1. This is one of the defendants appeal and arises out of a suit for redemption, filed by the plaintiff respondents against the defendant appellants in the Court of the Munsiff, Bharatpur.
2. It was alleged that certain shops in the town of Bharatpur were mortgaged by Shankerlal, father of the plaintiff No. 1, Gopi Nath, plaintiff No. 2 Bal Kishen, and grandfather of Prem Narain minor, plaintiff No. 3, on the 28th of June 1910 for a consideration of Rs. 500/- in favour of the defendants Chhoteylal, Nand Kumar, Badri Prasad & Dwarka Prasad. The rate of interest agreed upon was Rs. 1/4/- per cent, per mensem. It was recited in the mortgage deed that the rent of the mortgaged property at the time of the mortgage was Rs. 5/- per mensem. This rent would be credited towards interest. If the rent realized in future exceeded the amount of monthly interest, the excess would be credited towards principal.
3. The plaintiffs alleged that Rs. 300/- were paid towards the mortgage money and the rent of the mortgaged property had been in excess of the monthly interest. Therefore, nothing was due to the mortgagees on account of principal and interest of the mortgage. On the contrary, something would be found due to the mortgagors on an account being taken. It was alleged that Shanker Lal had died and the plaintiffs were his legal representatives. They asked the defendants to redeem the property, but they refused. It was, therefore, prayed that the property be redeemed and that an account be taken from the mortgagees and whatever amount was found due to the plaintiffs be awarded to them.
4. The defendants admitted the mortgage, but pleaded, inter alia that they were not given possession at the time of the mortgage but it was delivered to them after the floods of 1924. The payment of Rs. 300/- was denied and it was also pleaded that a sum of Rs. 2,767/3/- was due to the defendants, out of which only Rs. 97/- had been paid. The plaintiffs could not, therefore, redeem the property without payment of Rs. 2,670/3/-. It was finally pleaded that the suit was bad for non-joinder of necessary parties as one of the sons of Shankerlal mortgagor, namely Jugal Kishore was not joined as a party to the suit.
5. The learned Munsiff held that Rs. 300/- had been paid by the mortgagors and that the balance of the mortgage money and interest had been realized out of the rent realized by the mortgagees and that Rs. 196/- were due to the plaintiffs from the defendants. He further held that Jugal Kishore had been adopted by Lalita Prasad and was, therefore, not interested in the mortgage. His joinder was not necessary. He consequently docreed the suit for redemption as well as for the recovery of Rs. 196/- against the defendants.
6. The defendants went in appeal and the learned. Civil Judge, Bharatpur, upheld the decree of the first Court and dismissed the appeal. The defendants went in second appeal to the High Court of Matsya which framed an issue on the point whether Jugal Kishore had been validly adopted by Lalita Prasad and remanded the case to me first appellate Court to record the evidence which the parties chose to adduce on the point of the alleged adoption of Jugal Kishore and submit the evidence as well as its findings to the High Court within the time fixed in the Judgment.
7. The learned appellate Court recorded theevidence of the parties on the point of adoptionand submitted the record with the evidence andits finding on the issue of adoption. Its findingis that Jugal Kishore was validly adopted by Lallita Prasad.
8. We have heard the learned Counsel for both the parties. So far as the question as to what is due to the mortgagors from the mortgagees is concerned, it was conceded by the learned Counsel for the appellants that it has become a finding of fact and it cannot be challenged in second appeal. The only point that was argued was that Jugal Kishore was a necessary party and his non-joinder in the suit was fatal. The suit should, therefore, have been dismissed. On behalf of the respondents it was argued that Jugal Kishore had been validly adopted by Lalita Prasad and the finding of the learned Civil Judge was correct on this point. It was further argued that even assuming that he was not adopted, his non-joinder was not fatal to the suit as only some of the heirs of the mortgagor were quite competent to bring a suit for redemption. In the particular circumstances of the case Jugal Kishore has himself sworn on oath that he was adopted by Lalita Prasad and had no interest in the property left by Shankerlal. In the circumstances of the case, therefore, there was absolutely no justification that the suit should be dismissed for the non-joinder of Jugal Kishore.
9. I have considered the arguments of the learned counsel for both the parties, each of whom cited a number of rulings in support of his contention. On behalf of the appellant reliance was placed on the provisions of Order 34 Rule 1 of the Code of Civil Procedure. It was argued that all the persons having either interest in the mortgage security or in the right of redemption should be joined as parties to any suit relating to the mortgage. Reliance was placed on 'RAM BAKSH SINGH v. RAM LAL', 21 W R 428; 'FAKIR BAKHSH v. SADAT ALI', 7 All 376; 'RAGHO SALVI v. BAL KRISHNA', 9 Bom 128; 'NARO-HARI v. VITHAL', 10 Bom 648; 'GIRWAR NARAIN V. MAKBUL-UL-NISA', AIR (3) 1913 Pat 310; 'RAM CHAR1TAR V. BAWAN PRASAD', AIR (33) 1946 Pat 225 and 'RAMESHWAR BAKHSH SINGH V. GANGA BUX SINGH', AIR (37) 1950 All 598.
10. I have carefully gone through all these authorities. So far as the rulings reported in '21 W R 428'; '7 All 376': '9 Bom 128' & '10 Bom 648', are concerned, they were given under Section 85 of the T. P. Act before Order 34 Rule 1 of the Code of Civil Procedure of 1908 was enacted. In Section 85 of the T. P. Act, the word 'must' was used, but in Rule 1 of Order 34 the word 'must' was dropped and the word 'shall' has been used. Moreover the words, 'subject to the provisions of this Code' with which Rule 1 opens have been substituted for words 'subject to the provisions of the Civil P.C., Section 437', (now Order 31 Rule 1,) which found place in Section 85 of the T. P. Act. The word 'must' is much more imperative than the word 'shall'. Moreover, Rule 1 of Order 34 has been made subject to other provisions of the Code which include Order 1 Rule 9. Order 1 Rule 9 runs as follows:
'No suit shall be defeated by reason of the mis-joinder or non-joinder of parties and the Court may in every suit deal with the matter in con-. troversy so far as regards in rights and interests of the parties actually before it.'
This difference in the wordings of Section 85 of the T. P. Act and Rule 1 of Order 34 of the present Code has been noticed in a number of cases decided after the present Code of Civil Procedure came into force. In 'MOHD. ALI KHAN V. ALI MIRZA KHAN', AIR (21) 1934 Oudh 220, the learned Judges of the Division Bench observed as follows:
'The preliminary objection of the learned counsel for the plaintiffs respondents is that as all the heirs of the sub-mortgagor are not party to the appeal, so it cannot lie. We do not see any force In this contention. The argument rests on rulings reported in 'KESAVAN v. SANKARAN NAMBUDRI', 7 Mad LJ 226; 'MANEKLAL VASU-DEVAN v. COLLECTOR OF MALABAR', 9 Mad LJ 49; 'SURJIRAM v BRAHMDEO Pd.', 2 Cal LJ 202; 'ZAHARIA v. DEBIA', 7 Ind Cas 156 (All); 'MATHURA SINGH v. JAGAT SINGH', 5 Oudh Cas 146, and 'WALI ULLAH v. EJAZ ALI'. 13 Ind Cas 984 wherein in view of the provisions of Section 85, T. P. Act it was held that non-joinder of necessary parties was a fatal defect to the case or appeal, but now the procedure as regards the necessary parties to a mortgage suit is regulated by the provisions of Rule 1 of Order 34, Civil P. C. which enacts that subject to the provisions of this code, 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. The same code provides in Rule 9 of Order 1 that no suit shall be defeated by reason of mis-joinder or non-joinder 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. Failure to join some of the heirs is not, in the circumstances, fatal to the appeal and a decree can be passed which will bind all the heirs of the deceased mortgagor.'
11. In 'LASA DIN v. MOHD. ABDUL SHA-KUR', AIR (27) 1940 Oudh 235 also it was held that non-compliance with the provisions of Order 34 Rule 1 is not necessarily fatal to the suit to enforce a mortgage and Order 1 Rule 9 applies to mortgage suits as well. It is, therefore, wrong on the part of the Court to dismiss the mortgage suit on the ground that some parties, whom it considers necessary were not impleaded. The same view prevailed in a later Oudh case reported in 'GUR CHARAN v. RAM BHAROSE SINGH', AIR (30) 1943 Oudh 218. The learned Judges observed as follows:
'No doubt the object in enacting Rule 1 of Order 34 is to prevent multiplicity of suits by bringing all the parties before the Court either as plaintiffs or as defendants, but the intention of the legislature is not to visit the non-inclusion of certain defendants by the plaintiff with the dismissal of the suit. Order 34 Rule 1 does not profess to impose any such penalty, nor can the rule of procedure be construed to have such an effect. The test is to determine in each case whether relief cannot be granted to the plaintiff without impleading other persons who have not been joined as defendants to the suit. Although all the heirs of a deceased mortgagor are proper parties to a suit for mortgage, where they are not so joined, the Court would not be precluded from granting the effective relief to the plaintiff. The provisions of Order 34 Rule 1 are subject to the provisions of Order 1 Rule 9 which clearly lay down that the suit is not liable to be defeated by reason of the non-joinder of parties.'
12. In 'PERIA KARUPPA PILLAI v. SATYA NARAIN MURTHI', AIR (24) 1937 Mad 136 it was held that inspite of the integrity of the mortgage being broken by the mortgagee, one of the several mortgagors or a purchaser of a portion of an equity of redemption in the mortgaged property is entitled to redeem the whole of the property subject to the equities which other persons may have, due provisions being made for their rights. If a person interested in the equity of redemption is known, he ought to be made a party in order to safeguard his right, but if he is not known or if it was not possible to make him party, due provision may be made in the decree for safeguarding his right. Even if he is deliberately omitted, relief can be given to the parties before the Court.'
13. The trend of the decisions after the enactment of the present Civil P. C., which incorporates Order 34 Rule 1, has been that Order 34 Rule 1 is a rule of mere procedure and it is controlled by the provisions of Order 1 Rule 9. A suit for the enforcement of the mortgage security or for the redemption of mortgage is not necessarily liable to dismissal if all persons having an interest either in the mortgage security or in the right of redemption have not been made parties. If an effective decree can be passed and rights of those parties not before the Court can be properly safeguarded, even in the absence of some of the parties, suitable relief shall not be denied to the plaintiffs. In some cases it is possible that in the absence of the interested parties Courts may not be able to give such a relief. In some of the cases cited on behalf of the appellant this was not found possible, and so the presence of all the parties interested was insisted upon. In 'AIR (3) 1916 Patna 310' cited on behalf of the appellant the suit was for the enforcement of the mortgagesecurity against only some of the descendants of the original mortgagors. Ten descendants were, however, left out. It was found that no effective decree could be given in the absence of the ten persons left out, and they could not be added as defendants because at the time when the question was raised, the claim had become barred by time against them. The request for adding them as defendants was refused on the ground of the expiry of the period of limitation and it was found that the mortgage being indivisible, the property could not be sold in their absence. The suit was consequently dismissed. In the particular circumstances of that case the decision appears to have been justified. In so far only as it says that Order 1 Rule 9 is subordinate to Order 34 Rule 1 it is against the view taken, in the majority of the eases of the various High Courts. In substance, however, under the particular circumstances of that case, the dismissal of the suit was justified, but as shall be shown later, the ruling does not apply to the facts of the present case. Reliance was also placed on the ruling reported in 'AIR (33) 1946 Patna 225'. In that ruling also it was held (hat in order to decide whether a suit can proceed in the absence of certain proper parties, true tests have been laid down: (1) Can the rights of the parties on the record be fully determined in their presence?, and (2) Can that determination be made necessarily affecting the rights of those absent? In that case the suit was for redemption of a usufructuary mortgage of a certain property made for a consideration of Rs. 17000/-. Out of the sum of Rs. 17000/-, 13000/-were left for payment to one person and Rs. 4000/-to another. The plaintiff alleged that only Rs. 13000/- were paid out of the mortgage consideration and Rs. 4000/- were not paid. The defence was that the entire consideration was paid and the suit was bad for non-joinder of necessary parties inasmuch as one half share in the enquiry of redemption was subsequent to the mortgage transferred by the mortgagors to seven persons who were not made parties. Out of those seven one had transferred his interest to a third parry who was also not impleaded. The Learned Judges dismissed the suit on the following grounds:
'It might well have been then, if these persons had been impleaded that some of the mortgagors as parties would admit the receipt of the full consideration. In the circumstances the character of the suit would have been largely changed, and tile defendants that is to say, the present appellants would have been in a very much stronger position. Indeed it is difficult to say now the suit for redemption could have succeeded without the payment of full Rs. 17000/-, the mortgage being indivisible and incapable of redemption piecemeal, nor can the Court have allowed one part to be redeemed upon one basis and another part to be redeemed on a different basis. Thus it is apparent that the position of the defendants may well have been prejudiced by the plaintiff's failure to implead these people ........ we have no means of knowing what thecase of these vendees might have been, had they been impleaded. They might have admitted that the entire Rs. 17000/- was payable, but it is also conceivable to take extreme case that they right have pleaded that the entire mortgage had been redeemed by them according to their contract and that nothing was due. Thus, it is conceivable that had they been parties they could have obtained a more favourable result than the plaintiff's have done, that is to say, it is possible that the position of the absentees, vis-a-vis the mortgagees may have been prejudicially affected by the failure to implead them. They are left, as a result of the suit, if it succeeds with no remedy against the mortgagees.'
14. The facts of the present case are distinguishable from the facts of the two rulings of the Patna High Court quoted just above. In the present case, the objection regarding non-Joinder is based upon the non-impleading of Jugal Kishore alone. This Jugal Kishore has come into the witness box to support the case of the plaintiffs that he has been adopted in another family and has no interest in the property left by Shankerlal, the mortgagor. Not only this, but he has acted as a Mukhtar Khas of the plaintiffs in this case and has signed the plaint on behalf of some of the plaintiffs. He accepts the case of the plaintiffs in toto, and does not claim any interest in the property in suit or in the right of redemption. It cannot, therefore, be said that there is any danger of future litigation by Jugal Kishore, Jugal Kishore himself does not claim any interest in the property and does not ask for any safeguarding of his rights. Even if he has any interest in the equity of redemption, he has consented to the bringing of the suit for the redemption of the entire property by the present plaintiffs. There is no other person, besides Jugal Kishore, whom the defendants allege to be interested in the right of redemption. Under these circumstances, it was not necessary that Jugal Kishore should have been joined either as a plaintiff or as a defendant in order to safeguard any right alleged in him or to prevent the defendants from the multiplicity of suits. According to their Lordships of the Privy Council in 'MIRZA YADALLI BEG v. TUKA RAM', AIR (8) 1921 PC 125 it is not the law in India that one of several mortgagors cannot redeem more than this share unless theowners of the other shares consent or to do not object. Subject to proper safeguarding or the right to redeem, which these owners may possess, one of several mortgagors can redeem the entire mortgage. Thus according to their Lordships' view even when no consent has been obtained of all the mortgagors only some of the mortgagors can redeem the mortgage, if, however, such consent has been obtained, then the case of redemption by some only of the mortgagors would be MUCH stronger. The ruling reported in '21 W R 428' relied upon by the Learned Counsel for the appellant suggests that with the consent of all the mortgagors only can make a valid tender for the redemption of the entire property. In 'SUNITI BALA DEVI V. DHARA SUNDARI DEVI', AIR (6) 1919 P.C. 24, it was held that where a mortgage is made by one mortgagor to two tenants in common, the right of either mortgagee who desires to realize the mortgaged property and obtain payment of the debt, if the consent of the mortgagee' cannot be obtained, is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage decree. This also suggests that if the consent of the remaining mortgagors or mortgagees, as the case may be, has been obtained by some of the mortgagors or mortgagees, they can file a suit for redemption of for the realization of the mortgage security without joining such mortgagors or mortgagees.
15. The learned counsel for the appellant relied upon a recent ruling of the Allahabad High Court reported in 'AIR (37) 1950 All 598' but that ruling too has no application to the facts of the present case. In that case there was no question of the consent of the persons left out. Moreover, the ruling does not apply to a case for redemption. The Learned Judges in that case were considering the effect of some of the mortgagors not having been joined in a suit to enforce the mortgage security. The following remark of theirs is significant:
' 'MAHMOOD ALI KHAN V. ALI MIRZA KHAN', 10 Luck 70: (AIR (21) 1934 Oudh 220, was also a suit for redemption by one of the mortgagors. This was followed in 'LASA DIN v. MOHD. AB-DUL SHAKOOR', AIR (27) 1940 Oudh 235: 15 Luck 399. Cases of redemption are governed by entirely different consideration,'
16. To my mind, the objection about non-joinder had no force, in the circumstances of the present case the suit was rightly decreed.
17. On the view which I have taken on this question, there is no necessity to decide whether Jugal Kishore was validly adopted by Lalita Prasad
18. The appeal has no force and is dismissed with costs, to the contesting respondents
19. I agree.