Jag Sah and Another vs Ram Chandra Prasad and Others

Jwala Prasad, Acting C.J.

This is an appeal by the plaintiffs who are brothers and who instituted the suit, out of which this appeal has arisen, to enforce a mortgage executed by the father of the defendants in favour of Ram Sahay Sahu, a cousin of the plaintiffs. Ram Sahay Sahu and the plaintiffs formed members of a joint family. It is stated in the plaint that after the death of Ram Sahay the plaintiffs are now the members of the joint family. It is also stated that some documents were executed in the name of all and some in the name of only one of them bat that all the plaintiffs are joint in business. The defendants took an objection to the maintainability of the suit in the absence of the sons of the plaintiffs who they said were interested in the mortgage in question.

The Trial Court found that the plaintiff No. 1, Jag Sah, had a son and Muni Lal, plaintiff No. 2, had two sons and that these sons were members of the joint family. He held that non joinder of the sons of the plaintiffs was fatal to the suit and, following the decision in the case of Girwar Narain Mahton v. Makbulunnissa 36 Ind. Cas. 542 : 1 P.L.J. 468, the Munsif dismissed the suit.

The learned Subordinate Judge on appeal agreed with the Munsif. The result is that the plaintiff''s suit has been dismissed on this preliminary ground.

The fasts of the case Girwar Narain Mahton v. Makbulunnissa 36 Ind. Cas. 542 : 1 P.L.J. 468 relid upon by the Courts below are distinguishable from those in the present case. In that case the suit was originally instituted in the name of certain plaintiffs describing themselves as the heirs and successors of the original mortgagees. The defendants pointed out in their written statement that no less than ten members of the descendants of the original mortgagees had been omitted from the suit. Thereupon the plaintiffs filed a petition stating that the persons already on the record were representatives of the family and praying for the addition of the other members who were left out. On that date the additional plaintiffs were not entitled to institute the suit, the claim having been barred by lapse of time. No doubt at the time when the suit was decided all the kartas of the family were on the record, but it was not stated in the plaint nor could it be implied anywhere that the suit was brought by the plaintiffs in their representative capacity. The Court accordingly held that the suit was bad for want of necessary parties under Order XXXIV, Rule 1 of the Civil Procedure Code, and that Order I, Rule 9 which applies to all suits generally and which says that no suit shall fail by reason of misjoinder of parties did not help the parties in view of the special provision in Order XXXIV, Rule 1, relating to mortgage suits. The Court held that it not sufficient that the karta should be on the record as one out of the many members of the family bat that it must bi stated is the plaint that the suit is by the managing member as a managing member. I was a party to that decision, and on a very careful consideration I think that the proposition was a little too broadly stated. I still adhere to the view that all the necessary parties must be on the record in a mortgage suit. The object of this rule is to prevent multifariousness of suits to enforce one and the same relief. This view is supported by a string of authorities most of which were referred to in the casa of Bhagela Koer v. Abdul Rahman 36 Ind. Cas. 77 decided by Atkinson, J. and myself a summary of which has been re produced in the report of the case of Girwar Narain Mahton v. Makbalunnissa 36 Ind. Cas. 542 : 1 P.L.J. 468 . Bat this rule is sufficiently complied with when an agent on behalf of all the persons interested in the mortgage security or is the redemption thereof brings a Bait. This principle was enunciated in the case of Kishen Parshad v. Har Narain Singh 9 Ind. Cas. 739 : 33 A. 272 : 15 C.W.N. 821: 8 A.L.J. 256 : M.L.T. 256 : M.L.T. 343 : 21 M.L.J. 378 : 13 C.L.J. 345 : 13 Bom. L.R. 359 : (1911) 2 M.W.N. 395 : 38 I.A. 45 . Applying this principle, a suit by a karta of a family on behalf of all the members is deemed to be a "valid suit and well within Order XXXIV, Rule 1, of the Civil Procedure Code. Now, if the "karta is competent to manage the business of the family on behalf of all the members, to enter into contracts in the ordinary course of business, he is certainly entitled to enforce a contract by suits in his own name on behalf of all the members of the joint family, I do not think that it is necessary that the karta should mention expressly that the suit is instituted by him in his capacity as karta, provided the fast that the suit is brought by him in his representative capacity is obvious from the pleadings in the case. Mr. Jayaswal has in his able argument referred us to the authorities on the subject and to the text of the Hindu Law to show that the father represents the son in all the business of the family and in suits brought by him to enforce contracts entered into on behalf of the family, la the case of minor sons the father of necessity represents his sons. In the notable case of Suraj Bunsi Koer v. Sheo Persad Singh 5 C. 148 : 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L.R. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. 705 their Lordships of the Privy Council dearly upheld the aforesaid proposition and laid down that in all cases naturally, and in the case of infant sons necessarily, the father is the manager of the joint family. Upon that principle the son''s share in the family property was held liable to a money-decree passed against the father alone in the case of Jagabhai Lalubhai v. Vubhukandas Jagjivandas 11 B. 37 : 6 Ind. Dec. 24. In the case of Kishen Parshid v. Har Narain Singh 9 Ind. Cas. 739 : 33 A. 272 : 15 C.W.N. 821: 8 A.L.J. 256 : M.L.T. 256 : M.L.T. 343 : 21 M.L.J. 378 : 13 C.L.J. 345 : 13 Bom. L.R. 359 : (1911) 2 M.W.N. 395 : 38 I.A. 45 Lord Robson, after laying down the proposition that, where a business like money lending has to be carried on in the interests of the family as a whole, the managing members may properly be entrusted with the power of making contracts, giving receipts and torn promising or discharging claims ordinarily incidental to the business, asked the question, "is there any principle of law, or any custom applicable to a case like this, according to which the managing members of a Hindu joint family entrusted with the management of a business must be held incompetent to enforce at law the ordinary, business contracts they are entitled to make or discharge in their own names," and the answer necessarily was in the negative. His Lordship then held that the managing member of as undivided Hindu family suing as such is entitled to bring a suit to establish a right belonging to the family without making the other members of the family parties to the suit. The question then for determination is, whether this is a suit by the managing members as such in order to enforce a mortgage which undoubtedly was on behalf of the entire family. The plaint clearly states that the plaintiffs are members of a joint family and that the bond in question was taken by the family in the name of a cousin of the plaintiff Ram Sahay Sahu. The Courts have held that the sons of the plaintiffs are joint with them. The plaintiffs do not purport to claim the mortgage-debt on their own behalf but on behalf of the family, for they clearly state that the mortgage bond is a family property, They, therefore, obviously represent the interests of the sons in the bonds, the subject-matter of the suit. The suit is, therefore, by the plaintiffs in their representative capacity and the sons need not have been made parties to it. There is, therefore, no contravention of the requirements of Order XXXIY, Rule I, of the Civil Procedure Code. The judgment of the Court below is sec aside and the case is remanded to the original Court to try the suit on its merits. The defendants do not appear in this Court the plaintiffs, however, had to some here on account of the dismissal of their suit by the Courts below. The defendants contested the plaintiffs'' claim in both the Courts below and it was at their instance that the case was dismissed. The plaintiffs are, therefore, entitled to their costs in this Court and of the lower Appellate Court. The costs of the Trial Court will abide the result of the suit and is in the discretion of that Court.

Das, J.

I agree.