TEHRIA BALWANT SINGH Vs. THAKUR AMAN SINGH

JUDGEMENT

(1.) This was a suit by the respondent for redemption of a mortgage made by his great-grandfather, Pirthi Singh, in favour of the appellants. The latter brought a suit upon the mortgage impleading as defendants his son and grandsons including Mulayam Singh the father of the respondent and they obtained a decree for sale in execution of which they purchased the property themselves. The respondent based the present suit on the allegations that he was born before the appellants instituted their suit, that they were aware of his existence, that they should have impleaded him as a defendant and as they failed to do so, his right to redeem the mortgage still subsists. The appellants contend that the respondent had no right to sue for redemption of the mortgage. The first Court dismissed the suit on the ground that it was barred by the proceedings in, and consequent upon, the suit upon the mortgage. The lower appellate Court reversed that decision and remanded the suit for trial on the merits. The defendants have appealed.

(2.) We have been referred to a large number of cases bearing more or less on the point at issue. The first case, to which I think it necessary to refer, is that of Bhawani Prasad V/s. Kallu 17 A. 537, in which it was held by five Judges (Banerji, J., dissenting) that if a mortgagee institutes a suit for sale upon a mortgage made by a father in a joint undivided Hindu family without joining as defendants the sons, of whose interests in the property he has notice, and obtains a decree and an order absolute for sale against the father alone, the sons may obtain a declaration that the mortgagee decree-holder is not entitled to sell the interests of the sons in the mortgaged property in execution of his decree, although the sole ground of their suit is that they were not parties to the suit brought by the mortgagee. The next case is that of Debi Singh V/s. Jia Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12. There the sale had taken place before the sons brought their suit, and it was held by a Bench of three Judges that in such circumstances the sons could not succeed merely upon the ground that they had not been made parties to the suit by the mortgagee but must establish some ground which under the Hindu law would free them from liability as sons to pay their father's debts. Both the learned Chief Justice (with whom Knox, J, concurred) and Banerji, J., pointed out that all that was held in the case of Bhawani Prasad V/s. Kallu 17 A. 537, was that before a sale has taken place the sons may save their interests from the sale simply on the ground that the mortgagee who had brought the suit had notice of their interests and omitted to implead them as defendants. The decision of the Court in the case of Debi Singh V/s. Jia Ham 25 A. 214 (F.B.) : A.W.N. (1903) 12, is avowedly based upon certain decisions of their Lordships of the Privy Council and in particular, it would seem, upon the following well-known passage in the judgment in the case of Nanumi Babuasin V/s. Madun Mohun 13 C. 21 : 13 I.A. 1, namely: "It appears, to their Lordships that sufficient care has not always been taken to distinguish between the question how far the entirety of the joint estate is liable to answer the father's debt and the question how far the sons can be precluded by proceedings taken by or against the father from disputing the liability. If his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit or the creditor might legally procure the sale of it by suit. All that the sons can claim is that not being parties to the sale or execution proceedings, they ought not to be debarred from trying the fact or the nature of th3 debt in a suit of their own."

(3.) The only differences between the ease of Debi Singh V/s. Jia Rim 25 A. 214 (F.B.) : A.W.N. (1903) 12 and the case now before us are that in that case the plaintiffs sought to recover their shares in the family property without offering to redeem the mortgage whereas in the case now before us the plaintiff admits the validity of the mortgage and seeks to redeem it and in that case the auction- purchaser was a stranger whereas in the present case he was the mortgagee himself. The decision in Debi Singh V/s. Jai Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12 was followed by Banerji, J., in Banke Rai V/s. Raghbir, Second Appeal No. 641 of 1903 (unreported), in which the property of the family had been put up for sale in execution of a decree upon a mortgage made by the father, and purchased by the mortgagee himself. The son sued to redeem the mortgage on the ground that the mortgagee had had notice of his interest bat had not made him a party to the suit upon the mortgage. It was, therefore, a case exactly like the one now before us. Banerji, J., held that the son could not succeed merely upon the ground that the mortgagee had had notice of his interest and had not made him a party. To the same effect is the decision in the case of Lal Singh v Pulandar Singh 28 A. 182 : 2 A.L.J. 647 : A.W.N. (1905) 248 where also the suit was brought by sons for redemption of their interests in the family property after it had been sold in execution of decree based on a mortgage made by their father. In that case the auction-purchaser was a stranger to the mortgage and decree. That decision was followed by Banerji, J., in the case of Karam Singh V/s. Raziuddin, Second Appeal No. 712 of 1905 (unreported) and an appeal against his decision under the Letters Patent was dismissed in "December 1907. That also was a suit for redemption after a sale had taken place in execution of a decree on a mortgage of joint family property made by the plaintiff's father. The auction-purchaser was a stranger but had transferred the property to the mortgagee before the son brought his suit.