1. This is a defendant's appeal in a suit in -which the plaintiff prayed for the following reliefs:
(a) It may be declared that one biswa property in mauza Papgaon, patti Mehdi Ali Khan, out of 3 biswas 3 biswansis and a fraction more of share and a grove and house situate in mauza Papgaon, bounded as below, owned and possessed by the plaintiff are not fit to be sold by auction in execution of decree No. 131 of 1930. (b) That defendant 2 had no right to mortgage the property, entered in the name of the plaintiff, nor could he do so.
2. On 4th June 1918, one Mehdi Ali Khan, the husband of the plaintiff, Mt. Jafri Begam, executed a mortgage deed in favour of Mt. Fakhr-un-nissa. On 6th June 1921, Mt. Fakhr-un-nissa sold her mortgagee rights to the father of Bisheshar Dayal, defendant 1 in the present suit. Bisheshar Dayal brought a suit, No. 131 of 1930, upon the footing of the mortgage of 4th June 1918. In the suit he impleaded the mortgagor, Mt. Jafri Begam, wife of the mortgagor, and Mt. Fakhr-un-nissa, the original mortgagee. In para. 5 of the plaint Bisheshar Dayal averred:
Defendant 3 is a subsequent vendee of a portion of the property mortgaged. Mehdi Ali Khan, the mortgagor got, after the execution of the mortgage deed sued on, the name of his wife, defendant 2, entered in the khewat as against a portion of the property mortgaged. In order to evade payment of the amount due to the plaintiff, if the plaintiff has dishonestly made a transfer of a portion of the property mortgaged in favour of his wife, defendant 2, the plaintiff is not bound by the same.
3. Mt. Jafri Begam, the plaintiff in the present suit, and defendant 2 in the suit on the basis of the mortgage of 4th June 1918, although impleaded as a defendants in that suit, did. not contest the mortgagee's claim. The plaintiff Bisheshar Dayal and defendant 3, a purchaser of a portion of the mortgaged property, entered into a compromise, and so far as they were concerned a decree was passed by the learned Munsif who entertained the suit, in terms of the compromise. So far as the other defendants are concerned the suit is disposed of by the judgment of the learned Munsif in the following terms:
The plaintiff and the contesting defendant 8 have compromised against the other defendants; the claim is proved ex parte. The plaintiff is content with a decree against them also in terms of the compromise. It is therefore ordered that a decree be prepared against the defendants in terms of the compromise.
4. The plaintiff in the present suit, Mt. Jafri Begum, maintains that the decree in the mortgage Suit No. 131 of 1930, is not binding upon her in respect that the property mortgaged was transferred to her in lieu of dower by her husband on 1st September 1914. The learned Sub-ordinate Judge has sustained the pleas of the plaintiff. He has held that the transfer of 1st September 1914 was a genuine transaction and that in the circumstances the plaintiff is entitled to decree in terms of the prayer of the plaint. The defendants pleaded inter alia that the suit was barred by Section 11, Civil P.C. and that the transfer of 1st September 1914 was a fictitious transaction. Learned Counsel for the appellant in appeal before us contended that the decision of the learned Munsif in the mortgage suit was final and binding and operated as res judicata against the plaintiff in the present suit. In answer learned Counsel for the respondents has maintained firstly, that the decree of the learned Munsif was null and void in respect that the Munsif had no jurisdiction to decide the question of the plaintiff's title, and secondly, that in any event the plaintiff could not have been made a party to the mortgage suit. It is a matter of admission that the Munsif who decided the mortgage suit had jurisdiction in regard to subjects up to the value of Rs. 4,000 only. Learned Counsel for the respondents contended that the property which the plaintiff claims was transferred to her by the deed of 1st September 1914 is worth more than Rs. 4,000. This estimate was not disputed by learned Counsel for the appellant. It appears to us however that, even though the property be worth more than Rs. 4,000 it is not open to the plaintiff in the present suit to take the plea that the learned Munsif had no jurisdiction to decide the question of her title in the mortgage suit. Under the provisions of Section 11, Civil P.C., any matter which might and ought to have been made a ground of defence or attack in a former suit should be deemed; to have been a matter directly and sub-statically in issue in such a suit.
5. Now, as already observed, the plaintiff did not appear, although impleaded as a defendant in the mortgage suit. If she were properly impleaded - and to that matter we shall refer later - then the Munsif must be taken to have decided all the matters which might and ought to have been made a ground of defence by the plaintiff in the present suit. The plaintiff, had she objected to the jurisdiction of the Munsif in the mortgage suit, was bound to prefer the defence that the Munsif had no jurisdiction in the earliest stage in the proceedings. It must be taken that the Munsif considered the defence of no jurisdiction and decided it against the plaintiff in the present suit. In our view it will be absurd to hold otherwise. If a party were entitled to disregard a suit filed, against him and to refrain from referring the defences open to him and yet in a subsequent suit reagitate one of the defences which under the law he is bound to take at the first possible opportunity, namely, the defence that the Court in which the suit is filed has no jurisdiction to entertain it, then the scope of Section 11, Civil P.C., would be materially restricted. If in the mortgage suit Mt. Jafri Begam had appeared and taken the defence that the Munsif had no jurisdiction in respect that the property to which her title was impugned was worth more than Rs. 4,000, and upon evidence the learned Munsif had come to the conclusion that the property was worth less than Rs 4,000 and had proceeded to decide the suit and Mt. Jafri Begam had not appealed against his decision, quite clearly it would not be open to her to maintain in any other suit that the decree was null and void because the property was worth more than Rs. 4,000. She cannot be in a better position in the present suit than she would have been if she had appeared and taken the defence of no jurisdiction in the mortgage suit and the defence having been rejected and she had not appealed against the order of the Munsif.
6. Learned Counsel for the respondents maintained that the decision of the learned Munsif that the property was not worth more than Rs. 4,000, and it must be taken that he so decided, is not a decision which amounts to res judicata within the meaning of Section 11, Civil P.C., in respect that, he argued, the learned Munsif has no jurisdiction to entertain the present suit. We consider it unnecessary to decide this point. Section 11, Civil P.C., it is authoritatively established, is not exhaustive. Applying the principle of Section 11 to the facts of the present case we are satisfied that upon grounds of equity, justice and expediency the plaintiff in the present suit is estopped from maintaining that the Munsif had no jurisdiction to decide the mortgage suit because the value of the property was greater than Rs. 4.000. Learned Counsel for the respondents, as we have already observed, maiatained further that Mt. Jafri Begam could not have been impleaded as a defendant in the mortgage suit and that in fact she had not been properly impleaded. In support of this contention learned Counsel referred to a number of decisions of this Court and other High Courts in India. He founded particularly upon the decision in Kalyan Das v. Sheikh Maqbal Ahmad A.I.R. 1918 P.C. 53. A consideration of the judgment in that case however discloses that it is no authority for the general proposition which learned Counsel for the respondents asks us to approve, namely, that in no circumstances may a person who claims a paramount title be impleaded as a defendant in a mortgage suit. The facts of that case were peculiar and, whilst it is true that there are certain dicta of the learned Judges who decided the case which support learned Counsel's arguments, these observations are obiter. In our view the governing principle upon this point is clearly laid down in the decision of the Privy Council in Radha Kishun v. Khurshed Hossein A.I.R. 1920 P.C. 81. In that case a prior mortgagee had been impleaded by a puisne mortgagee. So far as the puisne mortgagee was concerned the prior mortgagee held a paramount title. It is clear from the judgment in the case that their Lordships took the view that the prior mortgagee might properly be impleaded in a mortgage suit by the puisne mortgagee. The question which they had to decide was whether in fact the prior mortgagee had been so impleaded and. whether the decision in the mortgage suit operated as res judicata against him in a subsequent suit. In the course of their judgment their Lordships observed:
Bakhtaur Mull's position therefore was that he was a prior mortgagee with a paramount claim outside the controversy of the suit unless his mortgage was impugned. Consequently to sustain the plea of res judicata it was incumbent on the Sahus in the circumstances of this case to show that they sought in the former suit to displace Bakhtaur Mull's prior title and postpone it to their own. For this it would have been necessary for the Sahus as plaintiffs in the former suit to allege a distinct ease in their plaint in derogation of Bakhtaur Mull's priority.
7. Their Lordships go on to observe that from the record of the suit it does not appear that anything of the kind had been done. In view of their Lordships' opinion it is clear that the person claiming a paramount title may be impleaded as a defendant in a mortgage suit if that paramount title is impugned by the plaintiff mortgagee. Apart altogether from the authority of the Privy Council in the decision above referred to we would observe that there is nothing in the Code of Civil Procedure which forbids a mortgagee from impleading a person who claims (sic) paramount title to the mortgaged property. Under Order 1, Rule 3, Civil P.C., all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question of law or fact would arise. Now in the mortgage suit the mortgagee alleged that for the purpose of defeating the mortgagee's rights the mortgagor and his wife Mt. Jafri Begam arranged a fictitious transfer in the letter's favour. Learned Counsel for the respondents contended however that by virtue of the provisions of Order 34, Rule 1 a person claiming a paramount title to property mortgaged could not be made a party in the mortgage suit. Order 34, Rule 1 is in the following terms:
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.
8. Learned Counsel maintained that it has now been authoritatively decided that the term 'mortgage security' in the rule does not refer to the actual land which had been mortgaged but to the mortgagee rights. Be that as it may, we see nothing in this provision which prohibits the mortgagee from impleading in the mortgage suit any person who, he alleges, impugns his title as mortgagee. To hold otherwise would, in our opinion, in many instances, lead to more highly undesirable and inequitable results. The object of the mortgagee in bringing a suit on a mortgage is to recover the money which is due to him under the mortgage. This in most cases he can succeed in doing only by sale of the mortgaged property. But if there is a cloud cast upon his title as mortgagee, if it is alleged, as it is alleged in the present case, that the mortgagor had no title to mortgage the property, then obviously the property might realize very little when auctioned in execution of the mortgage decree. Further, to hold that a mortgagee is not entitled to implead as a defendant any person who impugns his title as a mortgagee, would lead, in our opinion, to unnecessary multiplication of suits. Either before or after filing the mortgage suit he should have to bring another suit against the person claiming title as a prior transferee to the mortgaged property for a declaration that that person's title was invalid. It would be unfortunate if he had to follow such a devious course. We see no reason in law or equity for holding that the question of the prior transferees paramount title should not be decided in the mortgage suit.
9. We would observe further in this connexion that, if Mt. Jafri Begam considered that she was aggrieved by being impleaded. in the mortgage suit, she could have preferred an objection to that effect in that suit. By the provisions of Order 1, Rule 10 the Court may, upon application, strike off or add the name of any party improperly impleaded; but by the provisions of Rule 13 all objections on the ground of non-joinder or misjoinder of parties must be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen; any such objection not so taken shall be deemed to have been waived. It must be held therefore that in the present suit Mt. Jafri Begam, not having appeared or taken objection to the impleading of her as a defendant, waived her objection thereto.
10. Learned Counsel for the appellant contended however that Mt. Jafri Begam had not in fact been made a defendant in the mortgage suit in respect that no case had been alleged in the pleadings of the mortgagee against him. Learned Counsel referred to the passage in the Privy Council decision quoted above in which their Lordships laid down the principle that before a party can be said to be properly impleaded a distinct case must be made against him in the plaint. We have to consider therefore whether in the present suit a distinct case was made against Mt. Jafri Begam in the mortgage suit. We have referred earlier to the terms of para. 5 of the plaint in that suit. 'We are of opinion that by his averments in para. 5 the mortgagee clearly and definitely challenged Mt. Jafri Begam's title to the mortgaged property. It appears that he was unaware when in fact the transfer in favour of Mt. Jafri Begam had been effected. He knew nevertheless that her name had been entered in respect of the property in the khewat. In these circumstances he was entitled to assume that the property had in fact been transferred to her, and since the mortgagor was Mt. Jafri Begam's husband it was reasonable for him to assume that the object of the transfer was to defeat his rights as mortgagee, more especially when it appears that the entry of Mt. Jafri Begam's name in the khewat was subsequent to the execution of the mortgage. It is true that the averments in para. 5 of the plaint in the mortgage suit are somewhat vague. It is difficult to conceive how in the circumstances the mortgagee could have been more specific. There can be no question however that Mt. Jafri Begam's title was impugned. We hold therefore that in the mortgage suit the mortgages did allege a distinct case in derogation of Mt. Jafri Begam's title. Mt. Jafri Begam was accordingly properly impleaded in the mortgage suit. She elected not to defend that suit. The learned Munsif decided the case against her ex parte, decree became final and no grounds have been alleged which would justify the Court in setting aside that decree, and standing the decree the plaintiff cannot succeed in the present suit. In the result we allow the appeal, set aside the order of the learned Subordinate Judge and dismiss the suit. The defendant is entitled to his costs throughout.