1. This appeal arises out of a suit for sale on the basis of a mortgage-deed, dated 26fch November 1877, in favour of one Angad The plaintiffs are related to Angad and claimed to have been joint with him and owners by survivorship. The present appellant is a transferee of the mortgaged properly. He pleaded that the plaintiffs were not joint with Angad, that the latter had been separate and had left other heirs as well as the plaintiffs and the latter alone were not entitled to sue. The other heirs of Angad were made parties to the suit but the period of limitation had then expired.
2. The first Court held against the plaintiffs on the question of jointness and, in the circumstances of the case, dismissed the suit.
3. The plaintiffs appealed. In the meanwhile, they applied under the Succession Certificate Act and when the appeal has come up for hearing, the certificate had been granted conditional on security being furnished. The security at that time had not been given to the satisfaction of the Court.
4. The lower Court allowed the appeal and remanded the suit for decision on the merits but added that it should be dismissed if the security was not provided.
5. The defendant-transferee now appeals and the only point pressed before us is that Section 4 of the Succession Certificate Act does not apply to a mortgage and, therefore, the evil of non-joinder of plaintiffs within the period of limitation has not been cured, and the suit was not maintainable as all the heirs of Angad, who are now the mortgagees, were not joined within time.
6. Various rulings of the other High Courts in this country have been quoted. It is unnecessary to enumerate them, because, whatever our own opinion may be, we are bound by the Full Bench ruling in Fateh Chand v. Muhammad Baksh 16. A. 259 in which it was held that Section 4 of the Act did apply to suits for sale under Section 88 of the Transfer of Property Act, 1832.
7. In this view, the plaintiffs having a certificate under the Act represent, for the purpose of the present case, the whole of Angad's estate, and are able to give a full and valid receipt good as against all the other heirs of Angad whom they clearly represent in the circumstances.
8. We are informed that security has been furnished, but in any case as the lower Court has directed a dismissal in case it be not furnished, this appeal must fail and is, therefore, dismissed with cists which in this Court will include fees on the higher scale.