HORI LAL Vs. NIMMAN KUNWAR

JUDGEMENT

(1.) This appeal arises out of a suit for sale on foot of a mortgage. The mortgage was dated the 14th of November 1870. The mortgagee was one Dharam Singh, husband of the plaintiff, and the mortgagor was one Naiti Singh. Tilok Ram purchased the mortgaged property on the 7th of January 1889 and the defendants Hori Lal Nath are the sons of Tilok Ram who is now dead. They pleaded amongst other things that their four sons constituting with themselves a joint Hindu family were not made parties to the suit. This is the plea with which we are concerned in the present appeal, Having regard to the respective dates of the mortgage and of the institution of the suit, the non-joinder of parties, if such there was, could not be cured by making the sons of Hori Lal and Jagan Nath parties, because the suit at the time their absence was pleaded was barred by limitation. Order XXXIV, Rule 1, of the Code of Civil Procedure, provides as follows: Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the right of re-demption shall be joined as parties to any suit relating to the mortgage.

(2.) It is contended that all the members of the joint family have an interest in the right of redemption and that as they were not made parties originally and cannot now be added as parties, the suit should be dismissed.

(3.) I do not think that the words in the rule " subject to the provisions of this Code" can help the plaintiff. It is true that the Code provides that no suit shall fail for want of parties, but this does not mean that the defendants cannot insist on having all the necessary parties before the Court, either by their being made parties when the suit was instituted or being afterwards added as parties. I, therefore, think that, unless in the circumstances of the present case, Hori Lal and Jagan Nath can be said to represent their sons, or in other words that the sons are really parties to the suit through Jagan Nath and Hori Lal, the suit should be dismissed. All the members of the joint Hindu family have beyond doubt an "interest" in this mortgaged property.