been so made parties to the suit.