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Shivubai Rajaram Shete v. Shiddheswar Martand Hedge
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiffs sued for redemption and possession of a mortgaged property, alleging a mortgage-deed dated 10 January 1854 from Anna (deceased) to the grandfather of the first defendant. The suit was filed in January 1916 (the opinion contains unspecified exact dates). The heirs of Anna — including Limba and Sugandha (described as daughters of Renuka in the pedigree) — were shown to be entitled to the equity of redemption but were not made parties to the suit. An issue was raised at trial whether the plaintiffs could maintain the suit without making Limba and Sugandha parties. The plaintiffs applied under Order I, rule 10 to have these persons made co-plaintiffs (the opinion also refers to adding them as co-defendants in places). The trial Court (District Judge) dismissed that application and accordingly dismissed the suit. The plaintiffs appealed; the High Court considered whether, having regard to section 22 of the Indian Limitation Act, Limba and Sugandha could be added as parties and the consequences of their addition on limitation. The High Court ultimately remanded the case to the trial Court with directions addressed below.
Legal Issues Presented
- Whether the plaintiffs could maintain the redemption suit without making Limba and Sugandha (heirs of the mortgagor) parties.
- Whether Limba and Sugandha could be added as parties under Order I, rule 10 (sub-rule (2)) of the Code of Civil Procedure despite their individual rights being barred by limitation at the time of the application, having regard to section 22 of the Indian Limitation Act.
- Whether adding Limba and Sugandha as parties after institution of the suit would, by operation of the Limitation Act, necessarily bar the plaintiffs' existing claim for redemption.
Arguments of the Parties
Plaintiffs' Position (as set out in the opinion)
- The plaintiffs filed the suit within the prescribed period for redemption and had an unbarred right to redeem against the heirs of the mortgagee at the time of institution.
- They sought an order under Order I, rule 10 (sub-rule (2)) to have Limba and Sugandha placed on the record as parties (described alternately as co-plaintiffs or co-defendants in the opinion) so that the suit could proceed properly and to avoid multiplicity of suits.
- The plaintiffs contended that Section 22 of the Limitation Act — which deems a suit, as regards a subsequently added party, to have been instituted when that party is made a party — should not defeat the plaintiffs' pre-existing right to bring the suit which was exercised within time.
Trial Court / District Judge's View (as described in the opinion)
- The trial Court dismissed the plaintiffs' application to add Limba and Sugandha and dismissed the suit on the ground that, when the application to add them was made, their rights were barred by limitation.
- The District Judge held that Limba and Sugandha could not be added as parties under Order I, rule 10, sub-rule (2) because, as regards them, the suit would be deemed instituted only when they were made parties (section 22), and at that time the limitation period had expired.
- The District Judge considered that the authority in Guruvayya v. Dattatraya was not applicable to this case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Guruvayya v. Dattatraya (also cited as Guruvayya Gouda v. Dattatraya) | Holds that joinder of fresh parties after institution does not in all cases necessarily bar the suit by limitation; whether joinder bars the claim depends on whether joinder is necessary to enable the Court to give the relief claimed. If fresh parties are joined merely to safeguard rights subsisting among those claiming generally in the same interest, the deemed date of institution for those parties does not ordinarily affect the original plaintiff's right to continue the suit. | The Court relied on this principle to conclude that adding Limba and Sugandha (who are necessary only to avoid multiplicity and to safeguard inter se rights) should not, by itself, extinguish the plaintiffs' previously-acquired right to redeem. The principle supported the remand and direction to add them as parties. |
| Hall v. [name not fully specified in the opinion] | Illustrates that courts have allowed decrees for redemption where an heir-at-law (ordinarily a necessary party) was unknown; the heir-at-law might not be bound by accounts taken in his absence, but that potential defect was not held sufficient to prevent the Court from granting redemption. | The Court invoked the case to show that where co-heirs are added mainly to safeguard inter se rights (and not because relief is claimed against them), the Court may proceed to decree redemption while preserving the co-heirs' rights regarding accounts or other inter-se matters. |
| Prasad v. Har Narain Singh | Referenced as an approving authority (Privy Council) for the approach adopted in cases like Guruvayya. | The opinion notes that the principle has received approval (by the Privy Council in Prasad v. Har Narain Singh), which supports following Guruvayya's approach in the present case. |
| Shahasaheb v. Sadashiv | Held that the provisions of Order XXXIV, rule 1, are not of an imperative character (as referenced in the opinion). | The Court cited this decision as supportive of the view that strict non-joinder under Order XXXIV, rule 1, need not inevitably defeat a plaintiff's suit in all circumstances; however the present case did not require going as far as the Shahasaheb decision in its reasoning. |
Court's Reasoning and Analysis
The opinion contains parallel reasons given by Macleod, C.J., and a concurring judgment by Fawcett, J. Their analysis can be summarised in the following steps, each based on the material contained in the opinion:
- Initial status: The plaintiffs filed within the period prescribed for redemption; at the time the suit was instituted their right to redeem against the heirs of the mortgagee (including Limba and Sugandha) was not barred.
- Defect at institution: The suit as originally framed was defective because Limba and Sugandha, other persons entitled to the equity of redemption, were not made parties. Under Order XXXIV, rule 1, such persons are generally necessary parties to a suit for redemption to avoid multiplicity of suits and to protect the mortgagee from successive actions.
- Trial Court's approach: The trial Court refused the application to add Limba and Sugandha on the ground that, by virtue of section 22 of the Limitation Act (which deems a suit, as regards a subsequently added party, instituted when he is made a party), those people's rights were already barred when the application to add them was made; therefore they could not be added and the suit failed for non-joinder.
- Legal meaning of section 22 (as analysed by the High Court): Section 22 merely fixes the date of institution as regards a subsequently added party; it does not, by itself, determine whether the joinder of that party must, in every case, bar the plaintiff's original claim. Whether the joinder affects the plaintiff's right depends on the nature of the joinder and whether the added party is necessary to enable the Court to grant relief to the plaintiff as framed.
- Applicability of precedent (Guruvayya): The Court referred to Guruvayya, which held that if fresh parties are joined merely to safeguard rights subsisting among co-claimants (i.e., to avoid multiplicity and protect inter se rights), the deemed date of institution for those newly joined parties does not ordinarily affect the original plaintiff's right to continue the suit. The Court considered that principle applicable in the present case.
- Disposition as to discretion and relief: Because the plaintiffs' right to redeem existed when the suit was filed and the proposed joinder of Limba and Sugandha was for the limited purpose of safeguarding inter se rights and avoiding multiplicity (and no relief was claimed against them), it was within the discretion of the Court under Order I, rule 10, sub-rule (2) to add them as co-defendants. After making them parties, the Court could then consider the legal consequences, but their addition should not extinguish the plaintiffs' prior right to remedy by limitation alone.
- Fawcett, J.'s additional points: He emphasised that the suit properly fell under Article 148 of the Limitation Act and was brought within the prescribed period; section 3 of the Limitation Act (the operative provision requiring dismissal where a suit is barred under the Schedule) preserved the plaintiffs' position. He also noted there is no provision in the CPC or the Limitation Act that forbids adding a party after that party's own right is barred, and invoked Order I, rule 9 (that no suit shall be defeated by reason of non-joinder) to support adding parties to cure defects.
- Practical safeguard: The Court observed that the co-heirs might be necessary to protect the mortgagee and to deal with any accounting or contribution issues among co-heirs (referencing section 95 of the Transfer/Property Act as a background point in the text). But because the two heirs in this case had themselves lost any right to sue by limitation, their joinder served mainly a formal role to bar future attempts and to permit a final decree.
Holding and Implications
Holding: Decree reversed; case remanded.
Implications and immediate effects:
- The High Court directed that Limba and Sugandha be placed on the record as co-defendants (they are treated as formal parties only, with no relief claimed against them in the present suit).
- Having been added as parties, a decree for redemption may be made in favour of the plaintiffs, because their right to redeem existed when the suit was instituted and should not be lost merely by the prior omission to join those heirs.
- Costs: Because the plaintiffs were in default, there will be no costs in the High Court or in the Court below; costs in the trial Court will be costs in the cause (i.e., ordinarily to be determined with the result of the main suit).
- No new principle of law was announced; the Court applied and followed existing authorities (notably Guruvayya and allied decisions) to resolve whether joinder post-institution should defeat a plaintiff's previously-acquired right by limitation.
Note: Significant portions of the original opinion's text contain omissions or unspecified particulars (indicated in the source by missing words/dates). This summary respects only the information explicitly present in the provided opinion and does not attempt to fill those gaps.
Macleod, C.J:— The plaintiffs filed this suit for redemption and possession of the plaint property alleging that the mortgage-deed was passed by one Anna Dhondiba deceased to the grandfather of the 1st defendant on the 10th January, 1854. The period for the payment of the mortgage was ??? years, and the suit wan filed on the ??? of January, 1916, four days before the ??? to redeem was barred by the law of ???. The heirs of Anna, the ??? appear in the pedigree at p. 6, and ??? the purposes of this second appeal it must be taken as proved that Limba and ??? daughters of Renuka, are two ??? the heirs of Anna, and were, therefore, interested in the equity of redemption, they were not parties to the suit, and accordingly an issue was raised whether ??? plaintiffs were entitled to maintain the ??? without making Limba and Sugandha parties. That issue was found in the ???. The plaintiffs then presented an application under Order I, rule 10, asking ??? Court to make them co-plaintiffs. The ??? Judge in the trial Court dismissed ??? application, and accordingly dismissed ??? suit. Undoubtedly the rights of Limba ??? Sugandha at the time this application is made to redeem the mortgaged property ??? barred. But the learned Judge does ??? seem to have considered whether they ??? have been added as co-defendants, however, this point was considered in leal, and apparently the learned District ??? considered that the plaintiffs made application for their being brought on ??? but that they asked the Court to raise its powers under Order 1, rule 10, ??? add Limba and Sugandha as party ???. The learned Judge, therefore, considered the plaintiffs' case from that point of view, and came to the conclusion that Limba and Sugandha could not be added as defendants under Order 1, rule 10, sub-rule (2) because the suit was barred so far as they were concerned at the time the application for adding them was made, so they could not be added as parties having regard to section 22 of the Indian Limitation Act. The learned Judge thought that the ruling in Guruvayya v. Dattatraya (1) was not applicable. It was perfectly clear that any one of several parties entitled to the equity of redemption of mortgaged property was entitled to file a suit to redeem, but owing to the provisions of Order XXXIV, rule 1, all other parties who were interested in the equity of redemption were necessary parties to the suit. Therefore the suit as framed was defective, and as long as Limba and Sugandha ware not brought on the record, the plaintiffs' suit was bound to fail.
2. Then it was said that owing to the provisions of section 22 of the Indian Limitation Act they could not be brought on the record as co-defendants. All that section 22 says is this: “When, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.” We are entitled, therefore, to look to what would be the state of affairs after Limba and Sugandha had been brought on the record, apart from the Indian Limitation Act, if the plaintiffs are entitled to bring them there. If the plaintiff was seeking any relief against them clearly his claim to such relief would be barred, But it does not follow in all cases where a party is added as defendant to the record after the period when the main relief claimed by the plaintiff against the other defendants would be barred, that by adding that defendant the whole of the plaintiffs' claim becomes barred by limitation. That point was considered in the case I have already referred to, viz. Guruvayya v. Dattatraya , and it was held there that:
“Section 32 (of the Limitation Act) does not is itself purport to determine directly whether the joinder of the parties after the institution of a suit shall in all cases necessarily involve the bar of limitation, it the period prescribed for such a suit has then expired. Such a result must depend upon consideration of the question whether the joinder was necessary to enable the Court to award each relief as might be given in the suit as flamed…If fresh parties ace merely joined for the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination (by application of the previsions of section 23 of the Limitation Act) of the date of institution of the suit as regards such freshly joined parties does not ordinarily affect the anginal plaintiff to continue the suit, and would not therefore attract the application of the general provisions of the Limitation Act.”
3. No doubt the facts in that case were entirely different from the facts in this case. The question is whether the principle laid down there can be applied to this case. We start with this fact that the plaintiffs' right to redeem against the heirs of the mortgagee was not barred when they filed the suit. The suit was defective by reason that when they filed it, they did not make Limba and Sugandha parties. But must it follow, if they are now put on the record, that the plaintiffs' claim against the mortgagee's heirs is barred owing to the provisions of section 22 of the Limitation Act? I do not think that will be the proper result to follow, or that the plaintiff's right, which he had when he filed this suit, should be lost by his omission to make those persons parties. They are only necessary parties to save multiplicity of suits, and to prevent the mortgagee being subjected to suits being filed against him in succession by various parties entitled to the equity of redemption. Admittedly in this case these persons could not file hereafter a suit to redeem the mortgaged property if the plaintiffs' suit failed, and, therefore, they are merely necessary for the record in order to satisfy the provisions of Order XXXIV, rule 1, and I do not think it was ever intended that the plaintiffs in a case like this were liable to lose their rights to redeem because they had omitted to make a person party to the suit who ought to have been made a party. I think it was clearly within the discretion of the Court under Order I, rule 10, sub-rule (2) to make these parties co-defendants, and then to consider after they had been made co-defendants, what would be the legal result of such addition. I think, therefore, that the case must go back to the trial Court with a direction that Limba and Sugandha should be placed on the record as co-defendants, and that as they are purely formal parties, (there being no relief claimed against them) and they are only on the record to prevent the possibility of any attempt being made by them in the future to redeem the mortgaged property, a decree for redemption can safely be made in favour of the plaintiffs.
4. As the plaintiffs have been in defaults there will be no costs in this Court or in the Court below. Costs in the trial Court will be costs in the cause.
Fawcett, J.:— The District Judge considers in regard to the question of joining these two persons under Order I, rule 10, sub-rule (2), that the suit having been barred so far as they were concerned as the time the motion for adding them was made, they could not be added as parties, having regard to section 22 of the Indian Limitation Act. I entirely disagree from this view of the law in a case like the present. The plaintiffs' suit falls under Article 148 of the Indian Limitation Act.
5. It was, so far as the provisions of Order I, rule 3 of the CPC, are concerned, properly constituted as filed. Plaintiff alone could sue for redemption, and ??? the defendants against whom the relief ??? redeeming and recovering possession was and could be claimed were actually joined. Therefore the suit, which was brought within the prescribed period of limitation was not barred under section 3 of the Indian Limitation Act. This section 3 ??? the only operative enactment which renders it obligatory on the Court to dismiss a suit which is barred by limitation under the First Schedule. Section 22 mere says that, as regards these two person the suit shall be deemed to have been instituted when they have been made parties. But that in no way affects the preses suit under section 3. No relief is claim by the plaintiff against these two person and the previous non-operation of section remains unaffected, because the suit still one brought within the prescribe period of limitation. There is no provision in either the Code of Civil Procedure or the Indian Limitation Act which say that a party cannot be added after he right of suit or liability to be sued (a the case may be) is barred by ??? provisions of the Limitation Act. Accordingly I think it is absurd to ??? that the plaintiffs' right of redemption entirely lost because he has not complete with the provisions of order xxx rule 1. That, in my opinion, would subordinating justice to a technicality of ???. We have in Order I, rule 9, a ??? provision that no suit shall be defeated by ??? of non-joinder of parties, and therefore, if parties can be added, they ??? should be added in order to meet valid objection to the suit on the ground ??? non-joinder of parties.
6. One of the reasons why Limba and ??? as heirs interested, in the equity ??? redemption, should be joined is no doubt order to safeguard the interests of the mortgagee, against whom they might otherwise bring separate suits. But in ??? present case, as they have lost any ??? right to bring a suit against the mortgagee by limitation, this reason does it really operate. I venture to think that ??? main reason why they should be ??? is that, under section 95 of the ??? of Property Act, the plaintiff ??? require them as co-heirs of the mortgagor to contribute towards the ??? incurred by him in obtaining ??? of the land, and that they could therefore have an opportunity of ??? heard in regard to any account that drawn up for the purpose of passing a ??? for redemption. Thus in Hall v. ??? ward (2) the executrix of a mortgagor for redemption, and although the ???-at-law of the mortgagor is ordinarily necessary party, yeti as he was unknown, Court allowed a decree for redemption issue, safeguarding at the same time the ??? of the heir-at-law. In the judgment in that case, it is said that the only ??? in favour of the objection that raised about want of parties was that heir-at-law would not be bound by an ??? taken in his absence. This ??? however, was held not to be ??? enough to prevent the Court ??? the decree which it did. Therefore ??? two heirs are added mainly for ??? the rights subsisting between them ??? the plaintiff, and that being so the ??? falls clearly within the principle laid ??? in Guruvayya Gouda v. Dattatraya ??? , which, I think, is obviously act and should be followed in the ???. It has been adopted in several ??? by the other High Courts, and is ??? approved of by the Privy Council ??? Prasad v. Har Narain Singh (3). In Shahasaheb v. Sadashiv (4), it was held that the provisions of Order XXXIV, rule 1, were not of an imperative character. In this case it is not necessary to go so far as that, nor does section 98 of the cpc come into play here, as it did there, in support of the view taken in that decision. In the present case there has been an application to add these two co-heirs as parties, and the application is one which, in my opinion, should have been assented to by the trial Court. I, therefore, concur in the order remanding the case.
7. Decree reversed; case remanded.
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