Mohammed Ismail Maracair and Others vs Doraisami Mudaliar and Others

P.V. Ramachandra Iyer, J.—This is an appeal from the judgment of Chandra Reddi, J., in Appeal No. 13 of 1950, reversing the decree and

judgment of the learned Subordinate Judge, Cuddalore, in O.S. No. 19 of 1948. The plaintiffs who are the appellant here filed a suit on the foot of

a mortgage, Exhibit A-1, dated 25th February, 1933, executed by the 4th respondent in favour of one Rokia Bi. Rokia Bi died in 1937, leaving as

her heirs four sons and one daughter. One of the sons, Mahomed Sultan, was adjudicated an insolvent in I.P. No. 24 of 1933 on the file of the

Sub-Court, Cuddalore, and his estate became vested in the Official Receiver of South Arcot. The appellants who represent the interests of all the

heirs of Rokia Bi except Mahomed Sultan filed a suit to recover the mortgage debt in the Sub-Court, Cuddalore. Their claim was only in regard to

their 7/9th share in the mortgage. They valued their share of the mortgage amount at Rs. 8,750 and giving up their claim in respect of Rs. 250 filed

the suit to recover Rs. 8,500. Unfortunately they did not make either Mahomed Sultan or the Official Receiver, in whom the estate of Mahomed

Sultan vested, as party to the suit. Respondents 1 to 3 and 5 claim to have purchased the interests of the mortgagor and the other respondents

claim some interest either as alienees of portions or lessees of the hypotheca.

Respondents 1 to 3 and 5 and 6 objected to the frame of the suit in that the interest of Mahomed Sultan in the mortgage was not represented

therein. The plaintiffs thereupon filed I.A. No. 524 of 1948 to implead the Official Receiver as party defendant and to amend the plaint. That

application was ordered on 14th December, 1948, but it is admitted that on the date when the application was filed the suit had become barred in

regard to the claim of Mahomed Sultan. The contesting respondents raised several questions but the most important of them were covered by

issues 3 and 6 in the suit. They raised the question whether the plaintiffs were entitled to sue for their share of the mortgage amount alone and

whether the suit as a whole was barred by limitation, as a necessary party had been impleaded out of time.

The learned Subordinate Judge held that as the Official Receiver was brought on record the suit was not barred and that the plaintiffs could

maintain the suit for their 7/9th share. The learned Judge therefore passed a preliminary mortgage decree. Respondents 1 to 3 filed an appeal

against that decree to this Court. Chandra Reddi, J., who heard the appeal held that the omission to implead the Official Receiver as a party

defendant before the expiry of twelve years from the date fixed for redemption of the mortgage was fatal to the whole suit and, in that view, he

dismissed the suit. The plaintiffs have, therefore, filed the above appeal under Clause 15 of the Letters Patent. Mr. K. S. Desikan appearing for the

appellants contended that the appellants could maintain the suit to recover their share of the mortgage amount and that the impleading of the Official

Receiver after the period of limitation had expired in respect of the claim on the mortgage would not entail a dismissal of the suit in regard to the

appellants'' claim. He relied in this connection upon a decision of the Patna High Court in Siaram Singh and Another Vs. Jugutdeo Singh and

Others, . In that case one of the two persons entitled to the mortgage money filed a suit to recover his share. The learned Judges held that a decree

could be passed for the amount claimed in the absence of the other person interested in the mortgage money. They considered the question only

from two points of view, namely, Order 1, rule, 9, Civil Procedure Code, and the hardship to the mortgagor. On the first question they held that as

the controversy in the case was only in regard to the actual amount claimed, namely the share of the plaintiff and as the other mortgagee was not

interested in the result of the suit, the omission to implead him would not entail the dismissal of the suit, as Order 1, Rule 9, Civil Procedure Code,

enables the Court to determine the rights of the parties actually before the Court, leaving the rights and interests of others unaffected. They held that

the mortgagor would not be affected by the suit as the claim of the other mortgagee was barred by the time the suit came up for hearing and that,

therefore, there would be no case of a second suit being filed. We are unable to agree with the learned Judges who decided this case. It is well

settled that a mortgage is one and indivisible in regard to the amount and security. In Huthasanan Nambudri v. Parameswaran Nambudri ILR

(1898) Mad. 209 , Subramania Iyer, J., observed as follows:

The pleader for the respondent urged strongly that the rule entitling a person to redeem the whole in circumstances like the present is opposed to

principle in as much as a mortgagee, for whose benefit the rule that a mortgage is indivisible has been introduced, may waive it. But a mortgage for

an entire sum is from its very purpose indivisible; a division of such a mortgage, borrowing the language of a text writer, is conceivable in theory

and may be carried out in practice. But in order that a mortgage may fully attain its end of securing satisfaction of the entire obligation in the rank

and with the efficacy which the law or the will of the parties determined, it is essential that it should not suffer any disintegration.

This character of indivisibility exists not only with reference to the mortgagee, who may generally be more benefited thereby, but also with

reference to the mortgagor. And save as a matter of special arrangement and bargain entered into between of all the persons interested, neither the

mortgagor nor the mortgagee, nor persons acquiring through either a partial interest in the subject, can, under the mortgage, get relief except in

consonance with the principle of indivisibility referred to.

It is not open to some of the mortgagees to split up the debt without the concurrence of the other mortgagees and the mortgagor. In Peer Ammal

and Another Vs. Nalluswami Pillai and Others, , Varadachariar, J., referred to the distinction between the case of a puisne mortgagee and a co-

mortgagee and pointed out that while it was open to a puisne mortgagee to bring the hypotheca to sale subject to a prior mortgage, a co-

mortgagee cannot sell it subject to the other co-mortgagee''s right. The learned Judge observed:

Further, if it becomes necessary to sell the whole or anything in excess of a proportionate part of the hypotheca to realise even the amount due to

the plaintiff-co-mortgagee, it will be neither fair nor consistent with the policy of the law to allow the plaintiff to appropriate the proceeds wholly in

satisfaction of his claim. Justice can be done between all the parties concerned only by providing in the decree for the distribution of the sale

proceeds amongst the co-mortgagees.

The learned Judge, therefore, was of opinion that a mortgage was a single cause of action. In 24 CWN 297 (Privy Council) it was a case of a

single mortgage executed in respect of the same property to secure two sums of money respectively payable to two mortgagees. The Privy Council

held that the mortgage clearly effected a conveyance of the real estate to the mortgagees as tenants is common and that it was not a mortgage to

each of a divided half but a conveyance to them of the whole property. At page 179, Lord Buckmaster observed:

Where a mortgage is made by one mortgagor to two tenants in common, the right of either mortgagee who desires to realise the mortgaged

property and obtain payment of the debt if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the

suit and to ask for the proper mortgage decree which would provide for all the necessary accounts and payments, excepting that there could be no

judgment for a sum of money entered as between the mortgagee defendant and the mortgagor.

In Adiveppa v. Rachappa ILR (1948) Bom. 158, one of the heirs of a mortgagee filed a suit to recover the whole of the mortgage debt by sale of

the secured properties without joining the other co-sharers in the mortgage either as plaintiffs or as defendants.

They were added subsequently at a time when the claim in respect of the mortgage had become barred by limitation. The learned Judges held

that the suit should be deemed to have been instituted only when all the co-sharers, mortgagees, were impleaded and as by that time the period of

limitation had expired, the suit failed. The basis of this decision was that all the mortgagees were to be represented in the suit not merely by virtue

of the procedural law, Order 34, Rule 1, Civil Procedure Code, but by reason of substantive law and the contract between the parties which

rendered the mortgage indivisible. It was held that Order 1, Rule 9, Civil Procedure Code, cannot be applied to save such a suit as it is not the

right of any co-sharer mortgagee to obtain a decree with respect to his aliquot share of the mortgage money. The principle therefore is that there is

indivisibility of the mortgage both in regard to the debt as well as in regard to the security and that no suit can be filed to enforce a mortgage which

entails the disintegration of either of them. In the present case there is a further factor to be taken into account. The mortgagees are not joint

promisees. The mortgage was originally executed in favour of a single individual, namely, Rokia Bi. The persons claiming the mortgage right are the

several heirs of that lady who jointly get that right on her death by devolution under the law. That was an indivisible right which the mortgagee,

Rokia Bi, had as the sole mortgagee. Therefore the right of this original mortgagee will be represented by all the co-sharers jointly. Even though

they were co-owners under the Mahomadan Law, some of them alone cannot represent others and the absence of anyone of them from the array

of parties in the suit would render the representation of the mortgagee''s right defective.

The principle of the singleness of debt has been accepted in a number of decisions of this and other High Courts. In Kailasa Iyer v. Sundaram

Pattar (1941) 3 M.L.J. 986 : ILR (1942) Mad.438, the question arose as to whether a co-mortgagee can sue for his share of the debt and if so

what was the amount of Court-fee that he had to pay. The learned Judges held that one of several co-mortgagees who are in the position of

tenants in common could sue to recover his share of the mortgage amount, provided that he made his co-mortgagees defendants if they refused to

join him as plaintiffs and he sued for the entire mortgage debt by paying the proper Court-fee thereon. The learned Judges referred to the various

cases and held that a decree should be passed in respect of the entire debt and that the plaintiff could not get his share until the mortgagor had paid

into Court what he owed under the mortgage or the mortgaged property had been sold under the preliminary decree. The primary claim must

therefore be for the enforcement of payment of the entire mortgage debt and, if that were realised, the plaintiff would be paid his share. To the

same effect is the decision of the Calcutta High Court in Mati Lal Datta v. Bejav Lal Chakrabarti ILR (1943) Cal. 59, where it was held that a co-

mortgagee whose share in the mortgage-money is defined or is otherwise ascertainable could maintain a mortgage suit for the share of his dues only

if the other co-mortgagees are made defendants in the suit and if in such a suit there was a prayer for taking accounts of the total dues under the

mortgage, and for the sale of the whole of mortgaged premises for such dues. On the question of amount of Court-fees to be paid for such a suit,

the learned Judges expressed a different view.

We have referred to the decision in Adiveppa v. Rachappa ILR (1948) Bom. 158, where it was held that a suit filed at the instance of some of

the co-mortgagees without impleading the rest was defective and could not be held to be legally laid. Rameshwar Bux Singh and Others Vs. Ganga

Bux Singh and Others, , followed the Bombay Full Bench decision in Advieppa v. Rachappa ILR (1948) Bom. 158. In Gopalaswami Ayyar Vs.

Nataraja Chettiar and Others, , the question arose in a different form. Two of the three mortgagees filed a suit on the foot of the mortgage for

recovery of the whole amount, impleading the third mortgagee as one of the defendants. The Court, however, passed a decree only for two thirds

share of the amount due to the plaintiffs and directed the other mortgagee to recover his one third share in a separate suit. The mortgaged

properties were not sold through Court but were sold privately to the appellant who paid off the decree debt. In a suit by the other mortgagee to

recover his share of the mortgage amount, it was held that by reason of the previous decision expressly reserving the right of the defendant

mortgagee to proceed with the mortgaged properties, the claim was maintainable. The learned Judges considered the cases on the subject and held

that the former decree proceeded upon a defective basis but that in the circumstances of the case the defendant mortgagee''s rights were left

unaffected. In a recent unreported decision by one of us in S.A. No. 1919 of 1949, it was held that a decree could not be passed for part of the

mortgage debt. As pointed out by the learned Judges who decided Gopalaswami Ayyar Vs. Nataraja Chettiar and Others, , the law as to how a

suit by one of the several co-mortgagees is to be framed is fairly clear. The suit should be for the entire debt and all the mortgagees should be

made parties to the suit. This is based not merely on the principle underlying Order 34, Rule 1, Civil Procedure Code, and the principle that the

mortgagor should not be harassed by several litigations in respect of the same mortgage, but on the substantive principle of the mortgage law, that

the debt as well as the security of the mortgage is indivisible. Normally all the mortgagees should join but, if some of them refuse to join, they

should be included as defendants. Such mortgagee defendants are not pro forma parties but are necessary parties in that the mortgage right vests in

them along with the plaintiffs mortgagees. The omission therefore to implead them within the time when the mortgage remains enforceable would

result in the dismissal of the suit as the plaintiffs would not completely represent the mortgagees interests. The learned Judges of the Patna High

Court in Siaram Singh and Another Vs. Jugutdeo Singh and Others, , considered the case only from the point of procedural law and of the

hardship to the mortgagor. We find that the attention of the learned Judges was not invited to the substantive law regarding the indivisibility of the

mortgage. Both on principle and on authority the decision in that case appears to us to require reconsideration. In this connection it is necessary to

point out that an omission to implead all the mortgagees either as plaintiffs or as defendants is different from a case where all the persons interested

in the equity of redemption are not impleaded as parties. In such a case the omission to implead some of the persons interested in the equity of

redemption will not entail the dismissal of the suit as the rights of the parties who are before the Court can be adjudicated leaving the rights of

others not made parties to the action unaffected. Vide M.N. Nagendran Chettiar Vs. Lakshmi Ammal, .

We, therefore, agree with Chandra Reddi, J., that the suit as laid was incompetent and that having regard to the provisions of Section 22 of the

Limitation Act, the addition of the Official Receiver after the period of limitation had expired would not render the suit competent on the date on

which it was filed.

The result is that the appeal fails and is dismissed.