1. The plaintiff instituted O.S. No. 42 of 1027, on the file of the Subordinate Judge of Mayavaram to recover moneys due on hypothecation bonds dated February 20, 1913(Ex. A) and October 6, 1915 (Ex. B) executed by the deceased father of defendants Nos. 1 and 2 in favour of plaintiffs. Defendants other than defendants Nos. I and 2 are persons who claim rights (subsequent to A and B) with reference to various portions of the properties mortgaged in favour of the plaintiff. The 8th defendant claimed to have purchased a portion of the hypothecs (sic) money decree obtained against defendants Nos. 1 and 2 and their deceased father and others, after the dates of the mortgage bonds A and B. Defendants Nos. 1 and 2 did not appear in the lower Court. The other defendants raised contentions regarding the validity of the mortgages A and B. The learned Subordinate Judge found that the mortgages were valid and that the plaintiff was entitled to have the various items included in his mortgages sold in execution to realise the amount decreed to him. The 8th defendant has preferred I he present appeal making only the plaintiff as party respondent to his appeal. His complaint in the appeal is that the mortgages in favour of the plaintiff are not valid and that under auction purchase referred to above he has obtained absolute title to the property purchased by him in Court auction. 'When the learned Advocate for the 8th defendant (appellant) opened the appeal, the learned Advocate for the plaintiff (respondent) raised a preliminary objection to the effect that the appeal by the 8th defendant alone, without making defendants Nos. 1 and 2 and also other defendants interested in the various items of properties mortgaged to the plaintiff as parties was incompetent and that the appeal should be dismissed in limine on that ground alone. The learned Advocate for the respondent argued that the appeal preferred by the 8th defendant would reopen matters already decided between the plaintiff on the one hand, and defendants Nos. 1 and 2 and the other defendants on the other. It was pressed upon us that the plaintiff had already obtained a decree to the effect that the mortgages in favour of the plaintiff are binding on defendants Nos. 1 and 2, and that the 8th defendant was seeking in this appeal to obtain relief inconsistent with the findings arrived at by the lower Court as regards the binding nature of the mortgages. It was, therefore, argued that it was not open to the 8th defendant, without making other persons, concerning whom there was a binding adjudication, parties to the appeal, to claim relief in respect of his purchase in Court auction. In support of'that argument, the learned Advocate for the respondent cited two Privy Council cases (1) reported in Chockalingam Chetty v. Seethabai Achi and Umed Mal v. Chand Mal 99 Ind. Cas. 749 : 54 C. 338 : A.I.R. 1926 P.C. 142 : 3 O.W.N. 989 : 53 I.A. 274 : 25 L.W. 90 : 25 A.L.J. 61 : (1927) M.W.N. 84 : 38 M.L.T. 43 : 28 P.L.R. 113 : 31 C.W.N. 413 : 52 M.L.J. 368 : 45 C.L.J. 274 : P.L.T. 251 : 29 B. L.R. 755 . In Choakalingam Chetty v. Seethabai Achi Rang. (sic) the Privy Council had to consider whether a plaintiff who sought relief against several defendants alleging that the 1st defendant did not obtain a valid title to the properties in dispute, that he did not pass any valid title to the 2nd defendant and that the 2nd defendant did not pass any valid title to the 3rd defendant, could maintain an appeal in which only the 3rd defendant had been made respondent. The 1st Court, dismissing his suit, held that the 1st defendant had, as a matter of fact, obtained a valid title as against the original owner.
2. The plaintiff claimed relief in appeal, making only the last of the defendants in actual possession of the properties, as party respondent to his appeal. It was pointed out by the Rangoon High Court in the case reported in Chockalingam Chetty v. Seethai Achi 84 Ind. Cas. 522 : 2 541 : 3 Bur. L.J. 259 : A.I. (sic) that having regard to the decree passed by the trial Court upholding the 1st defendant's title and dismissing the suit as against all the defendants, it was not open to the plaintiff to claim in appeal reliefs inconsistent with that finding, without making the 1st defendant a party to the appeal. Their Lordships of the Privy Council upheld that reasoning and held that in the absence of the 1st defendant the plaintiff could not get any effective relief as against the 3rd defendant. As we understand the judgment of their Lordships that was a case where the plaintiff sought relief against three defendants, specifically alleging that the 1st defendant was never the owner of the property in question but that the sale in his favour was only a colourable transaction--the original owner not having devested himself of his rights in the same when executing the colourable sale deed in the 1st defendants favour. The plaintiff also stated that the sale deed by the 1st defendant in favour of the 2nd and the 2nd defendant's sale deed in favour of the 3rd defendant, were also not binding on the plaintiff. In the face of the decree of the first Court dismissing the plaintiff's claim as against the 1st defendant, their Lordships held that in the circumstances, the plaintiff would not be entitled to any relief as against the last of the defendants only on the appeal to which the last of the defendants only was a party. The position in the case before us, in our opinion is substantially different. In the case before us the plaintiff has obtained a decree against various persons who set up rights to the various items included in the plaintiff's mortgages. The appeal before us is not by the plaintiff whose suit has been dismissed, and who is trying to get relief against others when such relief could not be granted to him so long as the findings arrived at by the 1st Court against him regarding the title of the alienor of the other defendants subsisted. The case before us is one in which a decree has been passed against several defendants and the defendant who felt aggrieved by the decree seeks to have the decree set aside so far as he (the appellant) is concerned. Prima facie and in an ordinary case, a defendant against whom a decree has been passed in favour of the plaintiff would be entitled to prefer an appeal to get rid of the decree against him. Where the presence of other defendants against whom, a similar decree has been passed by the lower Court, would be necessary in the appeal Court, to enable the Appellate Court to modify in their favour the decree of the lower Court, though the other defendants had not themselves preferred appeals is we think not the question that we have to decide at present. Provision is made under 0. XLI, of the Civil Procedure Code for enabling Courts to modify decrees, not only in favour of the appellant who approached the Appellate Court for relief, but also in favour of others, who though prima facie aggrieved just as the appellant, have either not cared to appeal nor have been made parties to the appeal; so that in our opinion the decision in Chockalingam Chetty v. Seethabai Achi does not help us in the decision of the case before us. The decision in Umed Mal also a decision of v. Chand Mal 99 Ind. Cas. 749 : 54 C. 338 : A.I.R. 1926 P.C. 142 : 3 O.W.N. 989 : 53 I.A. 274 : 25 L.W. 90 : 25 A.L.J. 61 : (1927) M.W.N. 84 : 38 M.L.T. 43 : 28 P.L.R. 113 : 31 C.W.N. 413 : 52 M.L.J. 368 : 45 C.L.J. 274 : P.L.T. 251 : 29 Bom. L.R. 755 the Privy Council, does not really help us here, for the only question the Privy Council bad to decide in that case was whether the plaint in the case before the Board was properly constituted. The Privy Council held that having regard to the circumstances of the case before them, the plaint to which, a lady Fathima Bi (from whom the other defendants are alleged to have derived title) was not a party (sic) Commission was right in revision in interfering with the decision of both the lower Courts and in having dismissed the suit on the sole ground that the suit itself was not properly constituted. The question before us is not whether the suit in the lower Court was properly constituted. It was agreed that there was a proper suit, with all the necessary or proper parties to the same, so that the decision in 54 Cal. Umed Mal. v. Chand Mal 99 Ind. Cas. 749 : 54 C. 338 : A.I.R. 1926 P.C. 142 : 3 O.W.N. 989 : 53 I.A. 274 : 25 L.W. 90 : 25 A.L.J. 61 : (1927) M.W.N. 84 : 38 M.L.T. 43 : 28 P.L.R. 113 : 31 C.W.N. 413 : 52 M.L.J. 368 : 45 C.L.J. 274 : P.L.T. 251 : 29 Bom. L.R. 755 also is of no real help to us.
3. The only other case to which our attention was drawn was the case reported in Ma Than May v. Mahamed Eusoof 135 Ind. Cas. 645 : 8 R. 621 : A.I.R. 1932 Rang. 16 : Ind. Rul. (1932) Rang. 53. The suit before the Court was one for administration of the estate of a person. The plaintiff was entitled to a moiety, the 1st defendant to 1-4th and the 2nd defendant to the other 1-4th. In working out the decree, a Commissioner was appointed and he made certain proposals for actually working out the decree in accordance with the shares decreed to the plaintiff, 1st defendant and the 2nd defendant. The trial Court passed orders on the Commissioner's report. One of the defendants preferred an appeal to the High Court making only the plaintiff party respondent. The High Court dismissed the appeal on the ground that the relief claimed by the appellant could not be granted to him in the absence of the other defendant, who was entitled to the remaining 1-4th share. That is the familiar instance of the principle that the Court should not pass orders to the prejudice of person who are not parties to the proceedings before the Court, It therefore seems to us that the cases quoted on behalf of the respondent are not really useful in the decision of the question which we are called upon to decide at present. On the other hand, a decision of this Court in the case reported in Somasundaram Chettiar v. Vaithilinga Mudaliar (sic) would seem to be rather useful. There the reversioner filed a suit to recover possession of the estate which had been alienated in favour of various defendants. The 4th defendant in that case would seem to have alienated the property to the other defendants in the suit. The plaintiff having been given a decree for possession of the estate, one of the alienee defendants preferred an appeal to the High Court. The learned Judges of the High Court held (as we understand the judgment) that in such cases the appeal by one of the alienees was competent, and that it was quite a different question whether having regard to the findings arrived at by the Appellate Court, the appellate Court should exercise the powers vested in it under Order XLI, Rule 33, Civil Procedure Code. In the present case, we have not yet arrived at that stage, as already mentioned. The complaint is that the appeal itself is not competent and that we are not entitled to go into the merits of the case. The decision in Subbarayulu Naidu v. Pappamma 29 Ind. Cas. 579 (sic) would also seem to support this view. The judgment is very short and the facts do not appear fully from the judgment, but, in so far as we are able to gather, that was a case where the plaintiff's suit was decreed by the 1st Court; one of the defend ants preferred an appeal complaining that the suit was barred under Article 44 of the Indian Limitation Act. The other defendants were not made party respondents to the appeal. The Appellate Court agreeing with the contentions of the appellant held that the suit was barred under Article 44 and therefore allowed the appeal and also dismissed the whole suit. The plaintiff preferred a second appeal contending (1) that in fact the suit was not barred under Article 44 and (2) that in any event the lower Court was not entitled to interfere with the 1st Court's decision so far as the non-appealing defendants were concerned. It is clear that an appeal by an aggrieved defendant is generally maintainable prima facie, so long as the person in whose favour the decree has been passed, is made a respondent. It is possible that in particular cases the result of allowing an appeal may be to prejudice the rights of other parties to the suit, but the case before us is not one of that description. The appellant 8th defendant complains that the purchase by him of two items of the mortgaged properties was as valid and that the plaintiff as prior mortgagee was not entitled to any relief as against these two items. The circumstance that there are other defendants interested similarly in several items of properties, which they have either taken in mortgage or purchased, who are also aggrieved by the decree passed by the trial Court, is per se no ground for not allowing a person in the position of the 8th defendant from prefering an appeal with respect to the only items in which he is interested. All persons who are likely to be prejudicially affected by the appeal being allowed should be parties to the appeal. In this case neither defendants Nos. 1 and 2 nor the other defendants, would be prejudicially affected. Defendants Nos. 1 and 2 did not appear in the lower Court, but were declared ex parte. It is possible that the Court, should it allow the appeal of the 8th defendant, may have to consider whether the discretion given to it under Order XLI, Rule 33, should or should not be exercised in favour of all the other defendants also in the circumstances, but also that is quite a different matter; and such questions will arise only when there is a properly constituted appeal in which the Court agreeing with the appellant should think it necessary to consider the further question whether, it should modity the decree of the lower Court in favour of the non-appealing defendants. It is only at a later stage that the question would arise as to the extent to which it would further modify the decree of the lower Court, in favour of the non-appealing-defendants also, having regard to the finding arrived at by it and having regard to all the circumstances of the case.
4. The learned Advocate for the respondent in his reply drew our attention to another Privy Council case reported in Mahomed v Khaleel Shirazi v. Les Tanneries Lyonnaises 94 Ind. Cas. 767 : 49 M. 435 : A.I.R. 1926 P.C. 34 : 3 O.W.N. 568 : (1926) M.W.N. 495 : 24 L.W. 115 . We have carefully read that judgment. There the plaintiff applied for relief against A and B, but got relief only against A and as against B the suit was dismissed, though it would appear that B also was directed to pay the plaintiff's costs. But there was no appeal by the plaintiff, A-and B would seem to have preferred an appeal to the Appellate Court, the result of which was a modification of the lower Court's decree so far as A was concerned. The plaintiff did not ask the Appellate Court to grant him more reliefs than had been granted to him by the trial Court. The plaintiff preferred an appeal to the Privy Council and there sought relief as against B against whom he had obtained no relief in India except as to costs. The Privy Council' held that without having preferred an appeal to the Eight Court, it was not open to the plaintiff to appeal to the Privy Council in these circumstances. In our view the decision in Mahomed Khaleel Shirazi v. Les Tanneries Lyonnaises : AIR1927Pat231 the plaintiffs obtained a decree in the lower Court. The defendant preferred an appeal making some only of the plaintiffs (decree-holders) parties to his appeal. The Court held the appeal to be incompetent, because no relief could be granted to the appellant which would prejudice the other plaintiffs (decree-holders) who were not made party respondents to the appeal.
5. In our view a defendant in the position of the 8th defendant before us would be entitled to prefer an appeal so far as the items with which he was concerned were sought to be exonerated from the decree passed by the lower Court. To such an appeal we do not think that it is necessary either that defendants Nos. 1 and 2 or the other alienees of other items should be made parties in circumstances. In our view the preliminary objection is not sustainable and we overrule the same and we direct the appellant to proceed with appeal on the merits.
6. On the merits it was argued on behalf of the 8th defendant that the mortgages (Exs. A and B) were not binding upon defendants Nos. 1 and 2 or their alienees. On this question it must be noted that Ex. A the first mortgage was executed on February 20, 1913, and Ex. B the second mortgage on October 0, 1915, and that on March 5, 1913, the father of the 1st and 2nd defendants had executed another mortgage (Ex. F) in favour of the plaintiff for a sum of Rs. 2,000. Exhibit A recites that the amount borrowed under it was for paying antecedent debts and also for purchasing some lands for the family and to invest the balance money upon an othi. Similar recitals are made in Ex. F also. No doubt, as pointed out by the learned Judge, himself, a Hindu father would not be entitled to sell family properties or raise money on the mortgage thereof for the purpose of purchasing other lands for the family, unless there be special circumstances to justify the same. Nor is it open to a Hindu father to borrow money on the charge of family properties simply for the purpose of investing the borrowed money on the othi of some other properties. In this case, however, there is this circumstance. The plaintiff, while he was examined as P.W. No. 3, stated that be relied on the representations made by the mortgagor who was a very respectable person. It was represented to the plaintiff by the mortgagor that he had incurred sundry debts which he had to discharge. He also undertook to discharge (sic) same and deliver to the mortgagee the vouchers in respect of the same. It is no doubt true that out o the amount of Rs. 7,000 the consideration for Exs. A and F, the plaintiff has been able to secure vouchers for only about Rs. 4,100. The remaining amount of about Rs. 2,900 should be taken to have been utilised by the mortgagor for the purpose either of purchasing lands or for taking othis. At any rate it has not been proved that the amount of Rs. 2,9000 was utilised for necessary purpose of the family or to pay off antecedent debts. If the matter stood there, it would be clear that the plaintiff would not be entitled to a decree against, the shares of the sons, for the whole of the amount covered by Exs. A and B. There is, however, the recital in Ex. B which has been accepted by the learned Judge that the whole of the principal due under Ex. A was outstanding and only the interest due in respect of Rs. 5,000 covered by Ex. A is included in the consideration for Ex. B. In respect of Ex. F the remaining portion is made the consideration for Ex. B. There is also the recital in Ex. B that the moneys borrowed were represented to be-necessary either for paying off' medical bills or for meeting the education of the boys. In the view we take that Ex. F was renewed by Exs it is clear that Ex. B is also binding on the sons. It has been decided by the Privy Council in Chet Ram v. Ram Singh 67 Ind. Cas. 569 : 44 A. 368 : 3 P.L.T. 363 : 31 M.L.J. 50 : 43 M.L.J. 98 : 16 L.W. 89 : (1922) M.W.N. 455 : 4 U.P.L.R 64. : 3 P.L.R. 1922 : A.I.R. 1922 P.C. 247 : 24 Bom. L.R. 1231 : 27 C.W.N. 150 : 49 I.A. 228 : A.L.J. 114 that a prior mortgage debt would be an antecedent debt within the Hindu Law principle when paid of by a subsequent mortgage document executed by a Hindu father. Exhibit F though a mortgage debt is for this purpose an antecedent debt for the purpose of the later mortgage Ex. B. In this view the decision of the learned Judge holding that the whole of the consideration for. Exs. A and B is binding on the family should be upheld.
7. Then it was argued by the learned Advocate for the appellent that the learned Judge was in any event in error in having ordered the 8th defendant to pay personally one-sixth of the costs of the suit. The total costs of the suit have been fixed at Rs. 2,400 having regard to the amount claimed in the plaint. But as against the 8th defendant the learned Judge thought that he should be made personally liable for one-sixth of the amount of Rs. 2,400, the taxed costs of the suit. The learned Judge in para. 18 states the reason why he arrived at that proportion (one-sixth) as follows:
This proportion I fix at one-sixth of the whole octets having regard to the amount for which he has obtained a decree against defendants Nos. 1 and 2 and their father in O. Section No. 63 of 1918.
8. In our opinion that is not a proper test to be applied in apportioning the costs of the present suit. No doubt Courts have got jurisdiction in mortgage suits to make persons other than the mortgagors who are parties to the suit personally liable for the whole costs of the litigation if they should arrive at the conclusion, having regard to the conduct of such parties, that that would be the proper order to pass in the particular case. In this case, the learned Judge was not prepared to go to that extent. He thought that the 8th defendant should not be made liable for the whole of the costs, more especially as the personal liability of the mortgagor was barred by limitation. The principle adopted by him for fixing the proportionate amount of costs payable by the 8th defendant, viz., that the one-sixth would represent the amount of the decree obtained by him against defendants Nos. 1 and 2 and their father, is, in our opinion, erroneous. If we should have regard to the values of the several items of the mortgage properties, then it was suggested that the house purchased by the 8th defendant would be worth about Rs. 1,000 and the lands another Rs. 1,000. But there is no evidence on record about the valuation. On the other hand, we have got this fact that the extent of the mortgage properties is about 50 acres and the extent of the properties purchased by the 8th defendant is 3 acres 33 cents. We should not forget that the 8th defendant also purchased a house included in the mortgage. On the whole, we think that the 8th defendant should not have been made liable for more than one-twelfth of the costs of the suit. We therefore, modify the decree of the lower Court by substituting Rs. 200 for Rs. 400 as the costs directed by the learned Judge to be paid by the 8th defendant personally. As the appellant has substantially failed in this appeal, we think that he must pay the respondent-plaintiff's costs of this appeal.
9. With the above modification the appeal will be dismissed and in the circumstances with costs.