1. This is a defendants' appeal arising out of a suit for the sale on the basis of a mortgage-deed executed on the 4th of July 1911 by two brothers, Nathu and Faqira, the defendants.
2. The defendants, inter alia pleaded that Nathu's son Chhajju who is a minor and a member of a joint Hindu family had not been impleaded. The plaintiffs did not choose to implead him in this case and it is unfortunate that the Court of first instance also perhaps to avoid complications did not think it worthwhile to bring him on the record and thus dispose of all possible disputes.
3. The Court of first instance, however, dismissed the claim on the ground that Chhajju, the minor member of the family had not been impleaded and the suit, therefore, was defective on the ground of nonjoinder. In this, reliance was placed on the case of Shiam Sunder Lal v. Budhu Lal 24 Ind. Cas. 252 : 12 A.L.J. 794
4. The lower Appellate Court has allowed the appeal and held that the suit could not fail on the ground of non-joinder but that the major members of the family actually represented the minor member also and that thus the suit was not defective It has relied on the case of Hori Lal v. Nimman Kunwar 50 Ind. Cas. 126 : 33 A. 349 : 9 A.L.J. 819.
5. We are of opinion that the decree of the lower Appellate Court must be upheld but we intentionally refrain from upholding it on the ground that the minor member is represented by the major members.
6. Our attention has been invited on behalf of the respondents to the case of Chetan Singh v. Sartaj Singh 79 Ind. Cas. 1001 : 46 A. 709 : 22 A.L.J. 702 : (1924) A.I.R. (A.) 908 and it is urged that it supports the view of the lower Appellate Court.
7. We would like to point out one circumstance which has sometimes been overlooked * and which clearly explains the rule of law laid down in the Full Bench case of Hori Lal v. Nimman Kunwar 50 Ind. Cas. 126 : 33 A. 349 : 9 A.L.J. 819. In that case the mortgagees were not suing the mortgagor, namely, the executant himself, but were trying to follow mortgaged property in the hands of the heirs of the transferee from the mortgagor. Some minor members of the family of the transferee from the mortgagor had not been impleaded. In that case it was obvious that no question of the right of a Hindu minor son to challenge an alienation by the major members for want of legal necessity at all arose. The only question was whether the suit as against the then defendant was maintainable. The Full Bench held that, although the property had been acquired from the mortgagor by the defendant's father it had been acquired by the entire joint family but nevertheless as the major members were impleaded they had represented all the other members. In the same way it may perhaps be pointed out that in the case of Chetan Singh v. Sartaj Singh 79 Ind. Cas. 1001 : 46 A. 709 : 22 A.L.J. 702 : (1924) A.I.R. (A.) 908, 'the suit was against the heirs of the original, mortgagor and not the mortgagor himself.
8. In the present case we have already noted. that the plaintiffs are suing the actual parties to the mortgage-deed, namely, Nathu and Faqira. It is open to the plaintiffs to ask the Court to grant them a decree against the persons who borrowed the money from them and who had made the mortgage as executants, for they cannot be allowed to plead want of authority to make the mortgage. It is difficult to see how in these circumstances the defendants can be said to represent the minor son in the true sense of the word. It is on that ground that we refrain from saying that the suit is a good one because the major members represented the minor. We would like to make it clear that even after this* decree it would remain open to Chhajju Singh to sue in a Civil Court to avoid the alienation on grounds which are ordinarily open to Hindu minor members. With this remark we dismiss the appeal with costs including in this Court fees on the higher scale.