The Judgment of the Court was delivered by

Raghavan, J.:— The second appeal arises out of a suit on a simple mortgage for the recovery of the mortgage money. The suit was decreed against two out of three shares in the mortgage property by both the lower courts, and the 8th defendant has filed the second appeal against that concurrent decision.

2. The facts that emerge in the case may be briefly noted. The property originally belonged to Adichan Ayyan on Kanapattom right, the jenmi being the Akavur Mana. After Adichan Ayyan, his son Ayyan alias Ayyappan inherited the property.

3. Ayyan alias Ayyappan had two children, Chandran and Ayyappan, by his first wife and the 7th defendant was his second wife. After the death of Ayyart alias Ayyappan the 8th defendant obtained a gift of the property under Ext. 1 in 1117 from the 7th defendant reciting that she was solely entitled to the property after the death of her husband. Disputes thereafter arose regarding possession of the property between the 8th defendant on the one hand, and Chandran and Ayyappan on the other, resulting in criminal proceedings in 1118. In 1120 the 7th defendant cancelled the gift deed by Ext. B. During the pendency of the criminal case, Chandran and Ayyappan created the suit mortgage Ext. A in 1118 and borrowed amounts for the prosecution of the criminal case. The suit was by the 1st respondent-mortgagee based on Ext. A for the realisation of the amount so lent.

4. The contesting defendant was the 8th defendant as already indicated. He contended that Chandran and Ayyappan had no right in the property, since they were not the children of Ayyan alias Ayyappan. According to him the 7th defendant was the only heir of Ayyan alias Ayyappan and from her he obtained the entire right under the gift. Both the lower courts considered the question whether the 7th defendant was the sole heir of Ayyan alias Ayyappan and whether Chandran and Ayyappan had any right in the property. It may also be mentioned that the case of Chandran and Ayyappan was that the 7th defendant was not the second wife of their father, but she was brought for the purpose of looking after or nursing him after their mother died.

5. Both the lower courts concurrently held that the property originally belonged to Adichan Ayyan, from whom Ayyan alias Ayyappan inherited it and the 7th defendant was the second wife of Ayyappan alias Ayyan Chandran and Ayyppan being his children by the first wife. In that view, the lower courts held that the 7th defendant was entitled to a third share in the property, which passed under the gift to the 8th defendant. They also held that Chandran and Ayyappan were entitled to the remaining two shares, against which a decree for the mortgage money was also passed. Be it also noted that defendants 1 to 6 are the legal representatives of Chandran, his brother Ayyappan having died earlier leaving no heirs.

6. Though some argument has been advanced by the learned advocate of the appellant against the concurrent finding of the lower courts that Chandran and Ayyappan were the sons of Ayyan alias Ayyappan, I do not think I can reopen that question in second appeal. The question is one of fact on which the lower courts have entered a concurrent finding to the effect that Chandran and Ayyappan were the sons of Ayyan alias Ayyappan, the 7th defendant being his second wife. Therefore, that finding has to be confirmed and it is hereby confirmed. Consequently the finding that the 7th defendant was entitled to a third share and the mortgagors of the 1st respondent were entitled to the balance has also to be confirmed.

7. But it is seriously contended before me by Mr. P.C Chacko the learned Advocate of the appellant, that the appellant was an unnecessary party to the suit, which was only a suit on a simple mortgage for recovery of the mortgage money. The learned counsel contends that for that reason the finding against the appellant should be set aside and the decree for recovery of the mortgage money should be confined to the right, title and interest of the mortgagors. In effect his contention is that the finding that the 7th defendant was entitled only to a third and the mortgagors were entitled to the rest of the property should be set aside and the 1st respondent should be left to agitate that question in a separate suit. In support of this contention he cites the Division Bench ruling of this Court in Janaki Amma… v. Venkitasubba Iyer…. (A.I.R 1958 Ker. 311). In that case the 19th defendant, who claimed paramount title to item 1 in the plaint, filed the appeal and contended that she was not a necessary party to the suit on a simple mortgage for recovery of the mortgage money. One of the issues in the case was whether the 19th defendant was a Vellala or a Nair and whether her mother Parvathi Lakshmi was the wife of a person by name Muniswami Mudaliar. Though that question was left open by the lower court, it made it clear that on that point also it was inclined to believe the case that the 19th defendant was a Vellala. Even according to the plaintiff, the 19th defendant had an earlier leasehold right in item 1, which was also the case of the 19th defendant. On that basis the learned Judges held that the 19th defendant obtained her right in item 1 earlier to the creation of the mortgage and therefore the subject-matter of the mortgage sued on was only the balance right that remained after the creation of the lease in her favour. Their Lordships held further that the position of a lessee holding under a lease granted by the mortgagor or his predecessor-in-interest before the mortgage was executed was analogous to that of a prior mortgagee and that the right, title and interest of the mortgagor at the time of the subsequent mortgage alone were the subject-matter of the subsequent mortgage. Therefore, they held that a person who set up a title paramount or was claiming the property adversely to the mortgagor and mortgagee should not be joined as a party in the mortgage suit, unless it was alleged that he was a benamidar for the mortgagor or his presence on the party array was necessary for passing an effective decree. They again held that in the case before them there was no plea that the 19th defendant was a benamidar for the mortgagor, nor was her presence on the party array necessary for passing an effective decree. It was in that view that they set aside the decree against the 19th defendant.

8. In the present case defendants 7 and 8 were impleaded as subsequent encumbrancers. The 8th defendant raised the plea that Chandran and Ayyappan, who executed the mortgage document, had no right or interest in the property. On that plea issue No. 1, whether the executants of the hypothecation bond were competent to execute it and whether they were entitled to the property, was also raised. In the nature of the contention raised by the 8th defendant himself, the suit could not be disposed of without deciding that issue. Therefore, the lower courts decided, according to me rightly, that question.

9. Having raised and obtained a decision adverse to him, the 8th defendant cannot now claim that he was an unnecessary party to the suit and he should be removed from the party array. In this connection it may be interesting to refer to the Full Bench decision in Mst. Satwati v. Kali Shanker (A.I.R 1955 All. 4). Their Lordships observed that it was well-settled that a person having a paramount title was not a necessary party in a mortgage suit and need not be impleaded; but however if the defendants having paramount title took up contradictory pleas and on that account they did not claim to be discharged and an issue was also framed as regards their rights for decision on the merits and the issue was decided, the decision was binding on the parties and it could not be said that the court either went beyond its jurisdiction or did anything which was so improper or illegal that a court of appeal should interfere even in the absence of any prejudice. Their Lordships held further that the rule as to impleading persons having paramount title was more a rule of convenience than a rule affecting the jurisdiction of the court. The same opinion was expressed in Bhuban Mohan Ghose v. Co-operative Hindusthan Bank Ltd. (A.I.R 1925 Cal. 973). Their Lordships referring to the Privy Council decision in Radha Kunwar v. Thakur Reoti Singh (I.L.R 38 All. 488) observed that it might be said generally that a suit to enforce a mortgage in which adverse claims of persons not privy to the mortgage and setting up a title paramount to that of the mortgagor and the mortgagee were sought to be investigated was open to objection on the ground of misjoinder and inconvenience; but however, the question was not one of jurisdiction and at the most the misjoinder was an irregularity or inconvenience. There are other decisions also expressing the same opinion, e.g, vide M. Doraiswami Aiyangar & Bros. v. P. Varadarajulu Naidu (A.I.R 1928 Mad. 2), wherein it was laid down that the rule that to a mortgage suit a person claiming an adverse or paramount title was not ordinarily a necessary or proper party was not absolute or inflexible, for in certain circumstances, it might not only be proper, but even desirable to implead him as a party. I do not propose to multiply citations.

10. In the case before me the plea was raised by the 8th defendant himself that the mortgagors had no right to execute the mortgage document; and he did not raise any objection to his having been impleaded as a party in the suit. Therefore, it is too late to contend at the second appeal stage that he should not have been impleaded as a party at all, nor should his rights have been adjudicated upon in the suit. In the Division Bench ruling of this Court this aspect of the question was not considered. Moreover, their Lordships held in that case that either in view of the case of the plaintiff therein or in view of the case of the 19th defendant, the impleading of the latter was not necessary. Therefore, the view expressed by the Division Bench should not be applied to all cases as a general proposition of law without any reservation or flexibility or even, consideration of prejudice whatsoever. In that view I hold that decision cannot be pressed into service in this case.

11. The second appeal is therefore dismissed; but the parties will bear their respective costs in this Court. It is made clear that the mortgagors' legal representatives will get four months for paying the decree amount. Leave refused.