1. This second appeal arises out of an application for the framing of a final decree in a mortgage suit. One Shyam Sunder Lal executed a mortgage-deed in favour of Lala Data Ram and Mt. Bundi, applicants for the final decree. They obtained a decree against him. Subsequent to the institution of the suit, Shyam Sunder Lal purported to partition the mortgage property along with other property between himself and the present appellants. Data Ram and Mt. Bundi consequently only asked for and obtained a preliminary decree against Sunder Lal. In their application, however, for a final decree they joined the appellants on the ground that they had obtained possession under the partition deed. No application was made to the Court under Order 1, Rule 10(2) of the Civil P.C. for joining them as a party and no order was passed by the Court under Order 1, Rule 10(2) declaring that they were necessary parties and allowing their names to be joined as defendants.
2. The final decree was framed not only against Shyam Sunder Lal but also against the appellants. Both the lower Courts held that inasmuch as Shyam Sunder Lal, in the year 1914, long before the present litigation, had applied for partition of his share in some villages, he had indicated that he had become separate from the other members of the joint family. They held that this was conclusive evidence of separation notwithstanding that it was shown that he had withdrawn the suit for partition.
3. In this appeal two points arise for decision. The first point is whether the final decree was rightly given against the appellants. I am of the opinion that the proceedings for a final decree are merely a continuation of the suit as instituted for the purpose of a preliminary decree and that the provisions of O.1, Rule 10(2) of the Civil P.C. governing the joinder of an additional party daring the pendency of a suit will apply to this case. As the sole question in the suit was whether the plaintiff was entitled to a decree against Shyam Sunder Lal in respect of his interest in the mortgaged property, neither the plaintiff nor the Court (suo initio) could add the appellants at any time as defendants; still less could they add them as defendants after a preliminary decree excluding them had been passed. The Court, therefore, in my opinion had no jurisdiction to add these appellants as parties. Nor indeed did it do so. The inclusion of their names as judgment-debtors under the final decree was not due to any order of the Court for their names to be added as defendants but merely due to the fact that the plaintiff had included their names in his application for final decree. It cannot be said that the mere fact of the Court having included their names in the decree amounted to an order under O.1, Rule 10(2). I would, therefore, hold that no decree should have been granted against the appellants.
4. The second point taken by the appellants is that if they were parties to the proceedings for a final decree they should have been given an opportunity of rebutting by evidence the presumption of separation arising out of Shyam Sunder Lal's plaint in the partition suit of 1914. According to the latest decision on the subject by the Privy Council in Palani Ammal v. Muthuvenkatachala Moniagar A.I.R. 1925 P.C. 49 the bringing of a suit for partition is only presumptive evidence of separation and that evidence may be rebutted by other evidence such as the fact of the withdrawal of the plaint on the ground that separation had not taken place or was not desired (but not merely by evidence of withdrawal of the plaint). This being so, it would have been necessary but for my finding on the first point to have remanded the case to give the appellants an opportunity to produce their further evidence. Having regard, however, to my finding that the appellants were improperly joined as judgment-debtors in the decree, the order that I would pass is that the decree of the lower Court should be modified so as to exclude their names. The remaining names will remain on the ground that the decree was rightly passed against Defendants 1 and 2 and that the other defendants have not appealed.
Iqbal Ahmad, J.
5. I agree in the order proposed, but I prefer to base my decision on grounds other than those assigned by my learned brother. It is apparent, from the facts stated in the judgment of my learned brother, that a partition was effected by the appellants and Shyam Sunder Lal, the mortgagor, during the pendency of the suit filed by the mortgagees on the basis of the mortgage-deed executed by Shyam Sunder Lal, and before the passing of the preliminary decree in favour of the mortgagees. The mortgagee-decree-holders applied for a final decree, not only against the persons who were defendants to the suit as originally brought, but also against the present appellants, and certain other transferees from the mortgagor. The decree-holders asserted that the partition effected by Shyam Sunder Lal and the appellants was collusive and was made With a view to deprive then of their rights as mortgagees, and, as such, could not affect their right to obtain a final decree with respect to property covered by the preliminary decree, and that in order to avoid future complication it was necessary, in the ends of justice, to bring the appellants on the record of the mortgage suit and to pass a final decree as against them as well. In view of the provisions of Section 2(2) of the Code of Civil Procedure it cannot be doubted that the mortgage suit filed by the mortgagees was continuing when the application for the preparation of the final decree was made by them. That being so, I am not prepared to hold that under no circumstances has the Court jurisdiction, after the passing of the preliminary decree and before the final decree has been passed, to implead as defendants to the suit persons who were not originally impleaded as defendants and were not parties to the preliminary decree. But the question whether or not persons who were not originally made defendants should be made defendants in the suit is a question entirely within the discretion of the Court as is apparent by the provisions of Order 1, Rule 10(2) of the Civil P.C. Having regard to the complicated nature of the questions that arise for consideration in this case because of the respective allegations of the parties, as regards the jointness or Separation of Shyam Sunder Lal and the appellants, and as regards the collusive nature or otherwise of the partition effected during the pendency of the mortgage suit, it appears to me that the trial Court should have, in the exercise of its judicial discretion, refused to bring upon the record the appellants before us. Moreover, as pointed out by my learned brother, evidence that the appellants wanted to lead has been shut out by the Court of first instance. For the reasons given above it appears to me that, in the circumstances of the present case, the applicant should not have been allowed to implead the appellants as parties to the mortgage suit after the passing of the preliminary decree and the question arising between the parties should have been left to be determined either in execution proceedings or by means of a separate suit.
6. It is ordered that the appeal be allowed with costs to the appellants in both Courts against the applicants in the Court below and that the names of the appellants be removed from the array of judgment-debtors under the decree.
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