Hit Lal Mahton and Another vs Jiboo Mahton and Others

Dawson Miller, C.J.—This is an appeal on behalf of the plaintiffs from a decision of the Subordinate Judge of Purnea reversing a decision of the Munsif. The main question for decision in the appeal is whether the plaintiffs, two members of a joint family, consisting of themselves and others, are competent to institute the suit in their own names without joining the other members of the family as parties. The two plaintiffs advanced to the defendants the sum of Rs. 487 8 0 and on the 5th June, 1913, took from them a mortgage of certain property to secure repayment of the advance together with interest at one per cent, per month. The principal was re-payable in May 1914. There is nothing in the mortgage-bond to indicate whether the advance made by the plaintiffs was out of their separate funds or whether it was part of their family property. On the 22nd August, 1919, they instituted the present suit against the defendants claiming the sum of Rs. 900 as principal and interest and asking for realisation of the same by sale of the mortgaged property. The defendants objected, inter alia, that the sum advanced by the plaintiffs was their family property and that the suit was not maintainable unless the other members of the family who had an interest in the mortgage were joined as parties. It was found as a fact by the Munsif, whose finding was accepted by the Subordinate Judge on appeal, that the bond in suit was the joint family property of the plaintiffs and their co-parceners although it stood in the names of the plaintiffs alone. The Munsif was of opinion that the suit was maintainable by the plaintiffs, who had advanced the money and with whom alone the defendants effected the transaction. He considered that their position could not on principle be distinguished from that of a benamidar or a trustee acting on behalf of those beneficially interested, and that the principle which should be followed in such a case was that laid down by the Privy Council in Gur Narayan v. Sheo Lal Singh (1918) 46 Cal. 556.

The Subordinate Judge on appeal took a different view and considered that, under the provisions of Order 34, Rule 1 of the Civil Procedure Code, the suit was not maintainable unless all the members of the joint family were parties. Prom that decision the plaintiffs appealed.

It is now well-established that a person who is named in a mortgage-deed as the mortgagee, although in fact merely a benamidar for those beneficially interested, can institute a suit in his own name either for sale or foreclosure and that the suit should not be dismissed merely because the beneficial owner is not added as a party. See Vaiteehswara Aiyar v. Srinivasa Raghava Aiyangar (1919) 42 Mad. 348 and Sachitananda Mahapatra v. Bahrain Gorain (1897) 24 Cal. 644. The only question is whether the plaintiffs in the present case, who had a beneficial interest in the mortgage-deed and who represented both themselves and the other members of the family in the transaction, should be regarded as on a different footing from a benamidar, who has no beneficial interest at all. I can see no ground on principle why any distinction should be drawn between the two oases. The mortgagors entered into the transaction with the mortgagees in the name of the latter alone, treating them as the other contracting party. If at the due date the mortgagors had tendered the principal sum advanced together with any interest remaining due to the plaintiffs as mortgagees it is conceded that the latter could have given a valid acquittance binding upon the other members of the family who were interested in the mortgage. It must be presumed that in entering into the transaction they wore authorised to do soon behalf of all the members of the family, and if they could grant a valid discharge to the mortgagors on payment of the principal sum, I can see no reason why they should not be presumed to have implied authority to enforce payment by a suit. The question appear to me to be one of authority and if they were authorised to enter into the transaction on behalf of the family, I think it must be taken that they were equally authorised to institute a suit to enforce it. In my opinion, the plaintiffs were entitled to maintain the suit.

A further question, however, arises with regard to certain payments alleged to have been made by the defendants amounting to Rs. 303 between the years 1321 and 1325. The Munsif held that the plea of payment set up by the defendants was false. The learned Subordinate Judge considered that, as the whole claim failed, he need not go into the question of part-payment. The result is that the decision of the Subordinate Judge will be set aside and the case must be remanded to him to consider whether the plea of payment set up by the defendants is true or not, and having determined this question he veil pass a mortgage decree in favour of the plaintiffs after giving credit for the payments, if any, which may be found by him to have been made by the defendants. The plaintiffs are entitled to the costs of this appeal. They are also entitled to the costs of the appeal to the Subordinate Judge in proportion to the amount which may ultimately be found due.

Kulwant Sahay, J.

I agree.