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Ramchandra Narayan Joshi and ors. Vs. Shripatrao Tukojirao Deshmukh and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in33Ind.Cas.771
AppellantRamchandra Narayan Joshi and ors.
RespondentShripatrao Tukojirao Deshmukh and ors.
Excerpt:
civil procedure code (act xiv of 1882), section 371 - redemption suit by one co-parcener of hindu joint family--abatement of suit on plaintiff co-parcener's death--suit not in representative capacity--fresh redemption suit by other co-parceners, whether barred. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is..........of 1882, which treated the father's right to sue his co-parceners for partition as including the right of suit of his own sons. whether that illustration was consistent with the principles of hindu law or not we need not here inquire, for vyankatrao at the time of his death had a brother who was also interested in the equity of redemption. apart from the question raised upon section 371, we think that the two bombay cases above cited are sufficient authority for the conclusion that since the introduction of the code of 1877 no legal proceeding by vyankatrao alone short of actual redemption would deprive his co-parceners of their right to redeem against the mortgagee. the right of a mortgagee to enforce his security by sale in a suit against the person who executes with authority,.....
Judgment:

Basil Scott, C.J.

1. The facts found by the District Judge are that one Vyankatrao Deshmukh mortgaged on the 21st March 1861 the lands in suit in favour of two mortgagees, and subsequently the interest of the 2nd mortgagee became vested in the 1st mortgagee. In 1881 Vyankatrao instituted a suit, No. 399 of 1881, against the mortgagee for redemption, but after issues were settled in that suit he died, the date of his death being 9th July 1883. On the 15th October 1883, the Court directed that the suit should abate. This suit was filed in 1912 by Tukojirao, Vyankatrao's son, and three grandsons for redemption upon the ground that the land mortgaged was ancestral property in which the plaintiffs, Vyankatrao's sons, had an interest with him at birth, It was also alleged that an adult brother of Vyankatrao was interested as a co-parcener in the same property. In the Trial Court the suit was dismissed on the strength of the order of abatement passed on the 15th October 1883.

2. An appeal was preferred to the District Court which reversed the order and remanded the suit for disposal. From that decree this appeal is now preferred. It is contended that by reason of Section 366 of the Code of 1882, the redemption suit is not maintainable by the present plaintiffs. That section must be read with Section 365 which provided that 'In case of the death of a sole plaintiff or sole surviving plaintiff, the legal representative of the deceased may, where the right to sue survives, apply to the Court to have his name entered on the record in place of the deceased plaintiff, and the Court shall thereupon enter his name and proceed with the suit;' and Section 366 provided that 'If within the time limited by law no such application be made to the Court by any person claiming to be the legal representative of the deceased plaintiff, the Court may pass an order that the suit shall abate.' Section 371 provided that 'When a suit abates or is dismissed under this Chapter (XXI), no fresh suit shall be brought on the same cause of action.' Now the time limited by law for an application under Section 365 was in 1883 two months. The order for abatement, therefore, was not without jurisdiction.

3. The contention for the appellants in this appeal is that as Vyankatrao filed the redemption suit, he represented all persons interested in the mortgaged property, and after his suit came to an end, no farther suit can be instituted by any one else. In support of that contention reference was made, particularly to the judgment of the Privy Council in Kishen Parshad v. Har Narain Singh 9 Ind. Cas. 739 : 38 I.A. 45 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 and a Full Bench decision of the Allahabad High Court in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 : 34 A. 549 : 9 A.L.J. 819. With regard to the Privy Council case, we are of opinion that all that was decided was, as stated by Mr. Justice Chamier in his judgment in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 : 34 A. 549 : 9 A.L.J. 819 that managing members of a joint family entrusted with the management of a business are competent to enforce at law the ordinary business contracts which they are entitled to make or discharge in their names. We cannot regard it as an authority with regard to redemption suits.

4. The contemporaneous decision of the same Bench, Madan Lal v. Kishen Singh 15 Ind. Cas. 138 : 34 A. 572 : 9 A.L.J. 844, indicates that if a manager sues on a mortgage on behalf of all his co-parceners he should at least purport to sue in a representative capacity, as was suggested by West, J., in Gan Savant Bal Savant v. Narayan Dhond Savant 7 B. 467. There is no indication here that Vyankatrao's suit was brought in a representative capacity. If not, it would certainly be defective as a redemption suit according to all canons of procedure, e.g., Chapters III and V of the Code of 1882: Gan Savant Bal Savant v. Narayan Dhond Savant 7 B. 467; Padmakar Vinayak Joshi v. Mahadev Krishna Joshi 10 B. 21 and Bolton v. Salmon (1891) 2 Ch. 48 : 60 L.J. Ch. 239 : 64 L.T. 222 : 39 W.R. 589. If the suit was defective, Vyankatrao's personal right to sue did not embrace the rights of his co-parceners and none of them can be concluded by the application of Section 371. In coming to this conclusion we have not overlooked illustration (d) to Section 361 of the Code of 1882, which treated the father's right to sue his co-parceners for partition as including the right of suit of his own sons. Whether that illustration was consistent with the principles of Hindu Law or not we need not here inquire, for Vyankatrao at the time of his death had a brother who was also interested in the equity of redemption. Apart from the question raised upon Section 371, we think that the two Bombay cases above cited are sufficient authority for the conclusion that since the introduction of the Code of 1877 no legal proceeding by Vyankatrao alone short of actual redemption would deprive his co-parceners of their right to redeem against the mortgagee. The right of a mortgagee to enforce his security by sale in a suit against the person who executes with authority, express or implied, a mortgage of family property, without joining the co-parceners interested, results from the authorized mortgage which carries with it the all-embracing remedy: see the opinion of Pontifex, J., quoted by the Judicial Committee in Daulat Ram v. Mehr Chand 14 I.A. 187 : 15 C. 70 : 11 Ind. Jur. 435 : 5 Sar. P.C.J. 84 : 1 P.R. 1888. It does not follow that the defeat of one co-owner who desires to redeem will bar the exercise of the same right by another: hence arises the necessity for joining all parties interested in one suit.

5. It must not be taken from the above remarks that we assent to the view that the provision of the Code which refers to representative suits can properly be applied to suits on behalf of a Hindu family by its manager.

6. We affirm the decree and dismiss the appeal with costs.


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