1. The relationship of the parties to this suit would appear from the following pedigree:
Zalim Singh, Reghubir Sahai
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Daljit Lal, Balkaran Lal, Kamla Prasad,
Respondent 2 Plaintiff 1 Plaintiff 2
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Basdeo Lal, Basant Lal, Sant Baksh, Sahdeo,
Plaintiff 3 Plaintiff 4 Plaintiff 5 Plaintiff 6
2. Daljit Lal and Zalim Singh mortgaged the suit property in year 1898 to the defendant Malik Namdar. Malik Namdar subsequently brought a suit on his mortgage impleading the mortgagors and Daljit Lal's son Basdeo Lal-- The suit was compromised and resulted in a decree for sale of the property. This decree was made absolute in the year 1912 in proceedings to which the principal appellant Kamla Prasad was also a party as was also the first appellant Balkaran Lal. The plaintiffs in the suit out of which this appeal arises were,
3. (a) Daljit Lal and his son Basdeo Lal,
4. (b) Balkaran Lal and his three sons, and
5. (c) Kamla Prasad.
6. Their claim is to recover the property on the ground that the decree absolute for sale obtained by Malick Namdar in 1912 is not binding on them, the property being joint family property which was mortgaged without legal necessity.
7. The learned Subordinate Judge held that there was legal necessity for the sale and dismissed the suit on this ground. Kamla Prasad alone appealed but stated in his memorandum of appeal that he was appealing on behalf of all the plaintiffs under Order XLI, Rule i. The learned Additional Judge has dismissed the appeal on two grounds; first, that Kamla Prasad was bound by the final decree of 1912 to which he was a party, and second, that he was not entitled to appeal on behalf of the other plaintiffs.
8. Before dealing with the other points I may note that the view was expressed by two Judges of this Court in Ambika Prasad v. Mnak Singh 53 Ind. Cas. 518 that a plaintiff professing to appeal under Order XLI, Rule 4 is not entitled to proceed with his appeal without making the other plaintiffs parties thereto as respondents. The passage is on page 289. The learned Judges say,
The objection is sufficiently met by another case, that of Balaram Pal v. Kanysha Majhi 53 Ind. Cas. 518. This case seems to us to be absolutely in point. It was laid down there that where one of several plaintiffs prefers an appeal in which the other plaintiffs are also interested, Rule 4 of Order XLI of the Code of Civil Procedure does not authorise him to proceed with the appeal without making the other plaintiffs parties thereto.
9. In this view it does not appear what lows standi the remaining plaintiffs have to appeal to this Court against a decree to which they were not parties. In his appeal to the Court below Kamla Prasad joined no one as a respondent except the defendants Malik Namdar and Daljit Lal.
10. In answer to the first finding of the learned Judge it is argued on behalf of Kamla Prasad that he must have been joined in the appeal in his capacity of a member of the joint family as legal representative of Zalim Singh. I/have not been referred to any judgment to show how he came to be joined, but as Zalim Singh had died before the final decree was passed it may be taken as probable that this was correct. It is, therefore, urged that it was not open to him to urge any plea which Zalim Singh himself could not have urged, and Zalim Singh being one of the original mortgagors could not have pleaded that the mortgage was without legal necessity. It was, however, open to Kamla Prasad to plead that he was not the legal representative of Zalim Singh and that the decree was not binding on him as he claimed under an independent title. It is only in the case of a son or other descendant that a person taking property by survivorship can be joined as a legal represen-tative under Section 53 of the Code of Civil Procedure and it has recently been held by a Bench of this Court that the section does not apply to a nephew. [Jagannath Singh v. Moti Lal], Kamla Prasad was the nephew of one of the mortgagors and the brother of the other. It appears to me, therefore, that it was open to him to plead that he held under an independent title and could not be joined as a party in the proceedings for preparation of the final decree. Not having done so he coast be held to be bound by the decree. If he was bound by the decree he was fiat entitled to appeal from it under Order XLI, Rule 4 on behalf of plaintiffs who were not parties to the decree, e.g., Sant Bakhsh and Sahdeo, while those who were parties art, equally bound by it. In this view, the decree of the Court is below is correct and I accordingly dismiss the appeal with costs.