1. This is a suit by one Lala Suraj Prosad, who is a minor suing by his next friend, and also by his step-mother, against one Golab Chand, and the object of the suit is to have it declared that a certain mortgage-bond for Rs. 6,900, dated the 4th of April 1893, executed by Lala Chander Koylash, who was the father of the minor plaintiff and the husband of the co-plaintiff, is not binding upon and cannot be enforced against the joint properties mentioned in the bond, and for consequential relief.
2. The case is governed by the Hindu Law of the Mitakshara School; and the facts, so far as they are necessary for the purposes of the questions we have to decide, may be briefly stated. The father of the minor plaintiff one Lachchanji succeeded his father in 1875 or 1876. At that time he was a minor; he attained his majority in November 1890, and then took over charge of the joint-family estate left by his father, the joint-family estate of a Hindoo family governed by the Mitakshara School of Law. Lachchanji married during his minority, and the minor plaintiff is his only son. Lachchanji appears to have borrowed money on mortgage-bonds of the family property in February 1891, in August 1891, in October 1891, and in May 1892, but the mortgage-bond, with which we have to deal, is one dated the 4th of April 1893 for the amount I have stated.
3. The sole mortgagor was Lachchanji who, at the date of the mortgage, was undoubtedly the kurta or manager of the property of the joint-family. On the 31st of August 1893, the present defendant, as mortgagee, instituted a suit against Lachchanji alone to enforce the mortgage, and in that suit the usual mortgage-decree was obtained on the 20th of February 1894.
4. The present minor plaintiff was not a party to that suit. In November 1893, he. through his grandmother as next friend, instituted a suit against bis father for a partition of the joint ancestral property. The present defendant, the mortgagee Golab Chand, was not a party to that suit, and a decree for partition was obtained on the 12th of March 1894. Lachchanji died on the 23rd of July 1894, and when in September 1894, the mortgagee Golab Chand applied for execution of his decree against the minor plaintiff, the objection was taken that the debts contracted by the father were for illegal or immoral purposes, and that the plaintiff not having been made a party to the mortgage-suit, the family property could not be sold. This objection was overruled, hence the present suit.
5. The suit was heard before the Subordinate Judge. He held that the money secured by the mortgage was not borrowed for illegal or immoral purposes, and that the partition decree was not binding upon the mortgagee; and dismissed the suit. There was then an appeal to this Court, and the appeal was heard before Mr. Justice Ghose and Mr. Justice Harington, who agreed with the Subordinate Judge that the money was not borrowed for immoral or illegal purposes, but differed upon the question as to whether, or not, the present minor plaintiff not having been a party to the mortgage suit, he was bound by the decree in that suit Mr. Justice Ghose has held that it was not necessary to make the minor plaintiff a party ft that suit, and that, in effect, he was represented by his father, who was the kurta of the family, and consequently he confirmed the decree of the Subordinate Judge and dismissed the suit. Mr. Justice Harington on the other hand took the opposite view and held that the minor plaintiff was a necessary party to the suit and was in favour of reversing the decree of the Subordinate Judge, holding that the decree was not binding upon the minor. In this conflict of opinion an appeal has been preferred under Section 15 of the Letters Patent.
6. In this state of circumstances the following questions appear to me to arise for our determination: first whether the mortgage debt in question was contracted by Lachchanji for illegal or immoral purposes; secondly, assuming that it was not, whether the minor plaintiff not having been made a party to the mortgage suit is bound by the decree made in that suit; and thirdly, if that decree is not binding upon him, what relief is he entitled to in the present suit?
7. The first question may be readily disposed of. The Subordinate Judge, and both the Judges in this Court, confirming the Subordinate Judge, have held that the mortgage debt was not contracted for illegal purposes, and the learned vakil for the appellant has not argued that point before us. It must, therefore, be taken as conoluded that, has between the minor plaintiff and the defendant in this suit, the mortgage debt was not contracted for illegal or immoral purposes, and that the mortgage is a good and valid mortgage, no other ground having been even suggested for impeaching its validity. So much then for the first point.
8. The second point, to my mind, depends upon the true construction of Section 85 of the Transfer of Property Act, which runs as follows:
"Subject to the
provisions of the Civil Procedure Code, 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 (viz., Chapter IV) relating to such mortgage, provided the plaintiff has notice of such interest."
9. In connection with this section, the first point we have to decide is, whether the mortgagee had notice of the minor's interest, for it cannot be successfully disputed, nor has such a contention been seriously urged, that the minor plaintiff was not a person having an interest in the property comprised in the mortgage.
10. It has been urged for the respondent, that this point has not been pleaded with the sufficient precision, and that the plaintiff ought to have specially pleaded, that at the date of the institution of the suit, the mortgagee had notice of the minor's interest. The pleading no doubt is not so precise as it might have been, but looking at paragraph 7 of the plaint and at paragraph 11, and at issue No. 6 it would, I think, be difficult to say that the point had not been raised. It is true that the Subordinate Judge has virtually not dealt with the question, and that there is no finding by him upon the question of notice or otherwise, but the point was argued before Mr. Justice Ghose and Mr. Justice Harington, and both the Judges have found, upon the evidence, that the respondent had notice of the interest of the son, the minor plaintiff. I think we must, therefore, deal with this point, which, in fact, is the foundation for the appeal under the Letters Patent. I am disposed to agree with the respondent that the evidence is not very precise upon the point, but looking at the admission by the defendant's witnesses, it is difficult to say upon this question of fact, that the view taken by the learned Judges is wrong. I therefore proceed upon the footing that, when the suit was instituted, the mortgagee had notice of the minor plaintiff's interest. That being so, ought he not to have been made a party to the mortgage suit? Section 85 of the Transfer of Property Act is compulsory. The words are "must be joined" as a party to any suit under this Chapter relating to such mortgage. If then the minor had an interest, as he obviously had, in the property comprised in the mortgage, if the plaintiff had notice of such interest as we hold he had, how can we say in the face of this section that he ought not to have been joined as a party?
11. It is urged that the minor plaintiff was, through his father, a party to the mortgage suit, that his father as the kurta or manager of the property of the joint family represented him in that suit, and that he was, in fact and in law, a party to that suit within the meaning of Section 85, and in taking this view, and in arriving at this conclusion, Mr. Justice Ghose has enquired into the law, and relied upon the law, as it existed before the passing of Section 85 of the Transfer of Property Act, and has referred to, and relied upon a number of cases to show, what the law was when the statute was framed, But what we have to do is to look at the section which by reference to Section 437 of the Code of Civil Procedure indicates, in very clear terms, who are to be regarded as representative persons, and they are trustees, executors and administrators. The father in the present case did not answer any of these descriptions. In arriving at my conclusion in the case before us, I have no desire to impugn, nor could I judicially impugn, the various decisions of the Judicial Committee of the Privy Council upon which Mr. Justice Ghose relies, as showing what is the true position of a father in a joint Hindu family governed by the Mitakshara School of law. Those decisions are binding upon me, but what we have to consider is not what the law was before the passing of the Transfer of Property Act, but what the legislature has said is to be the law after the passing of the Act. The Transfer of Property Act was clearly an Act to codify a particular branch of the law, and in approaching and dealing with the case, Mr. Justice Ghose appears to me to have adopted the very course, which has been so much deprecated by Lord Herschell, when advising the House of Lords in the case of the Bank of England v. Vagliano (1891) A.C. 107, 144. "I think," said Lord Herschell, "the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see, if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object, with which it was enacted, will be frustrated. The purpose of such a statute surely was that on any point, specifically dealt with by it, the law should be ascertained by interpreting the language used, instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decision."
12. That view has been adopted by the Judicial Committee of the Privy Council in dealing with a case under the Indian Succession Act, equally with the Transfer of Property Act a statute codifying the law, in the case of Norendra Nath Sircar v. Kamal Basini Dasi (1896) I.L.R. 23 Cal. 563 and I have myself taken the same view in the case of Rajnarain Bhaduri v. Katyaya-ani Dabee (1900) I.L.R. 27 Cal. 649. That Mr. Justice Ghose has adopted the course deprecated by the judgments to which I have referred is reasonably clear from the following passages, as in other passages in his judgment:
"With a view to determine this question it may be useful to consider in the first instance, what was the state of the law at the time when the
Transfer of Property Act was passed, as to the true position of the father in a Mitakshara joint-family and the rights and liabilities of a son, especially of a minor son, jointly interested with his father in ancestral property, when such property is charged by the father for a loan contracted by him, or when it is sold or is sought to bo sold in execution of a decree obtained against him alone."
and in passing, I may observe that the cases in the Privy Council, upon which Mr. Justice Ghose relies, point only to a limited representation on the part of the father, for, if the father absolutely represented the son, it would not have been open to the son to bring a suit to impeach the mortgage on the ground that the advance was for an illegal or immoral purpose, as clearly he could do. At the time the
Transfer of Property Act was passed, the position of the father in a Hindu joint-family as Kurta or manager, whether under the Dayabhaga or Mitakshara School of Law, was perfectly well known and recognized, and yet the Legislature did not think fit to place him in the same category as a trustee, executor or administrator, or in other words as one who, in a suit to enforce a mortgage, might be sued as representing the interests of all the members of the joint family. If one were at liberty to speculate as to the motives of the Legislature in framing the section in question, I should have been disposed to say that it was so framed in order to get rid of the question on this head, which was raised in the cases relied upon by Mr. Justioe Ghose, and to discourage and avoid multiplicity of suits by making it obligatory upon the mortgagee to bring all the persons before the Court, who had an interest in the property and of whose interest he had notice. But I have no desire to speculate upon the motives, which may have led to the language of this section; I prefer to rely upon the plain and unequivocal language of the section itself, which to my mind, is absolutely clear upon the point, nor do I see why we should try to or how we properly can, get out of this plain and unequivocal language. I need scarcely add that all the cases to which I have referred were decided before the passing of the
Transfer of Property Act.
13. In my opinion the minor plaintiff ought to have been made a party to the mortgage-suit, and for the purposes of that suit he was not represented by his father, the mortgagor.
14. The only other question is what are the present rights and remedies of the minor plaintiff? It is urged for the appellant that, inasmuch as the decree in the mortgage-suit, by reason of his not having been a party to that suit, is not binding upon him, he is entitled to a declaration to that effect; and we have been told with an almost cynical frankness, that the advisers of the minor propose to leave the mortgagee to bring another suit to enforce his mortgage, and in that suit the minor will again set up that the debt was incurred for illegal and immoral purposes. It has not been suggested that there is any other possible defence open to the minor, except the defence that the money was borrowed for illegal or impious purposes. But that very issue has been raised and tried in the present suit and has been decided adversely to the minor plaintiff and must now be taken as between him and the mortgagee to have been finally and conclusively determined.
15. If the minor had been a party to the original mortgage-suit, and it had been found in that suit that the mortgage-debt was not contracted for immoral or illegal purposes, as has now been found, and there were no other defence to the mortgagee's claim, what would have been the rights of the minor in that suit? Taking the mortgage to be valid, as it has been found in this suit to be, his only right, so far as I can see, would have been a right to redeem. That right has been offered him in this suit, and we are prepared to give him a decree to that effect, but the offer has been refused on the minor's behalf.
16. The whole matter is now before us, the minor plaintiff has raised in this suit all the objections he can to the validity of the mortgage, and I can see nothing to prevent us from finally dealing with the matter, and placing the minor in the same position in which he would have been, had he been a party to the original mortgage-suit; and I do not see that he can successfully claim more than this. No doubt in case of Bhawani Prasad v. Kullu (1895) I.L.R. 17 All. 537 and others. the majority of the Judges held that the mortgage decree-holder was not entitled to sell in execution of his decree for sale the interests of the son in the property comprised in the mortgage by the father. But there is a material difference between the frame of the suit in that case, and the frame of the present. There the plaintiff asked for a declaration that their interests were not bound by the decree in the suit, to which they were not parties, upon the sole ground that they were not parties, and did not go into the merits of the validity of the mortgage, and that being so, the Court held that they were entitled to such a decree. But here the plaintiff has gone into the merits, and upon the question of the validity of the mortgage, the issue has been found against him and I do not think he ought to be allowed to contest those merits again. He is in the same position, in which he would have been, had he been a party to the mortgage-suit, and in that suit the validity of the mortgage had been decided against him. It seems to me that now the only right of the minor is to redeem, and that, as we now have all the parties before the Court, we can give him that right, if he asks for it; and that we ought not to make a decree in his favour merely on the footing that he was not a party to the mortgage-suit, when he has invited a decision on the merits and the decision is against him. It would have been different had he only sought a decree in the ground that he was not a party to the mortgage suit, in which case the validity of the mortgage would, if contested, have to be decided in another suit. But that question has now been decided in this suit. This view is not inconsistent with that taken by the High Court at Madras in two cases, one of Ramasamayyan v. Virasami Ayyar (1898) I.L.R. 21 Mad. 222 whieh was followed in the ease of Palani Goundan v. Rangayya Goundan (1898) I.L.R. 22 Mad. 207 or with the principle laid down by the Bombay High Court in the case of Devji v. Sambhu (1899) I.L.R. 24 Bom. 1352.
17. Under these circumstances, seeing that the minor plaintiff does not ask for liberty to redeem the mortgage, a right which I understand the mortgagee is not prepared to contest, and it having been found against the minor plaintiff that the debt was not contracted for immoral or illegal purposes, and no other defence to the mortgagee's claim having been raised or even suggested, it seems to me that his suit and his appeal must fail, and that both must be dismissed with costs.
Sale, J.
18. I agree.
Brett, J.
19. I agree.