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Haidar Ali Khondkar Vs. Muhammad ShajiuddIn Kazi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal34
AppellantHaidar Ali Khondkar
RespondentMuhammad ShajiuddIn Kazi and ors.
Cases Referred and Ghulam Kadir Khan v. Mustakim Khan
Excerpt:
- .....as parties to the suit, and have expressly stated that they have no objection to the passing of a mortgage decree in full in favour of the plaintiff's in the suit. the petitioners before this court made the same statement before the trial court and two of them repeated the statement in the court of appeal below.3. the trial court for reasons which do not commend themselves to ran, held that the petitions filed by the heirs of the mortgagee other than the plaintiffs were.' spurious documents.' the learned district judge in the court of appeal below, held that the disclaimers' by the other heirs of the original mortgagee had no value; that those heirs were not necessary, nor competent parties, and that their petitions could not be accepted. the petitions might have been filed for the.....
Judgment:

1. The only question arising for consideration in this appeal by the defendant in a suit for enforcement of a mortgage security, is whether the suit was liable to dismissal on the ground of defect of parties, upon the findings arrived at by the Court below, the sisters of plaintiffs 1 to 3, and the sisters and mother of plaintiff 4 were necessary parties: both the lower Courts however agreed in holding that the suit could not fail as a whole, for defect of parties. It was contended for the appellant that the decision of the Courts below was not sustainable in law, inasmuch as all the persons interested in the mortgage money had not been made parties to the suit, and that the suit base on a, mortgage which was one and indivisible, should have been discussed altogether: that the plaintiffs were not entitled to a decree in the form made in their favour by the Courts below.

2. The contention advanced on behalf of the appellant is that the mortgage being one and indivisible, it could not be split up, no as to entitle the plaintiffs, some of the heirs of the original mortgagee, to get a partial decree in the absence of the other heirs. The hears of the original mortgagee, it would appear, did not and could not join as plaintiffs, in view of the allegation in the plaint that the original mortgagee was a more benamidar: the mortgage money was the money of plaintiffs 1 to 4. During the pendency of the litigation in the trial Court and when the case was pending in appeal before the learned District Judge, in the Court of appeal below attempts wore made by the heirs of the mortgagee, other than the plaintiffs in the suit, to get themselves added as parties defendants in the suit. That attempt did not succeed. Those heirs who are respondents in this appeal, have applied to this Court to be joined as parties to the suit, and have expressly stated that they have no objection to the passing of a mortgage decree in full in favour of the plaintiff's in the suit. The petitioners before this Court made the same statement before the trial Court and two of them repeated the statement in the Court of appeal below.

3. The trial Court for reasons which do not commend themselves to ran, held that the petitions filed by the heirs of the mortgagee other than the plaintiffs were.' spurious documents.' The learned District Judge in the Court of appeal below, held that the disclaimers' by the other heirs of the original mortgagee had no value; that those heirs were not necessary, nor competent parties, and that their petitions could not be accepted. The petitions might have been filed for the benefit of the plaintiffs in the suit as instituted; their disclaimer might have been of no value, but I do not find any justification on the part of the Court of appeal below, in the rejection of the petitions, and in refusing to add these other heirs of the original mortgagee, as parties defendants to the suit, in view of the finding arrived at by the Court of first instance, these other heirs of the original mortgage who applied to be made parties, were necessary parties, and were interested in the mortgage security. In my judgment the prayer made by these parties for their being added as parties to the suit should have been granted by the lower appellate Court, and the said prayer is, on the facts and in the circumstances of the case granted in this appeal, on the petition of respondents 5 to 11 in this appeal, to which reference has been made above. The petitioners are added parties defendants in the suit out of which this appeal has arisen. The main contention in this appeal based upon defect of parties in the suit is accordingly remedied, for meeting the ends of justice in the case.

4. As has been laid down by the Judicial Committee of the Privy Council in the case of Sunitibala Debi v. Ehara Sundari Debi A.I.R. 1919 P.C. 24 where a mortgage is made by one mortgagor to more persons than one, who are tenants-in common, the right of any one of the mortgagees who desire to realize the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagees cannot be obtained, is to add the mortgagee as a defendant to the suit, and to ask for the proper mortgage decree. The above principle applies with greater force in the present case, in view of the fact that the persons who are added as parties to the suit, who wanted to be made parties to it during the pendency of the litigation in the Court below, have disclaimed all interest in the mortgage money, claimed by plaintiffs 1 to 4 in the suit. I am unable to see any principle which militates against this view of the case before me, and no authority has been placed before me which prevents the passing of a decree in favour of the plaintiffs for their share of the mortgage money in the presence of all persons who could have any possible! interest in the mortgage security, as heirs of the original mortgagee.

5. In the above view of the case although the disclaim of interest in the mortgage security may be of no effect, there is no bar in the way of the plaintiffs getting a decree for their proportionate share of the mortgage money, as has been passed in their favour by the learned District Judge in the Court of appeal below , the question of any defect of parties not arising, for the reasons of the addition of parties in this Court.

6. It is not necessary to discuss the other branch of the contention based on the state of record as it was before the addition of parties in this Court. It may however be mentioned that I am inclined to hold , in consonance with the decision of this Court in Kherodamayi Dasi v. Habib Shaha : AIR1925Cal152 that non-compliance with the provisions of Order 34, Rule 1, Civil P.C., is not necessarily fatal to a suit to enforce a mortgage, and that Order 1, Rule 9 applies to a mortgage suit as well as to any other suit. It may also be noticed in this connexion that the word 'must' used in Section 85, T.P. Act, has been replaced by the 'word shall ' in Order 34, Rule 1, Civil P.C. The reason for the substitution of the word shall ' appears clearly, from some decisions of the Allahabad High Court: see Bhawani Prasad v. Kallu [1895] 17 All. 537; Mata Din Kasodhan v. Kazim Husain [1891] 13 All. 433 (F.B.); Janki Prasad v. Kishen Dat [1894] 16 All. 478 and Ghulam Kadir Khan v. Mustakim Khan [1896] 18 All. 109 in which it was held that the word must ' is one of the strongest words of compulsion which the legislature can employ, and the Courts are therefore bound to give effect to it and not to ignore it or its significance. The present rule must be taken to have overridden those cases decided by the High Courts in India in which it was held that nonjoinder of necessary parties was a fatal defect. Furthermore it would appear that Section 85, T. P. Act, was subject only to Section 437, Civil P.C., 1882 (O. 31, Rule 1 of the Coda of 1908): in the present provision Order 34, Rule 1, which has replaced Section 85, T. P. Act, reference to Section 437 has been omitted. The obvious intention of such omission is that all the rules of the Code of 1882 contained in Order 1 will equally apply to, and control all mortgage suits. A mortgage suit therefore will not be liable to be dismissed simply for nonjoinder or defect of parties, as contended on behalf of the appellant in the case be-fore me. This is the view taken by the learned District Judge in the Court below, and the decree passed in favour of the plaintiffs in the suit, is in my judgment, a correct decree and in accordance with law; and there is, to my mind, nothing contained in Section 67 (d), T. P. Act, which militates against this view.

7. It remains now to consider the cross-objections filed in this appeal by plaintiffs-respondents 1 to 4, The only point that has been attempted to be urged in support of the cross objections as preferred was that the plaintiffs were entitled to a decree for a larger amount than that mentioned in the decree of the lower appellate Court. The conclusion on this point, arrived at by the learned District Judge in the Court of appeal below, based upon findings of fact arrived at by him, cannot be disturbed. The cross objections cannot therefore be given effect to.

8. In the result therefore the decision and decree of the Court of appeal below so far as the merits of the case are concerned are affirmed. The decree of the Court of appeal below in regard to costs is varied to this extent, that the defendant-appellant is to pay the costs of plaintiffs-respondents 1 to 4, in proportion to their success, as also the costs of the parties added in this Court, respondents 5 to 11 in this appeal, incurred by them in the (lower Courts. The appellant is to pay the costs of the plaintiffs-respondents in this appeal and the costs of the application made by respondents 5 to 11 to this Court, the hearing foe in the application being assessed at two gold mohurs. Respondents 5 to 11 are to bear their costs in the appeal.


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