1. In this appeal, the question for my consideration is whether the Son is bound by the court sale of the properties mortgaged by his lather, though he is not made a party to the mortgage suit The plaintiff, Vadla Nara Simhulu, is the son of the 1st defendant Vadla Ramaish The 1st defendant borrowed RS 2,000 from the 2nd defendant, Mundrinti Erranna, on 22nd March, 1952 agreeing to pay that amount with interest at 18%, and he also executed a simple mortgage deed on the same date with respect to items 1 and 2 of the plaint schedule as a Security for that debt Since the father did not pay the amount the 2nd defendant filed a suit .O.S, 199/1964 against him on the foot of the mortgage deed and obtained a preliminary decree on 21st Oct. 1965. The final decree was passed on 2nd Jan. 1967. Then, an execution Petition was filed in 1968 and items 1 and 2 were purchased by the 2nd defendant on l1th March. 1969 for RS. 5,210 and he took delivery of possession of the properties on 1st Sept. 1969. Items 1 and 2 of the plaint schedule are dry lands and item 3 is house on 19th Aug. 1971 the plaintiff Bled the suit for declaration of his title to the eastern half share of the lends shown in the B schedule and for possession thereof from the and defendant and for account of mesne profits from 1st Sept 1969. His case was that they were ancestral properties, that he had half share in them, that the lands are worth about RS. 40,000 that there was an oral partition between himself and his father in 1960, that he got eastern half of the lands to his share and he is in enjoyment of the same since then, that the 1st defendant had without any necessity or benefit to the family mortgaged the lands (items 1 and 2) to the 2nd defendant, and the mortgage is not binding upon him, and consequently, the sale is not valid and binding upon him.
2. The 2nd defendant resisted the suit by contending that there was no partition between the plaintiff and the 1st defendant , that the 1st as manager of the joint family had incurred the debt for the family necessity and has executed a mortgage and it is binding upon the plaintiff and come subsequently the sale is valid.
3. The learned Subordinate Judge dismissed the suit holding that the properties were joint family properties that there was no oral partition, and the plaintiff is bound by the mortgage decree obtained against the father, and consequently, the sale is valid and binding upon the plaintiff.
4. In this appeal, it is submitted by Sri R. V. Subba Rao the learned counsel for the plaintiff-appellant that, admittedly, the plaintiff was not made party to the mortgage suit. O.S. No. 199/ 1964, that it was the dirty of the 2nd defendant to have made him a party to the suit in view of O. 34, R 1, C.P.C. and therefore, the decree and consequential sale are not binding upon him. In this connection, he referred to Lala Suraj Prasad v. Golab Chand. (1901) AIR 28 Cal 517; Bisweswar v. Jaineswar, : AIR1968Cal213 ; and Chota Nagpur Banking Asson. v. Ramapati, : AIR1964Pat321 .
5. On the other hand, it was submitted by the learned counsel for the respondent that whether the sons are parties or not, they are bound to pay the debt by virtue of their pious obligation, and ii the father does not pay, the creditor sell the joint family properties, including the shares of the sons and, therefore, the fed that the sons were not made parties to the suit will not make any difference He also submitted that the father, as the manager of the kint family, represents the family including the sons, and so long as the sons have failed to prove that the debt was tainted with illegality or immorality, their share in the joint family property could be sold even though they are not made parties to the suit. To substantiate his contention he also referred to some decisions.
6. I have seen the mortgage deed. Ex. X-3. It shows that the 1st defendant had borrowed RS. 2,000 on 22nd March 1952 in order to discharge his debts and also for family expenses. In my opinion, the oral partition pleaded by the plaintiff has been rightly disbelieved by the lower Court. Sri R. V. Subba Rao, the learned counsel for the appellant had failed to convince me that there wee such a partition in the family between the plaintiff and the 1st defendant in 1960.
7. O. 34, R. 1. C.P.C. reads as follows:--
'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 to any suit relating to the mortgage.' We are not concerned with the Expiation in this case This O. 34 is new. It is a re-enactment with some alteration of Ss. 85-90, 92-94, 96, 97 and 100 of the T. P. Act, 1882 relating to suits on mortgage Rule 1 is a reproduction with some alterations of S. 85 of the T. P, Act, which runs as follows:-- 'Subject to the provisions of the Civil P. C., S. 437 (now O 34 . R. 1) all persons having an interest in the Property comprised in a mortgage must be joined as parties to any suit under this chapter relating such mortgage: Provided that the plaintiff has notice of such interest. S. 85 was considered by the Calcutta High Court in Lala Suraj Proceed v. Golab Chand ((1901) AIR 28 Cal 517) (supra). In that case, m a Joint Mitakshara family, consisting of a father and minor son, the father as Karta of the family by a mortgage band hypothecated the joint property. The mortgagee sued the father alone, on the mortgage bond, without making the minor son party, although he (the mortgagee) had notice of the son's interest in the mortgaged property, at the time. The mortgage-debt was not found to have been contracted for illegal or immoral purposes. It was held that 'the provisions of S. 85 of the Transfer of Property Act beans compulsory, the minor son 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'
8. In Bishweswar v. Jaineswar : AIR1968Cal213 (supra), it has been held by the Calcutta High Court that the sons born after father had executed the mortgage, but before the mortgagee sued to enforce the right of redemption, even 'though they could not question or challenge the mortgage and were bound by the same were having the right of redemption and they were necessary practices to the mortgage suit, and the decree obtained in the suit and the sale held in pursuance of the same, would not hind them so as to deprive them of their right of redemption. If they are willing to redeem the mortgagee's interest by paying to him all his dues up to the date redemption in accordance with the law, they should be permitted to exercise their right.
9. In Chota Nagpur Banking Asson. V. Ramapati : AIR1964Pat321 (supra), it has been held by the Patna High Court that 'as a general rule, all persons having the equity of redemption ought to be brought on the record: but the failure to bring any one of than on the record does not in every case necessitate the dismissal of the suit The combined effect of O. 1, R 9 and O. 34, R 1, in so far as mortgagees are concerned is that all persons whose rights and interest may be adjudicated upon and determined in the suit ought to be added as par ties, but failure to add one or more of such persons should not have the effect of defeating the suit, if the court in their absence, can deal with the matters in controversy so far as regards the rights and interests of the parties actually before it. 'When a mortgagee has omitted to implead a person who is a necessary party in a suit far enforcing the mortgage bond, he should not get a decree so tar as the share of that person, if ascertainable, is concerned, and the claim as well should be reduced proportionately having regard to the share of the person not imploded.'
10. Now I will refer to the Madras decisions. In Ramasamayyan v. Ayyar. (1898) AIR 21 Mad 222. the facts are: Hindu having three sons, executed a mortgage in favour of the defendants, who subsequently obtained a decree for sale on the mortgage and brought the property to sale in execution and purchased it themselves, the mortgagor and two only of his sons being brought on to the record It did not appear whether the plaintiffs in that suit were aware of the interest of the third son, who now sued to recover his one quarter share of the mortgage premises claiming that the previous proceedings were not binding on him and alleging that the mortgage was unsupported by consideration Shepherd, J. speaking for the Division Bench after referring to old S. 85 of the T. P. Act, (which is nor repealed) observed :
'That even independently of the statute, the position of a purchaser, who in a sale in execution of a decree against the father bought the entirety of the estate, is the same as regards the son whether the decree was a mortgage decree or a decree for money. In either rasp all that the son can claim is that, not having been a party to the sale or the proceedings which led up to it, he should have an opportunity of showing that there was in reality no such debt as to justify the sale, The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such sale by the intervention of a suit, It is not necessary that the son shall be called in whether the sale is voluntary or procured by a proceeding in invitum. and there is no abject in joining him except to preclude him from afterwards questioning the nature of the debt ...... The mortgagee who omits to join persons interested in the property may have his suit dismissed or, if he obtains a decree, may find notwithstanding that he has to institute or defend another suit. Nevertheless as against the Hindu father the decree which is passed in the absence of his sons is a good and valid decree, The creditor, although he may have failed to obey the rule contained in the section, has got the decree which he requires as a foundation for his application to sell the whole estate Since the plaintiff in that case alleged .that there was really no debt owing by the father to support the mortgage, the Bench held that the plaintiff was entitled to have that question tried and manded the matter for that purpose.
11. In Palani Goundan v. Rangaypa Goundan, (1899) AIR 22 Mad 207 a decree was obtained against a Hindu father in a suit on a bond hypothecating family property, and the sons sued for a declaration that the decree was not binding on their share on the pounds that they had not been made parties to the suit, and the debt had been contracted by the father for immoral purposes. The Division Bench held that the true rule as to the effect of S, 85 of the T. P. Act, in cases in which a decree is obtained against a Hindu father without making his sons parties to such a suit is laid down in Ramasamayyan v, Virasami Ayyar, (1898) AIR 21 Mad 222).'
12. In Unnamali Ammal v, Abbey Chetty. (1926) 50 Mad LJ 172, Ramaswami was the manager of the joint family at the time of the mortgage and was legally competent to mortgage the whole property, The mortgage purported to be of the entire property and not merely of Ramaswami's share there. And there war nothing in the mortgage-deed to repel the natural inference that what was intended to be conveyed was the whole property. There was, however, a recital in the mortgage-deed that the property. mortgaged belonged absolutely to Ramaswami. The Bench held that the recital that the executing was the owner may be treated as surplusage. Not only did he purport to mortgage the entire property, but he possessed the legal capacity to do so. As the manager of the family he was competent to enter into a transaction binding on the whole property, There were thus three elements present. First, he purported to mortgage the whole property; secondly, he was legally competent to do so; and, thirdly, there is no thing in the document to repel the natural inference that what was intended to be conveyed was the whole property. The Bench further held that in those circumstances the interest conveyed should be that which the executant was capable of conveying.
13. In Sheo Shanker Ram v. Jaddo Kunwar AIR 1914 PC 136, when some of the members of the joint family, who are interested in the mortgaged proper ties were not made parties at the time of the foreclosure suits, they contended that, since they were not made parties the decrees did not bind them and they were entitled to redeem them. The High Court held that they were bound by the foreclosure decrees an the ground that the joint family was effectively represented in the suit, and that in such case, the Court is not bound to set aside the execution proceedings where substantial justice has bear done merely because every existing member of the family was not formally a party to the suit, The Privy Council observed :
'there seems to be no doubt upon the Indian decisions from which their Lordships see no reason to dissent) that there are occasions, including foreclosure actions, when the managers of joint Hindu family so represent all other members of the family that the family as a whole is bound. It is quite clear from the facts of this case and the findings of the Courts upon them that this is a case where this principal ought to be applied. There are not the slightest ground for suggesting that the manners of the joint family did not act in every way in the interest of the family Itself, and no question arises under Section 85 of the T. P. Act, 1882 because the mortgagee had no notice of the plaintiff's interest.'
Therefore, the Privy Council refused to interfere with the decision of the High Court.
14. In Lala Ganpat Lal v. Narayan Singh, AIR 1920 PC 1 it has been held by the Privy Council, that if a person interested in the mortgaged property, who should have been joined as a party to a mortgage suit, but has not been so joined, comes in before foreclosure or sale, he has all the rights of redemption that his interest in the property gives him and may exercise them not with standing the decree. But where the decree for sale stands and sale has taken place under it, the right to redeem is extinguished unless the sale is set add, In that ease, the plaintiff impeached neither the debt nor the mortgage, but admitted that they were binding on him in the suit He admitted that the mortgagor had the right to bind his interest in the property by the mortgage and that he did so, and that the debt was due and owing at the date of the mortgage decree He did not seek either by his plaint or by his prayer to impeach the mortgage decree itself, and he has deliberately chosen not to impeach the sales that have taken place under it. His claim, therefore, was in effect a claim to come in and exercise a right to redeem the whole property without setting aside either the mortgage decree or the sale, The learned Judges observed that while the decree for sale stands and the sale has taken place under it, the right to redeem is extinguished unless the sale he set aside. After the sale has taken place the owner holds as purchaser, and is entitled to raise all the defences that belong to him as such and unless the claim to set aside the sale is made in a properly constituted action and properly raised in suitable pleadings in that action, the Court cannot interfere with the possession which has been given him by the purchaser', Therefore, the learned Judges held, 'that the plaintiffs can no longer exercise any right of redemption that they may have possessed so that it is not necessary to decide as to the extent of that right if they had properly asserted it.'
15. In Devidas v. Shrisheilappa. : 3SCR896 , it has been held by the Supreme Court, that 'the question of the right of a manager to sue in that capacity is one of authority ii the other co-sharers are adults, and the right to insist on .the other coparceners being brought on the record is for the benefit ' the defendant to insure himself against further litigation and is, there fore, dependent on the objection being taken at an early stage. the objection on the score of want authorization being one of a character which it is clearly open to the defendant to waive.' The Supreme Court further held that 'in a suit by the manager of a joint Hindu family for enforcement of a mortgage, an adult member, who is interested in the mortgage security, is not a necessary party though he can be joined as a proper party; and failure to join a person who is a proper but not necessary party does not affect the maintainability of the suit.'
16. In Faquir Chand v. Harnam Kaur, AIR 1967 SC 727 it has been held by the Supreme Court that (at pp. 729-30).
'A father as manager can incur debt by mortgage of joint family property for discharging his debt and his son is under pious obligation to pay the mortgage debt which his father is personally liable to pay, provided that, it is not incurred for immoral purpose. In such a case, son's liability cannot be confined only to money decree against his father. It is the existence of the father's debt that enables the creditor to sell the property in execution of a money decree against the father. Likewise, if a mortgage decree against the father directs the sale of the property for the payment of his debt, the creditor may sell the property in execution of the decree. It is true that the procedure for the execution of a money decree is different from that for the enforcement of mortgage decree A money decree is executed by attachment and sale of the debtor's property. For the execution of the mortgage decree an attachment of the property is not necessary and the property is sold by force of the decree. But this distinction in procedure does not affect the pious obligation of a Hindu son to pay his father's debt. As in the case of a money decree, under a mortgage decree also the property is sold for payment of the father's debt. The father could voluntarily sell the property for payment of his debt. Ii there is no voluntary sale by the father, the creditor can ask the court to do compulsorily what the father could have done voluntarily. The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such a sale by the intervention of a suit;'
It was also observed that,
'Where a father as manager has incurred debt for discharging his debt by mortgage of joint family property but the debt is neither for legal necessity '' for payment of antecedent debt, the creditor can in execution of mortgage decree for realisation of a debt which the father is personally liable to repay, sell the estate without obtaining a personal decree against him The son is liable not only after but also before the sale is held. It is well settled that the son is liable in the case of money decree for payment of the debt before the sale is held So also he is liable in case of mortgage decree for payment of the debt by the sale of the property. If there is just debt owing by the father, it is Open to the creditor to realise the debt by the sale of the property in execution of the mortgage decree. The son has no right to interfere with the execution of the decree or with the sale of the property in execution proceedings. unless he can show that the debt for which the property is sold is either non-existent or is tainted with immorality or illegality.''
It was also observed that, a the mortgage debt incurred by the father as manager was not for legal necessity or for payment of antecedent debt, his son is entitled to impeach the mortgage even after the mortgagee had obtained a preliminary or final decree against his father on mortgage.
17. In view of the decisions of the Madras High Court, the Privy Council and the Supreme Court, which I have just now referred to, I am not able to share the view taken by the Calcutta High Court. A father as a manager of a joint Hindu family can mortgage the properties and incur debts. He represents the family as a whole, when he incurs the liability The sons cannot impeach the mortgage unless the debt is for illegal or immoral purposes, The sons are bound to pay the debt by virtue of the theory of pious obligation Therefore a decree obtained against the father is binding upon his sons also, because the father represents the sons.
When a suit is brought on a mortgage by or against a member of a joint Hindu family in his Representative capacity, the other members of the family are not necessary parties to the suit, and the suit will not fail by reason of the non-jointer of those members, The sons can question that decree not on the ground that they were not made parties to the suit, but on the ground that the debt was incurred for illegal or immoral purposes. Therefore, I do not agree with the learned counsel for the appellant that since the plaintiff was not made a party to the mortgage suit, the decree obtained in that suit is not binding upon him.
18. In this case, the plaintiff appellant did not take this objection at all in the lower court. Even otherwise, he failed to prove that the debt for which the mortgage was executed was illegal or immoral. He pleaded oral partition between himself and his father the 1st defendant and it was rightly disbelieved by the lower court In the suit, he not specifically ask to set aside the mortgage decree and the sale pursuant thereto. In these circumstances. I hold that the sale of the properties is valid and binding upon the plaintiff-appellant, and I dismiss this appeal with costs of the and respondent. Court fee is payable by the appellant.
19. Appeal dismissed.