RAGHORAM SINGH Vs. RAJANI KANTA BANERJEE

JUDGEMENT

(1.) This is an appeal by the third defendant in a suit for partition of joint property. The predecessor-in-interest of the plaintiff purchased shares in the properties in suit in execution of a decree on the basis of two mortgages granted in his favour on the 5th April 1888 and the 24th June 1896. The mortgages were executed by one Sobhnath Singh, the head of a joint Mitakshara family, and his four adult sons. The mortgagee sued on the 13th January 1903 to enforce his security. At that time, Sobhnath Singh as also two of his sons were dead. The mortgagee joined as defendants the two surviving sons and also brought on the record the infant sons of the mortgagors in so far as their existence was known to him. A decree was made in due course and the mortgaged properties were sold in execution. In answer to the present claim, it has been urged by the third defendant, who is a grandson of Sobhnath Singh, that as he was not joined as a party to the mortgage suit, his right of redemption has not been affected and that the plaintiff is not entitled to a decree for partition. The Subordinate Judge has overruled this contention. He has found that the mortgagee was not aware of the existence of the third defendant who, if his case be true, was at the time an infant nine months old; and he has held that the decree made against the representatives of the family was operative against the third defendant and vested in the purchaser his interest in the property.

(2.) In the present appeal by the third defendant, it has been argued that the Subordinate Judge should have held on the evidence that the mortgagee was aware of his existence and yet deliberately omitted to join him as a party to the mortgage suit. This contention is clearly unfounded, had we see no reason to disagree with the Subordinate Judge in his estimate of the evidence on this point. It is worthy of note that the mortgagee joined as parties defendants to the mortgage suit other infants, sons of some of the mortgagors and grandsons of Sobhnath Singh. It is inconceivable that if the mortgagee was aware of the existence of the third defendant, he should omit to join him as a party defendant. We must, therefore, hold in concurrence with, the Subordinate Judge that the mortgagee was not aware of the existence of the third defendant when he instituted the mortgage suit. Consequently no question arises as to the applicability of Section 85 of the Transfer of Property Act. In these circumstances, the principle laid down by the Judicial Committee in the case of Sheo Shankar Ram v. Musammat Jaddo Kunwar 24 Ind. cas. 504 : 20 C.L.J. 282 : 36 A. 383 : 18 C.W.N. 968 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 1 L.W. 695 : 12 A.L.J. 1173 : 16 Bom. L.R. 810, which affirmed the decision of the Allahabad High Court in Jaddo Knar v. Sheo Shanker Ram 7 Ind. cas. 902 : 33 A. 71 : 7 A.L.J. 945 applies. It has been aruged, however, on behalf of the appellant that this view is contrary to the decision of this Court in the case of Lala Suraj Prosad v. Golab chand 28 C. 517 : 5 C.W.N. 640. In our opinion, in cases where the doctrine of representation is properly applicable to the facts and where it is established that the mortgagee was not aware of the existence of a member of a joint Mitakshara family as interested in the equity of redemption and consequently did not bring him before the Court in the mortgage suit the principle laid down by tha Judicial Committee in the case of Sheo Shankar ram v. Musammat Jaddo Kunwar 24 Ind. cas. 504 : 20 C.L.J. 282 : 36 A. 383 : 18 C.W.N. 968 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 1 L.W. 695 : 12 A.L.J. 1173 : 16 Bom.L.R. 810 must be applied in preference to that adopted in Lala Suraj Prosad v. Golab Chand 28 C. 517 : 5 C.W.N. 640. In the present case there can be no doubt that the interest of the present defendant was sufficiently represented by the persons who were joined as parties to the mortgage suit, namely, his father and his uncles. We are accordingly of opinion that the Subordinate Judge has correctly held that he has no defence to the suit.

(3.) The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at five gold mohurs.