Kasiyana Koundan vs Thimanaicken and Others

Napier, J.—The suit out of which this appeal arises was brought by the plaintiff on a mortgage, dated 15th July 1878, executed by the 1st

defendant in favour of one Ramasami Gounden. Defendants Nos. 2 and 3 are the sons of the 1st defendant, and the 5th, 6tb, 7th and 8th

defendants are members of the plaintiff''s family. They were made parties on the allegation in the 6th paragraph of the plaint that there was a

partition between the plaintiff and those defendants of their family properties, in which partition the plaint mortgage fell to the share of the plaintiff.

The 15th defendant is a purchaser from the 1st defendant. Defendants Nos. 9 to 14 mada no claim to any share in the property, admitting that it

had fallen to the share of the plaintiff. Defendants Nos. 1 to 4 and 15 set up a case of discharge. The sole issues raised were whether the bond was

true and whether there had been a full discharge. The issues were settled on the 17th of March 1911. The case went to trial and on the 2nd July

1912 the plaintiff in his examination as plaintiff''s 1st witness admitted that he had sons and alleged that there had been a division between himself

and them and a partition of their properties. It appeared, however, that this mortgage was not named in the partition list and it is perfectly obvious

that it was omitted, being thought to be, as it was under the then existing state of the law, time-barred. In con-sequence of the passing of the new

Limitation Act the right to sue revived and the plaintiff, therefore, brought the suit. On this admission by the plaintiff the defendants raised the

objection for the first time that the suit was bad for non-joinder of the plaintiff''s divided sons as parties. The effect of a finding in favour of the

defendant on this issue would be, subject to an objection to be considered later, that the plaintiff being only a tenant-in-common with his sons was

not entitled, without making the sons parties, to recover either the whole or a proportionate share of the mortgage debt by sale of the property or

the proportionate share. This was concede by the appellant. On the trial of this issue the plaintiff adduced the evidence of his sons to the effect that

prior to the suit they had relinquished their rights in the suit amount in his favour. Both the lower Courts have, however, declined to accept this

story as true and it is urged that in second appeal we must accept this finding. In argument before the first Court it was contended that even if the

relinquishment is not true, the objection on the score of non-joinder of parties was taken too late and no issue should have been framed. It is

pointed out that the plea is purely technical find that the sons have raised no objection to their father alone bringing the suit and that the sole object

of the objection is to protect the defendants from liability, it being too late to add the sons either as plaintiffs or as defendants, for in both cases it is

clear on the authorities that limitation would operate to prevent their getting a decree jointly with their father for the whole amount with the

necessary consequence that the father''s suit must also fail. That this is the only defence to the suit is made clear on the finding that the plea of

discharge is false. It being, therefore, impossible to give the plaintiff any relief by joinder of his sons, he is compelled here to fall back on the only

remaining defence, that the objection for want of parties is too late. Order I, Rule 13, of the CPC is as follows:---""All objections on the ground of

non joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such

settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

Mr. T. R. Venkatarama Sastri relies on the latter part of the Rule and contends that the ground of objection has not arisen subsequent to the

settlement of issues. This is undoubtedly true. The ground of objection was there from the very inception of the suit. The defendant could have

ascertained that the plaintiff had sons alive and could have asked for issues, whether the plaintiff was entitled to sue on behalf of his sons or

whether in any partition this particular debt had fallen to his share. If those issues had then been raised, they might have been fatal to the suit. In my

opinion the case comes within the language of the Rule and it has been decided by this Court in Second Appeal No. 1629 of 1912 in Kollichina

Venkatarmayya v. Gudavalli Subbarayudu 25 Ind. Cas. 122. that the objection as to non-joinder of parties applies even where the ground was not

known to the defendant at or before the settlement of issues. Unless, therefore'' the Rule has no application to suits of this nature, the objection

under Rule 13 must prevail. It is, however, urged that this Rule has no application to cases where the right to sue is vested in certain'' persons

jointly and no one of them can recover without the presence of all. The authority relied on for this proposition is Dursan Singh v. Durbejoy Singh 1

Ind. Cas. 530 : 9 C.ri L. J. 623. This was a decision u/s 34 of the old Code corresponding to this rule. The actual decision in the case was that any

member of a Mitakshara family is entitled, as against a trespasser or a person who seeks wrongfully to seize the property in execution of a decree

obtained against a stranger, to recover possession or ask for a declaration that the properties are not liable to be sold in execution, and in this view

the Court decided that the objection for want of parties was bad. But at page 626 Page of 9 C. L. J.---Ed, the Court expresses the opinion that

the Section will not prevent a Court dismissing a suit in toto where the application of the Section would operate to give a plaintiff a measure of relief

larger than the right he really possesses. I do not gather from the dictum in this case whether the learned Judges intended to go as far as to lay

down that the sections in the old Code to which this Section 34 was an exception have also no application to such cases. It seems to me that this

result must logically follow from the decision of the Court, for Section 34 is part of Chapter III dealing with ''parties and their appearance,

applications and acts.'' If this be so, it seems to me a strong proposition that the Court cannot, in a suit of this nature, order that a person may be

joined as plaintiff or that a person who has been made a defendant be made a plaintiff. It would come to this, that if the objection had been taken

at an earlier stage the Court could not have given permission to the plaintiff to join his sons as co-plaintiffs. The principle cannot, in my opinion, be

founded on the objection that all the parties entitled must sue, because it is clear that where a person is jointly entitled to sue with other persons and

cannot get relief except by making them parties, he is entitled, when they refuse to be plaintiffs, to join them as defendants. The object of this

recognized principle is obvious, namely, that otherwise it will be in the power of one of several persons jointly entitled to prevent the others

recovering their claims against a third party by refusal to join as co-plaintiffs. It must, therefore, be conceded that it is not necessary for all persons

jointly entitled to sue and, therefore, it cannot be said that one of such persons has no right to sue alone. All that is required is that he should make

persons jointly entitled with him defendants, who will not join as plaintiffs.

That being so, I am unable to accept the broad proposition laid down by the learned Judges in the above case. I do not wish to lay down any

general rule, but in a case such as this where the right exists in the plaintiff but he cannot enforce it to any extent even without other persons jointly

interested being parties to the suit, the objection does seem to me to be one as to parties and covered by the law of procedure, though probably it

does sot apply to a case where there is an absolute defect in the plaintiff''s title and the person really entitled to the exclusion of the plaintiff was not

a party to the suit. Vide Heiniger v. Droz 25 B. 433 : 3 Bom. L. R. 1. I may add that I can find no decision of this Court or any other Court in

which the view enunciated in Dursan Singh v. Durbejoy Singh 1 Ind. Cas. 530 : 9 Cri. L. J. 623. has been accepted.

I am, therefore, of opinion that the Rule does apply, that the objection is taken too late and the appeals must be allowed. The appeals will be

remanded to the lower Appellate Court for trial on the other issues. Costs will abide.