BANWARI SINGH Vs. SAKHRAJ SINGH

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for redemption brought by the plaintiff-respondent in respect of a mortgage deed dated 28 June 1864, executed by the predecessor-in-title of the plaintiff in favour of Ram Din Singh and Basra} Singh, ancestors of the defendants. The suit., as originally instituted against defendants other than defendants 10 to 12, was admittedly within limitation. Defendants 10 to 12 were subsequently impleaded after the expiry of 60 years from the date of the mortgage. Under ordinary . circumstances the suit against them would be barred by limitation. It has been found by the lower appellate Court that all the defendants form a joint Hindu family and that their interest in the mortgaged property is part of the joint family property. Defendants 10 to 12 are minors, and their respective fathers were impleaded as defendants 7, 8 and 9 in the plaint when first presented.

(2.) Defendants 10 to 12 pleaded limitation when they were made parties to the suit; but both the Courts below have overruled their plea and decreed the suit. Hence this second appeal. It was originally heard by a learned single Judge of this Court, who referred it to a Division Bench in view of the importance of the question involved. One of the questions argued before us is that of limitation. Having regard to the finding of the lower, appellate Court already referred to that all the defendants constitute; a joint Hindu family and that the mortgage in question was a joint family concern, we entertain no doubt; on that finding that defendants 10 to 12 were represented by their fathers in the suit as instituted. It was held by Full Bench of this Court in Hori Lal V/s. Munman Kunwar [1912] 34 All. 549 that the managing members of a joint Hindu family, who in that capacity had purchased the mortgaged property, sufficiently represented the entire family in a suit brought by them for enforcement of that mortgage. Similarly, their Lordships of the Privy Council held in Sheo Shankar Ram V/s. Jaddo Kunwar A.I.R. 1914 P.C. 136 that: There were occasions, including foreclosure actions, when the managers of a Hindu joint family so effectively represented all the other members that the family as a whole was bound, and we are of opinion that it was clear, on the facts of this case and on the findings of the Court upon them, that it was a case where that principle ought to be applied.

(3.) As already stated, the subject matter of the present litigation is clearly one as to which the managing members of the family, as defendants 7, 8 and 9 are, can effectively represent the whole family and, at any rate, their minor sons, defendants 10 to 12. In this view, the latter must be considered to have been made party to the suit in its inception through their fathers; and if they had not been subsequently impleaded, a decree for redemption passed in favour of the plaintiff would have entitled him to possession on payment of the mortgage money against the whole family. The subsequent addition of defendants 10 to 12 in the array of parties cannot alter their position in this respect. It was, in our opinion, quite superfluous for the plaintiff respondent to have impleaded them at a later stage.