KRISHNAJI VINAYAK BELAPURKAR Vs. MOTILAL MAGANDAS GUJARATI

JUDGEMENT

(1.) [His Lordship, after staging facts, proceeded:] The first contention on behalf of the defendants-appellants is that the plaintiff had no right to sue at the date of the institution of the suit, and that the learned Subordinate Judge having refused the application of defendant No. 9, Exhibit 122, to be made a plaintiff, erred in making defendant No. 9 a plaintiff at the time when he passed the decree, and reliance is placed on the cases of Parmanand Misr v. Sahib Ali (1889) I.L.R. 11 All, 438. Bhanu V/s. Kashinath (1895) I.L.R. 20 Bom. 537. and Sayad Abdul Hak V/s. Gulam Jilani (1895) I.L.R. 20 Bom. 677.

(2.) It was held in Bhanu V/s. Kishinath (1895) I.L.R. 20 Bom. 537. that if the plaintiff at the time he brings his suit has no interest in the subject-matter thereof, the joinder of a person as co-plaintiff who has an interest cannot alter the plaintiff's position or confer on him any right of suit, A similar view was taken in Sayad Abdul Hale V/s. Gulam Jilani (1895) I.L.R. 20 Bom 677. This view is not accepted by the Madras High Court in Krishna Boi V/s. The Collector and Government Agent, Tanjore (1907) I.L.R. 30 Mad. 419. and is opposed to the view taken of a similar rule, Order XVI, Rule 2, of the English Roles, in Hughes V/s. Pump House Hotel Company [1902] 2 K.B. 486. The case of Parmanand Misr V/s. Sahib Ali (1889) 1. L.R. 11 All. 438, does not bear on the question of the joinder of a party as an additional plaintiff. The facts, however, in the above two Bombay cases were quite different from the present case. It cannot be said that the plaintiff in this case had no right of action at the time the suit was brought. The sale- deed was passed in his favour by defendant No. 8 as guardian on behalf of her son, defendant No. 9, who was described as a minor in the sale-deed. The learned Subordinate Judge, however, held that defendant No. 9 was major at; the date of the sale-deed. There is no finding by the lower appellate Court on this point, It appears that, after the institution of the suit, defendant No. 9 filed a suit against the plaintiff to set aside the sale-deed on February 7, 1921, which ended in a compromise, Exhibit 105, on September 7, 1922, under which the defendant admitted the plaintiff's right to the sale-deed passed by his guardian during his minority. One of the houses, No. 158, was to be retained by defendant No. 9, and the other house No. 174 was to be retained by the present plaintiff, and defendant No. 9 was to receive from the present plaintiff a sum of Rs. 2,000, Defendant No. 9 gave his consent to the sale- deed and had no grievance in connection therewith. After this compromise defendant No. 9 made an application, Exhibit 122, to be made a plaintiff. The learned Subordinate Judge, however, rejected his applicatiou but ordered his name to be joined as a plaintiff when passing the decree in favour of the plaintiff" and defendant No. 9 Apparently under the sale-deed the plaintiff had a right to sue for redemption of the mortgage. In Nuri Mian V/s. Ambica Singh (1916) I.L.R 44 Cal. 47, 55. it was held that ordinarily the decree in a suit should aucord with the rights of the parties as the stand at the date of its institution, but where it is shown that the original relief claimed has by reason of subsequent change of Circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order! to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree in made. This Court has also accepted the view that the Court can even in appeal take into consideration events subsequent to the decree: see Shankerbhai Manorbhai V/s. Motilal Ramdas (1924) I.L.R. 49 Bom. 118, s. c. 26 Bom. L.R. 1217. Rustomji V/s. Sheth Purshotamdas (1901) I.L.R. 25 Bom. 606, s. c. 3 Bom. L.R. 227. and Sakharam Mahadev Dange V/s. Hari Krishna Dange (1881) I.L.R. 6 Bom. 113. The effect of the compromise decree between the plaintiff and defendant No. 9 is that the plaintiff and defendant No. 9 are both entitled to the equity of redemption and the decree passed by the Subordinate Judge allowing redemption in favour of the plaintiff and defendant No. 9 seems unobjectionable. It was held by the Privy Council, in Rani Mewa Kuwar V/s. Rani Hulas Kuwar (1874) L.R. 1 L.A. 157, 166. that the compromise is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is. It cannot, therefore, be said that the plaintiff had no right or title at the date of the institution of the suit. Defendant No. 9i was the only person interested in objecting to the sale-deed passed by his mother, and he entered into a compromise with the plaintiff and both of them have been awarded the right to redeem the mortgage. The decree would, therefore, be binding not only as against the plaintiff but also against defendant No. 9. The power if to add a party under Order I, Rule 10, can be exercised at any stage of the suit and the exercise of this power could not be restricted in cases when justice requires a joinder of parties, even at a late stage. The order of the Subordinate Judge joining defendant No. 9 as a plaintiff at the time of the decree is not, therefore, opposed to the provisions of Order I, Rule 10, though I think that the learned Subordinate Judge would have exercised a wise discretion if he had acceded to the application mads by defendant No. 9 at an earlier stage.

(3.) The next point urged on behalf of the appellants is that by virtue of the compromise there was a transfer of property in favour of the plaintiff by defendant No. 9 during the pendency of the suit which was invalid under Section 52 of the Transfer of Pro-perty Act, and reliance is placed on the decision in Ishwar V/s. Daitu . In that case, there was a partition effected in the family of the mortgagee while the suit for redemption by the mortgagor was pending, and it was held that the right of redemption of the plaintiff-mortgagor could not be affected by the transfer made by the members of the mortgagee's family during the pendency of the suit for redemption. In the present case, there was no transfer during the pendency of the suit, The transfer in favour of the plaintiff was anterior to the suit but by virtue of the compromise the validity of the sale-deed was accepted by defendant No. 9, the person entitled to dispute its validity. The compromise recognised partially the title of the plaintiff to institute the suit for redemption. Assuming, however, that the compromise decree effected a transfer of property, it would not in any way affect the right of the defendants-mortgagees, for defendant No. 9 has been made a plaintiff in the case and the decree passed in the suit would be binding on both the plaintiff and defendant No. 9, and if any amount had been decreed as due on account of the mortgage, both the plaintiff and defendant No. 9 would have been bound to pay that amount. The rights established by the consent decree between the plaintiff and defendant No. 9 would in any event have been subservient to the rights of the defendants-mortgagees, and would not, in any way, have affected their right to recover the money on the mortgage. We think, therefore, that Section 52 of the Transfer of Property Act does not apply to the facts of the present case.