AMER SINGH Vs. RAM SAROOP

JUDGEMENT

(1.) This appeal arises out of a suit for redemption which has been dismissed on the technical ground that one of the mortgagees who is missing and has not been heard of for some time is not proved to be dead. The mortgage was made by the plaintiff's predecessor-in-interest, Brijbhukhan, in favour of two persons, Pitambar Singh and Eaghubar Singh. The suit for redemption was brought against Gyan Singh son of Raghubar Singh who is dead, and against Ram Sarup the. son of Pitambar Singh on the allegation that Pitambar Singh had been missing for the past fifteen or sixteen years and had not been heard of by his relations and might be presumed to be dead. The defendants denied that Pitambar Singh bad been missing for fifteen or sixteen years, but it was admitted that he had gone to France more than two years before and had not since been heard of. The Munsif disbelieved the defence and held that there was a presumption of Pitambar Singh's death under Section 108 of the Evidence Act. He accordingly decreed the suit. The Subordinate Judge in appeal held that there was no proof that Pitambar Singh had not been heard of for fifteen or sixteen years by those who would naturally have heard of him if alive, and was only prepared to accept the view that he had not been heard of for two or 2? years. He, therefore, dismissed the suit for non- joinder of Pitambar Singh. Before me it is urged that as Pitambar Singh and his son formed a join family and as Pitambar Singh's whereabouts are unknown Ram Sarup must necessarily be managing the family property and it was sufficient to implead him as manager of the joint family.

(2.) I am quite clear that this suit ought not to have been dismissed on the ground on which the learned Subordinate Judge has dismissed it. The plaintiff sued in good faith believing that he was entitled to presume Pitambar Singh's death and knowing that it was in any case impossible to serve him with notice of the suit. If the Subordinate Judge thought that Pitambar Singh was a necessary party the plaintiff would have been, and is, quite willing to apply to have him impleaded and so give effect to the provision of Order IX, Rule 9, C.P.C, that no suit shall be dismissed by reason of non-joinder of parties. The suit would have proceeded, it would have been found impossible to serve Pitambar Singh, the solemn farce of substituted service would He gone through, and at the cost of much expense and with a delay perhaps of two years technical requirements would be fulfilled, and everybody except the unfortunate plaintiff would be happy.

(3.) It appears to me, however, that it was not necessary to implead Pitambar Singh under the circumstances. The joint family consisted of Pitambar Singh and his son, and as, Pitambar Singh hai disappeared and cannot, be traced, the son is obviously the managing member. There are numerous decisions laying down that in mortgage suits it is sufficient if the managing member or members are impleaded. This has been laid down by the Privy Council itself in regard to foreclosure suits in Sheo Shankar Ram V/s. Jaddo Kunwar 24 Ind. Cas. 591 : 36 A. 383 : 18 C.W.N. 968 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 1 L.W. 645 : 20 C.L.J. 282 : 12 Cr.L.J. 1173 : 16 Bom. L.R. 810 : 41 I.A. 216 (N.S.). This has been laid down with reference to suits for sale on a mortgage by a Full Bench of this Court in Hori Lal V/s. Nimman Kunwar 15 Ind. Cas. 126 : 34 A. 549 : 9 A.L.J. 819. The same principle has been laid down by the Patna High Court with reference to mortgage suits generally in Jag Sah V/s. Ram Chandra Prasad 63 Ind. Cas. 564 : P.L.J. 640 : (1921) Pat. 289 : 2 P.L.T. 553. I, therefore, hold that the Court below was wrong in dismissing the suit on the ground of non-joinder and should have decided the appeal on the merits. I, accordingly, set aside the decree of the Court below and direct that Court to restore the appeal to its file and dispose of it on the merits. The appellant in this Court will get his costs of this appeal in this Court. Other costs will abide the result.