Raghunandan Singh and Others vs Parmeshwar Dayal Singh

Chapman, J.—This appeal arises out of a suit for redemption of a mortgage executed by the plaintiff''s father. The father is alive and was made a defendant in the case. The mortgage-bond was executed in 1895, when the plaintiff was nine months old. The mortgagees sued upon the bond in 1898, obtained a decree ex parte and purchased the mortgaged property at the sale on the 11th January 1900. The plaintiff, the son of the executant of the bond, was not made a party to those proceedings. The original Court held that the property was mortgaged in security for a loan which was of pressing necessity for the plaintiff''s family and was not contracted for any immoral purpose, but that the mortgagees had notice of the plaintiff''s interest in the property at the time when they instituted their suit; that, therefore, the plaintiff was a necessary party to the mortgage suit and that the plaintiff was entitled to redeem.

In appeal the learned District Judge has not held that the mortgagees had actual notice of the plaintiff''s interest, but that they must be held to have had notice on the ground that if they had made the necessary enquiries, they would have learnt of the plaintiff''s interest. The learned District Judge relied on the cases of Lata Suraj Prosad v. Golab Chand 28 C. 517 ; 5 C.W.N.640 and Bal Kishan Lal v. Topeswar Singh 14 Ind. Cas. 846 ; 15 C.L.J. 446 ; 17 C.W.N. 219 and held that as the plaintiff had not been made a party to the mortgage suit, he was entitled to maintain his suit for redemption.

The representatives of the mortgagees now appeal to this Court. The mortgage-bond executed by the plaintiff''s father in 1894 recites that a sum of Rs. 860 is required for the purposes of paying Government revenue, which should have been paid by certain zarpeshgidars who were in possession of family property leased to them during the minority of the plaintiff''s father. The learned Subordinate Judge says in his judgment that the property thus saved from sale for arrears of revenue was a big estate, part of the ancestral property of the family and yielding an income of Rs. 7,000. The bond recites that a further sum of Rs. 234 was required for necessary expenses and for the expenses of the execution of the debt. The family, it is found, at that time consisted only of the executant of the bond and his infant son, the present plaintiff, who was then only nine months old. There can be no doubt that the plaintiff''s father had the power to execute the bond and to pledge the entire property, including the interest of his infant son, for the purpose of saving the ancestral estate, and the bond actually purported to hypothecate the entire property and not merely the father''s interest therein. The plaint in the present suit also recites that the entire property was in fact mortgaged, vide paragraph 4 of the plaint. It may be taken, therefore, that what purported to be sold in execution of the mortgage-decree was the entire property, and not merely the interest of the plaintiff''s father. The plaintiff''s case is that although the entire property purported to be sold, yet as he was not a party to the mortgage suit and as he was a minor, he is not bound by the mortgage decree or the execution and sale proceedings and that he is, therefore, entitled now to redeem. His case is not that his interest did not purport to pass at the sale and he does not ask for a declaration that his father exceeded his powers as manager in executing the mortgage-bond.

The cases upon which the learned District Judge has relied can no longer be regarded as of authority after the decision of the Judicial Committee in the case of Sheo Shankar Ram v. Jaddo Kunwar 24 Ind. Cas. 504 ; 36 A. 383 ; 18 C.W.N. 968 ; 16 M.L.T. 175 ; (1914) M.W.N. 593 ; 1 L.W.695 ; 20 C.L.J. 282 ; 12 A.L.J. 1173 ; 16 B L.R. 810 ; 41 I.A. 216 (P.C.). In that case their Lordships say: "There seems to no doubt upon the Indian decisions (from which their Lordships see no reason to dissent) that there are occasions, including foreclosure actions, when the managers of a joint Hindu family so effectively represent all other members of the family that the family as a whole is bound." At the time when the present mortgage transaction was entered into the plaintiff''s father obviously had the control of the entire family concerns, the plaintiff being at the time an infant of only nine months old. In entering into the transactions the plaintiff''s father acted entirely in the interests of the family and when the mortgage suit was brought, the plaintiff was only five years old. There is some evidence that the plaintiff''s father led a dissolute life, but there can be no doubt that ho represented the family in transactions with strangers and in this particular transaction he acted in the family interest. In the case of Durgadut Singh v. Maharaja Sir Rameshwar Singh 4 Ind. Cas. 2 ; 36 C. 943 ; 13 C.W.N. 1013 ; 6 M.L.T. 68 ; 11 Bom. L.R. 901 ; 6 A.L.J. 847 ; 10 C.L.J. 233 ; 19 M.L.J. 567 ; 36 I.A. 176 (P.C.). Lord Atkinson in delivering the judgment of the Privy Council cites with approval the following passage from Mayne''s Hindu Law, 7th edition, page 415:

In cases governed by the Mitakshara Law a father may sell or mortgage not only his own share but his son''s shares in family property in order to satisfy an antecedent debt of his own, not being of an illegal or immoral character, and such a transaction may be enforced against his sons by a suit and by proceedings in execution to which they are no parties.

This was accepted by the Privy Council as a correct statement of the result of the authorities on this subject. The only new point in the present case arises out of the terms of Order XXXIV, Rule 1, of the CPC to the effect that a mortgagee is bound to make all persons interested in the mortgaged property parties to the mortgage suit. Assuming that the mortgagees had notice in this present case, although the findings that they had notice are open to considerable criticisms, I hold that the result is the same.

Lord Davey in the case of Khiarajmal v. Daim 32 C. 296 ; 1 C.L.J. 584 ; 32 I.A. 23 ; 8 S P.C.J. 734 ; 9 C.W.N. 201 ; 2 A.L.J, 71 ; 7 Bom. L.R. 1 (P.C.) at page 314 said:

The Indian Courts have properly exercised a wide discretion in allowing the estate of a deceased debtor to be represented by one member of the family, and in refusing to disturb judicial sales on the mere ground that some members of the family who were minors were not made parties to the proceedings, if it appears that there was a debt justly due from the deceased and no prejudice is shown to the absent minor. But these are usually cases where the person named as defendant is de facto manager of a Hindu family property, or has the assets out of which the decree is to be satisfied under his control.

There is no suggestion in the present suit that the minor was prejudiced. It is not suggested that he could have redeemed if he had been made a party. The plaintiff''s father was de facto the manager and he had the assets in his control out of which the mortgage-debt was to be satisfied. Can it be said that the principle thus approved by Lord Davey is not applicable in a case where the plaintiff has notice of the minor''s interest? Surely it cannot. There is a decision of the Calcutta High Court to the contrary in the case of Lata Suraj Prosad v. Golab Chand 28 C. 517 ; 5 C.W.N.640. In that case it was decided that if the mortgagee has notice of the interest of a minor son and does not make the minor son a party to the suit upon his mortgage, the son may subsequently sue for redemption. The decision is based upon the terms of Section 437 of the old Code of Civil Procedure, which provided for suits concerning property vested in a trustee, executor or administrator. The Judges held that the old Section 437 indicated in very clear terms who are to be regarded as representative persons for the purposes of suits under the Code of Civil Procedure. The judgment suggests that for the purposes of suits no person who is not a party can be represented by any other person who is not a trustee, executor or administrator within the meaning of the old Section 437. That is not, however, the way in which I read that section or the provisions which have been substituted for it in the present Order XXXI of the First Schedule. These provisions do no purport to have been enacted for the purposes of enumerating the cases in which suits may be brought by or against persons in a representative character; they merely provide a mode of disposing of suits concerning property vested in trustees, executors or administrators. There is no provision in the CPC which attempts to enumerate the cases in which one person may represent another for the purposes of litigation. It has frequently been held that the Code is not exhaustive, and that where a particular point has not been specifically dealt with by the Code, the question must be determined upon general principles. As I have said, the limits within which one person may represent another for the purposes of litigation have not been specifically dealt with by the Code of Civil Procedure. The question in each case, therefore, must be decided upon general principles. Now as I have above pointed out, it has frequently been held by the Privy Council that in cases such as the present a minor son can be represented by the father. Can it make any difference if the plaintiff has notice of the minor son''s existence. Surely not, unless there is some reason to suppose that the minor son has been intentionally omitted from the suit for the purposes of defeating his right to redeem. Where, as in the present case, there is no such suggestion, it was, in my opinion, a sufficient compliance with the terms of Order XXXIV, Rule 1, of the CPC to make the father a party; the son was made a party through him; the father represented him for the purposes of the suit. I would accordingly hold that the suit for redemption should have been dismissed and I would allow the appeal and direct that the suit be dismissed with costs in all Courts.

Let the record be returned at once so that the money deposited for the purpose of the redemption may be withdrawn.

Roe, J.

I wish only to say that the only possible point of view in cases in which junior members of a joint family assert that they were not on the record in the suit upon the mortgage is the point of view from which the case of Daulat Ram [Daulat Ram v. Mehr Chand 15 C. 70 ; 14 L.A. 187 ; 11 Ind. Jur. 435 ; 5 S. P.C.J. 84 ; 1 P.B. 1888 ; 7 Ind. Dec. 632 (P.C.)] was approached. Order XXXIV, Rule 1, of the CPC (Section 85 of the Transfer of Property Act) directs that in a mortgage suit all persons having an interest in the mortgage security or the equity of redemption must be on the record in the suit upon the mortgage. If the mortgage was a family transaction, the whole family is on the record through the head of the family. All that the junior members can claim is that they ought not to be barred from trying in a suit of their own the fact or the nature or the transaction [Nanomi Babuasin v. Modhun Mohun 13 C. 21 ; 13 I.A. 1 ; 10 Ind. Jur. 151 ; 4 Sar. P.C.J. 632 ; 6 Ind. Dec. 510 applied in Daulat Ram v. Mehr Chand 15 C. 70 ; 14 L.A. 187 ; 11 Ind. Jur. 435 ; 5 Sar. P.C.J. 84 ; 1 P.B. 1888 ; 7 Ind. Dec. (N.S.) 632 (P.C.)]. I agree that the appeal be allowed and the suit dismissed with costs in all Courts.