1. This was a suit by the respondent for redemption of a mortgage made by his great-grandfather, Pirthi Singh, in favour of the appellants. The latter brought a suit upon the mortgage impleading as defendants his son and grandsons including Mulayam Singh the father of the respondent and they obtained a decree for sale in execution of which they purchased the property themselves. The respondent based the present suit on the allegations that he was born before the appellants instituted their suit, that they were aware of his existence, that they should have impleaded him as a defendant and as they failed to do so, his right to redeem the mortgage still subsists. The appellants contend that the respondent had no right to sue for redemption of the mortgage. The first Court dismissed the suit on the ground that it was barred by the proceedings in, and consequent upon, the suit upon the mortgage. The lower appellate Court reversed that decision and remanded the suit for trial on the merits. The defendants have appealed.
2. We have been referred to a large number of cases bearing more or less on the point at issue. The first case, to which I think it necessary to refer, is that of Bhawani Prasad v. Kallu 17 A. 537, in which it was held by five Judges (Banerji, J., dissenting) that if a mortgagee institutes a suit for sale upon a mortgage made by a father in a joint undivided Hindu family without joining as defendants the sons, of whose interests in the property he has notice, and obtains a decree and an order absolute for sale against the father alone, the sons may obtain a declaration that the mortgagee decree-holder is not entitled to sell the interests of the sons in the mortgaged property in execution of his decree, although the sole ground of their suit is that they were not parties to the suit brought by the mortgagee. The next case is that of Debi Singh v. Jia Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12. There the sale had taken place before the sons brought their suit, and it was held by a Bench of three Judges that in such circumstances the sons could not succeed merely upon the ground that they had not been made parties to the suit by the mortgagee but must establish some ground which under the Hindu law would free them from liability as sons to pay their father's debts. Both the learned Chief Justice (with whom Knox, J, concurred) and Banerji, J., pointed out that all that was held in the case of Bhawani Prasad v. Kallu 17 A. 537, was that before a sale has taken place the sons may save their interests from the sale simply on the ground that the mortgagee who had brought the suit had notice of their interests and omitted to implead them as defendants. The decision of the Court in the case of Debi Singh v. Jia Ham 25 A. 214 (F.B.) : A.W.N. (1903) 12, is avowedly based upon certain decisions of their Lordships of the Privy Council and in particular, it would seem, upon the following well-known passage in the judgment in the case of Nanumi Babuasin v. Madun Mohun 13 C. 21 : 13 I.A. 1, namely: 'It appears, to their Lordships that sufficient care has not always been taken to distinguish between the question how far the entirety of the joint estate is liable to answer the father's debt and the question how far the sons can be precluded by proceedings taken by or against the father from disputing the liability. If his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit or the creditor might legally procure the sale of it by suit. All that the sons can claim is that not being parties to the sale or execution proceedings, they ought not to be debarred from trying the fact or the nature of th3 debt in a suit of their own.'
3. The only differences between the ease of Debi Singh v. Jia Rim 25 A. 214 (F.B.) : A.W.N. (1903) 12 and the case now before us are that in that case the plaintiffs sought to recover their shares in the family property without offering to redeem the mortgage whereas in the case now before us the plaintiff admits the validity of the mortgage and seeks to redeem it and in that case the auction-purchaser was a stranger whereas in the present case he was the mortgagee himself. The decision in Debi Singh v. Jai Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12 was followed by Banerji, J., in Banke Rai v. Raghbir, Second Appeal No. 641 of 1903 (unreported), in which the property of the family had been put up for sale in execution of a decree upon a mortgage made by the father, and purchased by the mortgagee himself. The son sued to redeem the mortgage on the ground that the mortgagee had had notice of his interest bat had not made him a party to the suit upon the mortgage. It was, therefore, a case exactly like the one now before us. Banerji, J., held that the son could not succeed merely upon the ground that the mortgagee had had notice of his interest and had not made him a party. To the same effect is the decision in the case of Lal Singh v Pulandar Singh 28 A. 182 : 2 A.L.J. 647 : A.W.N. (1905) 248 where also the suit was brought by sons for redemption of their interests in the family property after it had been sold in execution of decree based on a mortgage made by their father. In that case the auction-purchaser was a stranger to the mortgage and decree. That decision was followed by Banerji, J., in the case of Karam Singh v. Raziuddin, Second Appeal No. 712 of 1905 (unreported) and an appeal against his decision under the Letters Patent was dismissed in 'December 1907. That also was a suit for redemption after a sale had taken place in execution of a decree on a mortgage of joint family property made by the plaintiff's father. The auction-purchaser was a stranger but had transferred the property to the mortgagee before the son brought his suit.
4. Thus in December 1907, there was an undisturbed current of authority to the effect that after a sale of joint property has taken place in execution of a decree passed upon a mortgage made by a father his, sons are not entitled to sue to recover their shares in the property merely upon the ground that they were not parties to the suit brought by the mortgagee and that they cannot sue to redeem the property or their interests in the property merely upon that ground. The same rule was followed whether the auction-purchaser was a stranger or was the mortgagee. But in April 1908 in the case of Sam Prasad v. Man Mohun 30 A. 253 : A.W.N. (1908) 106 : 5 A.L.J. 267 where joint family property had been sold in execution of a decree passed upon a mortgage made by the father, Aikman and Kara-mat Hussain, JJ. held that the sons and grandsons were entitled to redeem the mortgage inasmuch as the mortgagee who had purchased the property had been aware of the interests of the plaintiffs and should have impleaded them in the suit. They distinguished the case of Debi Singh v. Jia Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12 from the case before them on the ground that the former was a suit to get back from innocent purchasers the plaintiffs' share of the family estate whereas in the case before them all that the plaintiffs asked was that they should be given an opportunity to redeem a mortgage which had been foreclosed by the defendants who knew of the plaintiffs' interests and yet did not make them parties to the suit on the mortgage. The circumstance relied upon by Aikman and Karamat Husain, JJ., that it was owing to the defendants' failure, not the failure of a person not a party to the suit, to comply with Section 85 of the Transfer of Property Act that the plaintiffs did not have an opportunity to redeem the mortgage, was not, I think, a sufficient ground for not following the decision in Debi Singh v. Jia Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12. It is true that the learned Chief Justice, with whom Knox, J., concurred, laid stress on the fact that the defendants were strangers to the suit on the mortgage but Banerji, J., did not allude to this feature of the case and in the later case of Banke Rai v. Raghbir (unreported), he dismissed the son's suit for redemption against the mortgagee, who had purchased the property at the execution sale. In their judgment in Lal Singh v. Pulandar Singh 28 A. 182 : 2 A.L.J. 647 : A.W.N. (1905) 248 the learned Chief Justice and Burkitt, J., refer with approval to the decision of Banerji, J., in Banke Rai v. Raghbir and quote the following passage from the judgment of their Lordships of the Privy Council in the case of Girdharee Lall v. Kantoo Lall 1 I.A. 321 : 22 W.R. 56 : 14 B.L.R. 187: 'This case is an authority for these propositions, first, where joint ancestral property has passed out of a joint family either under conveyance executed by a father in consideration of an antecedent debt or under a sale in execution of a decree for the father's debt, his sons by reason of their duty to pay their father's debt cannot recover that property unless they show that the debts were contracted for immoral purposes and that the purchasers had notice that there were so contracted, and secondly, that the purchasers at an execution sale, being strangers to the suit, if they had no notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings'. This passage shows that strangers who purchase at a sale in execution of a decree on a mortgage against a Hindu father may, if the debt was not originally binding on the son, have a stronger position than the mortgagees would have had if they had purchased, but it seems to afford no warrant for the view that a mortgagee, who purchases, is in any worse position than a stranger in a case where the debt is binding upon the son or rather upon his interest in the property. The crucial question is whether the debt was of a nature to support a sale of the property. If it was, the son cannot recover his share of the property, and a fortiori he cannot redeem the property for an offer to redeem involves an admission that the debt is binding on his interest in the property. Aikmanand Karamat Husain, JJ., seem to have treated the question as one not of the Hindu law but of procedure depending upon Section 85 of the Transfer of Property Act, but this view was not admissible in face of the decision of three Judges in Debt Singh v. Jia Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12. The learned Chief Justice devoted a considerable portion of his judgment in that case to the question whether the decisions of the Privy Council as to the circumstances in which a son could recover his share of the family property had been superseded by Section 85 of the Transfer of Property Act, and with the concurrence of Knox, J., and in this matter of Banerji, J. also, came to the conclusion that they had not been superseded and that once the property had been sold, all that the sons could claim was an opportunity of 'trying the fact or the nature of the debt in a suit of their own.' Aikman and Karamat Husain, JJ., refer to a passage in the judgment of Banerji, J., in the case of Bhawani Prasad v. Kallu 17 A. 537, where he expressed the view that a suit like the one before us could be maintained but in the case of Banke Rai v. Raghbir, (unreported), Banerji, J., considered himself bound by the decision in Debi Singh v. Jia Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12 to dismiss such a suit.
5. Dr. Satish Chandra Banerji for the respondent contended that his client was in a position analogous to that of a puisne mortgagee who has not been made a party to a suit by the first mortgagee against the mortgagor for sale of the property, but there appears to me to be an important distinction between the two cases. Generally speaking, a mortgagee is not bound by the acts of the mortgagor done after the mortgage and certainly cannot be deprived of his right by the failure of the mortgagor to redeem the prior mortgage. A sale of the property out of Court by Pirthi Singh would admittedly have been, binding upon the respondent, and it seems to me impossible to hold that he is entitled to disregard the execution sale merely because he was not made a party to the suit on the mortgage, As pointed out by Pontifex, J., in Pursidh Narain Singh v. Hanooman 5 C. 845 at p. 852, the mortgagee had a right validly acquired to have the property sold. The passage was cited with approval by the Privy Council in Daulat Ram v. Mehr Chand 15 C. 70 : 14 I.A. 187, and unless the law was altered by the enactment of Section 85 of the Transfer of Property Act, the decision of their Lordships in the case last cited seems to be conclusive. The decision of the three Judges in the case of Debi Singh v. Jia Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12 is a clear authority by which we are bound that the law was not altered by that Section.
6. I am of opinion that the decision of Aikman and Karamat Husain, JJ., is inconsistent with the principle underlying the decision in Debi Singh v. Jia, Ram 25 A. 214 (F.B.) : A.W.N. (1903) 12 and, therefore, we are not bound to follow it. I would allow this appeal, set aside the decree of the lower appellate Court and restore the decision of the Court of first instance.
7. I concur.
8. The appeal is allowed, the decree of the lower appellate Court is set aside and that of the Court of first instance is restored. Appellant will have his costs here and in the lower Court, including in this Court fees on the higher scale.