Macpherson and Banerjee, JJ.
1. The suit out of which these two appeals arise was brought by the plaintiffs, respondents, on the following allegations, viz., that two persons, Kishandeo and Barhamdeo, who with a third, Baldeo, formed a Mitakshara joint family now represented by the defendants, 3rd party, executed in favour of defendants, 2nd party, Jamuna Prashad and Ishri Prashad, on the 27th June 1872, a bond mortgaging certain properties, not very clearly described; that defendants, 2nd party, on the 25th July 1882, brought a suit upon the bond and obtained a decree against the said Kishandeo and Barhamdeo and also against Baldeo, and in execution of that decree improperly put up to sale mauzas Pipra and Bangra, which were purchased by defendant, 1st party, Hardhani Lal, on the 16th March. 1888; that before the institution of the suit by defendants, 2nd party, Kishandeo, Barhamdeo, and Baldeo in August 1881 mortgaged to one Narsingh Das the mauzas Pipra and Bangra; that Narsingh Das, having on the 13th of March 1884, obtained a decree on his mortgage, caused the mortgaged property, mauza Pipra, to be sold in execution, and the plaintiffs purchased the same on the 21st of November 1884 and duly obtained possession; that the mortgage to defendants, 2nd party, was invalid and the sale at their instance was irregularly held; and that the defendant, 1st party, was setting up his auction purchase against the plaintiffs and offering opposition to their peaceful possession. And the plaintiffs prayed that the Court might declare that the mortgage bond of the 27th June 1872 was invalid, and the decree and the execution sale upon the basis thereof ineffectual as against them; and that if the Court was of opinion that the said mortgage bond was valid, it might determine the amount of the lien chargeable upon Pipra and declare the plaintiffs' right to redeem on payment of such amount.
2. Defendant, 1st party, resisted the claim on various grounds, and maintained that his auction purchase was valid; and defendants, 2nd party, urged in addition that the suit as one for redemption could not proceed, as persons interested in the other properties mortgaged jointly with Pipra were not made parties to the suit. Defendants, 3rd party, did not appear.
3. The parties went to trial upon various issues, of which it is necessary to notice here only two, namely, the 1st and the 8th, which were as follows:
1st.--Did the bond of June 27th, 1872, create a valid mortgage; and, if so, upon what property 1
8th.--What are the respective rights of the various parties?
4. In the view which the Court below took of the case, it was not necessary to consider the 8th issue. But it decided all the other issues, except the second part of the first, in favour of the plaintiffs, and gave them a decree, declaring the mortgage of 1872 and the decree and sale based thereon invalid, and confirming the plaintiffs' possession.
5. Against that decree these two appeals have been preferred by the defendant, 1st party, and defendants, 2nd party. They were heard together, and the points urged were--
first, that the mortgage bond of 1872, though executed by two only of the three joint owners, was binding upon all the three;
second, that at any rate the mortgage was valid as regards the shares of the mortgagors, or that the bond created an equitable charge as regards those shares;
third, that the suit, so far as it was one for redemption, could not proceed by reason of defect of parties; and
fourth, that the plaintiffs had no cause of action.
6. As to the first point, there is no sufficient evidence to show that the two executants of the bond were acting as managers for the joint family. Great stress was laid upon the fact that Baldeo, the remaining member of the joint family, allowed the decree on the bond to be passed against him; but seeing that the suit which resulted in that decree was instituted after the mortgage to Narsingh, through whom the plaintiffs claim, neither that decree, nor the fact of Baldeo not having objected to the decree being passed against him, would be any evidence against them.
7. The fourth point also must be decided against the appellants, as no such objection was raised in the Court below, though the plaintiffs made a distinct allegation in paragraph 10 of the plaint that their peaceful possession had been interfered with by the defendant, 1st party. If the objection had been taken in time, it might have been met by evidence. We think it too late for the defendants to raise it now.
8. Upon the second point the Court below has decided against the appellants upon the authority of Sadabart Prasad Sahu v. Foolbash Koer 3 B.L.R., (F. B) 31; 12 W.R. P.B. 1 But we do not think that case settles the present question. It is true that the mortgage here was one by two out of three undivided coparceners in respect of joint property without the consent of the third, in order to raise money for the benefit of those two and not for that of the family; and it is true also that the Pull Bench in Sadabart's case held that one co-sharer' had no authority, without the consent of his co-sharers, to mortgage his undivided share in a portion of the joint-family property, in order to raise money on his own account, and not for the benefit of the family;' but the question whether the mortgaged interest could be recovered without redemption was expressly left undecided, as the facts were not sufficiently stated to enable the Court to determine that question. Moreover, the question of the validity of the mortgage in Sadabart's case was raised by the non-alienating coparcener, who did not claim through the mortgagor, and to whom the interest of the latter had passed by survivorship; whereas in the present case that question is raised not by persons claiming the mortgagor's interest by survivorship, but by persons claiming the same under a subsequent alienation made by those mortgagors jointly with their co-sharer.
9. In the case of Mahabeer Persad v. Ramyad Singh 12 B.L.R. 90; 20 W.R. 192 which was decided after the Full Bench case of Sadabart Prasad Sahu v. Foolbash Koer 3 B.L.R. (F.B.), 31; 12 W.R. (F.B.) 1 a father and his elder son, without legal necessity, and without the consent of a minor son who was their coparcener, had mortgaged their joint property, and a suit was brought to set aside the alienation in the lifetime of the mortgagors; and a Division Bench of this Court (PHEAR and AINSLIE, JJ.), while setting aside the alienation in the interest of the minor, directed that on recovery of the property, it should be held and enjoyed in defined shares, and that the shares of the father and his older son should be jointly and severally subject to the lien thereon of the mortgagees for the sum advanced by them with interest until repayment, the reason for making the loan an equitable charge upon these shares being that a decree without such qualification would have the effect of restoring their property to the father and son, and leaving them at the same time in possession of the money which they had borrowed on its security--a result that would have been contrary to equity and good conscience. The last-mentioned decision was approved by the Judicial Committee in Madho Parshad v. Mehrban Singh I.L.R. 18 Cal. 157; L.R. 17 I.A. 194.
10. The present case differs from the cases of Sadabart Prasad Sahu v. Foolbash Koer 3 B.L.R. (F.B.), 31; 12 W.R. (F.B.). 1 and Madho Parshad v. Mehrban Singh I.L.R. 18 Cal. 157; L.R. 17 I.A. 194 in this, that the mortgage is here sought to be declared invalid by persons claiming under the mortgagors, and not as in those two cases by persons to whom the interests of the mortgagors had passed by survivorship. It differs also apparently from the case of Mahabeer Persad v. Ramyad Singh 12 B.L.R. 90; 20 W.R. 192 in this, that the persons who would benefit directly by the setting aside of the mortgage are not as in that case the mortgagors themselves, but are persons deriving title from them and their co-sharer jointly. But the persons who would ultimately benefit by the unqualified setting aside of the mortgage would be the mortgagors, they retaining in that case the mortgage money as well as the full value of their interest in the mortgaged property--a result no less contrary to equity and good conscience than if they had retained the mortgage money and the property itself; and therefore, as far as the point under consideration is concerned, the present case does not really differ from that of Mahabeer Persad, and should be governed by the principle which was held applicable to that case. We are, therefore, of opinion that though Kishandeo and Barhamdeo, the mortgagors, had no authority, without the consent of their co-sharer Baldeo, to mortgage their undivided shares to defendants, 2nd party, yet the plaintiffs, who derive title from those mortgagors, are not entitled to recover their shares without paying to the defendant, 1st party, who has by his auction purchase acquired the rights of the mortgagees, the money advanced under the mortgage of 1872 with interest, which should be considered as an equitable charge on the said shares. In other words, the only right which the plaintiffs have got as against defendants, 1st party and 2nd party, is the right to redeem.
11. It was faintly contended before us that mauza Pipra was not covered by the mortgage of 1872; but, having regard to the terms of the mortgage bond, we think the Court below was quite right in holding that such a contention is wholly untenable.
12. It remains now to consider the third point raised before us. The only claim that the plaintiffs are, in our opinion, entitled to make being one for redemption, the suit cannot proceed unless all the persons interested in the properties originally mortgaged in 1872 are before the Court [see Nilakant Banerjee v. Suresh Chundra Mullick I.L.R. 12 Cal. 414. And as those persons have not all been made defendants, we were asked to dismiss this suit for defect of parties. We do not think, however, that that would be the proper order in this case. In the view that the Court below took of the plaintiff's rights, they were entitled to a declaration that the defendants, 1st party and 2nd party, had no claim against them, and they were entitled to the property in dispute without redeeming the same; and the Court below did not, therefore, consider itself called upon to make any persons parties to the suit who were necessary parties to it if it was a suit for redemption. As, however, that view is in our opinion incorrect, and as the 8th issue raised in the case has now to be decided, we think the proper course to take in this case will be to send the case back to the Court below to try the suit as one for redemption after making all necessary persons parties to it.
13. The result is that the decree of the Court below will be set aside, and the case remanded to that Court for trial with reference to the directions contained in this judgment. The appellants will be entitled to the costs of these appeals, only one hearing fee being allowed. Other costs will be in the discretion of the Court below.