Henry Richards, C.J. and Muhammad Rafiq, J.
1. This appeal arises out of a suit on foot of a mortgage, dated November, 1900, executed by one Nanku in favour of one Musammat Sumaria. The mortgage purported to be a mortgage of the whole house. In the events which have happened it is admitted that Nanku had no right be mortgage more than half the house and the plaintiffs in no event were entitled to a decree for sale of more than the half of the house which belonged to Nanku.
2. The facts connected with the suit are somewhat complicated and are fully set forth in the Judgment of the learned District Judge. The court of first instance decreed the plaintiff's claim for sale of the whole house, though from the Judgment it is pretty clear that it only intended to give a decree for half. The lower appellate court dismissed the plaintiff's suit. An appeal was filed in this Court and a learned Judge dismissed the appeal.
3. It is only necessary for us to refer to so much of the facts as relate to the present Letters Patent appeal. As already stated, the mortgage was made in favour of one Musammat Sumaria. She is the wife of the appellant Dujai. Dujai when he instituted the present suit made a number of persons defendants as persons interested in the equity of redemption, and he also made his own wife Sumaria a party. He alleged in the plaint that she had no interest in the mortgage which had been made in her name as benamidar for the plaintiff Dujai. Musammat Sumaria did not defend the suit or deny the allegations contained in the plaint as to the position which she occupied in relation to the mortgage. We must now mention another matter. In fie year 1908 Musammat Sumaria brought a suit on foot' of this very same mortgage. Nanku was then dead, and she impleaded as legal representative of the mortgagor, one Musammat Murti. A decree was obtained and the property was put to sale and half of the house was purchased by the co-plaintiff, Kangali. When Kangali together with Sheokoti Lal (the purchaser of the other half of the house) sued for possession his suit was defeated upon the ground that the representative of the mortgagor was not Musammat Murti, and that therefore, he acquired no title. It further appears that the purchase money which Kangali had [paid was attached by a creditor of Dujai on the allegation that Dujai was the real mortgagee and that the purchase money of half the house belonged to him, Dujai attempted to defeat the claim of the attaching creditor by alleging that the mortgage belonged to his wife. This gentleman, however, was not believed and the attaching creditor succeeded in getting the money. This litigation rather shows that Dujai was, as he alleges, the real mortgagee.
4. In the lower appellate court it was contended on behalf of the appellants (i.e. the defendants in the suit, or some of them) that Musammat Sumaria was the owner of the mortgage, and that as she was not a plaintiff the suit could not be maintained by Dujai. The lower appellate court chiefly relying on the fact that Dujai had sworn that the money attached on the former occasion was that of his wife, decided that he was not the owner and that therefore he could not maintain the suit, The learned Judge of this Court held that this was a finding of fact behind which the Court could not go in second appeal.
5. It seems to us that the only person concerned to deny the truth of Dujai's statement in the present litigation that he was the real mortgagee was his wife the defendant Sumaria. If she had appeared and denied her husband's title, she might have confronted him with his previous statement, She did not, however, put in an appearance at all.
6. It is argued in the present Letters Patent appeal on behalf of Dujai that, he having made Sumaria a defendant and she having set up no defence, Dujai could give a good discharge to the defendants in the event of their redeeming the property and that if a decree was passed under the circumstances in favour of Dujai, the Musammat could never sue again. It seems to us that the contention has force. If Dujai, instead of making his wife a pro forma defendant with the allegation that she was merely a benamidar for him, had made her a co-plaintiff with exactly the same allegation, the question could not possibly arise. We may suppose another possible case to illustrate the point. A man brings a suit on foot of a mortgage adding a person to the array of defendants with the allegation that this person holds the mortgage as benamidar for him and that he has been made a defendant because he refuses to join as plaintiff. It can hardly be said in such a case, if the alleged benamidar omitted to defend the suit or be deny the allegation of the plaintiff, that a decree could not be made if the mortgage was duly proved and prima facie proof of the ownership was given, There seems little distinction between this and making (as in the present case) the wife a pro forma defendant. We need hardly say the case would be very different if the defendants could have shown that Musammat Sumaria could not have herself sued and that that was the reason for substituting Dujai as plaintiff.
7. The only point left undecided by the lower appellate court was the question whether or not Dujai and Kangali could maintain the present suit having regard to the litigation in 1906. These two persons under the circumstances of the present case were quite entitled to join as plaintiffs, their rights inter se being a question for themselves. Kangali had purchased the property in the previous suit and paid for it and Dujai had voluntarily joined him as a plaintiff. The present suit could be maintained against all persons who were not made parties to the previous litigation and it is not alleged that any of the defendants in the present suit were defendants in the litigation of 1906, except Sheokoti Lal, against whom no relief is now sought or can be given.
8. The result is that we allow the appeal, sot aside the decree of the learned Judge of this Court and also of the lower appellate court and restore the decree of the court of first instance, with this modification that the decree will be for sale of only the half of the house which belonged to Nanku, We make the usual mortgage decree and extend the time for six months from this date. The plaintiff appellant will have his costs in all courts proportionate to his success against Khedu Lal.