AI Structured Summary
Not yet generated for this judgment
Judgment
Horwill, J.—The appellant and one Karthiyayini Amma, a lady of this Tarwad executed a kanom kychit in favour of the 9 oh and 10th
defendants; and the appellant, as the karnavan of the Tarwad, brought this suit for the redemption of the prior mortgages. The suit was decreed by
the District Munsif of Walluvanad but in appeal the Subordinate Judge of Oltapalam has given three xeasons why the suit should not be decreed.
The first is that the suit was premature in that it was brought before the expiration of the period of the mortgage. The second is that the suit is not
maintainable without Karthiya-yini Amma''s heirs being made parties to the suit, as the keychit was executed by her and the plantiff jointly and not
by the Tarwad as represented by them. The third objection to the plaintiff''s suit is that he has not asked to be allowed to redeem the whole of the
property mortgaged. In appeal all these points have been argued, except that the finding of the learned Subordinate Judge that the ,''kanom kychit
was executed by the plaintiff and Karthiyayini Amma in their personal capacities and not on behalf of the Tarwad has been accepted. It, therefore,
follows that Karthiyayini Amma must be added as a party; but it is contended that the plaintiff should not be given an opportunity of doing so? It
has also been conceded that the plaintiff is bound to pay for the improvements of all the lands covered by the mortgage, and, therefore, to redeem
all of them.
The trial Court found that the suit was not premature. The question arose because the mortgage document Ex. A was executed seven years after
the execution of a similar deed Ex. Ill, for which type of mortgage the normal term is 12 years. The existence of a mortgage for 12 years does not
prevent the parties from renewing the mortgage and cancelling the old one before the 12 years have expired: and to see whether that has been
done, one has to examine the document itself. The learned District Munsif pointed out that there is nothing in Ex. A to indicate that it. was not to
operate until the expiration of the 12 years under Ex. III, and I agree. Not only is there nothing in Ex. A to suggest that it is not intended to operate
for a number of years: but there are recitals definitely proving that it is to operate at once. For example, we find. ''''These items are demised to me
today"". Later on. ''Out of this Michavaram the paddy shall be paid from 1089 onwards (the year of Ex. A being 1088); then, lower down"" the oil
shall be measured according to the oil measure before the 30th Makoram of each year from 1089 onwards"". The next sentence is: ''''The
Government assessment with fund of the scheduled properties from 1089 onwards shall be paid yearly"". Lastly and still more important we find the
sentence, �I would also forfeit the right to hold the properties for the rest of the period for which the properties have been demised the kanom"".
So that the natural presumption that a mortgage-deed would not be executed five years before it was intended to operate is reinforced by definite
terms in the document itself proving that it is intended to operate at once. The lower Appellate Court was wrong1 in holding that the suit was
premature.
Most of the contest in this Court. has been centred round the question whether the suit must fail because Karthiyayini Amma''s heirs have not
been added as parties. Order I. Rule 9, Civil Procedure Code, lays down the principle that a suit shall not be dismissed merely because of the
non-joinder of some person necessary to the suit; but admittedly an exception has been made by the Courts to those cases in which the plaintiff has
persisted in two or more Courts in not adding the necessary party, even when he was given an opportunity to do so. This principle is enunicated in
AIR 1931 229 (Privy Council) . Their Lordships found it necessary to dismiss the suit because the plaintiffs had violated the terms of Order II,
Rule 2, in that in a previous litigation they did not ask for the relief that could then have been granted. At the very end of the arguments the Counsel
for the plaintiffs-appellants asked for permission to add the co-mortgagors. It appears that the reason why the plaintiff had not added the co-
mortgagors at the outset was that the defendants claimed accounts against these co-mortgagors and the plaintiff wished to avoid this issue. Their
Lordships also found that a remand would have necessitated a commencement of the proceedings de novo; for the contest between the defendants
and the co-mortgagors would then have had to be opened. The claim in Faqir Chand v. Aziz Ahmad was of an intricate nature and the plaintiff was
eventually unsuccessful. He then asked in appeal for permission to change his suit into one. for contribution. Had he been allowed\to do that it
would have changed the whole nature of the suit which was a complicated one. All the evidence that had been let in would have been of no avail
and fresh evidence of an entirely different kind would have been necessary. The Court, therefore, refused to allow the amendment. Their
Lordships, however, held that had there been a mere non-joinder of parties they would have remanded the suit for fresh disposal. Subbarayya
Sastri v. Seetha Ramaswami (1933) MWN 1209 : 146 Ind. Cas. 72 : 38 LW 247 : 65 MLJ 290 : AIR 1933 Mad. 664 : 6 RM 214 (2) was a
case in which the plaintiff was particularly remiss in not adding a necessary party. There had been disputes between the plaintiff and the Bezawada
Municipality, The plaintiff, in order to avoid a direct contest with the Municipality and to try to assert his right by a tortuous method, brought a'' suit
to eject a person from a strip of lane that he was claiming. The trial Court found it necessary although the Municipality was not a party, to consider
the relative claims of the plaintiff and the Municipality. Naturally the defendant was not able to put forward fully the claims of the Municipality and it
was held in this Court that the suit should not have been decreed; but should have been dismissed on account of the refusal of the plaintiff to add
the Municipality as a party. In each of these cases the Court found that the plaintiff had disentitled himself to an equitable remedy under Order I,
Rule 9, by way of amendment of plaint because of his conduct throughout the suit. In none of these cases was the plaintiff''s suit dismissed on the
purely technical ground that he had failed to amend his plaint in the lower Courts. The conduct of the plaintiff, the persistency with which he
prosecuted his wrong claim, his refusal to adopt the remedy open to him when the opportunity arose, or an injustice to the defendants, was the
reason for the refusal of the Appellate Courts to allow an amendment. In Mohana Velu Mudaliar v. Annamalai Madaliar (1923) MWN 89 : 72
Ind. Cas. 63 : 44 MLJ 249 : 17 LW 241 : AIR 1923 Mad. 337 a bench of this Court refused to allow an amendment where the plaintiff had
wrongly refused to add certain executors as parties to a suit on a will; but there the change in the position of the defendants on account of the
conduct of the plaintiff was the reason for the order. From a perusal of these cases quoted on behalf of the defendants, it cannot be said that there
is any rule of thumb by which a Court can say whether the plaintiff shall be allowed to add a party at a late stage or not. Order I. Rule 9, is still the
rule to be applied at any stage of a proceeding; and the plaintiff should only be refused that equitable relief when his conduct has been such as to
disentitle him to it. Although the cases quoted by the learned Advocate for the appellant, e.g. S.R.M.A.R. Ramanathan Chettiar Vs. Annamalai
Chettiar and Others, and Kherodamoyi Dasi Vs. Habib Shaha, , are not very much to the point, yet they do at least show that Courts will not
lightly dismiss a plaintiff''s suit unless his conduct has been such that he does not serve the consideration of the Court. If he has behaved in a fair
and straightforward manner and the adding of a party would not unduly prejudice the defendants, his suit should not be dismissed because of some
technicality. Applying these principles to this case, we have to see whether the conduct of the plaintiff has been such that he does not deserve to be
allowed the privilege that Order I, Rule ,9, gives him. It was of no importance to the defendants at all whether the mortgage was in favour of the
Tarwad or in favour of the plaintiff and Karthiyayini Amma personally. The contest in the trial Court ''seems to have turned on this point at all, the
evidence being led on the questions whether or not the suit was premature and on the value of the improvements. That being so it would be most
inequitable if the plaintiff were not granted the relief to which he is in equity entitled merely because he stated that they had taken the mortgage on
behalf of the Tarwad and not for themselves. It is pointed out that even in the lower Appellate Court the plaintiff did not ask that in the event of the
learned Subordinate Judge''s coming to the conclusion that the mortgage was not for the benefit of the Tarwad, he should permit the plaintiff to add
the sons of Karthiyayini Amma as parties: but the plaintiff could hardly do so there because the Subordinate Judge having found incorrectly on
issue No. 1 intend dismissing the suit in any event. Mr. Govinda Menon says that he holds a vakalat from Karthiyayini Amma''s heirs; but even
ignoring that, there seems to be no reason why Karthiyayini Amma''s heirs should object to being added as parties: because the plaintiff, even
without their consent, has a right to redeem.
A number of cases have been cited before me to show that a Court will not interfere in second appeal in a question of this kind. I need not
discuss the cases; for I am quite satisfied that this Court will always interfere in second appeal when a lower Court has wrongly refused to grant an
equitable relief.
The learned Advocate for the appellant denies that the suit of the plaintiff was for partial redemption. He states that the plaintiff was willing to
pay the whole of the amount due on the mortgage bond;, but did not wish to take possession of certain properties because of the high value of the
improvements to the property. I think nevertheless that he is asking for partial redemption; because the amount to be paid upon redemption is not
merely the mortgage amount but the cost of the improvements. Mr. Govinda Menon, however, admits that the plaintiff must pay for all these
improvements and states that he is willing to do so. As the suit is to be remanded in any case, I need not now go into the question whether a Court
in second appeal would ordinarily allow this remedy to the plaintiff if that were the sole dispute between the parties.
The 8th defendant has also appeared by an Advocate in this. Court and has asked that whatever orders may be passed in this appeal, his rights
as a sub-mortgagee should be preserved. If the plaintiff is successful this defendant will be entitled to the value of the improvements he has made
upon the land; and the plaintiff does not deny that this defendant possesses that right. The quantum of compensation will of course be determined
by the trial Court.
In the result the appeal is allowed and the suit remanded to the trial Court with the following directions. The plaintiff will be permitted to add the
heirs of Karthiyayini Amma as parties. If they raise no objection to a decree being passed, no further evidence on any issues raised in the suit
except that of the value of the improvements will be necessary. In the unlikely event of their resisting the plaintiff''s suit, some further issues and
evidence may be necessary. The learned District Munsif has already given findings with regard to the value of the improvements on the property
covered by the plaint. He will now permit the plaintiff to amend his plaint and ask for the redemption of all the items mortgaged. Evidence may of
course be adduced with respect to the\items not covered by the original plaint. The District Munsi f will then pass a decree in accordance with his
findings.
As the plaintiff has had to appeal not only because of his negligence in failing to add Karthiyayini Amma as a party in the lower Courts but also
because the learned Subordinate Judge gave a wrong decision against him on the question of the interpretation of Ex. A, I order all parties to bear
their own costs in the two Appellate Courts. Refund of court-fee in both Appellate Courts is allowed.
Leave to appeal refused.