1. The parties to this appeal are on the one hand the infant son of a judgment-debtor, named Ramaiyan, and on the other the judgment-creditors of the same person who in execution of their decree purchased the property previously held by them under an hypothecation. The District Munsif dismissed the suit, without hearing any evidence, on the ground that the plaint disclosed no cause of action. The District Judge on appeal reversed this decree and granted a decree in the plaintiff's favour, holding that the plaintiff's original interest in the property had been in no way affected by the sale thereof, because the plaintiff had not been joined with his father and brother in the suit which led up to the sale. The District Judge bases his judgment on the ruling of the Full Bench of the Allahabad High Court in Bhawani Prasad v. Kallu, I.L.R., 17 A., 537. In that case, the plaint was similar to the plaint now before us in that it did not allege that the debt incurred by the father was incurred for immoral or impious purposes. The plaintiff then relied, as the plaintiff-respondent does here, on the fact that he was no party to the mortgage decree obtained against his father. The judgment of the majority of the Court in that case, like the argument in the present case, proceeded entirely upon the ground that the law has been altered by the enactment of Section 85 of the Transfer of Property Act which directs that 'all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage, provided that the plaintiff has notice of such interest.' Independently of the statute, the position of a purchaser who in a sale in execution of a decree against the father bought the entirety of the estate is the same as regards the son whether the decree was a mortgage decree or a decree for money. In either case all that the son can claim is that, not having been a party to the sale or the proceedings which led up to it, he should have an opportunity of showing that there was in reality no such debt as to justify the sale (Mussamut Nanomi v. Modun Mohun, L.R., 13, IndAp, 9; Kunhali Beari v. Keshava Shanbaga, I.L.R., 11 M. 76 .
2. The theory is that as the father may in order to pay a just debt legally sell the whole estate without suit, so his creditor may bring about such sale by the intervention of a suit. It is not necessary that the son shall be called in whether the sale is voluntary or procured by a proceeding in invitum, and there is no object in joining him except to preclude him from afterwards questioning the nature of the debt. According to the decision in Bhawani Prasad's case, a distinction must be made between a voluntary and an enforced sale, when such sale is the consequence of a mortgage suit, and in this latter case it must be held that no interest passes except that of those who are made parties to the suit, and this distinction is insisted upon, because the legislature has enacted as a written rule of law what was previously a well-recognized rule of procedure. Having regard to the theory above stated, I cannot think that this effect should be given to the Section. The Section is certainly imperative in its terms. Expressed in any other mood it would be vain. But a sanction, is not wanting, for inconvenient consequences may follow on a neglect of the law. The mortgagee who omits to join persons interested in the property may have his suit dismissed, or, if he obtains a decree, may find, notwithstanding, that he has to institute or defend another suit. Nevertheless as against the Hindu father the decree which is passed in the absence of his sons is a good and valid decree. The creditor, although he may have failed to obey the rule contained in the Section, has got the decree which he requires as a foundation for his application to sell the whole estate. In the Allahabad Court this proposition would be denied. In effect it must be said that the decree though valid against the father has, since the Act was passed, lost the peculiar quality which it previously possessed. It can no longer be made the means of compelling the father to sell the estate. This seems to me a conclusion which is wholly unwarranted by the terms of the Section. I agree with Mr. Justice Bannerji in the reasons which ho has given for dissenting from the rest of the Court. In addition I would only refer to the proviso appended to the Section. The effect of the proviso is that, unless the mortgagee has notice of the existence of the son, he is not affected by the Section, and, therefore, presumably the decree which he obtains and the subsequent proceedings therein are not vitiabed by the omission to join the son. It follows that the extent of the interest obtained by the purchaser may depend on the knowledge or want of knowledge of the mortgagee at the, time of the institution of the suit.
3. I think we ought to be slow to adopt a construction which would lead to this anomaly as well as the other anomalies dwelt upon by Mr. Justice Bannerji.
4. For these reasons, I would reverse the decree of the District Judge; but, inasmuch as the plaint in effect alleges that there really was no debt owing by the father, I think the respondent is entitled to have that question tried. It is argued on behalf of the appellant that the only question which the son of a Hindu debtor can raise is as to the nature of the debt, and that he cannot question the existence of a debt which forms the foundation of a decree against his father. According to this contention, it would be open to the father by confessing judgment to procure by indirect means the sale of the entire estate when he could not lawfully alienate it by a voluntary conveyance. The limitation which is imposed by Hindu law on the father's power of alienation would become illusory.
5. But this is clearly not the law. Whether the sale is a voluntary or an enforced sale, its validity depends upon the existence of a just debt in satisfaction of which the sale is effected. If authority is needed, the dictum in L. R., 13 IndAp,18 may be cited as showing that the son may question alike the existence and the nature of the debt in consequence of which the sale has taken place.
6. The decrees of both Courts must be reversed and the suit must be remanded for retrial by the District Munsif. It must be understood that no questions have been decided in this appeal save those two questions which arise upon the allegations made in the plaint. The respondents must pay the costs of this appeal. Other costs will be provided for in the revised decree.
7. I agree to the reversal of the lower appellate Court's decree, because there was no allegation in the plaint and nothing to show that the mortgagees who brought the suit wherein the sale was decreed had notice of the plaintiff's interest. Their omission, therefore, to make the plaintiff also a party to that suit did not ipso facto entitle the plaintiff to a decree, for in the Allahabad case the ruling in which the Judge has followed, and with which I cannot say that I disagree, the fact was there had been such notice. I also agree to the reversal of the decree of the Court of First Instance and to the order of remand which my learned colleague has directed in the case, because there can be no doubt that the plaintiff's suit lies to show, as is alleged in the plaint, that there was no consideration for the mortgage, or in other words the non-existence of the debt by which it is sought to Bind the plaintiff's share in the family property.