1. The principal question of law argued in this second appeal is whether, where property is mortgaged to one person and that person subsequently dies, leaving two or more heirs jointly entitled to his estate, payment made by the mortgagor of the amount due on the mortgage, to one of those heirs, without the concurrence of the rest, amounts to a valid discharge to the mortgagor. The District Judge has held that it does, relying on the authority of the ruling of the High Court of Madras in Barber Maran v. Ramana Goundan (1897) 20 Mad. 461. That decision is based upon the English case of Wallace v. Kelsall (1840) 7 M. &. W. 264 and the last paragraph of Section 38 of the Indian Contract Act, which provides that 'an offer to one of several joint promisees has the same legal consequences as an offer to all of them.'
2. So far as this Madras decision proceeds upon the English law, its correctness may well be doubted, having regard to the decision of Farwell, J., in Powell v. Brodhurst (1901) 2 Ch. 160. It is not, however, necessary for us to express any opinion on the correctness of the decision in Barber Maran v. Ramana Goundan (1897) 20 Mad. 461 and the construction put there upon the last paragraph of Section 38 of the Indian Contract Act. In that case the payment was made to one of several joint mortgagees, and it may well be that in such a case where a mortgagor has mortgaged his property to several mortgagees holding jointly, and promised to pay his debt to them before redeeming, an offer of payment to one of the promisees has, under the lash paragraph of Section 38 of the Indian Contract Act, the same legal consequences as an offer of payment to all of them. But where, as in the present case, the mortgage was made not to several persons jointly but to one person, there was only one promisee, and the case cannot fall within the meaning of the last clause of Section 88 unless the several heirs of the promisee, who, on his death, inherit his estate, are to be regarded an joint promisees. There is nothing either in Section 38 or in the definition of 'promisee' in the Indian Contract Act to show that they must be so regarded. The right which the several-heirs jointly get on the mortgagee's death to enforce the mortgage is a right created by law in consequence of the devolution upon them of the single and indivisible right which the mortgagee had as the sola promisee, and not in consequence of their being 'joint promisees.' In the words of Tindal, C.J., in Deeharms v. Borwood (1834) 10 Bin. 526 several co-heirs constitute one heir and are connected together by unity of interest and unity of title. One of the heirs, therefore, cannot enforce the mortgage without the concurrence of the rest TO as to give a valid discharge to the mortgagor and free the mortgaged property from the incumbrance.
3. It is to be remarked that the flame view is taken of the law in Ahinsa Bibi v. Abdul Kader Saheb (1901) 25 Mad. . In that decision Bhaghyam Ayyangar, J., after doubting whether the case of Barber Maran v. Ramana Goundan (1897) 20 Mad. 461 was rightly decided, goes on to say: 'It may be that when money is advanced to one by several persons jointly, each of them authorises the others, by implication, to act on his behalf, and a release or discharge, therefore, of the claim, by one, is binding upon the others. Assuming that the principle of the English Common Law as to the operation of a release given by one of two or more joint promisees is not affected by the Indian Contract Act, and is the law here, as held in Barber Maran v. Ramana Goundan (1897) 20 Mad. 461 already cited it is clearly inapplicable to the case of co-heirs who are not joint promisees, but; the heirs of a single promisee, and it will be dangerous to extend and apply the English doctrine to a release given by one of such co-heirs In the case of co-heirs, among the Hindus, the Hindu Law, as a general rule, constitutes one of them, the senior in age, as the karta or manager of the inheritance on behalf of all the co-heirs.'
4. In the present; cage, the mortgage was made to Apashet, father of defendants 1 to 3. It is found by the district Judge that since his death the three defendants have not been living together, but that defendants 2 and 3 with their families have been living apart from defendant 1. Assuming that they constitute a joint Hindu family, the plea of the plaintiff 1 that he paid the amount due on the mortgage to defendant 2 as manager of the family is negatived by the District Judge's finding that 'the two families'--of defendant 1 on the one hand and of defendants 2 and 3 on the other--'were living apart and were mutually hostile.' According to Hindu Law, defendant 1, as the eldest of the three brothers, was entitled to the management of the family; but even as to him, having regard as to the above mentioned finding of the District Judge, it is clear that he could not act on behalf of all the brothers. Much less could defendant 2 represent this brothers and bind them by any transaction which had not their concurrence. We must, therefore, hold that the payment by the plaintiffs did not discharge the mortgage.
5. It was upon the basis of a discharge of the mortgage that the plaintiffs brought this suit for a declaration that they are entitled to have their names entered in the khoti registers as managers of the property in dispute, and as that basis fails, strictly speaking, the plaintiff's are not entitled to the decree passed by the District Judge. But as all the parties interested in the mortgage are before us, it is not desirable to expose them to fresh litigation if complete relief can be given now without prejudice to the rights of any and without altering the nature of the suit. It has been found that defendant 2 has received the whole of the mortgage debt, Rs. 799, from the plaintiffs. The allegation that the payment was fraudulent is negatived by the finding of the District Judge. The specific fraud alleged by the defendant 1 was that it was a bogus payment, it is not open to defendant 1 to plead fraud of any other kind. The only defence which remains to defendant 1 is that he has not received his proportionate share. As to the last argument of the appellant, the plaintiff's suit is to have a declaration entitling them to have their names . entered in the khoti register, and they are clearly entitled to it, having regard to the admitted fact that most of the lands in dispute are in the possession of tenants.
6. The decree will be: On payment by plaintiffs to defendant 1 of one-third of Rs. 799 within two months from this date, the decree of the District Judge should stand confirmed, each party bearing his own coats of this appeal. Otherwise in default of such payment within the period of two months, the decree of the District Judge to stand reversed and that of fine Subordinate Judge restored with costs in this and the lower Appellate Court on the plaintiffs (appellants).