T. Ramaprasada Rao, J.
1. Three suits were tried together by the II Additional Judge, City Civil Court, Madras, but we are here concerned with O.S. No. 2738 of 1968. This suit was filed by the Indian Bank on the foot of two mortgages Exhibits A-1 and A-4 dated 27th April, 1951 and 27th June, 1951. Under these mortgages the first defendant Fathimunnissa Begum purported to mortgage the land and the superstructure on it compendiously described in the schedule to the plaint as house, ground and premises bearing old door No. 354, new door No. 37, Poonamallee High Road, Aminjikarai, Madras, bearing survey No. 70/5 in the Registration District of Madras-Chingleput and Sub-registration District of Sembium. In connection with the said two mortgages, two promissory notes Exhibits A-2 and A-3 were also executed by the first defendant and her father. The bank's case is that they were satisfied on inspection of the title deeds produced by the first defendant in relation to the suit property that she had a good title thereto and it was in that context they advanced the mortgage amounts of Rs. 10,000 and Rs. 8,000 respectively under Exhibits A-1 and A-4. It is common ground that the documents filed on the date when the suit was instituted were the mortgage deeds and the promissory notes. In the course of the trial however two other documents Exhibits A-28 and A-29 were also filed as if they were title deeds which reflected the title of the mortgagor over the suit properties. As usual there was a covenant in the above deeds of mortgage which enabled the bank to bring the properties privately to sale under Section 69 of the Transfer of Property Act. When an attempt was made to auction the property privately to realise the mortgage money, printed bit notices were circulated thwarting the bidders from bidding at the auction and purchasing the same. This necessitated the plaintiff to file the present action on the said two mortgages and seek for the sale of the hypotheca for the realisation of the mortgage money. It wou4d only implead the mortgagor and would say that her father who was a co-promisor under the promissory notes died and that the bank was not able to trace the names of his heirs apart from the first defendant. As public notices were given about the suit property as being wakf property, the plaintiff bank caused the notices to be served on the Wakf Board and impleaded them as a party, as the second defendant to the action. The first defendant remained ex-parte and did not even file a statement. The second defendant's case was that the land on which the superstructure stands was always considered and treated as wakf property it having been assigned by the State Government for purposes of erecting a junda called Nagoor Meera Jundah and contemporaneously to allow the Muslims of the locality to celebrate a day when the famous saint at Nagoor was interred. According to them such an assignment was made under Exhibits B-1 and B-2 and that the first defendant's father himself under Exhibit B-3 and B-4 would impliedly confess that the suit land was always treated as property validly dedicated for religious purposes and for the benefit of the Muslim residents of the locality. According to the second defendant the superstructure also was put up from and out of the collections made from the Muslim public and that they were not aware of the mortgage created by the first defendant over the entirety of the suit property. They claimed that as the first defend ant had no right, title or interest over the property at any time, the mortgage effected by her in favour of the plaintiff cannot be held to be valid and in the circumstances no interest in the property known to law could have been transferred by the first defendant in favour of the bank. They therefore sought for a dismissal of the suit.
2. The plaintiff formally examined the witness P.W. 1 to prove the mortgage. On the side of the defendants, as the two other suits were tried in common three witnesses were examined. On a perusal of the oral and documentary evidence, the learned Judge came to the conclusion that the suit property is not wakf property and that the first defend ant as the executant of the mortgages Exhibits A-1, and A-4 was competent to so execute them securing the suit property in consideration of the mortgage amount lent by the bank. It is as against this the present appeal has been filed by the Wakf Board represented by the Special Officer for Wakf.
3. The learned Counsel for the appellant referred to the documentary evidence in the first instance. Exhibit B-2 is a gramanatham plan showing the allotment of plots in Survey No. 70/5 and in No. 76, Aminjikarai village. We have examined the original and we found that the north, western corner of the land consisting of 8 cents with masonry walls was recommended by the Tahsildar for assignment for the benefit of the Muslims and in connection with the jundah. It is common ground that jundah referred to here is the festival of the erection of flags in connection with the prayers offered on the day when such prayers are offered at Nagoor which is one of the primary religious centres in South India in connection with the internment of the foremost preacher amongst the Muslims. The next documentary evidence referred to by the learned Counsel is Exhibit B-1 dated 30th August, 1925. Here the reference is based on the Tahsildar's report. After informing himself with the connected literature from the other connected papers the Deputy Collector, Saidapet ordered the assignment of a part of the land in favour of the Mohamedans who are described as persons who were occupying the relevant plot for the jundah festival. Of course it has to be said that there has not been a meticulous description in this document regarding the scope of the assignment and the grant of it. But on an examination of Exhibits B-1 and B-2 which are ancient documents, it cannot be seriously objected that the land was assigned by the Government for the benefit of the Muslim community in connection with the Nagoor jundah festival. The learned Counsel for the appellant also referred to Exhibits B-3 and B-4. The former is dated 6th January, 1926 and the latter dated 19th January, 1926. The writer of Exhibit B-3 is none else than the father of the first defendant. He would also refer to the suit land as the place where the Nagoor jundah festival was conducted. For reasons which are not clear, he wrote a letter to the Collector of Chingelput District undertaking that he would not build up a mosque in the Nagoor Meera Swami jundah land S. No. 70/5, Plot No. 1, Aminjikarai village. Consequent upon such an undertaking the Revenue Divisional Officer of Saidapet under Exhibit B-4 recorded the same and allowed the usual procession with music and tom tom in Perumal temple which is situate very near Nagoor Meera Swami jundah land. When this was the position, it appears that the first defendant, taking advantage of the fact that her father was looking after the affairs of this jundah festival inducted herself into the property and put up exclusively the superstructure on it presumably from her own funds. In order to regularise her title she obtained certain documents to which we shall presently refer. But the appellant's case is that the superstructure was raised from the funds collected from the Muslims of the locality and that therefore the first defendant or her predecessors-in-interest did not have any interest in it. D.W. 1 was the muthavalli of the Aminjikarai mosque who was examined principally in the other suit, which was tried in common. But when cross-examined by the appellant in the trial Court he would admit that the properties mortgaged by the first defendant belong to the Nagoor Meera Swami land and the plot was granted by the Collector for that specific purpose. He would hesitantly add that the Nagoor Meera Swami jundah property, meaning thereby the superstructure on the land, was also put up with bricks given by the carts which were passing through the land. D.W. 1 was cross-examined by the bank also. He would say that what he meant by wakf was property where four persons would come for namas. He would admit that he was not present when the first defendant put up the building; but would assert that at all times the lands belonged to the Nagoor jundah. When pursued further he would admit that worshipping flag; is said to be not religious but sometimes worship of the flag; is said to be religious.
4. D.W. 2 is the wakf inspector. He joined service in 1965 and therefore he did not have any personal knowledge about the nature of the suit property prior to that date. He can only speak from records and we have already traced such records on which the appellant rests its-claim. He would in cross-examination say that he was not aware as to who put up the superstructure and that he was not aware of any Gazette notification including the suit property as wakf property. It was however brought out from this; witness that the festival of Nagoor is held on the same date as on the date when the jundah was hoisted in the suit land for the purposes of worship. He also incidentally says that the Wakf Board did not collect any rent from the tenants in occupation of the superstructure. Though the first: defendant did not file the statement and remained ex parte D.W. 3 her husband was examined on the side of the defendants. He would say that the property was in possession of his father-in-law and the superstructure was put up by him (father-in-law) and the entirety of the suit property was kept by his wife from her mother. He speaks of considerable improvements made by Mm and his wife from time to time. He referred to Exhibits A-28 and A-29 as the prior title deeds of the properties and would rely upon Exhibit A-36 which is the assessment order of the Corporation of Madras relating to the superstructure bearing No. 37, Poonamallee High Road, Aminjikarai, Madras. When cross-examined he would say that he applied to the Chief Kazi for his opinion presumably for the purpose of eliciting information whether the jundah festival is a religious one. D.W. 3 did not categorically say one way or the other what the opinion of the Chief Kazi was. He denied that the suit properties were however used as wakf properties. The plaintiff on the other hand relied upon Exhibits A-28 and A-29 and also the orders of the Corporation of Madras assessing the suit properties for purposes of establishing that it was bonafide satisfied about the title of the first defendant to the suit land. Exhibit A-28 is a release deed in favour of the first defendant by her relations. A-29 is a deed of mortgage executed by one of the releasors under Exhibit A-28 in favour of the Madras City Co-operative Bank Ltd. Exhibit A-29 however was a mortgage in relation to property bearing municipal door No. 534, Poonamallee High Road, Aminjikarai, Madras. In the release deed Exhibit A-28 the description of the property is given thus : Eight cents of nattam vacant land in Survey No. 70/5, Plot No. 1, situated in the village of Aminjikarai, Saidapet Taluk, Chingleput District bounded on the west by Perumal Coil Back Lane, on the East by Parthasarathi Naidu's house and Varada Reddi's vacant land on the south by vacant land of Perumal Coil and on the North by Poonamallee High Road, Sembiam Sub-District. There is no reference to the superstructure at all. Whether there was a superstructure in 1938 or not is not clear. But one doubts whether house and ground and premises No. 534, Poonamallee High Road, Aminjikarai, Madras, dealt with in Exhibit A-29 is the same which was dealt with under Exhibit A-28 at all. Further in Exhibit A-29 the western boundary is described as jundah and Shaick Sumurheedeen Sahib Street. This by itself implies to the west of the property mortgaged under Exhibit A-29 there was a vacant land used for the jundah festival. It is in this light we entertained a doubt whether the properties comprised in Exhibit A-29 and Exhibit A-28 are identical. Assuming that they are the same the defendant's case is that an a verification of such a document and after being informed that the superstructure was assessed to property tax as is seen by the relevant exhibits filed and after being satisfied that there is no encumbrance on the property between 1939 and 1951 they lent the money bona fide believing that the first defendant was the owner of the property.
5. From the assessment of the oral and documentary evidence in this case it is clear that as early as 1925 the suit land was assigned by the Government for purposes of the jundah festival in connection with the Nagoor Meera Swami. This is not even denied, as it cannot be, by the counsel for the respondent. But what he says is that the erection of jundah or the flag in connection with the festival which is taking place outside the locality cannot be accepted as a permanent dedication nor would it be a wakf within the meaning of Wakf Act of 1954. Section 3(1) of the Wakf Act defines a wakf as meaning a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. It is impossible to say in the instant case that the assignment of the land specifically made in favour of the Muslim community in the locality for purposes of and in connection with the jundah festival which in turn is intimately connected with the festival which is held at Nagoor is not for a pious or a religious purpose within the meaning of Section 3(1)(v). Further Section (2) takes into its fold all those wakfs whether created before or after the commencement of the Act. But on a fair reading of Exhibits B-2 and B-1 whose terms are explicit and clear, we are of the view that the State permanently granted the land in question for the pious and religious purposes of conducting the jundah which in turn is connected with the Nagoor festival in East Thanjavur. If therefore this position is fairly clear, the question is what was the interest in the property which was obtained under Section 58 of the Transfer of Property Act by the bank when the mortgage was executed. No doubt the description given in Exhibit A-1 and A-4 is house, ground and premises bearing old door No. 354, new door No. 37, Poonamalle High Road, Aminjikarai, Madras. It is necessary at this stage to find whether the case of the appellant that they contributed funds to the putting up of the superstructure on the land is acceptable or not. Excepting for a light and a bare suggestion made by D.W. 1 that bricks were collected from the carts passing along the mosque for the purposes of putting up the superstructure there is absolutely no title of evidence to show that the public money or moneys were utilised for purpose of putting up the superstructure over the land which is the subject-matter of the assignment under Exhibits B-2 and B-1. If this position is reached then we should bear in mind the dichotomous character between the land which is the subject-matter of the appeal under Exhibits B-2 and B-1 and the superstructure put upon it as suggested by the first defendant by her or by her ancestors. It is seen that the first defendant or her ancestors were dealing with these properties as seen from Exhibits A-28 and A-29 and were paying the property tax due to the Corporation of Madras under various assessment orders made by it; the normal presumption would be that the superstructure was not only possessed by the first defendant or her ancestors but was enjoyed by them at all material times.
6. Under Exhibits A-1 and A-4 the entirety of the property was the subject-matter of the mortgage. Though in a mortgage action the mortgagee is not bound to recognise paramount title and implead such persons claiming such title over the hypotheca, yet the plaintiff invited a decision on such title by impleading the Wakf Board as a party-defendant to the suit. There was a conflict of opinion as to whether the party claiming such paramount title is a necessary party at all under Order 34, Rule 1, Civil Procedure Code. Order 34, Rule 1 dealing with suits relating to mortgages of immovable property provides that subject to the provisions of the Civil Procedure 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. We are not reproducing the Explanation as it is not necessary. The question is whether a person claiming the paramount title to the entirety of the hypotheca is a person who can be said to be interested either in the mortgage security or in the right of redemption. In so far as the mortgage security is concerned, it is the mortgagee who is primarily interested since he wants to recover the amount advanced on such security by bringing the property to sale after obtaining the decree on the foot of the mortgage. In this the paramount title holder is not having any interest. Equally so he has no interest in the right of redemption which survives to the mortgagor in such mortgage. Therefore the question is whether if a paramount title holder is impleaded as a party he should be struck off from the pleadings without any further investigation into the quality of the situation or to the necessity of the occasion. Though the primary principle is that such a paramount title-holder is neither a proper nor a necessary party to the mortgage action, yet each a case has to be decided on its merits to find whether such a party should be impleaded as a defendant in the mortgage suit along with the mortgagor. In order to avoid multiplicity of action and in order to secure a quite good marketable title over the property mortgaged and sought to be publicly sold the investigation into the title of the hypotheca becomes reasonably necessary and indeed equally important and it is in this context and perspective that the techniques of procedure should be buttressed to some extent so that justice may be done in cases where such investigation of title comes up for consideration though incidentally. That this is the principle or rule has been laic down by our Court in Veeraraghavalu v. Suryanarayana : AIR1936Mad338 . Venkataramana Rao, J., dealing with a similar situation after noticing the general principle that it is not essential to implead a person setting up the paramount title in a mortgage action observed as follows:
But in each case the Court can exercise its discretion whether it will lead to inconvenience or confusion in trying the issue as to paramount title in the same suit.... It is very desirable that before the property is brought to sale all questions of title relating to the mortgaged property should be settled and the Court should as far as possible avoid multiplicity of litigation. The effect of joining persons who claim a title paramount need not necessarily result in a dismissal of the suit. The Court can order a separate trial.
It is desirable that such a question should not be gone into in the suit. But when such a question has been gone into by the trial Court the appellate Court should not reverse the decision of the trial Court on that ground alone unless the decision has affected the juris diction of the Court or caused a prejudice to the parties by the trial on the merits.
In Kasi Chettiar v. Ramaswami Chettiar : AIR1937Mad176 , a Division Bench of our Court presided over by Varadachariar, J., reiterated in a slightly different way the above principle. The learned Judge has said that the question whether the issue of title paramount should or should not be decided in a mortgage suit was dependent on the facts of each particular case. We may also refer to a passage which is very apposite to the one quoted by Venkataramana Rao, J. in Veeraraghavalu v. Suryanarayana : AIR1936Mad338 , but culled out from Ramaswamy Pillai v. Marimuthu Gounder : AIR1928Mad764 . The effect of joining a person who claims title paramount need not necessarily result in the dismissal of the suit as against him. Whilst therefore approving the ratio, it may be stated that in certain circumstances the Court has the discretion to allow the mortgagee to implead a person setting up a paramount title which activity is more for the benefit of the mortgagee who would very much desire that every conflict as to title may be finally settled before he could enforce his decree for mortgage if one is obtained by him ultimately.
7. In the instant case the mortgagee rightly impleaded the Wakf Board. The learned Counsel for the respondent however wishes to make a point on such an addition of the party and would on the observations of our Court in Ramaswamy Pillai v. Marimuthu Gounder : AIR1928Mad764 , submit that in a mortgage suit the title of a party paramount to that of the mortgagor and the mortgagee cannot be enquired into in law. This opinion of Ramesam, J., has been whittled down in the same judgment by the observation of Reilly, J., that the plea of paramount title was open to the defendant. For a greater reason the force of the emphatic statement, made by Ramesam, J., is considerably lessened by the subsequent decisions in Veeraraghavalu v. Suryanarayana : AIR1936Mad338 , and of the Division Bench in Kasi Chettiar v. Ramaswami Chettiar : AIR1937Mad176 . We therefore hold that the second defendant was a necessary party to the mortgage action, in the circumstances of the case.
8. What survives therefore is as to what was the interest in immovable property which the first defendant transferred under Section 58 of the Transfer of Property Act. When she executed the two mortgages Exhibits A-1 and A-4 we have no hesitation in holding that she could have only mortgaged the superstructure which as we said might have been put up by her but certainly not by the Wakf Board or their predecessors-in-interest. Thehypotheca in the circumstances could only be understood as a superstructure over the land which was permanently dedicated under the orders of assignment of the State made under Exhibits B-2 and B-1. The mortgage security therefore cannot include the land which is plot No. 1 in Survey No. 70/5 in Aminjikarai, Madras. This plot is more fully described in Exhibit B-2. We therefore disagree with the Court below that this plot of land was never treated and accepted as wakf property. In the light of the documentary evidence it has to be held that the eight cents of land delineated in Exhibit B-2 as land assigned to the Muslims for purposes of jundah festival should be declared to be wakf property within the meaning of Section 3(1) of the Wakf Act 1954.
In the result therefore the appeal is allowed in part and the plaintiff-bank would be entitled to proceed against the superstructure bearing municipal door No. 37, Poonamallee High Road, Aminjikarai, Madras for purposes of realising the amounts under the mortgage decree besides having the usual personal decree against the first defendant. The usual decree shall be drafted in terms of the judgment as above enabling the bank to proceed only as against the superstructure. The appeal is allowed with costs.