Charles Fawcett, Kt., A.C.J.
1. A new point has been taken in this Court that it should have been held that the plaintiffs' suit for redemption, which was brought under the Dekkhan Agriculturists' Relief Act, is not competent. This is based upon the decision of the Privy Council in Mt, Bachi v. Biekchand (1910) Bom. L.R. 56. The point was not allowed by Macleod C.J., who summarily dismissed the appeal; but a further appeal under the Letters Patent has been admitted in this Court, and the point has now been fully argued before this Bench.
2. There is no doubt that the suit as brought is one for redemption of a mortgage bond of 1902. It refers to the subsequent sale-deed by the plaintiffs' uncle Basappa, defendant No. 7, and says that that sale-deed has effect only so far as the defendant No. 7's share is concerned, and that the plaintiffs were entitled to redeem the other half of the mortgage property. The plaintiffs finally pray for an account to be taken under the Dekkhan Agriculturists' Relief Act to ascertain what amount, if any, is due to the defendants Nos. 1 to 4 in respect of the said mortgage, and that if any amount was found due to the defendants it should be made payable by easy instalments, and that possession of the lands should be awarded to the plaintiff' after partition. It is a suit brought as a suit for redemption with prayers that can only be granted under the special provisions of the Dekkhan Agriculturists' Relief Act; and we do not think that the case can be distinguished from that which was before the Privy Council in Mt. Baohi v. Biolechand. So far as the alienation of defendant No. 7 stands in the way of the plaintiffs, the suit was not; a mere suit for redemption; and the special jurisdiction, that the Subordinate Judge could only exercise under the Dekkhan Agriculturists' Relief Act, if it was a mere suit for redemption, did not therefore exist Both the lower Courts have held that the sale-deed was executed by defendant No. 7 as manager of a joint Hindu family of which the plaintiffs were members, and that cuts away the attempt which has been made to show that the sale-deed can be absolutely ignored by the plaintiffs.
3. Primarily, therefore, this objection does, in our opinion, succeed. But we have been asked by Mr. Parnlekar to allow the suit to be treated as one brought in the ordinary way, without any reference to the special provisions of the Dekkhan Agriculturists' Relief Act, for setting aside the sale-deed by defendant No. 7, so far as it purports to transfer any interest that the plaintiffs had in the suit property, and for redemption of the mortgage of 1002, upon the terms of the mortgage deed itself, supplemented by provisions of law such as are contained in the Transfer of Property Act.
4. We think that there is substantial ground for saying that this request is in consonance with the interest of justice in the case. The suit in both the lower Courts has mainly turned upon the question whether there was legal necessity for the sale by defendant No. 7; and both the Courts, after considering the question, have come to the conclusion that defendant No. 1, who is the appellant before us, has not' established such legal necessity. Nor is it shown that he made proper enquiries and bana fide thought that there was necessity for the sale. The parties clearly accepted the position that, if the point of legal necessity was determined against defendant No. 1, then the mortgage of 1902 should be redeemed. There was another unregistered mortgage, but the trial Court held that it was not proved and no appeal was made in regard to that finding by defendant No. 1 to the District Court, although he appealed on other points; therefore, that is not a question that can be re-agitated before us, nor is it a point which has been raised in the memorandum of appeal to this Court.
5. The trial Court allowed the plaintiff's to redeem the mortgage of 1902 and held that on the accounts nothing was due by the plaintiffs to the defendants. Accordingly, a decree was passed that the plaint lands should be partitioned and one half should be put in the possession of the plaintiffs. On appeal, that decree was confirmed by the District Judge. So far as that decree holds that nothing is due by the plaintiffs to the defendant No. 1, it depends upon the special provisions of the Dekkhan Agriculturists Relief Act, because the profits of the land were taken in part towards satisfaction of the principal amount of the debt, whereas the bond itself only provides that the profits should be taken in lieu of interest. If that part of the decree was to stand, there would be a departure from what has been laid down by the Privy Council in M. Baohi v. Bicloohand. But there is no real necessity for any account at all. The provisions of the mortgage are extremely simple. The profits of the land were to be taken against the interest due and the principal amount of Rs. 150 had to be paid. Therefore, the plaintiffs might have confined the plaint to merely asking to he allowed to redeem their half share of the property on payment of Rs. 75; and on such a plaint the same District Judge who tried this suit, viz., the Joint Subordinate Judge of Dharwar, would have had jurisdiction to try the case. Similarly, although the plaint asked for instalments, that is unnecessary, as there could be no question of the plaintiffs paying this small sum of Rs. 75 by instalments. The provisions of Section 99 of the Civil Procedure Code say :-
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account o any misjoinder of parties or causes of action or any error, defeat or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of the Court.
6. I have shown that, supposing that we vary the decree by allowing partition and the plaintiffs being put into possession upon payment of Rs. 75 that would not affect the jurisdiction of the Court, nor would it affect, in any way, the merits of the case. The same points arise whether the plaintiffs have to pay nothing or Rs. 75; and, in our opinion, this is a case where-especially as the objection is raised in a Letters Patent appeal-we should not upset the proceedings and put the parties to the expense of further litigation merely because of a defect of this kind, which is curable. Mr. Murdeshwar has rightly drawn our attention to the fact that in Ghandabhai v. Ganpati : AIR1916Bom199 a similar request to be allowed to amend the plaint was refused. But there were considerations in that case which are not found in the present case. In this casa there is no question of any evidence having been admitted under the Dekkhan Agriculturists' Relief Act, which would have to be excluded if the case is treated as one not under that Act, No doubt, technically the plaint ought to be amended; but at this late stage we do not think it necessary that this formality should be carried out. There is nothing in the course of the litigation or in the decree, apart from the point 'that has been mentioned above about the amount payable, which necessitates any interference in second appeal; and therefore we merely vary the trial Court's decree by adding the words 'on payment by the plaintiffs to defendant No. 1 of Rs. 75 within three months from the date of the record being received by the Subordinate Judge of Dharwar' after the words 'be put in possession of the plaintiffs.' We think, however, that in the circumstances of the case defendant No. 1 was justified in coming to this Court in appeal, and that he should be allowed the costs of his appeals to this Court from the respondents, and these costs must also be paid within the period specified above.
7. I concur.
Charles Fawcett, Kt., A.C.J.
8. We grant the application of the respondents-plaintiffs to amend the description of properties in the plaint and direct that these amendments be made accordingly. No order as to costs with regard to that application.