Trevelyan and Beverley, JJ.
1. The facts which it is necessary to detail for the purposes of our judgment are as follows:
2. On the 19th of July 1839 the first defendant executed a mortgage of certain property in favour of one Ram Lall, and in the mortgage bond promised to pay the amount secured thereby by the end of Sraban 1297 (July 1890). The consideration for the mortgage consisted of a decree which had been made in favour of one Dooli Chand, and two bonds which had been given to one Jaitroop. As a matter of fact the money covered by the decree belonged to Jaitroop, and in the matter of the mortgage, Ram Lall was the benamidar of Jaitroop.
3. On the 6th of September 1891, Jaitroop made over this debt to the firm of Hardeo Dass, Janki Dass, the members of which firm are Behari Lal and Nait Ram. The assignment then made was not in writing, but a record of it was made in the books of the firm of Hardeo Dass, Janki Dass, and a release was given to Jaitroop for the debt which was owing by him, and was to that extent satisfied by this assignment.
4. On the 21st of January 1893, this suit was brought by Ram Lall at the instigation of the gomasta of the firm of Hardeo Dass, Janki Dass. The suit was brought for the purpose of recovering the sum due on the mortgage. Besides the mortgagor, Bhola Pershad, the appellant before us, was made a party defendant. He was described in the suit as a second mortgagee, but as it turns out, his mortgage was prior in date to the mortgage sued upon. He has also bought the first defendant's equity of redemption, but subsequently to the mortgage in suit.
5. On the 6th of March 1893, the first defendant filed a written statement, charging amongst other things that the plaintiff Ram Lall was a fictitious person, and that the persons really interested in the mortgage were Jaitroop and Dooli Chand, but on the 27th of March 1893 he filed a petition admitting the plaintiffs' claim. In a written statement filed on the 13th of April 1893, a contention similar to that in the written statement of the 6th March was, amongst others, raised by the defendant Bhola Pershad.
6. On the 30th of July 1893, a formal deed of sale of the mortgagee's right was executed by Jaitroop in favour of Behari Lal and Nait Ram, who by an order of the 21st August 1893 were added as plaintiffs to this suit. This order was made ex parte, but a fresh summons was issued.
7. On the 10th of September 1893 a further written statement was filed by Bhola Pershad, protesting against the order of the 21st of August 1893.
8. This objection was pressed at the hearing, but has been disallowed by the learned Subordinate Judge, who has given the added plaintiffs a decree on the mortgage, conditionally on their paying the amount due undo the first mortgage. They deposited this sum in Court.
9. The only question argued before us in the appeal is, whether the order of the 21st of August 1893 could and ought to have been made. The two sections of the Civil Procedure Code, which have been referred to, are Sections 27 and 32.
10. We need only consider Section 32, which empowers the Court to add the name of any person whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The case of Chunder Coomar Boy v. Gocool Chunder Buttacharjee I.L.R. 6 Cal. 370 holds that Section 32 applies only to a suit which is to some extent properly instituted, though partially defective; in other words, there is no jurisdiction at the hearing to add a plaintiff, unless the original plaintiff had some title to sue.'
11. Taking that case to be good law, we are of opinion that the circumstances of the present case are not governed by the principle there laid down. In that case the son had no right to sue at all. We are unable to say that a benamdar cannot under any circumstances sue. It is true that his name only is used in the transaction, but his name also is frequently used in suits, and unless an objection be taken a decree can be made in his favour. There is authority to show that the real owner is bound by a suit by the benamdar. It is, therefore, impossible for us to hold that a suit by the benamdar can, to no extent, be properly instituted, although it may be partially defective.
12. The real question is whether the added plaintiffs could, under any circumstances, be introduced into the suit, as the assignment to them was subsequent to the institution of the suit. It is not necessary for us to decide whether an assignment of the interests of the mortgagee could be otherwise than in writing. At the time when they were added, Jaitroop could not have been added as he had ceased to have any interest. When it was found necessary to add the real owners, the added plaintiffs as being the then real owners were added. The power to add parties must be exercised with reference to the interests which those parties have at the time when the addition is being considered. Mr. Bonnerjee contended that the Court could not add a plaintiff unless he had a right at the time of suit;, or had derived a right from an original plaintiff. Even if this be a correct limitation to the powers of the section, we think that a conveyance from the real owner, whose benamdar is the plaintiff, must, for the purposes of this proposition, be treated as a conveyance from the plaintiff. We are by no means saying that the section is so limited, as we are of opinion that it is wide enough to meet every case of defect of parties.
13. Another question has been raised under Section 131 No transfer of any debt or any beneficial interest in moveable property shall have any operation against the debtor or against the person in whom the property is vested, until express notice of the transfer is given to him, unless he is a party to or otherwise aware of such transfer; and every dealing by such debtor or person, not being a party to or otherwise aware of, and not having received express notice of, a transfer with the debt or property shall be valid as against such transfer of the Transfer of Property Act, but it was not referred to in the lower Court or in the grounds of appeal to us. If it had been pleaded, it might have been the subject of an issue of fact. In our opinion the appeal fails and must be dismissed with costs.