Rampini and Geidt, JJ.
1. The suit out of which this appeal arises was one brought to enforce a registered mortgage bond, dated the 23rd May, 1885, for Rs. 2,000, executed by two brothers Rachha Singh and Rang Lal Singh and by the son of Rang Lal Singh in favor of the father of the plaintiffs. The Subordinate Judge has given the plaintiffs a decree. The defendant No. 5, who is the auction purchaser of the properties 1 to 3 only, appeals.
2. The grounds of his appeal are (1) that the suit is barred by the rule of res judicata; (2) that the mortgage having been executed by two only of the members of an undivided Hindu family governed by the Mitakshara law and not by a third member, viz., a third brother named Puchhya Singh, is void; (3) that the defendant-appellant is not precluded from contending that it is void; (4) that the mortgage being void, the plaintiffs are not entitled to a charge on the mortgaged property, and (5) that Puchhya Singh is a necessary party to the suit. It appears to us that the first of these pleas must prevail. It is admitted that the father of the present plaintiffs was a defendant in a suit brought by the present appellant Gopal Lal in 1891 to enforce a registered mortgage bond dated 22nd February 1887 and in which he prayed for the sale of the mortgaged properties free from incumbrance. He at first described the father of the plaintiffs, who was defendant No. 11 in that suit, as a subsequent mortgagee and purchaser. In a petition dated 28th April 1891, he described him as having purchased property No. 6, subsequently to the date of his mortgage. Now the father of the plaintiffs made no appearance in this suit. The suit was decreed. The Judge gave the mortgagors and their alienees an opportunity of redeeming the mortgage and directed that, failing redemption, the plaintiff was entitled to sell the properties.
3. Now, it seems to us that under explanation II to Section 13 of the Code of Civil Procedure, the father of the present plaintiff, was bound in that previous suit to disclose his prior mortgage, which the plaintiffs are now seeking to enforce. He should have prayed either that he should be paid off or that the property should be sold subject to his prior mortgage lien. As he did not do so, his mortgage lien must be held to have been extinguished. The case of Sri Gopal v. Pirthi Singh (1902) I.L.R. 24 All. 429 : L.R. 29 I.A. 118 in which it has been held that an earlier mortgagee, who in a redemption suit by a later mortgagee fails to set up one of his incumbrances a charge to be redeemed, is barred by Section 13 of the Civil Procedure Code from bringing a fresh suit to enforce the same, would seem to be sufficient authority for this view.
4. The learned pleader for the respondents urges that the present appellant, who was the plaintiff in the previous suit is shown by the evidence adduced in this case to have been aware of the execution of the prior bond in favour of the father of the present plaintiffs, that in his suit he made no mention of it, that accordingly the father of the plaintiffs was not attacked in respect of that bond and that it was, therefore, unnecessary for him to disclose the existence of his prior bond. We are unable to see that these facts are in any way material. The present appellant in the previous suit prayed to be allowed to sell the mortgaged property free of incumbrance and lie obtained a decree. The father of the present plaintiffs had then a prior incumbrance. If he did not wish the property to be sold free of incumbrance, he should have resisted the present appellant's prayer on the ground that he had a prior incumbrance and should, as we have said, have asked either that he should be paid off or that the property should be sold subject to his mortgage. His silence was calculated to mislead purchasers and to defeat the object of Section 85 of the Transfer of Property Act, which is to prevent the multiplicity of mortgage suits. In these circumstances we consider that the plaintiffs cannot now sue on the bond they are seeking to enforce and consequently the appeal must be decreed and the suit dismissed.
5. It is unnecessary to discuss the other pleas of the appellant. We decree the appeal and dismiss the suit with costs.