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Mushtaq Ali Khan and ors. Vs. Behari Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in25Ind.Cas.508
AppellantMushtaq Ali Khan and ors.
RespondentBehari Lal and ors.
Excerpt:
mortgage suit - parties--mortgage, integrity of, not split up--all mortgagees necessary parties. - .....plea that there was a defect of parties. it appears that the original mortgagees were two persons, baij nath and badri prasad. baij nath had died leaving three daughters. badri left four sons. the sons of badri were parties' to the suit, but the daughters of baij nath were not. the court of first instance found that baij nath and badri were separate and that accordingly the daughters of baij nath were necessary parties, the suit was defective and it could not be cured because limitation had expired before the application to add parties was made. the lower appellate court reversed this decision. while it agreed with the court of first instance that baij nath and badri were separate, it held that the suit was barred against the daughters of baij nath to the extent of half but, that the.....
Judgment:

1. This appeal arises out of a suit on foot of a mortgage, dated the 8th of January 1895. The suit was not instituted until the 5th of August 1910, that is to say, just about the time when the special period of limitation allowed by the Act of 1908 was on the eve of expiring. The defendants raised the plea that there was a defect of parties. It appears that the original mortgagees were two persons, Baij Nath and Badri Prasad. Baij Nath had died leaving three daughters. Badri left four sons. The sons of Badri were parties' to the suit, but the daughters of Baij Nath were not. The Court of first instance found that Baij Nath and Badri were separate and that accordingly the daughters of Baij Nath were necessary parties, the suit was defective and it could not be cured because limitation had expired before the application to add parties was made. The lower Appellate Court reversed this decision. While it agreed with the Court of first instance that Baij Nath and Badri were separate, it held that the suit was barred against the daughters of Baij Nath to the extent of half but, that the sons of Badri were still entitled. to the other half and that the suit to that extent could be maintained; and it accordingly remanded the case. From this order of remand the present appeal is taken.

2. In our opinion the decision of, the Court of first instance was correct. All the owners of the mortgagee rights were necessary parties. The integrity of the mortgage was never split up, Accordingly no part of a mortgage debt can be recovered, nor can the property be sold to realise any part thereof, except by all the mortgagees bringing a suit within the time prescribed by law.

3. We allow the appeal, set aside the order of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts including fees in this Court on the higher scale.


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