1. These two appeals arise out of two suits for sale brought on mortgage executed by defendant Kunwar Pal. The mortgages were executed both in the year 1909 and were for a sum of Rs. 100, each.
2. The suits were resisted by two persons, Tikam Singh and Ratan Lal, who claimed to have purchased the mortgaged property tinder a deed executed in their favour by the mortgagor, Kunwar Pal, on the 16th of October 1913.
3. One of the questions which was agitated in the Courts below was whether these two defendants, as purchasers from the mortgagor, were entitled to raise any plea regarding the validity of the mortgage-deed. It may be explained here that both there defendants challenged the mortgages executed in plaintiff's favour, on the ground that the sums which had been borrowed were not debts which were binding upon the property, which is admittedly joint family property. It is also admitted that the mortgagor, Kunwar Pal, has a son in existence.
4. The Court of first instance found, on the authority of a Full Bench ruling of this Court in Muhammad Muzamilullah Khan v. Mithulal 11 Ind. Cas. 220 : 33 A. 783 : 8 A.L.J. 901, that defendants, who are now the appellants here, were entitled to call in question the validity of the mortgage. The first Court was of opinion that these defendants by reason of their purchase represented not only Kunwar Pal but also Kunwar Pal's son. The first Court was of opinion that the sale-deed which had been executed in favour of these defendants had bean executed by Kunwar Pal as the managing member of the family and for purposes which were binding upon his son.
5. In appeal the learned Subordinate Judge has taken a different view. According to his finding, it was not established that Kunwar Pal had executed this sale-deed in favour of the defendants-appellants as the managing member. On the contrary, the learned Judge was of opinion that the dead had been executed by Kunwar Pal in his individual capacity. The result was that while the first Court dismissed the suits, the lower Appellate Court decreed them, It cannot, we think, be denied in view of the Full Bench ruling of this Court that in certain circumstances it is op an to a transferee from a mortgagor to raise a question regarding the validity of the mortgage. The difficulty which we find in the present suit is that the san of the mortgagor was not made a party to the proceedings. In third paragraph of the farther statement of defence which was filed by the defedants, a plea was taken that the son of Kunwar Pal was a necessary party to the suit, The first Court does not appear to have accepted this plea or to have thought it necessary to join the son as a party to the suit. In deciding the fifth issue it he'd that 'the head of a Hindu family represents the family in all transactions and a junior member is not a necessary party.'
6. It seems to us that no proper decision regarding the validity of the transfer made by Kunwar Pal in favour of the defendants-appellants can be reached unless and until the son of Kunwar Pal is made a party to the proceedings. This being so, we think the proper course is to set aside all the proceedings in the Courts below and to send the case back to the Court of first instance through the lower Appellate Court for re-trial, with directions to make the son of Kunwar Pal a party to the suit. Costs here and hitherto will abide the result.