SRIMATI KHIRADAMOYI DASI Vs. HABIB SHAHA

JUDGEMENT

(1.) The only question involved in this appeal is whether the suit was maintainable in view of the fact that the plaintiff had not brought on the record the heir of one of the mortgagors.

(2.) The suit was for the enforcement of a mortgage-bond executed by defendant No. 1 and one Moiboo Shah who died before the date of institution of the suit. The suit was brought against the defendant No. 1 and one Abirjan Bibi who was described as the widow and heir of the deceased mortgagor Moiboo Shah. It subsequently transpired that the name of the widow was not Abirjan Bibi but Asiran Bibi. The first Court held that there was a bona fide mistake on the part of the plaintiff in giving the name of the widow as Abirjan and decreed the plaintiff's suit. On appeal the learned Subordinate Judge held that before instituting the suit the plaintiff was aware that the name of Moiboo's widow was Asiran and not Abirjan and that she had intentionally for some purpose known to her described her as Abirjan. He found that it was not a case of bona fide mistake and the estate of one of the mortgagors Moiboo Shah was not represented in the suit. He next proceeded to consider whether in the absence of one of the mortgagors the suit was maintainable or bad for defect of parties, and held that the entire suit failed since all the mortgagors or persons interested in the equity of redemption had not been made parties.

(3.) Against that decision the plaintiff has preferred this appeal, and it is urged on her behalf, first, that the finding of the learned Subordinate Judge that the estate of Moiboo was not represented in the suit is erroneous and, secondly, that conceding the finding on the first point to be correct the Court below erred in law in holding that the entire suit failed for want of representation of Moiboo's estate.