P.N. Mookerjee, A.C.J.
1. This ap-peal is by the plaintiffs and it arises out of a suit for partition which was dismissed by the learned trial Judge on the finding, inter alia, that the plaintiffs had no title to the disputed properties.
2. The material facts lie within a short compass and they are as follows:
3. According to the plaintiffs, they, alone with their father, who is defendant No. 1, belonged to a Mitakshara Hindu family and the disputed properties were properties of the said family in which they were interested as coparceners. Defendant No. 2, who was the real contesting defendant in the court below and who is the contesting respondent in this Court, obtained a mortgage of the disputed properties from the father, Jajneswar Bajpai. defendant No. 1, on 28th April, 1934 The mortgage was given by Jajneswar Bajpai alone. It was for an amount of Rs. 2,500.
4. Eventually, on that mortgage, a suit was brought by the mortgagee, defendant No. 2, and the same was decreed in a preliminary form on 15th April, 1950. It having been instituted on 16th September 1946. The claim decreed was Rs. 2,500 for principal, Rs. 2,466-10-0 for interest and Rs. 688-15-3 for costs, charges etc., totalling Rs. 5,655-9-3, at the date of the said preliminary decree. This preliminary decree was, in course of time, followed by a final decree, which was made on 15th April, 1953, and in execution of the same, the mortgaged properties were sold and purchased by the mortgagee decree-holder, defendant No. 2, on 15th September, 1953.
5. To the above mortgage suit, the lather mortgagor, defendant No. 1 of the present suit, was alone the defendant. The plaintiffs of the present suit, who claim to be his coparceners, were not impleaded. The instant suit for partition was brought on 14th September, 1953, upon the allegation, inter alia, that the above mortgage was not for justifiable or justifying causes, and so not binding on the plaintiffs, however must it may be or may have been binding on the mortgagor coparcener, namely, the father, defendant No. 1.
6. In this suit, the father mortgagor has been impleaded as defendant No. 1, and the mortgagee decree-holder, who had not yet become the purchaser, was impleaded as defendant No. 2 in his capacity as mortgagee, decree-holder, on the day, following the date of institution of this suit, the mortgaged properties, as we have said above, were sold in execution of the mortgage decree and purchased by the mortgagee decree-holder himself.
7. The suit, as we have already indicated, was contested by defendant No. 2 alone, and his defence, in substance, was that the plaintiffs' family was governed by the Dayabhag law, and, accordingly, the father, defendant No. 1, was the sole owner of the disputed properties and the plaintiffs never acquired any interest in the same. This defence, however, was overruled by the learned trial Judge, and, on the materials before the Court, his said finding cannot be challenged, and, as a matter of fact, has not been seriously challenged. We must, therefore, proceed on the footing that the plaintiffs' family was governed by the Mitakshara law. There was a point, raised on behalf of the plaintiffs, that, at least, plaintiff No. 1 had been born prior to the date of the above mortgage and had become a co-sharer with the father mortgagor, and. accordingly the mortgage would not be binding on him unless it was for a justifying necessity or legal necessity On this point, the evidence has been fully discussed by the learned trial Judge, and he has dealt with all the relevant circumstances and has recorded the funding that the plaintiffs have failed to prove that the plaintiff No. 1 had been born or begotten prior to the date of the above mortgage. On that finding, much comment is not necessary, but it may be enough to say that, according to the plaintiffs' own evidence, there was a horoscope of plaintiff No. 1, but that horoscope was not produced before the Court. Admittedly, also, plaintiff No. 1 read in school, where school registerr would have been available. Such documents also were not produced before the Court. The only documents, which were produced for the purpose from the plaintiffs' side, were (1) a High School examination certificate of the Board of High School and Industrial Education, U. P., which purported to show that the plaintiff No. 1's date of birth was 23rd March, 1933, that is, over a year before the date of the above mortgage, and (2) the application for guardianship of the plaintiffs by their mother, where the plaintiff No. 1's date of birth was given as 13th March, 1931. The oral evidence, adduced by the plaintiff No. 1 on this point, was not consistent and, moreover, it contradicted the above documentary evidence, and the mother's oral evidence may even support the defendants' case that the plaintiff No. 1 was born after the date of mortgage.
8. In these circumstances, the learned trial Judge was undoubtedly right in his view that the plaintiffs had not been able to establish that plaintiff No. 1 was born or begotten prior to the date of the above mortgage, and, the onus on this point being on the plaintiffs, their above plea must be held to have been rightly rejected by the learned trial Judge if this be the position, the plaintiffs' father Jajneswar Baipai was the sole coparcener under the Mitakshara law in respect of the disputed properties at the date of the impugned mortgage, and he had, therefore, under the law, full power to mortgage the same and the mortgagee was entitled to rely on his mortgage against all the coparceners, including the plaintiffs. This appears clear from Section 257 of Mulla's Hindu Law as appearing in the 12th Edition of that book and on this proposition of law, there can be. -- and there is also, -- no dispute.
9. From the above, therefore, it follows that the plaintiffs are bound to accept the mortgage and, unless some other right, consistent with that position, intervenes, their right as coparceners in the disputed properties must be held to have disappeared by reason of the mortgage sale and they must be held to have been deprived of their interest in the disputed properties by reason of the same. Unless, therefore, the plaintiffs are able to establish some other right, as aforesaid, the decision of the learned trial Judge, dismissing the plaintiffs suit for partition upon the funding inter alia, that they had no interest in the disputed properties must be affirmed. The point, then, arises, whether, in the circumstances of this case, the plaintiffs are entitled to claim any other interest in the disputed properties which will enable them to claim title to any share of the same in spite of the above mortgage decree or sale.
10. From what we have stated above, it is clear that the plaintiffs became co-sharers of the disputed properties, which remained with the family in spite of the mortgage, the mortgage being only a limited transfer or transfer of an interest in the same, from the moments of their respective births. The mortgage suit was, admittedly, instituted long after the births of the plaintiffs. The plaintiffs, therefore, had, at the date of the aforesaid mortgage suit, their rights of redemption, even though they could not question or challenge the mortgage and were bound by the same. Having this right of redumption, the plaintiffs were necessary parties to the above mortgage suit and the decree, obtained in the said suit and the sale, held in pursuance of the same would not bind them so as to deprive them of their said right of redumption. If, there-fore, they are willing to redeem the mortgagee's interest by paying to him all his dues uptill the date of redemption in accordance with law, they should be permitted, in the circumstances of this case, to exercise that right, and, once it is done, the mortgagee would disappear from this suit and his interest in the mortgaged properties would be extinguished, and the instant suit for partition will then have to be adjudged on that footing.
11. Question is whether the plaintiffs, not having made any such prayer in the instant suit, should now be allowed to amend the plaint by incorporating an appropriate prayer in that behalf and whether the suit should be tried afresh on that amended plaint with all necessary legal consequences. Mr. Mitter, on behalf of the plaintiffs appellants, has expressed before us his clients' intention and willingness to apply for such amendment and to exercise their right of redemption and. In the peculier circumstances of this case, we are inclined to accept that prayer on terms.
12. An objection has been raised by Mr. Chandra on behalf of the mortgagee respondent that such a prayer would now be; barred by limitation. But it is well known that, in the matter of allowing amendments, the Court's power is not circumscribed by the law of limitation, if, in its opinion, the amendment should otherwise be allowed, (vide, in this connection, 47 Ind App 255 = (AIR 1921 PC 50) and : 1SCR438 and : 1SCR595 .
13. In our view, in the circumstances of this case, the plea of limitation in the matter of allowance of the amendment in question should not be accepted We would, accordingly affirm the decision of the learned Subordinate Judge subject to this that the plaintiffs should be given opportunity of applying for amendment of the plaint as indicated hereinbefore, and, on such application, the amendment should be allowed and the suit should proceed on the amended plaint with all legal consequences, in accordance with law.
14. In that view, we would allow this appeal, set aside the decree of the learned trial Judge and sent the matter back to him for enabling the plaintiffs to apply for amendment of plaint, as indicated hereinbefore, within one one month of service of the notice of arrical of records in the court below on the plaintiffs' lawyer there, and subject to payment of a sum of Rs. 510/- to the mortgagee respondent, within that time as and by way of costs, such payment being condition precedent to the allowance of the above amendment application. The matter will, then, be disposed of in the light of the observations, made hereinbefore, and the directions, given in this judgment, after giving the parties appropriate opportunities to adduce such further evidence as they may be advised in the matter. If, however, any application for amendment is not made in terms of this judgment or if payment of costs be not made, as directed by us the present appeal will stand dismissed and the dismissal of the plaintiffs' suit, as made by the learned trial Judge, will stand affirmed.
15. There will be no order for costs, either in this Court or in the court below uptill this stage, except as stated hereinbefore. Further or other costs will be in the discretion of the learned trial Judge, when he disposes of the matter as between mortgagee defendant and the other parties or when he disposes of the suit finally in accordance with law.
A.C. Gupta, J.
16. I agree.