RAM AJODHYA TEWARI Vs. FIRANGI TEWARI

JUDGEMENT

(1.) This second appeal is by defendant 2 of a suit to enforce a simple mortgage by defendant 1 for a sum of Rs. 500. The mortgage was dated 10 September 1915, the due date being 30 Aghan 1324 Ps (corresponding to 15 December 1916). It was in favour of six persons: Girwar Narain Mahton V/s. Mt. Makbunessa 1916 Pat 310 Rameshwar Tewari; Jag Sali V/s. Ram Chandra Prasad. 1921 Pat 377 Sheogobind Tewari; Abdul Rahman V/s. Shib Lal Sahu 1922 Pat 252 Daroga Tewari; Govind Chandra Ghose V/s. Jamaluddin Mondal 1938 Cal 621 Firangi Tewari; Kishan Prasad V/s. Har Narain Singh (1911) 33 All 272 Ravan Tewari and Hari Prasad Singh V/s. Sourendra Mohan Sinha 1922 Pat 450 Supan Tewari. There is no specification about the extent of the interest of each mortgagee in the deed, but it was stated in the plaint that Rameshar and Sheogobind had one-third, Daroga and Firangi another one-third and Ravan and Supan the remaining one-third. The original plaintiffs were Daroga and Firangi alone. Ravan and Supan and the representatives of Ramesher and Sheogobind who had died were made party defendants, Bidya and Kirtan, defendants 7 and 8, as representatives of Ramesher and Ramlakhan, defendant 9 that of Sheogobind. Later on, Bidya and Kirtan applied that they along with their minor brother Chandrika be made plaintiffs. Similarly, Ramlakhan applied that he along with his minor nephew Nathuni Tewari be made plaintiff; but as the application of Bidya, Kirtan and Ramlakhan was not for adding any party but only for transferring of names from the category of defendants to that of plaintiffs, Chandrika and Nathuni were not added as plaintiffs, and only the names of Bidya, Kirtan and Ramlakhan were transferred to the category of plaintiffs. Ravan Tewari and Supan Tewari also applied to be made plaintiffs and their names also were transferred from the category of defendants to that of plaintiffs. I have stated these facts in detail as they are necessary for the determination of the appeal.

(2.) Defendant 1, the mortgagor, did not contest the suit, though he appeared and took time to file a written statement which he never did. The suit was contested by defendant 2 who had taken a gift of the mortgaged properties from defendant 1. He alleged that the mortgage deed was farzi, invalid, null and void and inoperative and without consideration, and also pleaded that the suit was bad for defect of parties. The trial Court held that the deed was genuine, real and for consideration. About the defect of parties it held that the absence of Nathuni was not fatal as he was effectively represented by his uncle Ramlakhan whom it found to be the karta of the family, but it held that the absence of Chandrika was fatal and dismissed the suit. On appeal by the plaintiffs, the learned Subordinate Judge has decreed the suit. He doubted the reality of the mortgage, but held that on the evidence on record he was bound to uphold it. He also held that neither the absence of Nathuni nor of Chandrika affected the suit. Defendant 2, as I have said, has preferred this second appeal, and the only question before us is whether the suit can succeed in the absence of two minors Nathuni and Chandrika, who admittedly have an interest in the mortgage, Nathuni being the grandson of the original mortgagor, Sheogobind and Chandrika that of Ramesher. Ramlakhan, the uncle of Nathuni and son of Sheogobind, is as I have said, on the record and so are Kirtan and Bidya, the two elder brothers of Chandrika, all the three being the grandsons of the original mortgagor Ramesher. The learned Munsif seems to have erred in thinking that Nathuni is the nephew of Sheogobind. In fact he is, as I have said, the grandson of Sheogobind and nephew of Ramlakhan. Similarly, the learned Subordinate Judge has erred in thinking that Bidya, Kirtan and Chandrika are the sons of Ramesher. They are sons of Bishun and, as I have said, the grandsons of Ramesher. 2. Now the question is whether Nathuni was effectively represented by Ramlakhan, and Chandrika by his two elder brothers Bidya and Kirtan. The appellants have relied upon the case reported in Girwar Narain Mahton V/s. Mt. Makbunessa 1916 Pat 310. In this case no less than ten members of the descendants of the four mortgagees were omitted from the suit. Roe and Jwala Prasad, JJ., held the omission to be fatal and the mortgage suit was dismissed. This case was however distinguished in the two later cases: Jag Sali V/s. Ram Chandra Prasad. 1921 Pat 377 and Abdul Rahman V/s. Shib Lal Sahu 1922 Pat 252 to both of which Jwala Prasad, J., was a party. In the former case there was a finding that the sons of the plaintiffs were joint with them, and holding that the plaintiffs claim was on behalf of the family the Court held that the omission of the sons did not affect the suit. Reliance has also been placed upon a decision of the Calcutta High Court in Govind Chandra Ghose V/s. Jamaluddin Mondal 1938 Cal 621 where it was held that a mortgage is indivisible and a suit must be instituted at the instance of all the mortgagees and if it is brought at the instance of one of the several mortgagees, all the remaining must be impleaded in the category of defendants and if the necessary parties were not impleaded before the suit became barred by limitation the whole suit must fail. The respondents have relied upon the Privy Council decision in Kishan Prasad V/s. Har Narain Singh (1911) 33 All 272 where their Lordships of the Judicial Committee held that a suit by the managing member of a joint family to enforce a contract in favour of the family was maintainable and the addition of the other members of the family as parties was unnecessary.

(3.) Reference has also been made to a decision of this Court in Hari Prasad Singh V/s. Sourendra Mohan Sinha 1922 Pat 450 where the absence of a minor from the category of the defendants was not considered fatal to the suit. I do not propose to discuss these cases in detail. The law on the subject is laid down in Order 34, Rule 1, Civil P.C., and it cannot be disputed that all the mortgagees must be party to a suit to enforce the mortgage. In my opinion, there is no conflict of decisions in this respect. The only question which arose in those cases was whether or not all the mortgagees were effectively represented in the suit. Those cases were decided on the facts of their own, where it was held that the defendants, though not on record, were sufficiently represented and the suit was held to be good.