Sidbasappa (deceased) and L.R. Gurbasappa vs Vankat and Others

Kumarayya, J.—This appeal and the appeal No. 51/2 of 1951, arise out of a common judgment which disposes of two separate suits brought by the Plaintiffs, Venkat and Pandurang - sons of Keshav Rao, on 5th Farwardi 1353F., and 8th Khurdad, 1356F., respectively in Ganjuti Court relating to lands bearing survey Nos. 41 and 42 in the same right but on two different causes of action.

Briefly stated, the facts are: Keshav, the father of Plaintiffs had mortgaged the suit property with a stipulation of conditional sale for a consideration of Rs. 600/- which were to be repaid within a period of five years. The mortgagee, who was entitled to enjoy the income of the property during this term in lieu of interest had leased the said lands to one Kaduji for a period of five years. Kaduji after the expiry of the said period did not return possession to the mortgagee, but gave it to the mortgagor instead even though the latter had not repaid the mortgage amount.

Sidbasappa, the mortgagee, therefore, brought a suit for foreclosure against Keshav and his two sons, Ramchander and Ambadas, who were minors then. A compromise in the said suit fixed the amount due at Rs. 1,500/- and provided that the Defendants will pay the same in twelve annual instalments. In case the Defendants failed to pay any two instalments the said lands were agreed to be handed over to Sidbasappa, who, in that case would be entitled not only , to ownership in the lands but to their patta as well. This compromise was duly recorded and the decree followed in terms of the same.

It appears, not a single payment was made as agreed, with the result that Sidbasappa started proceedings for final decree in the year 1345F. Keshav and his two sons in response applied for further instalments under the provisions of Section 11, Money-Lenders'' Act. Consequently, seven insatalments were granted but the judgment-debtors made defaults as ever. The decree-holder applied for final decree once again in the year 1347 P. As before a petition u/s 11, Moneylenders'' Act was filed by the judgment-debtors, but this time it was rejected and the decree was made final on 15th Bahman 1348F. This order was eventually confirmed in. appeal by the High Court on 30-12-1352F.

Plaintiffs, Venkat and Pandurang were born during the proceedings before the final decree was passed. But the decree-holder did not take steps to bring them on record in the said proceedings. They, after the decree was confirmed by the High Court, brought a suit for declaration that their right and interest in the suit lands remains unaffected by the final decree as they were not joined as parties to the suit in compliance with the mandatory provisions of Section 490, Hyderabad CPC corresponding to Order 34 Rule 1, Code of Civil Procedure.

In this suit apart from the plea that as coparceners they have an indefeasible right of redemption in the mortgage property, their contention has been that even under the provisions of the Prevention of Agricultural Land Alienation Act their lands could not by a decree thus pass into the hands of the Defendant.

This suit was still pending, Sidbasappa obtained possession of the suit lands in execution of his decree and the claim petition of Plaintiffs filed in the said execution proceeding after due enquiry was rejected. Aggrieved by the said order, Plaintiffs filed within the period of limitation another suit as contemplated by Order 21 Rule 103, CPC to establish their right to the present possession of the property.

In both these suits, Sidbasappa, the mortgagee denied the right of Plaintiffs. His first contention was that since the Plaintiffs were not in existence at the time of transfer or when the decree was obtained, they can claim no right in the property or question the propriety of the suit proceedings.

A second contention is that even assuming that they were born during the proceedings as the suit related to the entire interest in the mortgaged property and not confined only to the share of the father or his sons, the suit against the father must be deemed to be in a representative character and the sons were bound by the decision in the said suit, even though they had not been impleaded as a party to the suit.

The Court of first instance dismissed the suit of the Plaintiffs on the ground that they had no right to sue. But the Court of first appeal having found that Plaintiffs were born before final decree was passed came to the conclusion that they were necessary party to the proceedings in the final decree: that failure to implead them under the mandatory provisions of Section 490, Hyderabad P.C. is fatal and that the decree obtained therefore will not be binding on them and thus decreed the claim of the Plaintiffs to the extent of their share as coparceners.

Sidbasappa died during the pendency of this second appeal and Gurbasappa, one of his sons has been brought on record as being the person, who got the suit property to this share in the family partition.

Two questions arise in this appeal one of fact and the other of law. The question of fact relates to the date on which the Plaintiffs came into existence and the question of law is, notwithstanding that the Plaintiffs were not made party Defendants, are they bound by the foreclosure decree against their father and brothers?

On the evidence adduced by the parties there can be hardly any doubt that both the Plaintiffs were born before the final decree was passed in the year 1348F., against their father and brothers. Sidbasappa himself in his sworn testimony in clear terms admitted that Venkat, Plaintiff 1 was about 14 or 15 years old in the year 1357F., and Pandurang, Plaintiff 2, was about 10 or 12. The other evidence on record points to the same fact that the Plaintiffs were born after the preliminary decree but before the final decree was passed, and the Courts below, have come to the same conclusion.

So then, the next question is whether these Plaintiffs were necessary parties to the suit and what is the effect of their non-joinder. The law on the subject is laid down in Order 34 Rule 1, CPC in the following words:

Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the right) of redemption shall be joined as parties to any suit relating to the mortgage.

EXPLANATION: A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit and a prior mortgagee need not be joined in the suit to redeem a subsequent mortgage.

That the suit property was the ancestral property of the Plaintiffs seems to be almost an admitted fact. The very fact that the Defendant, Sidbasappa, in his action for foreclosure impleaded Keshav''s minor sons as well who were in existence then, is a clear proof of the same. The property being ancestral the Plaintiffs acquire right therein toy birth and therefore, were interested in the right of redemption of mortgaged property.

In as much as the proceedings for final decree are the continuation of the suit proceedings, it cannot be disputed that having regard to the clear words of Order 34 Rule 1, CPC they must be joined as parties to the suit. That being the law, the question for consideration is whether the Plaintiffs though not on record are substantially and effectively represented by their father. If it be found that they were not thus represented there can be no doubted that their action must succeed.

It is necessary to note in this connection that the Plaintiffs through their suit do not seek to avoid the mortgage made by their father on the ground that the mortgage transaction was void or that the debt was obtained for illegal and immoral purposes by their father.

The Plaintiffs, as a matter of fact, do not impeach the mortgage transaction at all. They do not even allege that their father or brothers are guilty of fraud or collusion in the former proceedings. They only seek to have an opportunity to redeem the property and challenge the order of foreclosure under the provisions of Prevention of Land Alienation Act.

Indubitably, these were not the pleas which their father or brothers were precluded in any way from advancing in the previous suit. It cannot be said on that account that in such cases, the Plaintiffs could not be represented by their father. It is clear from the record that even after the preliminary decree was passed, the father and the sons who were parties to the suit raised their pleas to seek all facilities for payment of debt due under the mortgage transaction.

Instalments were granted to them, but they were unable to make payment and redeem the mortgage property. Needless to say the sons would have fared no better even if they were actually joined in the suit. It was impossible for them to redeem when their father, who was the de facto manager and had all the assets of the family under his control could not pay off the debt even in instalments.

Obviously enough, the father had sought all the remedies open to him upto the High Court. Thus the inclusion of the Plaintiffs as party for the same purpose would have made little difference in the result of the case. It follows that no prejudice has in fact, been done to them on account of their non-inclusion as a party. In such circumstances they will be deemed to have been substantially and effectively represented by their father and are bound by the result of the case.

13a. According to the principle of Hindu Law where the manager of a joint family having power enters into a transaction in his own name or on behalf of the family whether it be a contract or a mortgage or a sale, he may sue or be sued alone in respect of that transaction. This proposition is based upon the decisions of the Judicial Committee and also represents the settled view of almost all the High Courts of India.

In order to bind the persons not party to the previous suit it is always essential that the suit should be virtually in a representative capacity. The test for this is found in Daulat Ram v. Mehrchand 14 Ind App 187 (PC) (A), where their Lordships pointed out that if the mortgage extends to the entire, interest of the family and not to the share of any particular member and if in the plaint the mortgagee claims to recover the debt owed by the family as joint members of the ancestral trading firm hot from any individual mortgagor but out of the mortgage property although manager alone may be impleaded he effectively represents all the members who on this account become bound by the decree.

In Kishen Pershad v. Harnarain Singh 33 All 272 (B) where the original Plaintiffs were the managing members of a joint family business with full powers to make contracts, compromise or give discharge or to do everything to carry on business or maintain suits, their Lordships observed that the suit filed by such managers without joining the other members of the family as members within time was a suit properly constituted as the other members are not necessary parties to the suit.

In an Allahabad case Jadoo Kuar v. Sheo Shanker Ram 33 All 71 (C) Hariram and Dhondiram, the managers of the joint family were made parties to the foreclosure actions by Mt. Jadoo Kunwar. The managers did not make any attempt to avail themselves of the right to redeem with the result that the absolute order was pronounced against them. The Allahabad High Court held that the joint family was effectively represented in the suit and since substantial justice has been done merely because every existing member of the family was not formally a party to the suit, execution proceedings cannot be set aside.

In appeal in Sheo Shankar Ram v. Jaddo Kunwar AIR1914 PC 133 ( v. 1)(D) their Lordships of the Privy Council affirmed the decision of the Allahabad High Court and observed that there are occasions including the foreclosure actions when the manager of the joint Hindu family so effectively represents all other members of the family that the family as a whole is bound. The justification and. the extent of application of the theory of representation find their full exposition In the case of AIR 1927 56 (Privy Council) (E), where their Lordships observed:

In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again and each infant to wait till he comes of age and then bring an action, or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to Explanation 6 of Section 11 of the CPC to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors.

It, therefore, follows that a decree passed against the father or manager or the leading member of the joint Hindu family unless it is vitiated by fraud or collusion or tainted otherwise or unless it is established by the son that his interests were not properly safeguarded or that in the facts of the case he could not be represented by the party to the decree operates as res judicata against all other members of the family.

It is so even though such other members of the family were not actually parties to the previous suit to be governed by the specific words of Section 11 CPC for as observed by their Lordships in Ramachandra Rao v. Ramachandra Rao (AIR 1922 PC 80 v. 9) (F):

the principle which prevents the same case being twice litigated is of general application and is not limited by specific words of the Code in this respect.

What was observed by their Lordships of the Judicial Committee in the above cases has become the settled view of almost all the High Courts of India. In a full Bench case Thakur Din and Another Vs. Sita Ram and Another, the Allahabad High Court held that a decree obtained against a father or Karta of the joint Hindu family must be binding on the sons and the father must be held to have represented not only his own interest but also of other members of the joint family. In a Full Bench Madras case Venkata Narayana Rao v. Venkata Somaraju (AIR 1937 Mad 610 v. 24)(H) his Lordship Venkataramana Rao J. in his separate but concurrent judgment observed:

Where a decree has been obtained against the manager as representative of the joint Hindu family liabilities it will be binding on his undivided brothers - and the fact that they are not parties eo nomine will not any the less render them parties to the suit.

The same view was followed in Kandukuri Papamma Vs. Kandukuri Narayana and Others, and Abbakka Shedthi v. Palli Vittai Hegda (AIR 1948 Mad 129 v. 35)(J). The Patna High Court in Raghunandan Prasad Singh and Another Vs. Ghananand Singh, held that when certain minor sons were completely represented by their father, the mere fact that one such son was not made party to the mortgage action does not entitled him to avoid the i judicial sale of the property on that ground.

In Ram Ajodhya Tewari Vs. Firangi Tewari and Others, it was held that when two major brothers were made party but not the minor brother to the mortgage action, the minor nevertheless will be deemed to have been properly represented because one of the major Brothers must be the karta of the joint family and having been made a party can represent the minor.

The same is the view of the Assam, Joy Govinda Prasad Shaw v. Dwarika Prosad Shaw (AIR 1950 Gau 12 v. 37)(M) and Mysore, Channasavegowda v. Rangegowda AIR 1951 Mys 38 ( v. 38)(N) High Courts in regard to mortgage suits as well. While these Courts on the basis of theory of representation are of the view that even a mortage suit brought by or against the manager of the Hindu family without impleading the other members of the family does not fail on account of non-joinder, the Calcutta High Court dissents from the view. It is to the dissentient view that the Respondent clings to.

The learned advocate strenuously urged that having regard to the specific words of Order 34 Rule 1, CPC the view taken by the Calcutta High Court in Suraj Prosad v. Golab Chand 28 Cal 517(O) must be acceptable and since the proviso to Section 85, T.P. Act has not been included in Order 34, Rule 1, CPC it can no longer be a valid defence that the Plaintiff had no notice of the newly born son who ought to have been impleaded as a party. But we are inclined to feel that the other view which takes into consideration the doctrine of representation is indeed a better view which in the interests of justice must be followed.

Procedure is after all a mere machinery and its object is to facilitate and not to obstruct the administration of justice. The object of the rule being avoidance of multiplicity of suits, it is obvious that what the rule in fact requires is that all persons whose interests are to be affected by the suit should be sufficiently and substantially represented.

Merely because a mortgagee fails to implead an infant member of the family who is not known to him or who is kept back from him or who is born a day just before the final decree was passed, he cannot be twice vexed or be forced to litigate the case once again even though that minor was effectively represented in the suit. The provision of Order 34 Rule 1, CPC in short cannot be construed independent of the doctrine of representation.

We, therefore, without least hesitation subscribe to what we have stated above as the settled view of almost all the High Courts and repel the contention of the learned advocate that the Plaintiffs not being made party Defendants are not bound by the result.

The learned advocate on behalf of the Respondents argues that the theory of representation does not apply to the previous suit, firstly, because the father was not shown as Karta and secondly because the then existing other members though minors were made party Defendants which clearly suggests that the Plaintiffs did not look upon him as representing the other members of the family.

But it should be borne in mind that for the application of the doctrine of representation it is not necessary that the father should be expressly shown as karta, or that any other member should not be impleaded along with the manager. Cases cited above lay down the same principle.

It is also urged that inasmuch as the Plaintiffs if impleaded could take pleas in relation to invalidity of mortgage transaction and immoral character of debt etc. which the father was precluded to advance, the minors cannot be deemed to have been properly represented in the previous suit by their father.

But this argument too fails as is apparent that the Plaintiffs'' brothers who could take such pleas did not take any and even the Plaintiffs have raised no such issues in the present case. Their main plea is that their vested right of redemption could not be extinguished without an opportunity for redemption being given to them.

Certainly they had this right before foreclosure and not thereafter (vide Raghunandan Prasad Singh and Another Vs. Ghananand Singh, and it cannot, therefore, be said that they were not properly represented in this regard by their father before a final decree.

Thus in the circumstances of the case and having regard to the pleas taken by the Plaintiffs now we are clear in our mind that the Plaintiffs were effectively represented in the previous suit and they are bound by the decree of foreclosure which has become final and has been duly executed. We, therefore, allow this appeal, set aside the judgment of the lower appellate Court and restore the judgment of the Court of first instance with costs of all the three Courts. This order with govern the connected appeal.