Ramasamayyan and Others vs Virasami Ayyar

Shephard, J.—The parties to this appeal are, on the one hand, the infant son of a judgment-debtor named Ramayyan, and on the other the

judgment creditors of the same person who, in execution of their decree, purchased the property previously held by them under an hypothecation.

The District Munsif dismissed the suit, without hearing any evidence, on the ground that the plaint disclosed no cause of action. The District Judge

on appeal reversed this decree and granted a decree in the plaintiff''s favour, holding that the plaintiff''s original interest in the property had been in

no way affected by the sale thereof, because the plaintiff had not been joined with his father and brother in the suit which led up to the sale. The

District Judge bases his judgment on the ruling of the Full Bench of the Allahabad High Court in Bhawani Prasad v. Kallu ILR 17 All. 537. In that

case the plaint was similar to the plaint now before us in that it did not allege that the debt incurred by the father was incurred for immoral or

impious purposes. The plaintiff there relied, as the plaintiff-respondent does here, on the fact that he was no party to the mortgage decree obtained

against his father. The judgment of the majority of the Court in that case, like the argument in the present case, proceeded entirely upon the ground

that the law has been altered by the enactment of Section 85 of the Transfer of Property Act, which directs that "" all persons having an interest in

the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage. Provided that the plaintiff

has notice of such interest."" Independently of the statute, the position of a purchaser, who in a sale in execution of a decree against the father

bought the entirety of the estate, is the same as regards the son, whether the decree was a mortgage decree or a decree for money In either case

all that the son can claim is that, not having been a party to the sale or the proceedings which led up to it, he should have an opportunity of showing

that there was in reality no such debt as to justify the sale Mussamut Nanomi Babuasin v. Modun Mohun L.R. 13 IndAp 1 Kunhali Beari v.

Ke.shava Shanbaga ILR 11 Mad. 64 .

The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such

sale by the intervention of a suit. It is not necessary that the son shall be called in whether the sale is voluntary or procured by a proceeding in

invitum, and there is no object in joining him except to preclude him from afterwards questioning the nature of the debt. According to the decision

in Bhawani Prasad v. Kallu ILR 17 All. 537 a distinction must be made between a voluntary and an enforced sale, when such sale is the

consequence of a mortgage suit; and in this latter case it must be held that no interest passes except that of those who are made parties to the suit,

and this distinction is insisted upon because the Legislature has enacted as a written rule of law what was previously a well-recognized rule of

procedure. Having regard to the theory above stated I cannot think that this effect should be given to the Section. The Section is certainly

imperative in its terms. Expressed in any other mood it would be vain. But a sanction is not wanting, for inconvenient consequences may follow on

a neglect of the law. The mortgagee who omits to join persons interested in the property may have his suit dismissed or, if he obtains a decree, may

find notwithstanding that he has to institute or defend another suit. Nevertheless as against the Hindu father the decree which is passed in the

absence of his sons is a good and valid decree. The creditor, although he may have failed to obey the rule contained in the Section, has got the

decree which he requires as a foundation for his application to sell the whole estate. In the Allahabad Court this proposition would be denied. In

effect it must be said that the decree though valid against the father, has, since the Act was passed, lost the peculiar quality which it previously

possessed. It can no longer be made the means of compelling the father to sell the estate. This seems to me a conclusion which is wholly

unwarranted by the terms of the Section. I agree with Mr. Justice BANERJI in the reasons which he has given for dissenting from the rest of the

Court. In addition I would only refer to the proviso appended to the Section. The effect of the proviso is that, unless the mortgagee has notice of

the existence of the son, he is not affected by the Section, and therefore presumably the decree which he obtains and the subsequent proceedings

therein are not vitiated by the omission to join the son. It follows that the extent of the interest obtained by the purchaser may depend on the

knowledge or want of knowledge of the mortgagee at the time of the institution of the suit.

I think we ought to be slow to adopt a construction which would lead to this anomaly as well as the other anomalies dwelt upon by Mr. Justice

BANERJI.

For these reasons I would reverse the decree of the District Judge, but inasmuch as the plaint in effect alleges that there really was no debt

owing by the father I think the respondent is entitled to have that question tried. It is argued on behalf of the appellant that the only question which

the son of a Hindu debtor can raise is as to the nature of the debt, and that he cannot question the existence of a debt which forms the foundation

of a decree against his father. According to this contention it would be open to the father by confessing judgment to procure by indirect means the

sale of the entire estate when he could not lawfully alienate it by a voluntary conveyance. The limitation which is imposed by Hindu law on the

father''s power of alienation would become illusory.

But this is clearly not the law. Whether the sale is a voluntary or an enforced sale, its validity depends upon the existence of a just debt in

satisfaction of which the sale is effected. If authority is needed the dictum in Mussamut Nanomi Babuasin v. Modun Mohun L.R. 13 IndAp 1 may

be cited as showing that the son may question alike the existence and the nature of the debt in consequence of which the sale has taken place.

The decrees of both Courts must be reversed and the suit must be remanded for re-trial by the District Munsif. It must be understood that no

questions have been decided in this appeal save those two questions which arise upon the allegations made in the plaint. The respondents must pay

the costs of this appeal. Other costs will be provided for in the revised decree.

Davies, J.

I agree to the reversal of the Lower Appellate Court''s decree, because there was no allegation in the plaint and nothing to show that the

mortgagees who brought the suit wherein the sale was decreed had notice of the plaintiff''s interest. Their omission therefore to make the plaintiff

also a, party to that suit did not ipso facto entitle the plaintiff to a decree, for in the Allahabad case the ruling in which the Judge has followed, and

with which I cannot say that I disagree, the fact was there had been such notice. I also agree to the reversal of the decree of the Court of First

Instance and to the order of remand which my learned colleague has directed in the case, because there can be no doubt that the plaintiff''s suit lies

to show, as is alleged in the plaint, that there was no consideration for the mortgage or, in other words, the non-existence of the debt by which it is

sought to bind the plaintiff''s share in the family property.