Bhola Jha v. Kali Prasad

Roe, J.:— The plaintiffs in these cases are Mitakshara sons. A decree was obtained upon four mortgages against their father nearly 12 years before the institution of these suits. The property in suit was sold to the defendants, who were the mortgagees, and possession therein delivered to them in 1900. In the suits upon these mortgages, the plaintiffs were not made parties. There has been a conflict of opinion between the Courts below as to whether the mortgagees were or were not aware of the existence of the present plaintiffs. The learned Munsif found that the mortgagees had no notice of their existence. The learned Subordinate Judge differed from him upon this point upon the sole ground that notice was not specifically denied in the written statement. Decrees were made in the plaintiffs' favour by the learned Subordinate Judge, the relief granted by these decrees being that the plaintiffs were held bound to pay the debts contracted by the father under the mortgages, which were the subject of the suit, but were entitled to call from the defendants an account of the sum due under the mortgages, and, upon rectification of that account, to redeem the property sold. This was the only relief sought in the lower appellate Court. Against these two decrees the defendant, mortgagees appeal. It is contended, in the first place, that obviously the decision of the learned Subordinate Judge with regard to notice is incompetent as proceeding upon a misapprehension, and that if necessary, the suit should be remanded for a valid finding of fact upon this point.

2. It is further contended that such a remand is unnecessary for the reason, firstly, that case law is on the whole in favour of the proposition that Mitakshara sons, even though deliberately omitted from mortgage suits, have no right to sue for redemption; they can only sue for a declaration that their father's debts are not binding upon them. Lastly, it is; urged, that, whatever may be our view of the law of redemption by Mitakshara sons, it is certain that there can be no such redemption until the sales made in the previous suits have been set aside, and that the period of limitation for setting aside such sales is one year. On behalf of the respondents it is contended that the sales must be regarded as nullities, and that the decrees for redemption can be made without setting them aside. It is further urged that the main points of law, that is, the right of Mitakshara sons to redeem in a case such as this, has been finally decided by a Bench of three. Judges in Lala Suraj Prosad v. Golab Ghand(1). I think it is not necessary for us to contrast the views expressed in that case with the views expressed in, Balwant Singh v. Aman Singh(2). I am of opinion that we should leave open the question whether a Mitakshara son can sue to redeem if he has been, deliberately and with notice, omitted from a suit upon a mortgage made by his father for it is clear that if a suit to redeem is maintainable, the first step necessary for redemption is a declaration that the sale-should be set aside. The limitation for a suit to set aside a sale is one year and the present suit is barred by Article 12 of the Lim. Act. In this view I am supported by the observations made by my learned brother in the case of Ram Taran Goswami v. Rameswar Malia(3). That suit was on all fours with the present suit. The conclusion at which my learned brother then arrived upon a consideration of Malkarjun v. Narhari(4) was, that it was impossible to make a decree for redemption without setting aside the sale, and the period for setting aside the sale would be one year. With these views I am entirely in agreement.

3. The learned Vakil for the respondents makes an attempt to distinguish Malkarjun's case on two grounds. The first, that the auction-purchaser in that case was a stranger to the suit. The second is, that in Malkarjun's case there was no decree upon a mortgage; there was a sale validly held in execution of a money-decree. In this attempt to distinguish there is no substance. The sole test applied in Malkarjun's case was, was the sale an irregularity or a nullity?

“General assertions of the invalidity of such sales are only misleading when applied to a case in which the distinction between irregularity and nillity is the cardinal point (p. 848). To enforce this liability was within the jurisdiction of the Court.(p. 348). It is then necessary for the plaintiffs to set aside the sale in order to clear the ground for redemption of the mortgage p. 348.”

4. The decrees have been held to be good decrees, and there is no cross-appeal against that decision.

5. A decree against a Mitakshara father binds the son's interest in the joint estate. To enforce the liability of the mortgaged estates was within the jurisdiction of the Court even though their sons were not parties to the suit. It follows that it is necessary for the plaintiffs to set aside the sale in order to clear the ground for redemption of the mortgage. The appeals should be decreed with costs, the plaintiffs' suits dismissed with costs in all Courts.

6. Sharfuddin, J.:— I agree.

V.S/R.K

7. Appeal allowed.