1. The material allegations for the plaintiffs were briefly, that their father Ramiah Bhatta obtained benami in the first defendant's name the usufructuary mortgage deed bearing date the 25th April 1884 for Rs. 4,700 due to him by the 2nd and 3rd defendants, that these defendants were, however, permitted to retain possession of the lands (mortgaged by them) as lessees under the lease granted to them at the time the mortgage was executed, that subsequent to the plaintiffs' father's death, which took place in 1887, the 1st defendant, about September 1889, denied the right of the plaintiffs under the mortgage and that he fraudulently obtained possession of the mortgage instrument and certain other documents from Kambar Subbanna Bhatta, the plaintiffs' maternal uncle, to whom the documents had been entrusted pending certain disputes between, the plaintiffs and their brother Subbanna Bhatta respecting the division of their property.
2. The plaintiffs asked for a declaration that the mortgage belonged to their father and prayed for the recovery of the instrument of mortgage and the other documents referred to and for their share of certain rents collected from, or payable by, the 2nd and 3rd defendants under the lease.
3. The 2nd and 3rd defendants admitted the title set up by the plaintiffs. But the 1st defendant denied that he was a mere benamidar, and averred that having paid the money himself he was the real mortgagee. He also contended that the suit was unsustainable, since the plaintiffs' brother Subbanna Bhatta had not joined in it, and since the plaintiffs, though out of possession of the lands under mortgage, had omitted to claim possession thereof as they were bound to do under Section 42 of the Specific Relief Act. The defendant further urged that the suit was barred by limitation.
4. The Subordinate Judge dismissed the suit, having arrived at findings against the plaintiffs with reference to the questions of benami, nonjoinder and limitation. But, in our opinion, the findings as to benami, and non-joinder are wrong, and that as to limitation partly so. Having come to this conclusion, it will be convenient, first, to deal with the case on the merits, and then to discuss the points of law raised.
5. The onus of showing that the transaction was benami was, no doubt, on the plaintiffs. But taking the evidence adduced in this suit and in the connected suits which were tried with it by consent of the parties, we have no doubt that the weight of evidence is decidedly in favour of the view that the case of the plaintiffs is true.
[Here their Lordships discuss the evidence on the question of benami.]
6. We now pass to the points of law urged.
7. First, as to the objection of non-joinder which was strongly pressed.--Now the present action is one founded on tort; and as the plaintiffs and their brother Subbanna Bhatta had become divided, their interest under the mortgage is not joint but separate being that of tenants in common. The tenants in common may, in such an action as the present, at their option either join or sever seems to be clear law (Dicey on Parties. Rule 80, paragraph 2). No doubt, according to the common law practice, when one tenant in common sued on a tort without joining other tenants in common as plaintiffs, objection on the score of non-joinder was allowed to be taken by way of a plea in abatement. If, however, such plea was not raised, he was entitled to proceed in the action. But then, if the subject-matter of the claim was divisible, he could get his share and no more. Compare the opinion of the majority in Doed Hellyer v. King, 6. Exch. Reports 791, though the dissenting Judge Platt, B., went further in that case and held that a tenant in common is owner of the whole estate in common with his co-tenants, and therefore, as soon as he has proved his right to the possession in common with others and that the defendant having no such right is a wrong-doer, as against such wrong-doer he, the plaintiff, is entitled to recover possession of the whole (Ib. 795). However this may be, there is no doubt that in the case of property indivisible one co-owner alone can recover it from a person that holds unlawful possession thereof. In Broadbent v. Ledward, a member of a club who was as such proprietor of certain pictures jointly with other members who were not made co-plaintiffs in the action recovered the pictures from one who had no right at all (11 Ad. and Ell. 209). Lord Denman, C. J., observed: 'It is always unpleasant to defeat justice by adherence to technical and arbitrary rules. In suing upon contracts the rule has certainly been that all the contracting parties must be joined as co-plaintiffs, and advantage may be taken of the non-joinder without a plea in abatement; but, as no express authority has been shown by Mr. Wight man for the application of this rule to the action of detinue, we shall decide against the defendant. If any inconvenient consequence arises to the defendant from detaining the property of joint owners, it might have been avoided by giving it up to any one of them.' Patteson, J., said: 'The rule as to the consequence of the non-joinder of parties as plaintiffs in actions founded upon contract is not satisfactory in principle, and ought not to be extended.' Williams and Coleridge, JJ., concurred. The principal of these decisions is still applicable and it is clear that one tenant in common can sue in tort without joining others--see Roberts y. Holland 1893, I.Q.B., 665 cited for the plaintiffs.
8. It was contended, however, that the equity practice is different and ought to be followed in this country. It is no doubt true that the general rule in Chancery is that all persons interested should be parties, and that under the old practice it was open to a defendant to take objection on the ground of non-joinder of a tenant in common by way of demurrer (Brookes v. Burt.--1. Beav 106). But that rule is not since the abolition of demurrers for want of parties too inflexible to admit of qualifications. In Wright v. Robotham 33 Ch. Dn. p. 106 it was no doubt held by the Court of Appeal that one of two persons who had equal right to certain title-deeds could not recover them without the concurrence of the other. But there the defendant's possession was not unlawful, as Cotton and Lindley, L., JJ., took care to point out, implying thereby that their decision might have been different had the possession of the defendant been unlawful. Even in such a case the Court directed the deeds to be deposited in Court, the plaintiffs having liberty to inspect and make copies of them. And in Foster v. Crabb, 21. L.J.C.P., 189 cited in Wright v. Robotham, the decision of the Court of Common Pleas rests on the ground that the plaintiff did not shew a better right than the defendant to the possession of the deed, the title to which was ambulatory between those who have an interest in and may have occasion to use it and each is entitled to keep the deed from the other so long as he actually retains it in his custody and control, but no longer. We see, therefore, that either at law or in equity since the passing of the new rules of the Supreme Court, whereby pleas in abatement and demurrer for want of parties were abolished, the remedy available when there is a defect of parties is, as pointed out by Jessel M. R., in Werderman v. Societe Generale D'Electricite 19 Ch. Dn. 246 that provided by order XVI, Rule 13, which empowers Courts to strike out or add parties so that the person who objects because of want of parties has nothing to do but to take out summons asking that certain parties be added as necessary parties (Ib. 251). It is necessary to observe that the above case was decided when the order corresponding to Section 31 of the present Code of Civil Procedure did not contain the word 'non-joinder.' Notwithstanding the absence of these words the Court treated the order as comprehending cases of 'non-joinder' as well as 'mis-joinder.' Turning now to Section 31 of our Code which corresponds to order XVI, Rule 13, as it stood at the time of the decision in 19 Chancery Division, and before it was amended by the addition of the word 'non-joinder,' we think a similar construction ought to be put on it and the Section must be held to amount to a direction to the Court not to dismiss a suit on the ground of non-joinder. The reason for such a provision is obvious. The rule as to parties is for the purposes of justice and the Court has ample powers under Section 32, Code of Civil Procedure, to add parties whenever they ought to have been made parties or whenever without them the Court could not deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
9. In the present case what the plaintiffs are entitled to in point of law is a declaration of their title to two-thirds of the mortgage debt. Their right is separate from that of Subbanna Bhatta who is entitled to the remaining one-third though the debt is the same. In these circumstances Subbanna Bhatta is not an indispensable party whom the Court will insist upon being brought before it, for ho will not be directly affected by any decree in this suit; nor, in our opinion, is he a necessary party, that is, though not likely to be affected directly by the decree, he is yet one who, as interested in the actual controversy, should be before the Court to enable it to adjudicate fully and finally as between the parties already 'before it. If he is made a co-plaintiff, no doubt, future litigation in the matter can be altogether prevented. But that can only be if he consents to be a co-plaintiff, which does not appear to be the case. If, however, he be made a co-defendant, it is difficult to see how that could stop further litigation. If the plaintiffs succeeded, they could get relief only in respect of their shares, and Subbanna Bhatta would be at liberty to sue in respect of his share. But if the plaintiff fail upon the question of benami, it is doubtful whether the decision would be res judicata between the 1st defendant and the co-defendant Subbanna Bhatta (see Nabin Chandra v. Mucta Sundari, 7 B.L.R., 38 ; but contra, Chandu v. Kunhamed, I.L.R., 14 M. 324 ). Even were this view wrong the 1st defendant might have moved the Court, if Subbanna Bhatta consented to be a co-plaintiff, to add him as such, and, if he did not, to make him a defendant. The omission to adopt this course could not for a moment be held to warrant a dismissal of the suit which has been fully tried and dealt with on the merits. Even at the present stage of the case we should and would have directed Subbanna Bhatta to be made a party if that would really servo the ends of justice. But as shown already, we do not think it necessary that he should be brought on the record. He was himself one of the witnesses in the case and nothing was elicited from him to shew that he raised any question affecting in the remotest degree the right of the plaintiffs to obtain the relief's claimed by them. The contention that the suit fails on the ground of non-joinder of Subbanna Bhatta must, therefore, be overruled.
10. The objection under Section 42 of the Specific Relief Act also fails, as the evidence leaves no doubt that the 2nd and 3rd defendants have for several years before the suit withheld payment of rent and refused at attorn to the 1st defendant who cannot thus be taken to be in possession through them.
11. As to limitation, the claim as to declaration is not barred, as there is no evidence to show that there was any denial of the title of the plaintiffs before September 1889. Nor has that for the documents been shown to be out of time. But the claim for the rents received by the 1st defendant is barred.
12. As to the 2nd and 3rd defendants, their liability for rent under the lease cannot of course be gone into in this suit.
13. In reversal of the decree of the Subordinate Judge, there will be a decree for the plaintiffs declaring their two-thirds right under the mortgage of the 25th April 1884 and the leases, dated 25th April 1884 and 22nd October 1885, and for possession of those documents and those mentioned in the schedule annexed to the plaint. The rest of the claim is dismissed. The 1st defendant will pay the plaintiffs' costs throughout, The other defendants will bear their own.
IN APPEAL No. 42 OF 1897.
14. The real question in this case is as to what interest, if any, the plaintiffs' father possessed, under the usufructuary mortgages of the 22nd May 1880 and 9th June 1884 executed to his brother-in-law K. Subbanna Bhatta, the 1st defendant, by Mahomed Beari, the 10th defendant. Exhibit A in the present suit which, for reasons given in our judgment in appeal No. 06 of 1896, we find to be a genuine document, is decisive of the matter, and according to it half out of the first named mortgage belonged to plaintiffs' father and out of Rs. 1,738-4-0, the amount of the second mortgage, Rs. 313-12-0 alone belonged to K. Subbanna and the remainder belonged to the plaintiffs' father, the mortgages and the leases connected therewith being taken in the name of the former, for the benefit of the latter also. In reversal of the lower Court's decree there will be a decree declaring that the plaintiffs are entitled to two-thirds of half of the mortgage under date the 22nd May 1880, and to two-thirds of the mortgage under date the 9th June 1884, after deduction of the sum of Rs. 313-12-0 from the mortgage amount and the same with regard to the leases connected therewith.
15. The plaintiffs are not entitled to the custody of the documents in preference to the 1st defendant and those claiming through him and who also possess an interest under those documents.
16. The question of the 10th defendant's liability for rent cannot be gone into in this suit.
17. The 1st defendant will pay the plaintiffs' costs throughout. The other parties will bear their own.
IN APPEALS Nos. 173 AND 174 OF 1897.
18. We see no reason to disturb the decision of the lower Court, The appeals are dismissed with costs.