1. This is a first appeal by Mt. Komal and connected with it is First Appeal No. 158 of 1934 by Khelari Das, continued after his death by Mt. Basmati, his widow. Both appeals arise out of a suit brought by Mt. Komal against Khelari Das, defendant 1, and Gurcharan Prasad and others, defendants 2 to 7, the representatives of Kai Bahadur Batuk Prasad, and' it will be convenient to dispose of the two appeals by a single judgment. The suit was for a declaration that one third share in each of the properties mentioned at the foot of the plaint, which had been mortgaged by Khelari Das to the late Rai Bahadur Batuk Prasad, was owned and possessed by the plaintiff as the widow of Jangi Lal deceased and was not liable to sale to satisfy the mortgage debts for which the above mentioned share was aA.I.R.lleged to be liable under decree No. Ill of 1927 of the Court of the Subordinate Judge of Bonares as modified by decree No. 266 of 1928 of the High Court at Allahabad and that the said decrees were ineffectual and inoperative as against the plaintiff's share in the property. The Court below gave a peculiar declaration which will be mentioned later, and both Mt. Komal and Khelari Das were dissatisfied with the decision of the learned Civil Judge and hence the two appeals before us.
2. The allegations on which the plaintiff brought the suit might be set forth. One Parshotam Das had four sons, (1) Khelari Das, by his first wife, (2) Hori Lal, deceased, by his second wife, (3) Jangi Lal deceased and (4) Kripa Nidhan, deceased, by his third wife. All these sons were members of a joint Hindu family possessed of considerable house property in the city of Benares and some small items of zamindari property in the district of Benares and they remained joint till the death of Hori Lal which took place on 28th May 1922. The plaintiff alleged that she was first married on or about 3rd May 1912 to Hori Lal and after his death in May 1922 was remarried to his younger step-brother, Jangi Lal, according to the custom, rites and ceremonies prevalent among the Jhusias on or about 23rd November 1922. Khelari Das brought Suit No. 64 of 1923 in the Court of the Subordinate Judge of Benares on or about 10th May 1923 against Jangi Lal and Kripa Nidhan, minor, for partition of the family properties and on 16th May 1923 a compromise was filed by Khelari Das and Jangi Lal in which it was stated that the matters in dispute had been settled between the parties and they had divided the entire family property in this way that each party should remain the owner in possession of one-third of every family property, i.e. the plaintiff should remain the owner in possession of one-third, defendant 1, Jangi Lal of one-third and defendant 2, Kripa Nidhan of one-third and every party should be responsible for the payment of the family debts to the extent of one-third each and that the parties had separately entered into possession and occupation of their respective shares. Kripa Nidhan who was a minor under the guardianship of Jangi Lal and who was about 16 also came before the Court on the same day and stated that Jangi Lal was his guardian and that the decision made by him was acceptable to Krips Nidhan as well. According to the prayer of the parties the case was struck off without being adjudicated upon.
3. The plaintiff then went on to say that after the above partition and after the death of Jangi Lal, which took place on 16th June 1923, Khelari Das executed three mortgages in favour of Rai Bahadur Batuk Prasad, one dated 6th August 1923 for Rs. 30,000, the other dated 23rd August 1923 for Rs. 19,000, and the third dated 25th November 1924 for Rs. 12,000, and the mortgages were executed by Khelari Das for self and as guardian of Kripa Nidhan, and the plaintiff's share was also included in the mortgage deeds. Rai Bahadur Batuk Prasad brought a suit on 21st November 1927 (Suit No. 111 of 1927) in the Court of the Subordinate Judge of Benares and obtained a decree on the basis of the aforesaid three mortgages, but the plaintiff was not impleaded as a defendant in the suit. Khelari Das did not defend the suit of Batuk Prasad, but Kripa Nidhan put in a defence and the trial Court decreed the suit for Rs. 693-1-0 against the interest of Kripa Nidhan in the mortgaged property and a decree for the remaining sum claimed against Khelari Das and his interest in the mortgaged property. First Appeal No. 266 of 1928 was filed by Batuk Prasad who died during the pendency of the appeal and defendants 2 to 7 of the present suit were brought on the record as appellants. The High Court modified the decree of the trial Court, holding that Jangi Lal's one-third share after his death would go to Kripa Nidhan alone, with the result that Kripa Nidhan was the owner of two-thirds of the family property and Khelari Das was the owner of the one-third only, and Jangi Lal's estate was liable in the hands of Kripa Nidhan for Rs. 15,498-11-0 plus one-third of Rs. 693-1-0, that Kripa Nidhan's separate estate was liable for one-third of Rs. 693-1-0 and that Khelari Das's one-third estate was liable for the rest of the mortgage money and one-third of Rs. 693-1-0.
4. The preliminary decree by the High Court was passed on 20th December 1932, which was made final on 29th July 1933. It was said that the plaintiff had no knowledge of the decree of the trial Court and of the Appellate Court till she came to know of them from one Munshi Lalta Prasad in January 1933 and hence the present suit wag brought on 22nd August 1933 for the declaration, which we have already mentioned in the beginning of our judgment, on the ground that she was the owner of Jangi Lal's one-third share in the family-property and that share could not be affected by the mortgage decrees obtained behind her back. The suit was defended by Kholari Das, defendant 1, and by Gurcharan Prasad and others, defendants 2 to 7, the representatives of Batuk Prasad. Separate written statements were filed by these two sets of defendants, and in both of them it was pleaded that the plaintiff was never married to Jangi Lal, that after the death of Hori Lal, the plaintiff lived outside Bonares with her father and had become immoral and that she had no right or share in the property in dispute. It was said that the plaintiff's suit was barred by Section 42, Specific Relief Act. Defendants 2 to 7 further alleged that the debt due by Jangi Lal to the extent of Rupees 36,615-7-7 was, at all events chargeable on Jangi Lal's share in the property, that the mortgage deeds by Khelari Das and Kripa Nidhan wore obtained by Batuk Prasad without knowledge and information of the plaintiff's right, if any, and that the plaintiff's suit was barred by the principle of estoppel. The Court below framed the following five issues in the case:
1. Was the plaintiff married to Jangi Lal and can she maintain the suit? 2. How much debt is really duo to defendants 2 to 7 from Jangi Lal? 3. Was Jangi Lal's estate properly represented in trait No. 111 of 1927 of this Court? 4. Is the suit barred by estoppel? 5. Is the suit barred by Section 42, Specific Relief Act
5. It came to the conclusion that the plaintiff was married to Jangi Lal, that a sum of Rs. 36,615-7-7 was due to defendants 2 to 7 from Jangi Lal, that Jangi Lal's estate was properly represented in Suit No. Ill of 1927, that Batuk Prasad in perfect good faith advanced money on the basis of the throe mortgage deeds and was protected by Section 41, T.P. Act, which was a branch of the law of estoppel, that the plaintiff's possession as against Khelari Das was that of a co-sharer and possession of one co-sharer was good against another and that plaintiff's possession, at least of a symbolical nature, was proved by the fact that her name was recorded over the properties prior to the institution of the suit and hence Section 42, Specific Relief Act, did not bar the suit. The issues framed were thus decided in the manner indicated above, but the learned Civil Judge went on to discuss the question as to what declaration should, under the circumstances of the case, in order to adjust the equitable rights of the parties, be given to the plain, tiff. He ordered:
Suit be decreed for a declaration that the plaintiff as the widow of Jangi Lal, deceased, is the owner of one-third share of the properties in dispute. This declaration however does not in any way affect the mortgage decree passed in Suit No. 111 of 1927, of the Court of the Subordinate Judge, Benares, as modified by the High Court in First Appeal No. 266 of 1928 of the Hon'ble High Court of Judicature at Allahabad and the decree absolute, dated 29th July 1933.
6. It will be apparent that the plaintiff was given a declaration which she did not seek and which was of a very different character from the one claimed by her. The learned Civil Judge thought that the declaration given by him would settle the dispute as between the plaintiff and Khelari Das and Khelari Das would no longer be entitled to the entire surplus sale proceeds in which the plaintiff's share would be one-third and Khelari Das's share would be one-third. Defendants 2 to 7 seemed to be satisfied with the decree passed by the trial Court, but Mt. Komal, the plaintiff, and Khelari Das, defendant 1 were not so satisfied, and they filed the present two appeals. In Khelari Das's appeal it is said that the plaintiff's marriage to Jangi Lal in sagai form was not proved and that the plaintiff's suit was barred by Section 42, Specific Relief Act. A number of pleas are taken in the appeal of Mt. Komal, and her contention is that Khelari Das and Kripa Nidhan were intermeddlers with the estate of Jangi Lal, that the estate was not properly represented in Suit No. 111 of 1927, that the actions of Khelari Das and Kripa Nidhan had no effect whatsoever on the plaintiff's right and that the plaintiff's suit was not barred by Section 41, T.P. Act or by estoppel. In proper sequence the appeal by Khelari Das comes before the appeal by Mt. Komal, and we shall dispose of it first, although the appeal by Mt. Komal was argued before us first.
7. In the very beginning we might mention that counsel for the parties freely and without objection referred to the documents printed in First Appeal No. 266 of 1928, which was an appeal in this Court by Rai Bahadur Batuk Prasad in his mortgage Suit No. 111 of 1927, although all of such documents were not on the record of this case, and in order to arrive at a just decision in the case and at their joint request we granted them this indulgence. The judgment of this Court in the above appeal has not been printed in the present appeals before us, but a typed copy was supplied to us, and parties based their arguments on that judgment as well. The point for determination in First Appeal No. 158 of 1934 is whether the plaintiff was married to Jangi Lal on or about 23rd November 1922 in the sagai form which, it is admitted, is recognized amongst jhusias (Chamars). It is common ground that the plaintiff was first married to Hori Lal who died on 28th May 1922. It is said on behalf of the defendant that it is most unusual that the plaintiff should have been remarried within a year before the annual ceremonies to Jangi Lal, the younger brother of Hori Lal, but it must be remembered that although Khelari Das was a man of means, he was a Chamar by caste, and there is nothing inherently repulsive to sentiments of decency in that community if the plaintiff was married in the sagai form to Jangi Lal after about six months of the death of her former husband. The plaintiff at that time was about 19 and Jangi Lal was about 20 or 21. Jangi Lal had not been married before, and Mt. Komal's father on the one hand and Khelari Das on the other might well have thought that the arrangement was a suitable one under the circumstances of the case. A number of witnesses were examined on behalf of the plaintiff including herself. (The judgment then discussed the evidence and proceeded.) The matter does not rest on oral evidence alone, but the plaintiff's marriage seems to be established by documentary evidence.
8. The case on behalf of the defendants was that after the death of Hori Lal, Mt. Komal had become immoral and lived mostly outside Benares, and if any illegitimate daughter was born to her, she was not the daughter of Jangi Lal. At p. 88 of our record there is an extract from the register of death of Manikarnika Ghat within the Municipality of Benares for 1926-27 which shows that Mt. Nazo, daughter of Jangi Lal, Dhusia, aged 21/2 years died on 7th Juno 1926 at 6 o'clock in the morning in the mohalla known as Barna Bridge, at her own house No. 10/86 (this seems to be a mistake for 10/84) of fever and that the name of the informant was Khelari Das, uncle of the deceased, and then there is a mention of one year which means that the deceased had been living with Khelari Das for one year before her death. The admissibility of this document is challenged by the defendant, but it is worthy of note that the document was filed by the defendant himself and the objection can be entertained only if it comes from defendants 2 to 7. The death register is maintained by the Municipal Board under the Municipalities Act, and a form is prescribed by the Municipal Manual which is adopted with certain modifications by different Municipalities in the United Provinces. The registers are kept under Section 298(2), Clause J(b), United Provinces Municipalities Act, and are admissible in evidence under Section 35, Evidence Act. The correctness of the copies has to be presumed under Section 79, Evidence Act and there is further a specific provision (Section 330) under the Municipalities Act, which lays down the mode of proof of Municipal records.
9. In the present case the original was summoned, and we are of the opinion that the copy produced in this case is admissible in evidence. This was the view taken by) this Court in Shib Deo Misra v. Ram Prasad 0043/1924 : AIR1925All79 and Mt. Anwari Jan v. Baldua : AIR1936All218 . The entries in Municipal records and police records stand on a different footing from the entries in a choukidar's book, and the cases relied on by learned Counsel for Khelari Das, namely Sheo Balk v. Gaya Prasad (1922) 9 A.I.R. All. 510 and Jiwan Bakhsh v. Khan Bahadur Khan (1913) 19 I.C. 528 are distinguishable. It was then said that the entry, if admissible, was admissible only for the purposes of proving that a certain person died on a particular day and the other entries ought to be disregarded, and reliance is placed on the case in Gurusami Nadar v. Irulappa Konar : AIR1934Mad630 The object of maintaining a register like this is to keep a fairly full record of the person whose death is reported, and we think we can rely on the entry to prove that Mt. Nazo was a daughter of Jangi Lal and that she died on 7th June 1926 at the age of 2i years and the death was reported by Khelari Das, the uncle of the deceased, with whom the deceased had been living for one year before her death. These facts become relevant under Section 11, Evidence Act, and can be said to be proved by the entries referred to above, more particularly when they are corroborated by other evidence in the case. If therefore the entry in the death register is admissible for the purposes mentioned by us, then it becomes apparent that Khelari Das was the uncle of Mt.Nazo who was the daughter of Jangi Lal and that Mt. Nazo had been living with Khelari Das for a year before her death and that she was born in the beginning of 1924, and this makes the marriage of the plaintiff with Jangi Lal on or about 23rd November 1922 probable. If the entries in the death register were intended to be shown as incorrect, it was the obvious duty of Khelari Das to come into the witness-box, and if Khelari Das was incapacitated from giving evidence, it was necessary that proof of this incapacity ought to have come in the shape of medical evidence. (The judgment then discussed the evidence and proceeded.) On the whole, we have come to the conclusion that the view taken by the Court below on this point is correct.
10. There is one other question raised in the appeal of Khelari Das, and we might dispose of it in a few words before coming to the appeal of Mt. Komal. It was contended on behalf of Khelari Das that a mere declaratory suit under Section 42, Specific Relief Act was not maintainable and the plaintiff ought to have sued for possession as well. The judgment of the Court below on this point is quite correct, because, as we pointed out before, the plaintiff before instituting the present suit had obtained mutation of her name over zamindari property as well as house property, and such possession as could be obtained under the circumstances of the case had been obtained by Mt. Komal, and the plaintiff's suit does not offend any provision of law contained in Section 12, Specific Relief Act. For the reasons given above, we dismiss Appeal No. 158 of 1934 with costs.
11. We now come to the plaintiff's First Appeal No. 70 of 1934. After having found that Mt. Komal was married to Jangi Lal some time in November 1922, the position is obvious that after the institution of the partition suit by Khelari Das in May 1923 and the compromise therein, the family of Khelari Das ceased to be a joint Hindu family and the shares of the three brothers became well defined, and after the death of Jangi Lal in June 1923 Mt. Komal was the owner of a one-third share in the family properties. Khelari Das and Jangi Lal had taken a number of debts in the years 1922 and 1923 on the basis of promissory notes. In the partition Suit No. 64 of 1923 Khelari Das gave his age as 55 and Jangi Lal's age was given as 21 and Kripa Nidhan was a minor of 16. Khelari Das was thus the head of the family and presumably looked after the affairs and Jangi Lal was just of age. The debts which Khelari Das and Jangi Lal took jointly on promissory notes and the debts which Jangi Lal took himself alone might be mentioned at this stage. It is not necessary to mention the debts which Khelari Das took separately, because, although the mortgages of 1923-1924 were effected for the purpose of consolidating all the debts of the family, the question which we have got to consider relates to the liability of Jangi Lal alone, whose representative the plaintiff happens to be. There are really eight promissory notes of the description mentioned above. On 28th March 1922 Khelari Das and Jangi Lal executed a joint promissory note for Rs. 1300 in favour of one Panna Lal. On 10th July 1922 Khelari Das and Jangi Lal executed a joint simple bond for Rs. 17,000 in favour of Narotam Das. On 30th December 1922 Khelari Das and Jangi Lal borrowed Rs. 1400 from Nasirullah on a joint promissory note. On 25th April 1923 Khelari Das and Jangi Lal executed a joint promissory note in favour of Munni Lal for Rs. 3700. On the same date Jangi Lal alone borrowed Rs. 100 from Munni Lal on a promissory note and on 4th May 1923 Jangi Lal borrowed Rs. 200 from Narotam Das on a promissory note. On 15th May 1923 Khelari Das and Jangi Lal borrowed jointly Rs. 1200 from Batuk Prasad on a promissory note. On 29th May 1923 Jangi Lal executed a promissory note for Rs. 500 in favour of Narotam Das. Khelari Das had also borrowed other large sums of money from other creditors, and the idea was to consolidate all these debts by borrowing money from a single creditor and with this object in view Rai Bahadur Batuk Prasad was approached.
12. A suggestion was made before us, as was also made before this Court in First Appeal No. 266 of 1928 (the appeal in the mortgage suit of Batuk Prasad), that the partition suit of Khelari Das on 10th May 1923 was brought at the instance of Batuk Prasad with whom negotiations were in progress and whose object was to secure his money on the share of the adult members of the family. Like the learned Judges who decided that appeal, we think that the suggestion is well founded. There was really no lack of harmony among the three brothers and within six days of the institution of the partition suit, a compromise was effected and a statement was made that the parties had divided the entire family property and it was not necessary to proceed with the case any further, which might be struck off without being adjudicated upon. This shows that the suit was instituted in order to secure a legal disruption of the status of the family and it was obviously with the idea of facilitating a mortgage which would be valid in any event to the extent of the shares of the adult members of the family. Batuk Prasad might well have therefore insisted on Khelari Das bringing about this state of affairs and he might well have thought that by getting a mortgage from Khelari Das and Jangi Lal he could look for the realisation of his debt from two-thirds of the family property at least. No one anticipated at that time that before the execution of the mortgages Jangi Lal would die on 16th June 1923, but this event did happen, and the share of Jangi Lal, in the view that we have taken, devolved on his widow, Mt. Komal. Three mortgages were executed by Khelari Das for self and as guardian of Kripa Nidhan on 6th August 1923, on 23rd August 1923 and on 26th November 1924 (this last one being really in lieu of the interest of the former two mortgages), and in each one of them the existence of Mt. Komal as the widow of Jangi Lal was ignored and there was a distinct averment that Jangi Lal had died unmarried without leaving any issue. In the fullness of time a suit was brought in November 1927 on the basis of these three mortgages and a decree was obtained which became absolute on 29th July 1923.
13. The learned Judges of this Court who had seisin of the appeal in the mortgage suit took great pains over the matter and held that the share of Jangi Lal, who was the own brother of Kripa Nidhan, devolved on Kripa Nidhan and Khelari Das was owner only of one-third share in the family property. The sum of Rs. 693-1-0 was found to be a valid charge on the entire mortgage property, and the separate liability of Jangi Lal, which was considered to be half in the case of joint promissory notes and whole in the case of promissory notes executed by Jangi Lal alone, was determined with meticulous care and fixed at Rs. 15,498-11-0, and a decree in the terms that we have already mentioned before was given by the High Court. In execution of the final decree passed on 29th July 1933, the mortgagees were about to bring the mortgaged properties to sale when the present suit was instituted. The fact that strikes one forcibly at the very outset is that the mortgage of Jangi Lal's share, who died in a state of separateness leaving an adult widow, was made by a person or persons unauthorized to do so on a false declaration that Jangi Lal died unmarried and issue-less. The question that arises is whether such a mortgage can in law be held to be binding on the widow of Jangi Lal, and if the answer be in the negative, the further question arises whether Jangi Lal's estate was represented in the suit brought by the mortgagee, and lastly we have got to decide that if the plaintiff is to be given any declaration, whether such declaration ought to be fettered with certain conditions on equitable grounds.
14. The first two questions can be disposed of summarily in a very few words. Jangi Lal died as a separated Hindu in a state of indebtedness; his property was inherited by Mt. Komal who was of age. It is almost elementary that no one excepting the widow could assume any dominion over Jangi Lal's property and create a mortgage or enter into any other transaction in connexion with Jangi Lal's property however friendly and well disposed he might be. The property was owned and possessed by the widow and she alone could deal with the same. The mortgages which have given rise to the decree cannot therefore in fact or in law be held to be binding on the widow of Jangi Lal except by invoking the provisions of Section 41, T.P. Act. We shall discuss this aspect of the case later on. Jangi Lal, as we mentioned before, had executed some promissory notes himself and he had also executed some promissory notes jointly with Khelari Das. We shall assume that Khelari Das was minded to pay the separate debts of Jangi Lal and paid them. Khelari Das would have no remedy against Jangi Lal unless the payment was made at the instance of Jangi Lal. There was no common interest and no common danger to avert. The action of Khelari Das would be the action of a mere volunteer. The mortgage executed by him, so far as the separate debts of Jangi Lal wore concerned, was therefore a mortgage created by a volunteer not binding on Mt. Komal. He would be deemed to have assumed the role of Jangi Lal's heir, and once that role is taken away the whole foundation of his action totters down. As regards the joint debts, it is clear that Khelari Das was liable to pay the whole of them, and if he had paid them, then he might have brought a suit for contribution against Jangi Lal, but he could not reimburse himself at his own will by creating a mortgage and arrogating to himself the capacity of an heir which ho did not fulfil. Prom that point of view, tho mortgage is unauthorized.
15. The next question whether Jangi Lal's estate was represented in the suit brought by the mortgagee also does not present any serious difficulty. The mortgage was not made by the person entitled to make it. The mortgagee brought the suit against the persons who had executed the mortgages. Jangi Lal's estate was represented by the widow and. by nobody else. The capacity in which Jangi Lal's widow could have been impleaded in the mortgage suit escapes definement. If the mortgagee himself had chosen to implead the widow he could have done so only on the allegation that although the mortgages were executed by Khelari Das and Kripa Nidhan, the mortgages were unauthorised technically and must be deemed to be mortgages executed by the widow of Jangi Lal and as he had come to know that Jangi Lal left a widow she was being impleaded and she was given a right to make such defence as she chose. The defence of Mt. Komal would obviously have been that she did not execute the mortgages, that nobody else was entitled to execute and that so far Jangi Lal's estate was concerned the mortgages had no binding force. It was not necessary for her to attack the debts in lieu of which the mortgages were executed and she would have been entitled to obtain a dismissal of the suit so far as Jangi Lal's estate was concerned on the preliminary point mentioned above. It is then said that she herself ought to have intervened in the suit brought by the mortgagee. This could not have been done. The only averment on which she could have applied to be made a party to the suit would have been that she was the owner of a third of the mortgaged property and that she alone was entitled to mortgage the same. The position would have been that she would have demanded an adjudication of her paramount title which could not possibly; have been done in the mortgage suit. Radha Kunwar v. Reoti singh (1916) 3 A.I.R. P.C. 18 at p. 491, their Lordships of the Privy Council while discussing a similar point observed as follows:
The present appellant, who claimed through a, person named Hukum Singh, said that she was entitled to 4 biswas of the property. That dispute was entirely independent of the mortgage transaction of 1884. Whatever the amount of that mortgage might be in no circumstances could the appellant have been made responsible for it If it had been held that her claim was good, the mortgagees would have completely failed so far as her share of the estate was concerned; if it had been held that her claim was bad she could have had no right whatever to redeem the mortgage.... In truth the confusion has arisen because the cause of action against the appellant, that is to say the right to obtain a declaration of title against, her adverse claims has been joined with another which was quite distinct, the enforcement of rights under a mortgage.
16. In Gobardhan v. Manna Lal (1918) 5 A.I.R. All. 81 it was held that in a suit brought by a mortgagee to enforce his mortgage, a person claiming a title paramount to the mortgagor and the mortgagee; is not a necessary party and the question of the paramount title cannot be litigated in such a suit. Mt. Komal therefore could not have intervened in the mortgage suit, and if she had been allowed to intervene, a great deal of confusion would have arisen.
17. The question still remains whether Jangi Lal's estate was represented in the mortgage Suit No. 111 of 1927. It is said that Jangi Lal must be deemed to have-agreed to the mortgage, only he did not live long enough to execute the same and when the mortgagee brought the above-mentioned suit the widow should be deemed to be substantially represented in the suit. Now there is no evidence whatsoever that, Jangi Lal had anything to do with the negotiations which led up to the mortgage. Ragho Ram, the munim of the mortgagee's firm, was examined as a witness in the case and he speaks of the circumstances under which the mortgage was executed. He is an attesting witness to two of the mortgage deeds and he could have easily said that Jangi Lal and Khelari Das both came to his master in order to discuss the preliminaries of the same. Khelari Das was the senior member of the family and Jangi Lal was a mere boy, and it might well be that Khelari Das alone went to the mortgagee and settled all the terms.
18. Under the above circumstances we can. not assume that although the mortgage was not executed by Jangi Lal, he had in fact given his consent to it and therefore on certain vague considerations the mortgage should be deemed to be a mortgage by Jangi Lal and then hold that although the widow was not impleaded as a defendant in the suit, she should be deemed to be substantially represented in the same. The analogy of a wrong person being impleaded as a legal representative of a deceased can not be invoked in the present suit. We are aware of cases where a proper person is impleaded and he dies and then the proper legal representative is not impleaded, but some one who is intermeddling with the estate is impleaded. In those cases it has undoubtedly been held that the estate of the deceased would be bound by the decree obtained against the legal representative brought on the record and the heir would not be heard subsequently to say that he is not bound by the decree already obtained. Pushing the above principle a little more, it might be possible to argue that if Jangi Lal had executed the mortgage and if the suit had been brought by the mortgagee after the death of Jangi Lal and if in ignorance of the existence of the widow of Jangi Lal the suit had been brought against Khelari Das and Kripa Nidhan alone and if proper defences had been raised and no collusion proved, the widow might be deemed to be substantially represented in the suit, but in the present case the mortgage was not executed by Jangi Lal nor was Jangi Lal alive and impleaded in the suit and later a wrong legal representative brought on the record, but the mortgage itself was executed by an unauthorised person and the suit was brought against the same unauthorized person. No case has been cited before us where it might have been held that under circumstances, such as are revealed in the present case, the real heir has been held to be substantially represented in the suit in which he was not a party.
19. A decree between two parties ordinarily binds the actual parties to it or their representatives or others who might be deemed to be represented by reason of the constitution of the family to which they belong, or the constitution of the corporation to which they belong (like the members of a. joint Hindu family who might be said to be represented by the karta or the members of a firm who might be said to be represented by the manager). In the present case Jangi Lal was a debtor under certain promissory notes, and if after his death a suit had been brought for the recovery of those debts and Mt. Komal had not been impleaded, but Khelari Das and Kripa Nidhan had been sued as defendants, we might have considered the question whether the estate of Jangi Lal was substantially represented or not, but when the mortgages, which are the basis of the suit, were not executed by Jangi Lal, Jangi Lal's estate cannot be said to be substantially represented by Khelari Das and Kripa. Nidhan, because prior to the institution of the suit the liability had been incurred by a person or persons not authorized to incur the liability. The case in General Manager of the Raj Durbhanga v. Maharaja Coomar Ramaput Singh (1870-72) 14 M.I.A. 605 is clearly distinguishable. There the estate of Gourpershad was deemed to be substantially represented, although the proper heir was not brought on the record at the time of the sale, but the decree itself had been obtained while Gourpershad was alive. Where a debtor himself is a party to a suit and dies either in the course of the suit or in the course of execution proceedings and the Court by a judicial decision brings a. person on the record as the legal representative of the deceased debtor, the decision however wrong will bind the estate of the' deceased person and the rightful heir cannot subsequently come and dispute the correctness of the decision or the jurisdiction of the Court to sell the deceased debtor's estate. This was held by a Bench, of this Court in Amarchand v. Parmanand : AIR1934All474 . As Court, however, has no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record and as against such persons the decrees or sales under them are void : see Khiarajmal v. Daim (1905) 32 Cal. 296.
20. It is convenient at this stage to discuss the application of Section 41, T.P. Act to the facts of the present case, for, it is said on behalf of the mortgagees that they are protected under that provision of law. Now Jangi Lal died on 16th June 1923, and the first mortgage which is disputed was executed on 6th August 1923 and the second on 23rd August 1923 and the third, which was really in lieu of interest on the first two was executed on 26th November 1924. 'What acts of omission or commission were done by Jangi Lal's widow, the real owner of the property, to induce the outside world to come to the conclusion that Khelari Das or Kripa Nidhan were the owners of her husband's property between 16th June 1923 and 6th August 1923 passes one's comprehension. The ashes of Jangi Lal's funeral pyre had not even become sufficiently cold and the widow's tears had hardly dried when Rai Bahadur Batuk Prasad took the mortgages from Khelari Das and Kripa Nidhan, and Section 41, T.P. Act cannot possibly be pleaded, for, nothing had been done by the widow by which her consent could be implied in Khelari Das posing as the ostensible owner of Jangi Lal's property, and it is not necessary to consider whether the mortgagee had taken reasonable care to ascertain that the mortgagor (Khelari Das) had power to make the (transfer. The earliest mutation order and that too in connexion with a small grove, not the subject of the mortgage, that we have on the record of this case is dated 21st August 1923, fifteen days after the first mortgage and two days before the second mortgage. The house properties seem to have remained all along up till 1933 in the municipal registers in the name of Jangi Lal, and it was only on 12th May 1933 that the name of Mt. Komal was mutated n place of her deceased husband, Jangi Lal. We think there is no substance in the mortgagees' plea that they are protected by Section 41, T.P. Act or that the mortgage by Khelari Das and Jangi Lal should, by reason of that provision of law, be deemed to be a mortgage by Jangi Lal, and the widow should therefore be deemed to be substantially represented in Suit No. 111 of 1927.
21. The final question that remains to be considered is whether on equitable grounds any condition should be imposed on the widow before she can obtain a declaration that the decree of the trial Court (as modified by this Court) in Suit No. Ill of 1927, is not binding on her. We have already held that on no known grounds of law can this decree be binding on her. It is true that a Court in its discretion can refuse to give a declaratory decree and can also impose certain conditions, but the discretion should be guided by judicial principles and well recognized equitable considerations. It is strenuously contended on behalf of the mortgagees that the plaintiff must be made to pay Jangi Lal's debts as a condition precedent to her obtaining the relief claimed by her. In First Appeal No. 266 of 1928 this Court came to a definite conclusion that Jangi Lal's share was liable to pay a debt of Rs. 15,498.11-0 and one-third of Rs. 693-1-0 and it is said that these two sums together with interest should be paid by the widow in any event, and reliance is placed on the case in Jafri Begam v. Amir Muhammad Khan (1885) 7 All. 822. The facts of Jafri Begam's case were as follows:
22. One Ali Muhammad Khan died in 1878, leaving as his heirs his parents, a widow named Wirasat Begam, two sons, named Ali Ahmad and Abdul Majid, three daughters named Banarsi Begam, Niyaz Begam and Jafri Begam and a brother, Amir Muhammad Khan. On 8th December 1879 Abdul Rahman, the husband of Jafri Begam, obtained against Wirasat Begam, Ali Ahmad, Abdul Majid and the three daughters, as the heirs of the deceased Ali Ahmad Khan and in possession of his estate, a decree for a debt due by the deceased. In execution of this decree ten biswas of a village called Bakhtiarpur, forming part of the estate of the deceased, were put up to sale and were purchased by Abdul Rahiman. In 1882 Amir Muhammad Khan brother of the deceased brought a suit to recover his share in the property of the deceased and Mahmud J., who delivered the principal judgment of the Full Bench, came to the conclusion that the plaintiff could not obtain a decree for possession of his share of the property in suit without such decree being rendered contingent upon payment by him of such proportion of the purchase money as would represent his proportionate share of the liability to the ancestor's debts liquidated by the proceeds of the auction sale, and he based his decision on the principle which enables Courts of equity to exercise a vast and flexible jurisdiction for adapting their decrees to the requirements of each case.
23. This case is clearly distinguishable and has been distinguished by this Court in Phool Chand v. Mt. Mantia : AIR1938All182 already discussed, whore their Lordships said that in the Full Bench case some of the heirs were parties and were in possession of the estate and they substantially represented the deceased person's estate and we might further say that there was another equity in favour of the auction purchaser defendant, because the utmost which Amir Muhammad Khan could say was that he ought to have been impleaded in the suit brought by Abdul Rahman and if he would have been so impleaded, he would have had to pay his proportionate share in the debt due by the deceased Ali Muhammad Khan.
24. The Full Bench case Jafri Begam v. Amir Muhammad Khan (1885) 7 All. 822 was again distinguished recently by another Bench of this Court in Phool Chand v. Mt. Mantia : AIR1938All182 where a declaration was given to the plaintiff without imposing any condition for the payment of any money. The plaintiffs Mantia and others had brought a suit for a declaration that they were the owners of certain shares in certain properties left by Kunwar Khan and for possession of such share if it was found that they were out of possession. It appears that certain other heirs of Kunwar Khan had mortgaged or transferred certain portions of Kunwar Khan's property without the knowledge and consent of the plaintiffs in order to raise money to pay off a mortgage executed by Kunwar Khan and the money so obtained was paid to discharge the earlier debt. Upon the question whether the plaintiffs could in equity obtain a declaration of their rights in the property of Kunwar Khan unless they contributed their proportion of the money advanced by the transferees to the other heirs for the purpose of paying off Kunwar Khan's debts, it was held that the debt due to the estate had been paid off and the only debt that existed was one due from the heirs to the transferees and under the circumstances the plaintiffs, who were no parties to the transactions between the heirs and the transferees and who knew nothing of them, could not be made to contribute any portion of the debt due from the heirs to the said transferees before obtaining a declaration of their right to their shares which were improperly dealt with by the heirs.
25. Something quite similar has happened in the present case. The debt due from Jangi Lal was paid off by the mortgage and the only debt that existed was one due from Khelari Das to the mortgagee, and there is no equity in favour of the mortgagee against the plaintiff and the mortgagee must look to his debtor for satisfaction. With the exception of a sum of Rs. 800 which was borrowed by Jangi Lal alone, we cannot definitely say that the other moneys taken by Khelari Das and Jangi Lal under joint promissory notes went to relieve the necessities of Jangi Lal or were for the benefit of the family. We know that the High Court in the earlier litigation came to the conclusion that only Rs. 693-1-0 were borrowed for family necessities and for the rest all that was done was to apportion the liability of Khelari Das and Jangi Lal in the debts taken by them jointly. It may well be that Khelari Das as the senior member of the family approached Jangi Lal and asked him to execute a joint promissory note and the latter did not demur, but even if it be conceded that Jangi Lal was liable under the joint promissory notes, the debts as simple money debts lost their force after three years and could be revived only by Jangi Lal's widow, and even the simple money creditors could not have proceeded against Jangi Lal's widow on the strength of any acknowledgments made by Khelari Das. Much less could the mortgagee from Khelari Das claim anything from Jangi Lal's widow. Khelari Das himself might have some rights of contribution if he discharged the joint debts - none if he discharged the separate debts of Jangi Lal - but he had no right without the consent of Jangi Lal's widow to burden the estate with a mortgage in favour of another, thus clothing the mortgagee with certain equitable rights. If, as we said before, the mortgagee had impleaded Jangi Lal's widow in the mortgage suit, Jangi Lal's widow would have obtained a dismissal qua her share of the mortgaged property on the ground that the mortgage was executed neither by herself nor by her husband. We are saying this on the assumption that the paramount title of Mt. Komal could have been discussed in the mortgage suit on any equitable grounds. It is quite true that Courts of equity are not restrained in the same way in which Courts of common law are restrained and the former Courts can adjust their decrees so as to meet certain exigencies, and they may vary, qualify, restrain and model their remedy in order to control the equities and substantial rights of all the parties, but we can find no equity in favour of the mortgagee against the plaintiff, and he must content himself with such claims as he may have against his own mortgagor.
26. For the reasons given above, we allow this appeal, set aside the decree of the Court below, give the plaintiff the declaration which she claimed in relief (a) of the plaint and award her the costs of the suit and of the appeal against the defendants.