BADRI PRASAD Vs. SRI THAKURJI MAHARAJ BIRAJMAN MANDIR

JUDGEMENT

(1.) This appeal arises from a suit in which the plaintiff-appellant Munshi Badri Prasad, sued to compel the defendant respondent 1, Sri Thakurji Maharaj, to pay a sum of Rs. 1,400, together with interest said to be due on account of a mortgage executed in favour of the appellant in 1909; or, in the alternative, if the respondent should fail to pay that amount, that the appellant should be put in possession of the property in suit. The facts of the case are quite simple and may be briefly stated. On the 25 August 1909 Munni Lal mortgaged his zamindari to the appellant. On the 26 October 1911, he gifted the greater part of the same property to the respondent Sri Thakurji Maharaj, the idol of a temple of which the donor made his minor son Raja Ram, the manager. Mutation in favour of the temple was effected in 1915. The same year the appellant-mortgagee filed a suit for sale of the mortgaged property, but did not make Sri Thakurji or the temple a party to the suit. He obtained a preliminary decree in 1915 and a final decree on the 28 November 1918, and, in execution of that decree he himself purchased the mortgaged property. It may be mentioned that Raja Ram, the son of the mortgagor, who was the manager of the temple, was made a party to the mortgage suit in his personal capacity, but not as manager of the temple. In 1923 Raja Ram sued for a declaration that he was not bound by the mortgage decree, the mortgage having been executed without legal necessity, etc., bat his suit was dismissed. Later in the same year the appellant-mortgagee filed the present suit which, as will be seen, is practically one for foreclosure against Sri Thakurji.

(2.) The trial Court gave the plaintiff an unconditional decree for possession of the property at present in possession of Sri Thakurji but the lower appellate Court dismissed the suit on the ground that Sri Thakurji had not been made a party to the mortgage suit and that the mortgage itself had become barred by limitation.

(3.) This finding has been attacked in second appeal on two grounds. The first of these was that Sri Thakurji had been substantially represented in the mortgage suit by Raja Ram, and that the only privilege that Sri Thakurji could have claimed in the mortgage suit was the option of redeeming the mortgage, which option the plaintiff-appellant proposed to extend to him in the present suit. In the trial Court it was held that the failure to describe Raja Ram as the manager of the temple was merely a misdescription and that probably the plaintiff had made an honest mistake. Had the omission to make Sri Thakurji a party to the mortgage suit been merely a misdescription of one of the defendants, it might have been possible to uphold the decision of the trial Court. It is quite clear, however, that it was not merely a misdescription of one of the defendants. The fact of omitting Sri Thakurji from the array of defendants was that the deed of gift in favour of Sri Thakurji was never before the Court, and its bearing on the rights of the parties was not considered. Under Order 34, Rule 1, Sch. 1, Civil P.C., it is necessary for a mortgagee in bringing a suit relating to a mortgage to implead all persons having an interest either in the mortgage security or in the right of redemption, and Sri Thakurji, should certainly have been impleaded. The law does not even prescribe that the mortgagee must have notice of the interest of the party concerned, but as a matter of fact in the present case it can hardly be doubted that the mortgagee had notice of the gift to Sri Thakurji, for not only was the deed of gift or endowment registered (this alone, according to the decision of their Lordships of the Privy Council in Tilakdhari Lal V/s. Khedan Lal A.I.R. 1921 P.C. 112, might not be sufficient to amount to due notice), but mutation had been effected in Sri Thakurji's name; and, as the transfer was a gift with possession, and not merely a simple mortgage, the mortgagee must in the ordinary course have been aware of the existence of the deed of gift. "Whether notice was given or not to the mortgagee, however, I have no doubt that the learned Judge was quite right in holding that Sri Thakurji was not substantially represented in the mortgage suit, and the result of this omission is that Sri Thakurji is not affected by the proceedings in the mortgage suit in any way.