1. This is an appeal from an order of remand. The suit is brought by certain alleged minors through the guardianship of their mother in an effort to redeem property which has been already sold over their heads as the result of a decree for sale obtained in a suit by the mortgagee against their father, the original mortgagor. It has the aspects of being a proceeding of a some what suspicious character, but nonetheless these suspicions have to be confirmed and not inferred. In some respects the attempt which they have made resembles the case referred to in the judgment of the court below, namely, Ganpat Lal v. Bindbasini Prashad Narayan Singh (1920) I.L.R. 47 Calc. 924, where the Privy Council pointed out that after the sale has taken place, (they are speaking of a mortgage), the owner holds as purchaser and is entitled to raise all the defences belonging 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 given to him by his purchase. The plaintiffs, finding that the mortgagee had purchased, applied to the trial court, before the hearing, for liberty to amend their pleadings, so as to challenge the sale, very much on the lines of their Lordships opinion which I have just quoted. The first court refused leave to amend. There was an appeal from that order, and, as the order was unappealable, the appeal was not unnaturally dismissed. One of the points urged upon us by the appellants is that the question of amendment has been concluded by that unsuccessful appeal. We do not agree with that. We think it is one of those cases which Section 105 provides for, namely, where there is some unappealable interlocutory order, its irregularity or any defect in it may be raised when the decree is appealed from, so far as it affects the decision of the case. There is no doubt that the refusal to amend affected the decision of the plaintiffs' case by shutting them out from the alternative claim which the Privy Council has pointed out is really a condition precedent. We entirely agree with the general observations of the lower appellate court in reference to the refusal to amend. Whatever the merits of the case may be, which is sought to be made out, it is just one of those cases in which the court ought to allow amendment, if it is satisfied that the application is made bond fide. As the lower appellate court says, it would not alter the nature of the suit, to use a somewhat popular but vague expression, because the original prayer and the amended prayer stand. together and one leads to the other and the new prayer would, be a new and additional claim, but not an inconsistent one. The order for remand was, therefore, right. We would further point out that it still remains to be decided whether the sale ought to be set aside. That depends on two questions. First, whether the minors are really the persons who ought to have been impleaded at all. Their claim to have been impleaded arises out of a deed of waqf, subsequent in date to the mortgage-deed, of which the mortgagees apparently were not in the least aware. As is pointed out in Mr. Agarwala's notes to the Code, it is by no means clear that, although the final provision which used to be contained in Section 85 of the Transfer of Property Act has been removed, Rule 1 of Order XXXIV which has taken the place of Section 85 means anything more than that the defendant ought to raise the question whether all the parties have been properly impleaded. If the plaintiff omits to do so, and the plaintiff can hardly do so if he has no knowledge of the existence of the persons alleged to be interested, it does not necessarily follow that the decree is not binding where the defendant, in the interest of the person who subsequently complains, (in this case it is merely the case of a father and his minor children), abstains from raising the objection. Secondly, there is the further question, whether on the form of the deed, the present minor plaintiffs had any interest in the equity of redemption. The deed does not, in my opinion, purport to be a transfer of the property to them. It is a declaration of trust vesting in them a contingent future interest subject to their father's life, and, as a matter of strict interpretation, it is to my mind doubtful whether they were persons who had an interest in the equity of redemption at the time of the suit, so as to make them persona contemplated by this rule. Thirdly, the question will have to be decided whether the suit, including the application for amendment, is honestly brought. The deed of waqf is subsequent in date to the mortgage. The existence of the decree and the sale of the property were ignored. It is possible that the parda-nashin guardian of the two minors knew nothing about them, and that their pleader only learnt of the existence of the sale and the decree from the written statement. That opens up the question whether they knew anything about the mortgage either. If they knew nothing of the decree and the sale, it is probable that they knew nothing about; the mortgage, and therefore, the question will have to be considered whether this suit is really a suit brought by the minors through their guardian in the honest assertion of their natural rights and in order to test this question, or whether it is a sham suit brought in their names by the father in order further to re-open the litigation which has already taken place and has been decided against him. Upon this question it is to be borne in mind that the deed of waqf, which has been read to us, recognizes the existence of the mortgage. That is a point which might possibly, when the matter comes to be fully considered, cut both ways, and show that the existence of the mortgage was not concealed. On the other hand, it rather indicates that the security for the mortgage debt was excluded from the operation of the trust. I have said this much because I think it possible that the order of remand will not result in anything substantial to the plaintiffs, although I recognize that it is still an open question; but it is obvious that when the amendment is allowed, the nature of the suit is altered to this extent that it will require a re-settlement of a large number of issues, some of which I have already indicated in the observations. I have made in the course of this judgment, I would accordingly dismiss the appeal and would modify the order of the court below as regards costs to this extent that I direct the costs in the lower appellate court and in this Court to abide the result of the amended suit.
2. I agree with the order proposed, but the suit must be tried out on the merits. I express no opinion as to the interpretation, validity or effect of the waqf deed or as to the bond fides of the plaintiff's or anybody else connected with this litigation. These are all matters which have to be decided on evidence which has not yet been produced on either side.
3. The order of the Court is that the appeal is dismissed, the order of remand confirmed, and the amendment as directed by the lower appellate court must be allowed by the trial court. But this involves, and we direct, that the defendant must be allowed to make such amendments in his written statement as are rendered necessary by the amendment in the plaint, and both parties must be allowed to produce any material evidence with regard to the amended claim The costs in the lower court and in this Court, up to date, will abide the result of the suit.