MUSAMMAT SHAMDEI Vs. BALJIT SINGH

JUDGEMENT

(1.) The suit out of which this appeal has arisen was brought by two plaintiffs, namely Musammat Shamdei and Narain Das, for sale of a 13 biswansi and 61/2 kachwansi share in the village Dyanatpur, under a mortgage, dated the 25 of February, 1874. The said mortgage was executed in favour of one Lachman Das by Baljit Singh, Sarup Singh, Chandan Singh and Gopal Singh. Lachman Das, the mortgagee, died leaving four sons Nand Ram, Dila Ram, Makund Lal and Khushi Ram. The plaintiff Shamdei is the widow of Makund Lal. One of the defendants Musammat Gobindi is the widow of Khushi Ram. The plaintiff Narain Dasis alleged to be the adopted son of Makund Lal but this adoption is denied and the question whether he is or is not the adopted son of Makund Lal has not been raised in this appeal. The learned advocate for the appellants has argued the case as if it were a suit by Musammat Shamdei alone. After the death of Lachman Das, a suit was brought for sale on the basis of the aforesaid mortgage by the four sons of Lachman Das on the 24 of February, 1880. They obtained a decree for sale from this Court on the 29 of July, 1881, against the mortgagors and other members of their family, including Kanhai Singh and Durjan Singh. The mortgage comprised among other property a 4 1/2 biswa share in the village Dyanatpur. This was sold by auction on the ?0 of April, 1885, and was purchased by the decree-holders in the name of their mother Musammat Sohini. The purchasers had the village partitioned and the 4 1/2 biswa share was formed into a 4 biswa mahal, which under a subsequent partition between the heirs of Lachman Das was allotted to the shares of Shamdei and Gobindi. It is alleged that after the sale of the 4 1/2 biswa share and other property, a balance of Rs. 30,000 remained due upon the decree and under the partition referred to above, the decree was allotted to the share of Shamdei alone. On the 18 of January, 1880, Chandan Singh, Kanhai Singh, and Durjan Singh made a simple mortgage of 2 biswas 6 biswansi out of the 4 1/2 biswas mentioned above in favour of Bansi Dhar, the adoptive father of Piare Lal, defendant No. 50. On the 1 of May, 1884, Bansi Dhar brought a suit upon the said mortgage against his mortgagors only and did not implead in it the heirs of Lachman Das. On the 9 of August, 1884, he obtained a decree for sale and in execution of that decree caused a 13 biswansi and 6 1/2 kachwansi share to be sold and himself purchased it on the 8 of September, 1896. On the 4 of January, 1899, Shamdei and Gobindi instituted a suit against Piare Lal and other purchasers from him for possession of the 13 biswansi 6 1/2 kachwansi share mentioned above on the ground that they were prior purchasers of the said property in execution of the decree passed on the mortgage of the 25 of February, 1874. This claim was dismissed by this Court, on the ground that Bansi Dhar was not a party to the suit brought by the sons of Lachman Das for sale under the mortgage held by them. Thereupon the present suit was brought for the sale of the 13 biswansi 6 1/2 kachwansi share for the realization of Rs. 5,100, out of the balance due under the mortgage of the 25 of February, 1874.

(2.) The Court below has dismissed the suit being of opinion that it is not maintainable.

(3.) We are unable to agree with the learned Judge of the Court below. The legal representatives of Lachman Das were competent, in the suit which they brought to enforce the mortgage of the 25 of February, 1874, to add the second mortgagee Bansi Dhar as a party to their suit. In fact they were bound to do so for the purpose of giving to Bansi Dhar, who as subsequent mortgagee had a right of redemption, an opportunity to redeem their mortgage. This opportunity was not afforded to Bansi Dhar and, therefore, the sale of the 13 biswansi 6 1/2 kachwansi share mortgaged to him was not binding on him. It was on this ground, as we have said above, that the plaintiff's suit against Bansi Dhar's legal representatives for possession of the aforesaid share was dismissed. The fact that Bansi Dhar was omitted from the suit brought upon the mortgage of 1874 does not preclude the present plaintiff, who has an interest in that mortgage, from maintaining the present suit and seeking to bring to sale the 13 biswansi 6 1/2 kachwansi, for the sale of which a proper decree had not been passed against Bansi Dhar. The object of the suit is to afford to Bansi Dhar's legal representatives an opportunity to redeem the aforesaid share from the mortgage of 1874. There can be no bar to such a suit. Secs.13 and 43 of the Civil P. C., 1882, are no bar to the suit inasmuch as Bansi Dhar was not a party to the first suit. Upon this point there cannot be any doubt and the Court below is clearly in error in, holding that the suit is not maintainable. There are other questions involved in the case. The plaintiff claims Rs. 5,103 alleging that amount to be part of the money due upon the mortgage of 1874 but as the mortgagees themselves have purchased portions of the mortgaged property, the joint nature, of the mortgage has been severed and the owner of the 13 biswansi 6 1/2 kachwansi is only liable for that portion of the mortgage money which is proportionate to the aforesaid share of the mortgaged property. This is one of the questions which the Court below will have to determine and which it has not determined. There are other questions also, for example, the question whether the 13 biswansi 6 1/2 kachwansi could be properly mortgaged by the persons who made the mortgage of 1874, and whether the mortgage of that share is a valid mortgage. As all these questions have not been properly tried by, the Court below and as the suit has been dismissed upon a preliminary ground and; its decision on that point is, in our judgment, erroneous, we allow the appeal, set aside the decree of the Court below and remand the case to that Court under the provisions of Order 41, Rule 23, of the Code of Civil Procedure, with directions to readmit it under its original number in the register and dispose of it on the merits, regard being had to the observations made above. Costs here and hitherto, will abide the event and the costs in this Court will include fees on the higher scale.