Chamier, J.:— This appeal arises out of a suit brought by the appellant upon a mortgage made in favour of his father by one Mendhai Singh. The defendants to the suit are, the three sons of the mortgagor who is dead, Bismillah Begam who purchased a portion of the mortgaged property after the mortgage, and five members of the family of one Baldeo Sahai, deceased, who purchased another portion of the property after the mortgage. The Munsif decreed the claim against the sons of the mortgagor and against Bismillah Begam but dismissed it as against the remaining defendants on the ground that the plaintiff had failed to implead Bisambhar Nath, the son of the defendant Ram Chandar, who was a member of the joint family to which defendants 5 to 9 belong. That decision was affirmed by the District Judge who agreed with the Munsif that Bisambhar Nath was a necessary party to the suit and that the provisions of Order 1, Rule 9, could not avail the plaintiff as Bishambhar Nath had no specific share in the property. I may mention here that both courts have held that the plaintiff can have made no proper enquiry regarding the members, of the family to which Bishambhar Nath belongs. They note the fact that the plaintiff lives in the same quarter of the city as the defendants do, and it seems that both courts were of opinion that if the plaintiff had made enquiries he would have come to know of the existence of Bishambhar Nath, though he was only nine or ten months old at the date of the institution of the suit.

(O.P 90)

2. In second appeal it is contended that a decree should have been made at all events for sale of the interests of the members of the family who are parties to the suit. The question is one of considerable importance in view of the passing of Act IX of 1908 which, so far as the Province of Agra is concerned, reduced the period of limitation for a suit of this kind from sixty years to twelve years. Before that Act was passed, it was the practice in suits of this kind either to add the necessary parties, or to allow the plaintiff to withdraw the suit with permission to bring another suit. One or other of these courses could generally be adopted as most suits were instituted well within limitation. The present suit like thousands of others was instituted on August 6th, 1910, almost the last day of limitation under the Act of 1908, and the non-joinder of Bishambhar Nath was not brought to the notice of the court till after the period of limitation for bringing a suit against him had expired, although the objection was taken at the first possible moment. The question what should be done in such circumstances seems to have been decided in three different ways in Shajahanpur, and it is probable that there have been similar conflicting decisions elsewhere. In some cases the claim has been dismissed in accordance with the ruling in I.L.R 18 All. 109, in others where the party omitted, was a minor, the claim has been decreed on the ground that he was sufficiently represented by his father, or some other adult member of his family or party to the suit, and in others, decrees have been made for sale of the interests of the parties to the suit. We have been referred to a large number of rulings but the precise question which we have to decide does not appear to have been the subject of any reported decision since the passing of the Code of Civil Procedure, 1908, whereby Section 85 of the Transfer of Property Act was repealed. The last mentioned Section provided that—

Subject to the provisions of the Code of Civil Procedure (1882), Section 437, all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this Chapter relating to such mortgage. Provided that the plaintiff has notice of such interest.

(O.P 91)

3. When that section was in force if a plaintiff failed to implead a child like Bishambar Nath in a suit like this not having notice of his existence and for any reason the child could not be added as a party, as for instance, when the objection was taken at a very late stage, the practice was, to allow the suit to proceed, and if the claim succeeded to make the usual decree for sale. It often happened that the absent member of the family was unable to challenge the decree or sale held in pursuance of it effectively, see for example the cases of Balwant Singh v. Aman Singh(1) and Jaddo Kuar v. Sheo Shankar Ram(2), and cases there cited. The result was often the same where the failure of the plaintiff to implead a member of a family of whose existence and interest he was aware was discovered by his opponent, or by the court after the suit had been decreed. In cases other than those in which Hindu families were concerned, and in some cases where such families were concerned, it was held that the person who ought to have been, but was not impleaded did not lose his right to redeem the mortgage.

4. Order XXXIV, Rule 1, which has taken the place of Section 85 of the Transfer of Property Act, provides that—

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.

5. There is nothing in the rule corresponding with the last nine words of Section 85 of the Transfer of Property Act, and the rule is made subject not merely to Order XXXI, Rule 1, which, corresponds with Section 437 of the old Code, but to all the other provisions of the Code. Under the present law it would appear that the decision of the court upon an objection as to non-joinder in a case of this kind, must be the same whether the plaintiff, had or had not notice of the existence of the person whom he omitted to implead. It must often happen that no amount of diligence will enable the plaintiff in a suit upon a mortgage to ascertain all the persons who ought to be joined. This is a consideration which should not be lost sight of in determining what the duty of court is when it is discovered that a person who ought to have been made a party has not been impleaded.

(O.P 92)

6. It was suggested, that no question of limitation would have arisen, if, either of the courts below, had made Bishambhar Nath a party or if we were to do so now, and the ruling in Guruvayya Gouda v. Dattatraya Anant was referred to. But all that was held in that case was that a plea of non-joinder of a necessary party may be waived, and that if fresh parties are joined merely for the purpose of safeguarding the rights subsisting between them and others claiming generally in the same interest, the determination (by application of the provisions of Section 22 of the Limitation Act) of the date of institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit. In the present case the plea of nonjoinder was taken at the first possible moment and the decision in that case does not go the length of holding that a suit for sale may be continued against a person who, having a share in the property, ought to have been but was not made a party when that person is made a party after the period of limitation for a suit against him has expired. A stronger authority in favour of the plaintiff in the decision in Thakurmani Singh v. Dai Ram where the court held that the fact that an infant grandson of the plaintiff in a suit on a mortgage and a purchaser of a portion of the mortgaged property had been made parties to the suit after limitation had expired, was not fatal to the suit. The ruling in I.L.R 28 Bom. 11, cited above, was referred to as authority for the decision regarding the infant plaintiff, but does not appear to me to go to that length. It seems to me that Order 1, Rule 10(5), would have applied if either of the courts below had made Bishambhar Nath a party to the suit and that the suit is as against him barred by limitation. It is, therefore, useless to have him made a party now.

7. We have not been asked to hold nor in my opinion is it possible to hold in his absence that he is sufficiently represented by his father Ram Chandar. If the objection had not been taken and the interests of the whole family had been sold and a suit had been brought by Bishambar Nath to recover his share or re-deem the property, it might have been held that he was sufficiently represented by his father. At this stage it is impossible to hold that.

(O.P 93)

8. Order XXXIV, Rule 1, is subject to the other provisions of the Code, one of which is that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it (Order 1, Rule 9). The case presents no difficulty where the interest of the person who ought to have been, but has not been, made a party is separate from the interests of the parties to the suit. In such a case the court can order the sale of the interest of the parties for recovery of a proportionate amount of the mortgage money as was done in Imam Ali v. Baijnath and other cases. But where the interest of the person who ought to have been, but has not been, made a party to the suit is inseparable from the interests of the persons who have been made parties, it is not practicable to deal with the claim as regards the interests of the persons before the court. In a case like the present one it is impossible to say for what amount the shares of the members of the family who are parties to the suit are liable, and the appellant is not entitled to throw the burden of the whole mortgage upon the undivided interest of the members of the family before the court, against their will. Had the members who are parties taken the objection at a later stage, the court on becoming aware of the existence of Bishambhar Nath, might have made a decree for the sale of the undivided interests of those members for the recovery of the whole debt and left the purchaser at auction to work out his right's by partition as is done where the undivided interests of a member of a joint family is attached and sold in execution of a money decree.

(O.P 94)

9. The conclusions, at which I have arrived, not without considerable hesitation are, that Bishambhar Nath is a necessary party to the suit, that the suit as against him was barred by limitation when the objection on the score of non-joinder was raised, that although ordinarily it is the duty of the court in a case like this to deal with the matter in controversy so far as regards the rights and interests of the parties before it, in the present case it is impossible to do so, and the only alternative is to dismiss the suit. If the view that I have taken is correct, it seems probable that innocent parties may suffer hardship in some cases. But all possibility of hardship will be avoided if plaintiffs bring their suits well within the prescribed period of limitation for all objections on the score of misjoinder or non-joinder of parties must, be taken at the earliest possible opportunity and if not so taken, must be deemed to have been waived. (Order 1, Rule 13). In the present case the plaintiff followed the pernicious practice of bringing his suit at the last possible moment and has himself to thank for the result.

10. I would dismiss this appeal with costs.

Karamat Husain, J.:— I fully agree with my learned brother in the order proposed by him. What we have to decide is whether we have to dismiss the appeal for non-joinder of Bishambhar Nath (a member of the Hindu joint family of which Babu Ram and others also are members) who was a necessary party under Order 34, Rule 1, or to decree it dealing with the rights and interests of the defendants before us in the joint family property under Order 1, Rule 9. Order 34, Rule 1, is no doubt subject to the provisions of the Code of Civil Procedure, including Order 1, Rule 9, but Order 1, Rule 9, has no application to the case before us. Where the rights and interests of the parties actually before the court are such as can be dealt with, it, in its discretion, can do so. This, however, pre-supposes that the rights and interests of the parties actually before the court are so defined and separable from the rights and interests of the parties which are not before it as to make an adjudication in respect thereof possible without affecting the rights and interests of the parties not before it. In an action upon a mortgage for sale of a joint family property when some of the members of the joint family are made defendants, their rights and interests in the joint family property are neither defined nor separable from the rights and interests of those members of the joint family who are not before the court. In such circumstances, the court cannot possibly proceed under Order 1, Rule 9, to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

(O.P 95)

11. What has already been stated shows that non-joinder of Bishambhar Nath is fatal to the suit of the plaintiff inasmuch as in his absence the rights and interests of other members of the joint family in the joint family property cannot be dealt with under Order 1, Rule 9. The appeal must therefore, be dismissed with costs. By the Courts— Order of the Court is that the appeal be dismissed with costs.

12. Appeal dismissed