HAIDAR ALI KHONDKAR Vs. MUHAMMAD SHAJIUDDIN KAZI

JUDGEMENT

(1.) The only question arising for consideration in this appeal by the defendant in a suit for enforcement of a mortgage security, is whether the suit was liable to dismissal on the ground of defect of parties, upon the findings arrived at by the Court below, the sisters of plaintiffs 1 to 3, and the sisters and mother of plaintiff 4 were necessary parties: both the lower Courts however agreed in holding that the suit could not fail as a whole, for defect of parties. It was contended for the appellant that the decision of the Courts below was not sustainable in law, inasmuch as all the persons interested in the mortgage money had not been made parties to the suit, and that the suit base on a, mortgage which was one and indivisible, should have been discussed altogether: that the plaintiffs were not entitled to a decree in the form made in their favour by the Courts below.

(2.) The contention advanced on behalf of the appellant is that the mortgage being one and indivisible, it could not be split up, no as to entitle the plaintiffs, some of the heirs of the original mortgagee, to get a partial decree in the absence of the other heirs. The hears of the original mortgagee, it would appear, did not and could not join as plaintiffs, in view of the allegation in the plaint that the original mortgagee was a more benamidar: the mortgage money was the money of plaintiffs 1 to 4. During the pendency of the litigation in the trial Court and when the case was pending in appeal before the learned District Judge, in the Court of appeal below attempts wore made by the heirs of the mortgagee, other than the plaintiffs in the suit, to get themselves added as parties defendants in the suit. That attempt did not succeed. Those heirs who are respondents in this appeal, have applied to this Court to be joined as parties to the suit, and have expressly stated that they have no objection to the passing of a mortgage decree in full in favour of the plaintiff's in the suit. The petitioners before this Court made the same statement before the trial Court and two of them repeated the statement in the Court of appeal below.

(3.) The trial Court for reasons which do not commend themselves to ran, held that the petitions filed by the heirs of the mortgagee other than the plaintiffs were." spurious documents." The learned District Judge in the Court of appeal below, held that the disclaimers by the other heirs of the original mortgagee had no value; that those heirs were not necessary, nor competent parties, and that their petitions could not be accepted. The petitions might have been filed for the benefit of the plaintiffs in the suit as instituted; their disclaimer might have been of no value, but I do not find any justification on the part of the Court of appeal below, in the rejection of the petitions, and in refusing to add these other heirs of the original mortgagee, as parties defendants to the suit, in view of the finding arrived at by the Court of first instance, these other heirs of the original mortgage who applied to be made parties, were necessary parties, and were interested in the mortgage security. In my judgment the prayer made by these parties for their being added as parties to the suit should have been granted by the lower appellate Court, and the said prayer is, on the facts and in the circumstances of the case granted in this appeal, on the petition of respondents 5 to 11 in this appeal, to which reference has been made above. The petitioners are added parties defendants in the suit out of which this appeal has arisen. The main contention in this appeal based upon defect of parties in the suit is accordingly remedied, for meeting the ends of justice in the case.