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Khubilal and anr. Vs. Maloomsingh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 67 of 1955
Judge
Reported inAIR1957Raj21
ActsLimitation Act, 1908 - Schedule - Article 148; Mewar Limitation Act, 1988 - Sections 22; Code of Civil Procedure (CPC) , 1908 - Order 34, Rule 1
AppellantKhubilal and anr.
RespondentMaloomsingh and ors.
Appellant Advocate S.S. Bapna, Adv.
Respondent Advocate Chatersingh, Adv.
DispositionAppeal allowed
Cases ReferredGovind Chandra v. Jamaluddin
Excerpt:
.....of it. it is then said that one of these other provisions which should be held to govern order 34, rule 1 is order 1, rule 9, and the latter rule provides that no suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. again, if the mortgagor is a party to such a suit, he might have some very good defences to urge against the prior mortgagee. at the same time we clearly recognize that if the rights of the parties actually before the court can be determined without affecting the rights and interests of certain other parties, there is no reason why the court should not determine the matter in controversy between the parties..........the suit on the ground of limitation he should have considered the effect of section 22, mewar limitation act which had a bearing on the question of limitation and also of a notification dated 14-5-1940, by which the 8 years' period of grace allowed by section 22 was further extended by one year, that is, up to 30-8-1941.the bench, therefore, directed that the order of the district judge be set aside and the suit remanded for determination of the question of limitation afresh.it was also pointed out that as the original mortgagors had been brought on the record some time in may, 1942, that factor should also be considered while deciding the question of limitation.a further direction was given that if the trial court came to the conclusion that the suit was within limitation it.....
Judgment:

Modi, J.

1. This is a plaintiffs' second appeal in a suit for redemption of a mortgage and a learned single Judge before whom the appeal came originally has referred it to a Division Bench.

2. The suit out of which this appeal arises has had a chequered history. The suit was brought in the first instance in 1941 in a Court of the former State of Udaipur. It is unnecessary for the purposes of the present appeal to give the history of this case in detail. It is enough to say in this connection that the District Judge of Pratapgarh by his judgment dated 21-9-1931, without deciding any other issues which arose in tin's case, himself raised the question of limitation and holding that the plaintiffs had brought their suit a hundred years after the execution of the mortgages which they sought to redeem dismissed it.

The plaintiffs then came in appeal to this Court, and a Division Bench to which one of us was a party held by its judgment dated 25-11-1952 that the manner in which the learned District Judge disposed of the suit was not correct and that before dismissing the suit on the ground of limitation he should have considered the effect of Section 22, Mewar Limitation Act which had a bearing on the question of limitation and also of a notification dated 14-5-1940, by which the 8 years' period of grace allowed by Section 22 was further extended by one year, that is, up to 30-8-1941.

The Bench, therefore, directed that the order of the District Judge be set aside and the suit remanded for determination of the question of limitation afresh.It was also pointed out that as the original mortgagors had been brought on the record some time in May, 1942, that factor should also be considered while deciding the question of limitation.

A further direction was given that if the trial Court came to the conclusion that the suit was within limitation it would be in the interests of justice to allow both parties to lead such evidence or further evidence as they may desire to do. The case was sent back for fresh disposal in accordance with the aforesaid directions to the Civil Judge, Udaipur.

3. Before we proceed further, we may state a few facts relevant to the matters which we are called upon to consider. The suit relates to the redemption of two mortgages with respect to certain properties described in the plaint which are said to belong to the deity of Shri Shitalnathji Maharaj.

The plaintiffs' case is that with respect to one of these properties a usufructuary mortgage was made on behalf of Shri Shitalnathji Maharaj in favour of Daulji Motichandji for Rs. 1201/- by a deed dated Smt. 1896 Asoj Sudi 9 and another mortgage was made on the same date with respect to the remaining property for Rs. 901/- in favour of Lalji Kalyanji, and later Lalji Kalyanji made a sub-mortgage thereof in favour of Daulji Motichandji.

Then about a hundred years later Smt. 1997 one Ranglal on behalf of Shri Shitalnathji Maharaj made a second mortgage of the properties in question in favour of the plaintiffs for a sum of Rs. 3256/4/- by a registered deed of mortgage dated Smt. 1997 Jeth Vadi 13. It is important to bear in mind that by this deed a sum of Rs. 2102/- making up the amount of the two previous mortgages namely of Rs. 1201/- and Rs. 901/- was left with the plaintiffs to pay off these earlier mortgages.

The plaintiffs impleaded as defendants the heirs of Daulji Motichandji who were defendants 1 to 6 in the original plaint and the heirs of Lalji Kalyanji who were defendants 7 to 9 therein. The plaintiffs did not impleacl the original mortgagor as a party to their suit and defendants 10 to 14 as representatives thereof were subsequently impleaded as defendants in May, 1942.

The last-named defendants allowed the suit to proceed ex parte against them. The other defendants resisted the suit on a number of grounds but with those grounds we are not concerned for the purposes of this appeal.

4. When the case went back to the Civil Judge on the judgment and decree of the District Judge dismissing the suit as barred by time having been set aside, the plaintiffs filed an application on 13-8-1953, to amend their plaint.

By this application the plaintiffs sought to add in para 6 of their plaint that the suit was within time by virtue of Section 22, Mewar Limitation Act read with notification No. 11534 dated 14-5-1940, published in the Mewar Gazette dated 3-6-1940. They also sought to add that apart from the above ground, the suit was within time by virtue of a certain acknowledgment made by Sohanlal and Kanhyalal in Smt'. 198S and also earlier acknowledgment contained in a document of partition dated Smt. 1952 Sawan Sudi 5 executed between the defendants 1 to 6.

This application was opposed on behalf of the contesting defendants and the Civil Judge permitted the amendment of the plaint only to a limited extentthat is in so far as the introduction of the ground of exemption relating to Section 22, Mewar Limitation Act and the subsequent notification dated 14-5-1940 was concerned. Consequently the plaint was allowed to be amended to that extent only and the trial Court framed a fresh issue on the point of limitation and ordered that the said issue be tried as a preliminary issue.

The Civil Judge held that the notifieation dated 14-5-1940, extending the period of limitation of suits uptii 30-G-1940 did not possess the force of law as it had not been issued in the name of His Highness the Maharana or under his authority. He further held that even if it were assumed that the notifieation had the force of law, it did not apply to a suit of the present character as the notification was intended to extend the period of limitation with respect to suits relating to len den only.

The Civil Judge further came to the conclusion that the mortgagors were necessary parties in this case and as they had been impleaded after the period of limitation as extended both by Section 22, Mewar Limitation Act and the subsequent notification, the suit became a properly constituted one only after the mortgagors were made parties thereto and on that ground also the suit would be barred by limitation.

The plaintiffs then went in appeal to the learned District Judge, Udaipur, Who disagreed with the Civil Judge so far as the force and effect of the notification dated 14-5-1940, were concerned and held the opinion that it had the effect of a valid piece of legislation but otherwise agreed with the findings of the trial Judge and consequently he also dismissed the plaintiffs' appeal. The plaintiff's have now come up to this Court against the judgment and decree of the learned District Judge.

5. Three questions have been raised before us in this appeal. The first question is whether the notification dated 14-5-1940, published in the Mewar State Gazette dated 3-6-1940, has the force of law and whether it is applicable to a suit of this character. We may state in tin's connection that there was no Limitation Act as such in the former State of Mewar before Smt. 1988 or 1932 A. D.

The Mewar Limitation Act was brought into force from 1-7-1932. By this Act (see item No. 2 of the schedule) a limitation of 60 years was prescribed for suits relating to redemption of immovable property. It was not disputed before us that no period of limitation was in force in the former State of Mewar with respect to such suits.

Then Section 22, Mewar Limitation Act provides that all suits, for which no period of limitation had been prescribed before that Act came into force, could be brought up to a period of 8 years from the commencement of the Act, but that if a longer period than 8 years was available to a suitor in accordance with the Act, then he will be entitled to such longer period. The period of 8 years prescribed by this Act expired on 30-6-1940, before the present suit was brought.

It appears, however, that certain representations were made to the Government of the former State of Mewar that the period of 8 years' grace expiring on 30-6-1940, be further extended and, therefore by a notification No. 11584 dated 14-5-1940 published in the State Gazette, this period of 8 years was extended by one year more. This notification was issued underthe signature of Shri Ratilal Antani who is said to have been Judicial Minister in that State then.

A question was raised before us that the notification did not give the designation of Shri Ratilal Antani nor does it appear that it had received the sanction of His Highness the Maharana who alone was competent to make or amend laws in the State of Mewar. This is true.

It is also true that the language of this notification is far from happy or clear. It begins by saying that in the case of suits relating to ''len den' eight years grace had been granted by virtue of Section 22, Mewar Limitation Act (No. 2 of Section 1988) and that this period was to expire by the end of June, 1940, and further that a number of traders had submitted representations for extending the period of grace and, therefore, the notification proceeded to say that one year's further grace was being granted in addition to that already fixed.

Now, two questions arise in connection with this notification. The first is the question relating to its validity. We have carefully examined the matter, and at one time we were inclined to the view that we might send for the Government record leading to the issue of this notification to see for ourselves whether it had the approval of His Highness the Maharana who alone had the legislative competence in the State of Mewar as it then was.

We have, however, felt relieved of this necessity in view of the fact that a reference to this notification is found in a subsequent piece of legislation called the Mewar Limitation Act (No. 6) of 1941 by which certain persons within the meaning of the Act were allowed a further extension of one year computed from 1-7-1941, to file their suits. The material portion of the preamble of that Act is in these terms:

'Whereas the period of limitation tor suits provided by the Mewar Limitation Act No. 2 of 1988 as amended by Government Order No. 11584 dated 14-5-1940, expired on 30-6-1941, and whereas it is now found that some people have not been able to file their suits within this period by reason of their books of account and other necessary documents having passed out of their control..... and whereasit is just and equitable that the Mewar Limitation Act be so amended as to afford these people a reasonable opportunity to enforce their claims by filing suits;

It is hereby enacted as follows.'

It has not been questioned before us that the Mewar, Limitation Amendment Act No. 6 of 1941 is not a valid piece of legislation, nor indeed could this be questioned. It is further significant that the extension of one year granted under this Act was to date from 1-7-1941, which takes us precisely to the point of time prescribed by the notification of 1940, namely 30-6-1941. This clearly indicates that the notification which is sought to be impugned before us had legislative authority at the back of it.

We have no doubt, therefore, that the validity of the notification dated 14-5-1940, is not open to any valid challenge. Our attention was also invited to the fact that this notification was questioned in Devilal v. Rughlal (A) decided on 13-4-1949, by Shardul Singh Mehta J., a Judge of the High Court of former Rajasthan, who prior to the integration of the Mewar State in the former State of Rajasthan was also a judge 08 the Mewar High Court, and the learned Judge held that the notification of 1940 was enacted by competent authority. This also confirms us in the conclusion at which we have arrived.

We, therefore, hold that the notification in question does possess the force and authority of law. The next question is as to the precise scope and meaningof this notification. Does it apply to all kinds of suits for which 8 years' grace had been provided under Section 22(a), Mewar Limitation Act or does it possess a restricted application only

It is not disputed before us that, granted its validity, the application of this notification cannot be denied in the case of suits for 'len den'. Both Courts below are of opinion that even so the present suit is not covered by the notification as it is not a suit for 'len den'. Having given our careful consideration to this aspect of the matter, we feel constrained to disagree with the opinion of the Courts below. Mortgages certainly involve the giving and taking of money. A suit for redemption of mortgage does involve the giving by the mortgagor of the mortgage money to the mortgagee although it is also a suit for possession and in that sense it cannot be said to fall altogether outside the ambit of the expression 'den den ke dawon'. Nor can it be said with -any justification that the traders who wanted to get a further extension of one year's grace would be unconcerned with mortgages because many a time traders may have to make mortgages of their properties in order to raise money for purposes of trade.

The expression 'suits for len den' is at least ambiguous, and, even assuming, that it is capable of more than one meaning, we are of the view that we must put a meaning on it which should advance the remedy rather than hamper it. See Jethmal v. Amb Singh, ILR (1955) 5 Raj 334: (AIR 1955 Raj 97) (FB) (B). Viewing the matter in this light also, we are inclined to the view that the present suit is fairly covered by the expression 'len den ke dawon' used in the notification.

On the question whether this notification applies to other kinds of suits also, such as suits for possession or casement or any other suits, apart from monetary or mortgage suits, we would prefer to reserve our opinion for the present and propose to decide the question when such a case arises for our consideration. It must follow as a corollary that this suit which had been brought before 30-6-1941, would be saved by the notification, and the Courts below were wrong in throwing it out as barred by time on this ground.

6. The second point urged before us on behalf of the appellants was that the Courts below were wrong in not allowing the amendment of the plaint In so far as the plaintiffs wanted to plead certain acknowledgments as a further ground of exemption from limitation.

But before we say anything as regards this point, we propose to address ourselves to the third and the last contention raised before us on behalf of the plaintiffs appellants, as, in our opinion, that contention goes to the very root of this appeal.

7. The last question raised for our consideration is whether the original mortgagor or his representatives are necessary parties to the suit brought by the plaintiffs appellants.

Both Courts below have held that the original mortgagor or its representatives are necessary parties to this suit and as these came to be impleadedas defendants as late as 1942, the plaintiffs' suit was and would be barred by time even on the view that the notification of May, 1940, was valid and applicable to this case.

8. It was strenuously contended before us on behalf of the plaintiffs appellants that the view held by the Courts below was wrong and that in a suit by a puisne mortgagee against a prior mortgagee, the mortgagor is not at all a necessary party.

Reliance was placed in support of this argument on Order 34, Rule 1 read with Order 1, Rule 9, Civil P. C. The argument was that Order 34, Rule 1 which provides that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage has been made expressly subject to the other provisions of the Code.

It is then said that one of these other provisions which should be held to govern Order 34, Rule 1 is Order 1, Rule 9, and the latter rule provides that no suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

Learned counsel for the plaintiffs appellants placed his reliance on Dwarka Prasad v. Gopi Nath, AIR 1952 Raj 69 (C), a case of our own. Court and Ganesh v. Vasudeo, AIR 1922 Bom 424 (D) and Venkataperumal v. Rathnasabhapathi, AIR 1953 Mad 821 (E) in support of his contention. We shall have something to say about these and some other cases presently; but before we do so, we desire to point out that both the puisne and the prior mortgagees derive their rights from the mortgagor. There is no direct relationship between them. To such a suit we are inclined to think that the original mortgagor should, as a general rule, be considered to be a necessary party.

We desire to emphasize in this connection that a puisne mortgagee, after he redeems the prior mortgagee, is subrogated to the position of the prior mortgagee by operation of law (See Section 92, Transfer of Property Act) and the former thereby acquires important rights against the original mortgagor and, therefore, he is bound to be affected by any findings arrived at in his absence.

Now, this is a position which definitely inclines us to the view that, generally speaking, the original mortgagor in a case of this kind must be held to be a necessary party. If he is not a party, it is indeed passible that both the puisne and the prior mortgagees may act in collusion with each other to the detriment of the original mortgagor.

Again, if the mortgagor is a party to such a suit, he might have some very good defences to urge against the prior mortgagee. Thus, for instance, he may plead that he has paid part of the mortgage-money, or, to take an extreme case, the whole of it to the prior mortgagee.

True it is that Order 34, Rule 1 is a rule of procedure and is subject to Order 1, Rule 9, but it cannot be forgotten that Order 1, Rule 9 is also a rule of procedure and cannot be interpreted to override the requirements of substantive law or certain fundamental rules of procedure.

There is an established rule of procedure that the Court cannot and should not by its decree affectthe rights of those who are not parties to the suit and if, therefore, a decree cannot be passed in a suit without affecting the rights of absent parties, the suit cannot proceed in their absence and should be dismissed for the defect of parties.

At the same time we clearly recognize that if the rights of the parties actually before the Court can be determined without affecting the rights and interests of certain other parties, there is no reason why the Court should not determine the matter in controversy between the parties actually present though other parties might have been added to such a suit, and where such a situation arises, the failure to add one or more such persons would not have the effect of defeating the suit and the Court in their absence should deal with the matter in controversy so far as regards the rights and interests of the parties actually before it are concerned.

Our view, therefore, is, briefly put, that in a suit by a puisne mortgagee against the prior mortgagee, broadly speaking, the original mortgagor is a necessary party though there may be exceptional cases where this may not hold good and it may be possible for the Court to deal with the matter in controversy as regards the rights and interests of the parties actually before it.

9. This view, to our mind, is not negatived by Dwarka Prasad's case (C) referred to above. That was a suit for redemption. The defendants contended that one of the sons of the mortgagors who was a necessary party, was not joined thereto and, therefore, the suit was incompetent.

This particular son came into the witness box and said that he had been adopted in another family and that he had no interest in the mortgaged property and, therefore, he had no rights to be safeguarded. The suit was held to be maintainable. It is clear, therefore, that the facts of that case are clearly distinguishable and afford no parallel to the case before us.

10. So far as Ganesh v. Vasudeo (D) is concerned, we wish to point out that it was a suit by a mortgagee to redeem his sub-mortgage. It was held that the original mortgagor was not a necessary party to such a suit though he might be a proper party. We respectfully agree with this view as, in our opinion, in a suit of this character, the rights of the original mortgagor are not affected in any way.

11. Our attention was also invited on behalf of the contesting respondents to Govind Chandra v. Jamaluddin, AIR 1933 Cal 621 (F) wherein the learned Judges have laid down that Order 34, Rule 1 must not be read as being controlled by Order 1, Rule 9 but that Order 1, Rule 9 is subordinate to Order 34, Rule 1.

With respect, we are unable to share this view as Order 34, Rule 1 has been enacted as being expressly subject to the other provisions of the Code and in this sense it must be regarded as subject to Order 1, Rule 9, but, as we have already pointed out above, both Order 34, R, 1 and Order 1, Rule 9 are rules of procedure and in the ultimate analysis even the latter rule must be read as subordinate to the requirements of substantive law or certain basic requirements of procedural law governing the grant of decrees affecting absent parties.

12. As regards Venkataperumal's case (E) referred to above, we would respectfully point out that it does not throw any light on the point debated before us as it does not contain any reasoning and we would leave it at that.

13. The question then boils down to this: how do the principles formulated by us above apply to the facts and circumstances of the present case? Does the case fall within the general rule which we have enumerated above or does the present case bear any special features which take it out of the general rule

Having given our very careful and anxious consideration we think that the case before us falls within the ambit of the exceptional cases because of certain peculiar facts. In this connection we wish to invite attention to the terms of the deed of mortgage Ex. P-1 executed by the original mortgagor in favour of the plaintiffs appellants transferring the equity of redemption to the latter in Smt. 1997.

It was expressly stipulated therein that the plaintiffs mortgagees would redeem the prior mortgagees, and that a sum of Rs. 2102/-, constituting the total amount of the two mortgages made by the original mortgagor in favour of Daulji Motichand and Lalji Kalyanji, was being placed in their hands (out of the entire consideration for the mortgage of Smt. 1997) to pay off the prior mortgagees.

It clearly emerges from this that in this case the original mortgagors cannot possibly raise the objection that they had redeemed the prior mortgage or paid anything towards the mortgage money to the prior mortgagors.

It was further stipulated in Ex. P-1 that if the prior mortgagees put forward any obstruction to give redemption to the puisne mortgagees, namely, the plaintiffs appellants, and the latter might have, to bring a suit, then, whatever sums the Court might decide as payable to the prior mortgagees would constitute a charge on the mortgaged properties and that the puisne mortgagees would be entitled to receive all such money including the expenses from the mortgagor.

There was a further stipulation in this deed that the puisne mortgagees shall keep proper accounts of all such monies in order to hold the mortgagor liable for them. Having regard to the above mentioned special circumstances of this case, we have arrived at the conclusion that this is not a case where an effective decree so far as the parties who were already on the record up to 30-6-1941, could not be passed, and that, in a case like the present, we see little justification for any complaint that the rights of the original mortgagors might stand to be imperilled.

The circumstance that the representatives of the original mortgagor who were brought on the record in May, 1942, have allowed the suit to proceed ex parte against themselves, also confirms us in this conclusion.

14. As we have arrived at the conclusion that the original mortgagor is not a necessary party to the plaintiffs' suit, in the circumstances of this case, we feel it is unnecessary to examine their second contention, referred to above that the Courts below should have also permitted the plaintiffs appellants opportunity to plead certain acknowledgments as a further ground from exemption from the bar of limitation.

15. On the findings to which we have come, we are definitely of the opinion that this suit is within time and the Courts below were wrong in throwing it out on the ground of limitation. We decide accordingly.

16. We should have been happy if it had been possible for us to have disposed of this old suit finally on the remaining contentions between the parlies, but this we cannot do as the Courts below treated the issue as to limitation as a preliminary issue and have not given their findings on any of the other issues arising in the case.

The case must, therefore, again go back to the trial Court for fresh disposal according to law, having regard to the observations made in the judgment of the Bench dated 25-11-1952, apart from those bearing on the question of limitation, which must stand concluded by our present judgment.

17. The result is that on the findings arrived atby us above, we allow this appeal, set aside the judgments and decrees of the Courts below, and send thecase back to the Civil Judge, Udaipur, with a direction that he will proceed to dispose of the case afreshon all the issues according to law and keeping in viewcarefully the observations made in the judgment ofthe Bench dated 25-11-1952. The costs of this appeal and the costs in the Courts below will abide theresult.


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