1. These tow revision petitons give rise to an interesting question of law as to whether the persons claiming paramount title independently but not through the mortgagor or mortgagee can be called necessary or proper parties to a suit for redemption of the mortgage.
2. The relevant and brief facts that gave rise to these revisions may briefly be stated thus. O. S. No. 60 of 1967 on the file of the Court of District Munisif, Sompet has been filed by the petitioner herein fore redemption of the mortgage executed by his father late Rambuddi Rajayya on 11-9-1933 in favour of the father of the 1st Defendant in respect of Items 1 to 9 of the plaint schedule for a sum of Rs. 200 repayable with interest at 18% per annum. Defendants 2 to 4 had set up a case of adverse possession and paramount title to all the mortgaged properties. It is further averred in the written statement of the 2nd defendant that he sold away Items 7 to 9 in favour of one Rambuddi Haarikrishna. On enquiry, the plaintiff having come to know that the said Harikrishna since died, had sold a portion of those items in favour of one Kalepalli Chinnodu. Defendants 5 and 6, the legal representative of late Harikrishna, Kallepalli Chinnodu, the 7th defendant and his wife Subhjadra being alliances from HariKrishna, were sought to be impleaded as defendants 5 to 8 in I. A. No. 240/67 and I. A. No. 77/68. Defendants 5 to 8 resisted the applications contending inter alia that their presence in the suit would be unnecessary, as they do not claim title to the mortgaged property through the mortgage but as alliances of the second defendant, who sets up an independent paramount title by adverse possession, and hence, it is beyond the scope of the suit. The learned District Munisf, upholding the objection of the respondents, herein, dismissed the applications. Aggrieved by the order of the trial Court, these revision petitions have been filed by the plaintiff.
3. Sri C. Poornaiah, for the petitioners contended that the defendants 5 to 8 are necessary and in any event, proper parties for a complete and effective adjudication of the rights of the parties as they are interested in t he result of the suit; whereas Sri C. N. Babu fro the respondents contended contra and urged that in a suit for redemption, they are not necessary or proper parties as they did not claim their right through the mortgage but claimed title independently and the scope of the redemption suit being only limited to the parties who claimed interest either form the mortgagor or from the mortgage, they would be prejudiced if they are made parties.
4. the point that arises for determination is whether the defendants 5 to 8 now sought to be impleaded by the plaintiff are necessary or proper parties to O. S. No. 60/67, a suit for redemption of the mortgage.
5. To appreciate the respective contentions advanced by the counsel, it is profitable to consider the provisions of Orders 34, Rule 1 Civil P. C. which reads thus:
'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.'
It is true, as contended by Sri Babu, that the object of this rule is to make all persons having an interest in the mortgage-security or in the right of redemption join as a parties with a view to avoid multiplicity of suits. It is also true that the defendants 5 to 8 who are sought to be impleaded as party-defendants by the plaintiff in the suit for redemption, are not claiming any right through the mortgagee or mortgagor but claiming independent title through the 2nd defendant. The provisions of O. 34, Rule 1 Civil P. C. are subject of the provisions of the Code as disclosed from the opening words of the rule. Order 1, R. 2, Clause (2) Civil P. C. empowers the Court to add the name of any person who ought to have been joined as defendant and whose presence before the Court would be necessary in order to enable the Court effectively and completely to adjudicate upon and settle al the questions involved in the suit. Even on the admitted facts, it cannot be said that the defendants 5 to 8 are not interested in some of the mortgaged properties which according to them were in their possession on the date of suit, though they claimed to have got possession of the properties through the 2nd defendant, who is setting up an independent paramount title by adverse possession. Further, in case the plaintiff succeeds in getting a decree in the suit for redemption in respect of the suit properties, some of them being alleged or claimed to be in the possession of defendants 5 to 8, he will not be able to reap the fruits of the decree, until and unless they (defendants 5 to 8) are made parties to the suit.
6. I am unable to agree with the contention of Sri C. N. Babu that the provisions of Order 1, Rule 10 Civil P. C. are controlled by Order 1, Rules 1 and 3. As far as Order 1, Rule 1 is concerned, I must say that it has no application to the facts of the present case, as the same relates to the persons who may be joined in one suit as plaintiffs, in whom any rights to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist. Even Rule 3 of Order 1 which authorises all persons against whom any right to relief in respect of or arising out of the same act or transaction is alleged to exist, whether jointly or severally, to join as defendants, cannot be said to control the provisions of O. 1, R. 10 CL. (2), Civil P. C. The argument of Sri Babu is that as no relief against the defendants 5 to 8 relating to redemption of mortgage is sought for, they cannot be added in the same suit as party defendants. As observed by B. P. Sinha, J. (as he then was) in Razia Begum v. Sahebzadi Anwar Begum, : 1SCR1111 :
'In a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of litigation.'
Admittedly, in the present case, the defendant 5 to 8 are directly interested in Item 7 to 9 of the plaint schedule claiming as alienees from the 2nd defendant who has set up an independent title by adverse possession. The plea of the plaintiff that the 2nd defendant, who is setting up an adverse title, has colluded with the 1st defendant, who remained ex parte and hence, the mortgagee is deemed in law to be in possession of the mortgaged properties, is materiel and relevant to determine the point at issue, whether defendants 5 to 8 are necessary or proper parties to the present suit. If on enquiry by the Court this point is found in favour of the plaintiff, the plaintiff must be able to get at the properties, pursuant to the decree and he will not be in a position to successfully execute the decree and get possession of the mortgaged properties, unless he makes the defendants 5 to 8 as party defendants who claimed to be in possession of those items.
7. From a perusal of the cases cited across the bar by both counsel, it is evident that there is some conflict between several High Courts on this point. The Bombay, Allahabad and Calcutta High Courts and in some cases the Patna High Court have taken the view that tin a suit for redemption of a mortgage, persons claiming paramount title independently of the mortgagor or mortgagee are not necessary or proper parties to the suit. In Sataggauda Appanna v. Satappa, ILR 44 Bom 698 = (Air 1920 Bom 96), it was held that parties in possession of mortgaged properties claiming independently of the mortgage are not necessary parties in suit for redemption. In Tinkarhi Dasee v. Rarendranath, AIR 1932 Cal 512, Buckland, J. has held that questions of paramount title should not ordinarily be decided in a suit to enforce a mortgage. A Full Bench of the Allahabad High Court, in Mst. Satwari v. Kali Shanker, : AIR1955All4 , has held that a person having a paramount title is not a necessary party in a mortgage suit. I that case, their Lordships have observed that 'the rule as to impleading persons having paramount title, is more a rule of convenience and prudence than a rule affecting the jurisdiction of the Court .' In Ramautar Singh v. Ramsewak Lal, : AIR1951Pat352 , a Division Bench of the Patna High Court has held that the person claiming paramount title is not a necessary party to a suit for redemption of mortgage. The same view has been taken by a single Judge of the same High Court in Lachhmi Narain v. Ganga Mahton, : AIR1964Pat44 . In that case, it was held that the suit for redemption of a mortgage could not be converted into one for investigation of title between the original mortgage-defendant whose interest was adverse to the original mortgagee, and hence, the proposed intervener could not be made a party defendant to such a sit. Another Division Bench of the Patna High Court, in Aneshwar Prasad v. Misri Lal, : AIR1961Pat28 , has taken the contrary view to that expressed in : AIR1951Pat352 .
8. As a far as the Madras High Court is concerned, I must say that it has taken consistently the view that it is always convenient for effective and complete adjudication of the rights of the parties to implead the persons who claim to be in possession of the mortgaged properties I a suit for redemption, though the questions of paramount title have to be decided. In Doraiswami v. Varadarajulu, Air 1928 Mad 2, the question that arose for determination were, whether a person claiming an adverse or paramount title was or was not a necessary or proper party in a mortgagee suit and whether the Court, in such a suit, can adjudicate the title of such persons claiming tittle adverse to the mortgagor or mortgagee. Vekatasubba Rao, J., at page 4, succinctly summed up the legal position thus:
'To a mortgage suit a person claiming an adverse or paramount title is not ordinarily a necessary or proper party; this rule is not absolute or inflexible, for, in certain circumstances, it may not only be proper but even desirable to implead him as party. x x x x The object of this rule (Order 34, Rule 1 Civil P. C. ) is to define the scope of a mortgage suit as such, that is of a mortgage suit pure and simple, but this rule is not directed to the question whether any cause of action may or may not be joined to a claim on a mortgage, and, if it may be joined in what circumstances. x x x x The question of ownership as a question of fact is bound up with the other questions that necessarily arise in the case and it seems to me that this is a strong reason for holding that the issue should be tried and decided in this action itself.'
In muthiah Servai v. Somasundaram Chettiar, AIR 1928 Mad 199 (2), Devadoss, J., while considering whether an issue relating to the property being self-acquired as claimed by one of the members of the family can be gone into in a suit for mortgage executed by a member of the family, had held that
'although in a mortgage suit it is not proper that a title of person who claims adversely to the mortgagor should be gone into it would be but fair that this issue ought to be raised and determined in course of the suit and should not be left to be determined in execution.'
The same view had been taken by a Division Bench of the Madras High Court in Ramasamy Pillai v. Marimuthu Goundan, AIR 1928 Mad 28 Mad 764 . In veearanghavulu v. Suryanarayana. AIR 1936 Mad 338, Venkataramana Rao J., as he then was, while considering this aspect of the case, observed at page 340:
'Ordinarily the title of persons who set up a claim adverse to the mortgagor and mortgagee shoudl not be investigated in a suit upon a mortgage. The joinder of such persons as stated by the Privy Council in ILR 38 All 488 = (AIR 1916 PC 18) (Radha Kunwar v. Reoti Singh) s regular and leads to confusion, but it is not an inflexible or invariable rule. Such joinder does not affect the jurisdiction of the Court, though it is always desirable that if a party sets up a paramount title and does not want to redeem the property he may be struck off from the record as he takes the risk of not claiming redemption in case his title is found against in any subsequent litigation. but in each case the Court can exercise its discretion whether it will lead to inconvenience or confusion trying the issue as to paramount title in the same suit. As observed by Venkatasubba Rao. J., in 53 Mad LJ 647 = (AIR 1928 Mad 2) (Duraisami Iyengar v. Varadarajulu Naidu) sometimes it any be necessary to do so. The Court is not bound to adjudicate on it, but the fact that the defendant objects to the trial of such an issue would not preclude the Court form trying it if it thinks necessary in the interests of all parties that such a trial should take place; vide 1914 Mad WN 623 = (AIR 1914 Mad 332) (In re O. Ramalakshmanna). As pointed out in AIR 1928 Mad 764, it is very desirable that before the property is brought to sale all questions of title relating to the mortgaged property should be settled and the Court should as far as possible avoid multiplicity of litigation. The effect of joining persons who claim a title paramount need not necessarily result in a dismissal of the suit. The Court can order a separate trial.
In this case for instance it cannot be said that the trial of the issue relating to the title set up by defendant 6 was altogether unnecessary. The claim set up by defendants 6 to 13 is based on a title derived form the branch of defendants 1 and 2 prior to the mortgage. x x x x Defendant 6 and his alienees could not be said to be complete stranger who claimed by a title not derived from the parties. In such circumstances, I think it is very often desirable that the tittle to the mortgaged property should be set at rest before the property is brought to sale x x x x In the interests of all parties I think it is not desirable that they should be driven to another litigation.'
In kasi Chettiar v. Ramasami Chettiar,, Air 1937 Mad 176, a suit on mortgage against legal representative of the mortgagor was brought. The legal representative claimed title paramount to the mortgaged property and denied right of the mortgagor to bind over that property. In those circumstances, their Lordships, after considering the entire case law on the subject, have held that the question whether issues of paramount title should or should not be decided in a suit on mortgage was dependent on the facts and circumstances of each case and the facts of that case justified that it shoudl be tried and decided before the mortgaged security was brought to sale. The same view has been taken by Ramamurti, J. in Krishnamachari k. Dhanalakshmi, : AIR1968Mad142 .
9. The view of the Bombay, Calcutta, Allahabad and Pata High Courts is opposed in certain respects to the view of the Madras High Court. Though the Madras High Court agrees with the view expressed by the several High Courts normally that the person who claim adverse independent title paramount in some or all of the mortgaged properties, need not be impleaded as parties to such a suit, thinks it proper and desirable to implead such persons as parties to the suit where, on a consideration of the facts and circumstances of each case, the Court considers it just, proper and necessary in the interests of the parties to adjudicate on all the questions including that of paramount title in order to avoid multiplicity of suits without allowing the question of ownership of the said properties to be once again agitated or gone into at the stage of the execution proceedings.
10. From the aforesaid discussion, the following principles emerge: (1) The provisions of O. 1, R. 10 (2) Civil P. C., as held by the Supreme Court in Razia Begum's case, : 1SCR1111 , should be construed very liberally and all persons who are found to have direct interest in the mortgaged properties must be held to be proper, though not necessary, parties for a complete and effective adjudication of the rights of the parties.
(2) The object of the Legislature in making Rule 1 to Order 34 Civil P. C. is to define the scope of a mortgage suit, pure and simple.
(3) The provisions of Order 34, Rule 1 Civil P. C. are subject to the provisions of Order 1, Rule 10 (2), but the provisions of Order 1, Rule 10 (2) are not controlled by O. 1, Rule 3 Civil P. C.
(4) The question as to who are all the necessary parties to be impleaded as party defendants in a suit on mortgage is not one of jurisdiction but at most one of misjoinder or non-joinder of parties.
(5) Where a suit for redemption, foreclosure or sale of mortgaged property is brought by the respective parties to the mortgage, all persons interested in the equity of redemption and all those who claim right and interest through the mortgagee should ordinarily be necessary parties and the persons who claim adverse title paramount in some or all of the mortgage properties but not through the mortgagor or mortgagee, need not be impleaded as parties normally to such a suit.
(6) But, the aforesaid rule is not inflexible or absolute and the Court, in each case, has to see whether such a course will lead to inconvenience or confusion and exercise its discretion judiciously and properly.
(7) In certain cases, where the Court thinks it just, proper and necessary in the interests of all parties to adjudicate on the questions relating to paramount title, it is not only proper but even desirable to implead such parties and avoid multiplicity of litigation.
(8) Where it is alleged that the person claiming adversely or by title paramount is a benamidar of the mortgagee, or is claiming to be in possession and enjoyment of all or some of the mortgaged properties, those who are likely to resist the decree-holder in case the decree is passed in terms of the plaint must be held to be proper, though not necessary, parties to such a suit on mortgage.
(9) Where the Court, on a consideration of the facts and circumstances of each case, is of the opinion that it would be just and convenient and desirable to decide the title of the persons who set up a paramount title, then those persons must be impleaded as party defendants, and in the interests of all parties, the question of title also should be adjudicated upon after framing appropriate and proper issued and giving opportunity to all the parties concerned.
11. shall now turn to the facts of the present case and consider the same in the light of the aforesaid principles, with a view to arrive at a correct conclusion on the material pints at issue. It is clear from the stand taken by the respondents herein that they claimed title to some of the suit properties through the 2nd defendant and not through the mortgagor or the mortgage and also claimed to be in possession and enjoyment of them. If they are not impleaded as parties to the suit and in case the plaintiff finally succeeds in the suit, there is every likelihood of these defendants resisting the plaintiff from taking possession of the properties on the ground that they were the owners of those items and in which case, separate suit or suits have to be filed by the plaintiff once again. To avoid multiplicity of suits, on a close and careful consideration of the admitted facts and circumstances of the case, I think it not only desirable but just and convenient to implead the defendants 5 to 8 as supplemental defendants in this very suit and permit them to file written statement raising all the requisite pleas including the plea of paramount title by adverse possession to the suit properties. In the circumstances and for the reasons stated, I must hold that the plaintiff-petitioner is entitled to implead the defendants 5 to 8 as supplemental defendants and get adjudication o the question of title to some of the properties claimed to be in possession and enjoyment by them.
12. In the result, I allow these revision petitions, setting aside the order of the Court below, and direct the lower Court to permit the supplemental defendants 5 to 8 to file written statements raising all the pleas including the plea of paramount title available to them and frame e proper and necessary issues and finally decide the case on merits. In the circumstances, I direct each party to bear their own costs.
13. Revision allowed.