MADHUSUDAN PANDURANG SAMANT Vs. BHAGWAN ATMARAM

JUDGEMENT

(1.) [His Lordship, after setting out facts, continued:] The first question is, whether the suit is barred by res judicata by reason of suit No. 116 of 1910, in which all questions relating to the mortgage were decided as between the fathers of the plaintiffs and the mortgagees, the defendants. We are now only concerned with plaintiffs Nos. 1 and 2, sons of Pandurang; the other plaintiffs not being born at the date of the suit in 1910. The property is ancestral property and the trying Judge decided that the suit was not barred by res judieata, on the short ground that the present plaintiffs were not parties to the suit of 1910, and they claim not through their fathers but in their own right and that the grandsons take an inherent interest in the ancestral property as such.

(2.) The learned District Judge was of opinion that the defendant in the former suit (the fathers of the present plaintiffs) were held to be litigating in respect of a private right claimed in common for themselves and their children, and the present suit is, therefore, barred by Section 11, expl. 6, of the Civil Procedure Code. It is contended on behalf of the appellants that Section 11, expl. 6, has no reference to the facts of the present litigation, that all coparceners are necessary parties to a mortgage suit and that the present plaintiffs were not represented by their fathers. I have already pointed out that plaintiffs Nos. 1 and 2, the sons of Pandurang, who was defendant No. 1 in 1910, were alone born in 1910 and the question whether they were bound by the decree was considered in that suit. Exhibit 33 is the judgment of the appellate Court (District Court of Thana). In that suit, issue No. 3 was, whether the share of defendant No. 1's (Pandurang s) sons is responsible for the debt. The finding was in the affirmative The learned Judge said that though the minors were no parties, the Hindu joint family is represented in all its transactions by its karta and the sons by their father. Order XXXIV, Rule 1, does not interfere with the rule of Hindu law that the Hindu father can represent his sons. Having regard to the late stage when such an objection was raised for the first time, this contention cannot be allowed. The minor sons of defendant No. 1 are sufficiently represented by their father defendant No. 1. Compare Ramkrishna V/s. Vinayak Narayan (1910) I.L.R. 34 Bom. 354, s. c. 12 Bom. L.R. 219. In that case the minor was not a party to the suit but he was represented by the adult members of the family and it was held that they represented him: of Govind V/s. Sakharam (1904) I.L.R. 28 Bom. 383, s. c. 6 Bom. L.R. 344, which, however, is not the case of a suit on a mortgage". So far as appears from the report of the case in the High Court (Pandurang Narayan V/s. Bhagwandas Atmaramshet (1919) I.L.R. 44 Bom. 341, s. c. 22 Bom. L.R. 120), this point was not taken in the second appeal. It is argued on behalf of the appellants that Ramkrishna V/s. Vinayak Narayan rests on Ramasamayyan V/s. Virasami Ayyar (1898) I.L.R. 21 Mad. 222 and Lala Surja Prosad V/s. Golab Chand (1900) I.L.R. 27 Cal. 724, and that this latter case was upset in Lala Suraj Prosad v. Golab Chand (1901) I.L.R. 28 Cal. 517. Ramkrishna V/s. Vinayak, however, has never been dissented from and is still good law and binding on me. Reference is also made to Ramchandra Narayan V/s. Shripatrao (1915) I.L.R. 40 Bom. 248, s. c. 18 Bom. L.R. 33, where it was held that the abatement of a suit by one member of an undivided Hindu family did not deprive his coparceners of the right to sue for redemption there being no indication that the suit was brought in any representative capacity. That, however, was the case of an adult coparcener, a brother, and not of the father and a minor son.

(3.) The appellants further relied on Debi Prosad Sahi V/s. Dharamjit Narayan Singh (1914) I.L.R. 41 Cal. 727, where it was held that the karta of a joint Hindu family was bound in a suit on a mortgage to join as a party one of the members of the family who had a joint interest with him in the mortgage. That also is the case of a major and the objection as regards parties was taken in the suit itself. The appellants also rely on Padmakar Vinayak Joshi V/s. Mahadev Krishna Joshi (1885) I.L.R. 10 Bom. 21, where the major brother of the plaintiffs during their minority had brought a suit to redeem the property in suit, which had been dismissed. It was held that the second redemption suit by plaintiffs was not barred as they were not sufficiently represented in the previous suit.