RAMCHANDRA NARAYAN JOSHI Vs. SHRIPATRAO TUKOJIRAO DESHMUKH

JUDGEMENT

(1.) The facts found by the District Judge are that one Vyankatrao Deshmukh mortgaged on the 21st March 1861 the lands in suit in favour of two mortgagees, and subsequently the interest of the 2nd mortgagee became vested in the 1st mortgagee. In 1881 Vyankatrao instituted a suit, No. 399 of 1881, against the mortgagee for redemption, but after issues were settled in that suit he died, the date of his death being 9th July 1883. On the 15th October 1883, the Court directed that the suit should abate. This suit was filed in 1912 by Tukojirao, Vyankatrao s son, and three grandsons for redemption upon the ground that the land mortgaged was ancestral property in which the plaintiffs, Vyankatrao s sons, had an interest with him at birth, It was also alleged that an adult brother of Vyankatrao was interested as a co-parcener in the same property. In the Trial Court the suit was dismissed on the strength of the order of abatement passed on the 15th October 1883.

(2.) An appeal was preferred to the District Court which reversed the order and remanded the suit for disposal. From that decree this appeal is now preferred. It is contended that by reason of Section 366 of the Code of 1882, the redemption suit is not maintainable by the present plaintiffs. That section must be read with Section 365 which provided that "In case of the death of a sole plaintiff or sole surviving plaintiff, the legal representative of the deceased may, where the right to sue survives, apply to the Court to have his name entered on the record in place of the deceased plaintiff, and the Court shall thereupon enter his name and proceed with the suit;" and Section 366 provided that "If within the time limited by law no such application be made to the Court by any person claiming to be the legal representative of the deceased plaintiff, the Court may pass an order that the suit shall abate." Section 371 provided that "When a suit abates or is dismissed under this Chapter (XXI), no fresh suit shall be brought on the same cause of action." Now the time limited by law for an application under Section 365 was in 1883 two months. The order for abatement, therefore, was not without jurisdiction.

(3.) The contention for the appellants in this appeal is that as Vyankatrao filed the redemption suit, he represented all persons interested in the mortgaged property, and after his suit came to an end, no farther suit can be instituted by any one else. In support of that contention reference was made, particularly to the judgment of the Privy Council in Kishen Parshad v. Har Narain Singh 9 Ind. Cas. 739 and a Full Bench decision of the Allahabad High Court in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 With regard to the Privy Council case, we are of opinion that all that was decided was, as stated by Mr. Justice Chamier in his judgment in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 that managing members of a joint family entrusted with the management of a business are competent to enforce at law the ordinary business contracts which they are entitled to make or discharge in their names. We cannot regard it as an authority with regard to redemption suits.