Narain Pandey v. Surajbhan Lal

1. This appeal arises out of a Suit brought by the plaintiffs for the redemption of a mortgage. The suit was dismissed by the Court of first instance but decreed on appeal. The case of the plaintiffs was that sometime in the year 1876 certain proprietors of village Bare had orally mortgaged 35.26 acres to the ancestors of the principal defendants for a sum of Rs. 291. The defence was that there was no such mortgage and that the principal defendants were in possession of the property in absolute right. The main questions which were debated in the Courts below were (1) whether in fact there was a mortgage and (2) whether the suit of the plaintiffs was instituted within the period of limitation. On the first point both the Courts are agreed that the disputed land had in fact been mortgaged to the ancestors of the principal defendants. The Courts below, however, differed as to the date of the mortgage and consequently on the question of limitation. The trial Court held that the mortgage transaction had taken place more than sixty years before the institution of the suit (that is to say long before 1876) and so the suit was barred by limitation. The lower appellate Court has accepted the case of the plaintiffs in its entirety.

2. The only argument which was addressed to me on the question of limitation was that the lower appellate Court had not given due effect to an admission made by the plaintiffs before the survey authority and that it had overlooked certain statements made in Exs. D and D1 which were judgments pronounced in certain criminal proceedings in the year 1880. These documents have been referred to by the learned Subordinate Judge and I do not think that any question can legitimately arise on the basis of these documents. As to the decision of the revenue officers (Ex. 10) stress was laid on the fact that the statement in that judgment to the effect that “the mortgage deed is said to have been executed over a century ago” should have been treated by the lower appellate Court as an admission by the plaintiffs or their predecessors-in-interest. This contention, however, does not appear to me to be sound. In the first place there was no record before the learned Subordinate Judge of the actual statement which might have been made by the plaintiffs or their predecessors-in-interest before the Settlement Officer; and in the second place even in this order (Ex. 10) the Settlement Officer does not dearly say that it was stated before him by the plaintiffs or their predecessors-in-interest that the mortgage deed had been executed over a century ago. Besides the learned Subordinate Judge has considered these documents and the construction placed by him not being an unreasonable one, no point arises in second appeal. It appears to me therefore that the decision of the learned Subordinate Judge so far as it relates to the date of the mortgage cannot be disturbed.

3. The next contention which is put for ward on behalf of the appellant is that certain persons who ought to have been joined as defendants have not been so joined. It is stated in the plaint that all the persons who according to the plaintiffs were interested in the property as the successors in interest of the original mortgagors were impleaded. The defendants in their written statement stated among other things as follows: “This suit is not tenable without impleading all the proprietors of the mouza by the plaintiffs.” This statement is obviously vague and it was contended on behalf of the respondents that it was based upon a misapprehension of paras. 1 and 9 of the plaint. In my opinion the defendants should have specifically stated who were the persons who ought to have been impleaded as defendants but have not been impleaded. Notwithstanding the vagueness in their statement an issue was raised in the case as to whether the suit was bad for defect of parties. Neither of the Courts below unfortunately investigated the question as to whether there had been any omission on the part of the plaintiffs to implead any persons who were necessary parties. The Court of first instance assumed that some of the proprietors had not been made parties and dealt with the legal aspect of the question as follows:

The question of non-joinder is governed by the provisions of O. 1, R. 9, which provides that no-suit shall be defeated by reason of non joinder of parties. O. 34, R. 1, which deals with mortgage and joinder of parties is subject to O. 1, R. 9. Thus we and that though the suit may be bad for defect of parties but the defect is not fatal to the suit.

4. The learned Subordinate Judge appears to have approached the matter in a slightly different way and the respondents' reading of his judgment is that in his view all the persons who were interested in the mortgage had been made parties. The actual passage in which the learned Subordinate Judge dealt with the matter runs as follows:

It was urged by the respondents that the suit is bad for non-joinder of parties. The defendants' allegation was that all the maliks of the tauzi in which the lands in suit are situate should be made parties. This is a redemption suit brought under O. 84 of the CPC, and so it will be governed by R. 1, O. 34 of the CPC. Under that rule only those persons who have the right of redemption or interested in the mortgage money should be made parties. The other maliks of the touzi have neither of those rights. Hence the suit is not bad for, non-joinder of parties.

5. It appears to me that this passage does support the view taken by the respondents that what the learned Subordinate Judge meant to say was that in fact there was no defect of parties. If this is correct there is obviously an end of the matter, but as the learned advocate for the appellant still maintains that a few of the persons who were interested in the matter have not been impleaded it becomes necessary to deal with the legal aspect of the question. In one of the earlier decisions of this Court it was laid down clearly that R. 9, O. 1 of the CPC, is subordinate to R. 1, O. 34: see, 1 PLJ 468,1 and in view of this decision the learned advocate for the appellant contends that the non-joinder of some of the proprietors is fatal to the decree passed in this suit. He also cited the decision in 37 CWN 4782 where it was laid down that O. 34, R. 1 controls O. 1, R. 9 and not vice versa. Both these eases, however, were cases in which some of the mortgagees having not been made parties it was held that in those cases the suit was liable to be dismissed in its entirety. The matter, however, has been dealt with very fully by a Division Bench of this Court consisting of Sir Dawson Miller and Mullick, J. in 2 Pat 176.3 In the course of his judgment the learned Chief Justice has given strong reasons to show that the proposition that O. 1, R. 9 is subordinate to O. 34, R. 1 was not correct. This view is supported by a reference to O. 34, R. 1 which 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 in any suit relating to the mortgage.

6. It is unnecessary for me to deal with this matter at length because I respectfully agree with the conclusions arrived at by the learned Chief Justice in that case which are set out in the following passage:

It seems to me that the combined effect of these rules, in so far as the mortgages are concerned, is that all persons whose rights and interests may be adjudicated upon and determined in the suit ought to be added as parties but that failure to add one or more such persons should not have the effect of defeating the suit if the Court, in their absence, can deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Whether the Court can do so or not must depend upon whether the presence of those not added is essential to enable the Court to adjudicate on the rights and interests of those actually before it. It is a fundamental rule of procedure that the Court cannot, by its decree, affect the rights of those who are not parties to the suit. If, therefore, no decree can be passed without affecting the rights of absent parties, the suit cannot proceed in their absence and should be dismissed. If, however, the rights of the parties actually before it can be determined in the suit leaving the rights and interests of others unaffected, I can see no reason why, even if other parties might properly have been added, the Court should not determine the matters in controversy between the parties actually present.

7. Now it is settled beyond controversy that any one of the co-mortgagors can redeem the mortgage and it was pointed out clearly by the Privy Council in 48 Cal 224 that:

It is not the law in India any more than in England that any one of the several mortgagors cannot redeem more than his own share unless the owners of other shares consent or make no objection subject to the proper-safeguarding of the rights which these owners might possess.

8. Thus the rule laid down in O. 34, R. 1 that all the persons interested in the right of redemption shall be joined as parties is merely a rule of procedure which has been enacted with the object of avoiding multiplicity of suits. Assuming therefore that some of the proprietors who were also interested in the equity of redemption have not been made parties, the point which is to be decided here is whether the presence of these persons is essential to enable the Court to adjudicate upon the rights and interests of those actually before it.

9. The most important question which arose in this case was whether the mortgaged property could be redeemed or not; and, if one of the co-mortgagors is entitled to redeem it, I do not think that on the facts of this particular case, the omission to implead some of the proprietors (assuming that there was in fact such an omission) can affect the decree passed fay the Courts below. However that may be, the defendants, if they were really serious about the plea of non-joinder should have pointed out to the courts below who were the persons who ought to have been joined to enable them to decide how their absence would affect the decision in the suit. As matters however stand at present, the defendants have failed to sub stantiate their objection. In these circumstances, I do not think it necessary either to remand the case or to interfere with the decree passed by the Court below. I would therefore dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.

B.D/D.S

10. Appeal dismissed.