1. This appeal arises out of a suit by a Mitakshara son, a minor, and his step-mother, the object of the suit being to have it declared that, in execution of a mortgage decree obtained by the creditor, the defendant, against the father, the shares of the plaintiffs in the ancestral property could not be made liable for the satisfaction of such decree. The Court below has dismissed the suit, and hence this appeal by the plaintiffs.
2. It appears that Lala Chandra Koylas Saran alias Lachhanji, father of the minor plaintiff, and the husband of the other plaintiff, was the son of one Lalla Chamroo Lall. The latter died in the year 1875 or 1876. At that time Lachhanji was a minor, and his mother, Mussamut Tapeswar Koer, was appointed his guardian by an order of the District Judge of the 20th November 1876. In November 1890, Lachhanji arrived at majority, and took over charge of the estate left by his father. On the 12th of February 1891, he executed a mortgage bond in favour of Golab Chand, defendant No. 1 and Lall Chand, for the sum of Rupees five thousand, it being stated in the bond that the money was required for the purpose of instituting a suit upon a certain ekrarnamah, and for meeting his own marriage and other necessary expenses. It would appear that during his minority, Lachhanji had been married, and a son was born to him; who is the plaintiff No. 1; but he lost his wife; and it is said that the marriage expenses referred to in this bond related to a second marriage which he was then about to contract. On the 10th of August 1891, he borrowed Rupees eight hundred from Golab Chand upon a bond on account of a certain alleged necessity; and this was followed by a mortgage bond, dated the 9th October 1891, for Rupees three thousand in favour of the same individual. This amount included the sum of rupees eight hundred covered by the bond of the 10th August 1891, the necessity recited in this mortgage bond being (so far as the amount then received was concerned) the payment of certain petty debts due to certain individuals. On the 1st of May 1892, Lachhanji executed another mortgage bond for Rupees fifteen hundred to Golab Chand, the necessity mentioned in this bond being the payment of Putni rent due in respect of a certain taluk, the interest due upon the mortgage bond of the 9th of October 1891, and other necessary expenses. On the 4th of April 1893, he executed another mortgage bond for Rs. 6,900 to the same individual Golab Chand. This amount included the sum of Rs. 3,000 covered by the mortgage bond of the 9th of October 1891, and the interest due upon the mortgage bond of the 1st of May 1892, the necessity recited in this bond being (so far as the additional amount then received was concerned) the payment of two decrees due to Ram Bux Mull and Sant Prosad for Rs. 1,000 and Rs. 1,700. respectively, and certain petty debts amounting to Rs. 1,146-12-0. A suit was instituted upon this last-mentioned bond, on the 31st of August 1893, against Lachhanji, and a mortgage decree was obtained on the 20th of February 1894. In the meantime, i.e., on the 28th September 1893, the minor plaintiff, through his grandmother as guardian, instituted a suit against his father for a partition of the joint ancestral property. The creditor Golab Chand was not made a party to this suit, and a degree for partition was obtained on the 12th of March 1894. In the next year, that is to say on the 23rd July 1894, the father Lachhanji died; and when in September 1894 the decree-holder Golab Chand, defendant No. 1, applied for execution of his decree against the minor plaintiff as the legal representative and heir of his father, it was objected to on his behalf on the ground that the debts contracted by the father having been for illegal and immoral purposes, and he, the plaintiff, not having been made a party to the suit in which the decree was obtained, the family property could not be sold. This objection was overruled, the plaintiff being referred to a separate suit for the purpose of having such a question determined; and the present suit was accordingly instituted. The main grounds upon which the action is based are: first, that the plaintiffs having not been made parties to the suit instituted by the creditor Golab Chand upon the mortgage bond of the 4th of April 1893, the properties allotted to their share under the partition decree, could not be made liable; secondly, that the money covered by the said mortgage bond having been spent in immoral and illegal purposes, the shares of the plaintiffs could not be taken in execution of the decree obtained by the creditor; and thirdly, that a large portion of the money covered by the mortgage bond in question was deducted by the creditor on account of compensation, salami, &c.; In answer to this, the creditor Golab Chand pleaded that the mortgage was given, and the decree obtained, at a time when the plaintiff No. 1 was a minor, and the father was the manager and kurta of the family, and therefore they were binding on him; that the other plaintiff had no right in the property; that the debt was incurred by the father for necessary purposes of the family, and not for any immoral purpose; that no portion of the money covered by the mortgage bond was deducted by way of compensation and salami; and that the partition decree of the 12th of March 1894, relied upon by the plaintiffs, could not be binding upon him, and it was collusive.
3. The Subordinate Judge, in the course of his judgment in this case, has fully discussed the Mitakshara law on the subject, as expounded by the Privy Council, and by this Court in different cases, and has held that, though there is evidence in proof of general extravagance and immoral conduct on the part of the father Lachhanji, and though he would be inclined to infer from such evidence that the money borrowed by Lachhanji was used to satisfy his sensual habits, yet this is not sufficient, there being no proof that the money was actually applied to immoral purposes; that the whole of the debt covered by the bond of the 4th of April 1893 should be regarded as an antecedent debt minus a small amount of Rs. 180, which was twice charged as interest; and that there being a pious duty in the son to pay the debt of his father, the plaintiffs are not entitled to succeed. He has further held that the partition decree is not binding upon the creditor-defendant.
4. The first question that has been raised and discussed before us on behalf of the plaintiffs-appellants is whether, having regard to the provisions of Section 85 of the Transfer of Property Act (IV of 1882), the mortgage decree obtained by the creditor Golab Chand on the 28th of February 1894 is operative and good in law, so as to affect the interest of the plaintiffs in the property mortgaged, by reason of the omission to include in the suit the minor plaintiff (the son) as a party defendant. That section runs as follows: 'Subject to the provisions of the Code of Civil Procedure, Section 437, all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter relating to such mortgage; provided that the plaintiff has notice of such interest.'
5. In dealing with the question raised, we have to consider, in the first instance, whether the creditor Golab Chand had notice of the interest of the son. It appears upon the evidence that Lal Chand and Golab Chand, who were related to each other as uncle and nephew, had a kothi which apparently was a joint kothi, but they had also separate business of their own, at least, so it is alleged. The uncle Lal Chand, however, being the kurta of the family, had everything under his control. Golab Chand swears that the money covered by the mortgage bond of the 4th April 1893 belonged to him exclusively, and that he was not aware at the time of the institution of the suit upon his mortgage that Lachhanji had a son, nor did he make any enquiry about it. It appears, however, from the evidence of the defendant's witness Chutto Lal, and who is his general agent, that he had been asked by Lal Chand to make enquiries before money was advanced by him to Lachhanji under the mortgage bond of the 12th February 1891, about the properties belonging to that individual, which were then proposed to be mortgaged; and that he was satisfied on making such enquiries that he, Lachhanji, owned those properties. He also learned that Lachhanji had a son, and he informed Lal Chand about it. It also appears from the evidence of this witness that the negotiation about the loan advanced by the mortgage bond of the 4th of April 1893 was made with Lal Chand, and not with Golab Chand.
6. In these circumstances it appears to me that, even accepting as true (which may be doubted) the statement of Golab Chand that he was not aware, at the time of the institution of his suit, of the existence of the plaintiff as the son of Lachhanji, it cannot rightly be said that he had not constructive notice of it. I hold that he had notice of the interest of the son.
7. Then arises the question, whether there has been a violation of the provisions of Section 85 of the Transfer of Property Act, and whether the mortgage decree obtained by Golab Chand against the father only is inoperative and bad in law, so far as the plaintiffs are concerned, and whether they are entitled to succeed in this action simply upon that ground. As regards, however, the lady plaintiff (the step-mother of minor), her rights need not be discussed; for, if the son is not entitled to succeed, she must equally fail, she having no independent interest in herself. This question does not seem to have been dealt with by the Subordinate Judge in his judgment, though it was raised in the plaint and, substantially, in the issues framed by the Court below.
8. So far as Section 85 itself is concerned, the exception made therein is as regards persons whose estate may be vested in a trustee, executor, or administrator; and subject to such exception, it prescribes that all persons having an interest in the property must be joined as parties. The question, however, here is, whether the minor plaintiff was not substantially, through the representation of his father, a party in the mortgage suit instituted by the defendant though his name was not specifically mentioned as such, so that there was no violation of Section 85. With a view to determine this question, it may be useful to consider, in the first instance, what was the state of the law at the time when the Transfer of Property Act was passed, as to the true position of the father in a Mitakshara joint family, and the rights and liabilities of a son, especially of a minor son, jointly interested with his father in ancestral property, when such property is charged by the father for a loan contracted by him, or when it is sold, or is sought to be sold, in execution of a decree obtained against him alone.
9. In the case of Suraj Bunsi Koer v. Sheo Persad Singh (1897) I.L.R., 5 Cal., 148: L.R.,61. A., 88, the Judicial Committee, in discussing the rights of a son in an undivided Hindu family governed by the law of Mitakshara made the following observation: 'Hence the rights of the co-parceners in an undivided Hindu family governed by the law of Mitakshara, which consists of a father and his sons, do not differ from those of the co-parceners in a like family, which consists of undivided brethren, except so far as they are affected by the peculiar obligation of paying their father's debts, which the Hindu law imposes upon sons (a question to be hereinafter considered), and the fact that the father is in all cases naturally, and in the case of infant sons necessarily, the manager of the joint family estate.' And later on, their Lordships, in considering how far the powers and rights of ordinary co-parceners are qualified by the obligation which the Hindu law lays upon a son of paying his father's debts, quote with approbation the following observations made by Chief Justice Westropp: 'Subject to certain limited exceptions (as for instance, debts contracted for immoral or illegal purposes), the whole of the family undivided estate would be, when in the hands of the sons or grandsons, liable to the debts of the father and grandfather.' And, then, referring to the case of Junnuk Kishoree Koomwur v. Raghu Nundun Singh (1861) S.D.A., Rep., 213 (June 1861), decided by the late Sudder Dewani Adawlut in 1861, and also to the decision of the Judicial Committee in the case of Giridhari Lal v. Kantoo Lall (1874) 14 B.L.R., 187, they say: 'The decision of this tribunal in the beforementioned case of Kantoo Lall, has, however, gone beyond this decision of the Sudder Dewani Adawlut, because it treats the obligation of a son to pay his father's debts, unless contracted for an immoral purpose, as affording of itself a sufficient answer to a suit brought by a son either to impeach sales by private contract for the purpose of raising money in order to satisfy pre-existing debts, or to recover property sold in execution of decrees of Court.'
10. In the case of Bissessur Lal Sahooo v. Maharajah Luchmessur Singh (1879) L.R., 6 I.A., 233: 5 C.L.R., 477, where a question was raised whether, in execution of certain decrees for rent obtained against certain members of a joint undivided Hindu family in respect of properties which stood in their names, the said properties, inclusive of the interest of the other members of the family, could be made liable their Lordships of the Judicial Committee observed as follows: 'It appears to their Lordships that acting on the principle which follows from their finding that this family was joint, it must be assumed that Masaheb Dass is sued as a representative of the family and that it must further be assumed that Nath Dass in taking the lease of the mouza here referred to, Ramnugger, in respect of which the rent was due, must be assumed to have taken it on behalf of the family, and that the debt must be deemed to be a debt for the family. With respect to the order as to the execution, it appears to their Lordships that the fair construction of it--though it may not be drawn up with much accuracy--is that the decree is not to be executed against the self-acquired property of Masaheb, but against the family property which is there described as that left by Nath Dass for the purpose of distinguishing it from the separate property which may have belonged to Masaheb. The only difficulty with reference to the second and third decrees arises from certain informalities with which they have been drawn up. It appears to their Lordships that looking to the substance of the case, this second decree is a decree against the representative of the family in respect of a family debt, and it is one which could be properly executed against the joint property of the family, and that Maddanpore was a part of that joint property' and later on, they say: 'Their Lordships have therefore come to the conclusion that although there may have been some irregularity in drawing up these decrees, they are substantially decrees in respect of a joint debt of the family, and against the representative of the family, and may be properly executed against the joint family property. This was a case of a family consisting of undivided brethren, and not of a father and sons; and yet the principle of representation was accepted and followed in dealing with the question of the effect of a sale in execution of a decree obtained against one of the members only.
11. In the case of Nanomi Babuasin v. Modun Mohun (1885) I.L.R., 13 Cal., 21: L.R., 13 I.A., 1, where, in execution of a decree obtained against the father for mesne profits in respect of a property in which the family was interested, a certain property belonging to the family was sold, and a suit was brought by the minor sons against the purchaser for recovery of their shares in the property, the Judicial Committee made the following observation: 'It appears to their Lordships that sufficient care has not always been taken to distinguish between the question how far the entirety of the joint estate is liable to answer the father's debt, and the question how far the sons can be precluded by proceedings taken by or against the father alone from disputing that liability. Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against his creditors' remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate their Lordships think that there is now no conflict of authority.'
The circumstances of the present case do not call for any enquiry as to the exact extent to which sons are precluded by a decree and execution proceedings against their father from calling into question the validity of the sale, on the ground that the debt which formed the foundation of it was incurred for immoral purposes, or was merely illusory and fictitious. Their Lordships do not think that the authority of Deen Dyal's case (1877) I.L.R., 3 Cal., 198: L.R., 4 I.A., 247, bound the Court to hold that nothing but Giridhari's coparcenary interest passed by the sale. If his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit, or the creditor might legally procure a sale of it by suit. All the sons can claim is that, not being parties to the sale or execution proceeding, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own. Assuming they have such a right, it will avail them nothing, unless they can prove that the debt was not such as to justify the sale. If the expressions by which the estate is conveyed to the purchaser are susceptible of application either to the entirety or to the father's co-parcenary interest alone (and in Deen Dyal's case there certainly was an ambiguity of that kind), the absence of the sons from the proceedings may be one material consideration. But if the fact be that the purchaser has bargained and paid for the entirety, he may clearly defend his title to it upon any ground which would have justified a sale, if the sons had been brought in to oppose the execution proceedings.
12. No doubt, this was a case, not of a mortgage decree, but a simple money decree, in execution of which the family property was sold; but the principle of representation of the son by the father in the suit was, as I take it, recognised, and the remarks of the Judicial Committee have a more general application than to the case of a sale in execution of a money decree, as the case of Daulat Ram (1887) I.L.R., 15 Cal., 70: L.R., 14 I.A., 187, to be next quoted, would show. It will further be observed that the Judicial Committee evidently treated the decree obtained against the father as binding upon the sons, and without committing themselves to saying that the execution proceedings were not so binding, and that they were entitled, as a matter of right, to have the question of the nature of the debt tried, their Lordships said: 'Assuming they have such a right, it will avail them nothing unless, etc. '
13. In the case of Daulat Ram v. Mehr Chand (1887) I.L.R., 15 Cal., 70: L.R., 14 I.A., 187, where the plaintiff, who was the mortgagee, and who, having obtained a decree against his mortgagors, the managing members of a joint family and of the joint business, in which the family was interested, purchased in execution of the decree the mortgaged property, and then sued the other members of the joint family for a declaration that his purchase included their shares in the mortgaged property, and was not limited to the share of the mortgagor; and where the defendants raised the plea--a plea which was accepted by the Court in India as correct--that the decree and execution sale did not affect their interest, inasmuch as they were no parties to either the mortgage or the mortgage suit; their Lordships of the Judicial Committee held that the Court in India was wrong in deciding, as it did, the question upon which the defendants made their stand, 'namely, that as they had not been made parties to the action, their share in the property had not been sold;' and observed as follows: 'It appears from the cases that have been cited that notwithstanding the defendants were not made parties to the suit, still as the suit was brought on the mortgage to recover the mortgaged property, and the plaintiff in the suit obtained a decree, and executed that decree by seizing the mortgaged property, the question would be whether the mortgage included the interest of all parties or only the right, title and interest of the two parties who were made defendants. In the case of Pursid Narain Singh v. Hanooman Sahai (1880) I.L.R., 5 Cal., 845 (852), Mr. Justice Pontifex in giving his decision says: 'It has been decided that, if the managing member of a family, the other members of which are at the time minors, having authority (the touchstone of which is necessity) mortgages the. whole sixteen annas of the ancestral property, then in a suit by the mortgagee the sale under the decree would pass the whole sixteen annas of the mortgaged property, although the mortgagor alone was made defendant; and the reason for such decision probably is that the sixteen annas having been validly mortgaged to the mortgagee, and his remedy being foreclosure or sale, the decree of the Court would affect what was in the parties before it, namely, the mortgagee's right validly acquired to have the whole sixteen annas sold;' and they then quote in support of their decision their remarks in the case of Nanomi Babuasin (1886) I.L.R., 13 Cal., 21: L.R., 13 I.A., 1, to which I have already referred; namely: 'Their Lordships do not think that the authority of Deen Dyal's case bound the Court to hold that nothing but Giridhar's co-parcenary interest passed by the sale. If his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit, or the creditor might legally procure a sale of it by suit. All the sons can claim is that, not being parties to the sale or execution proceedings, they ought not to be barred from trying the fact; or the nature of the debt in a suit of their own. Assuming they have such a right, it will avail them nothing, unless they can prove that the debt was not such as to justify the sale.' They then go on to say: 'When the plaintiff applied to be let into possession under the certificate of sale, the defendants objected. He thereupon brought this raiyt, and the defendants had the opportunity of trying whether the mortgage was a valid mortgage which bound the ancestral property. The plaintiff proposed to prove all the facts that were necessary to make the mortgage valid and binding upon them. The defendants had the opportunity of trying that question, but they did not wish to try it. They made their stand upon the ground that they had not been made parties to the suit, and the two mortgagors alone had been sued. But that ground falls under them;' and so on. In this case also, the principle of representation was fully recognized, and the plea that the mortgage decree was inoperative, so far as the interest of the son was concerned, by reason of his not being made a party to the suit in which that decree was passed, was negatived.
14. In the case of Bhagbut Pershad v. Girja Koer (1888) I.L.R., 15 Cal., 717: L.R., 15 I.A., 99, where three fathers had mortgaged a certain property for debts incurred by them, and where, in execution of the decree passed against them, the property was sold, as the right, title and interest of those individuals, and a suit was brought on behalf of the minor sons and their mothers for recovery of the property, and where it was not proved that the debt was incurred for improper purposes, but that the lender had not made proper enquiries to ascertain whether there was any real necessity for the loan, the Judicial Committee in disagreeing with the High Court in the conclusion that they came to, observed as follows: 'It must be borne in mind that this was not a case of a joint family consisting of brothers, but it was one consisting of fathers and children; and it has been held that sons are liable to pay the debts of their fathers, unless incurred for immoral or illegal purposes.' And later on they say: 'Now, although at the time of the sale notice was given on behalf of the children that the property was joint ancestral property, and that the fathers had no right to mortgage it, still the question arises whether, under the execution of the decree under which the property was ordered to be attached, it was for the purchaser to show that there was necessity for the loan, or whether it was not necessary for those who claimed on behalf of the children to show that the debt was contracted for an immoral or illegal purpose. If it was necessary to show that the debt was so contracted the plaintiffs failed to prove the fact, and that is so found by the High Court. It appears to their Lordships that according to the decision in the case of Suraj Bansi Koer v. Sheo Persad Singh (1879) I.L.R., 5 Cal., 148: L.R., 6 I.A., 88, it was necessary for the plaintiffs to show that the debt was contracted for an illegal or immoral purpose.' And they then refer to the law laid down in the case of Nanomi Babuasin v. Modun Mohun (1885) I.L.R., 13 Cal., 21: L.R., 13 1. A., 1, and say as follows: 'It appears therefore, from the decisions that in a case like the present, where sons claim against a purchaser of an ancestral estate under an execution against their father upon a debt contracted by him, it is necessary for the sons to prove that the debt was contracted for an immoral purpose, and it is not necessary for the creditors to show that there was a proper enquiry, or to prove that the money was borrowed in a case of, necessity;' and they accordingly dismissed the suit of the sons.
15. In the case of Mohabir Prosad v. Maheshwar Nath Shahi (1889) I.L.R., 17 Cal., 584: L.R., 17 I.A., 11, where a Mitakshara father had mortgaged a certain property to the defendants, and the latter obtained decrees upon such mortgages against the father, and, in execution of such decrees, the property was advertised for sale, and was subsequently sold, and then the son and wife brought a suit for the purpose of contesting the right of the defendants to bring the property to sale, and in which an issue was raised whether the share of any other person than that of the father was bound by the debt, the Judicial Committee observed as follows: 'It has been considered whether the sale was necessary for the benefit of the family estate; but the question is, whether the plaintiff, who is the son of the judgment-debtor, can setup his right as a co-sharer to impeach a sale decreed against his father for the purpose of defraying the debts of his father and grandfather. He can only do so on condition that he shows the debts to have been contracted for immoral purposes, and that issue has been found against him in this suit.' And they then dealt with the question whether the sale meant to convey the entire family property, or only the limited interest of the father, and held that the whole family property passed to the defendant.
16. The cases to which I have referred are no doubt cases where, in execution, either of mortgage decrees or simple money decrees, obtained against the father or the managing member of the joint family, the family property was sold; but the question was raised how far proceedings taken against the father or the managing member alone affected the interest of the son, or the other members of the family; and the principle was never affirmed (rather was disaffirmed), as it is now contended for, that because the son, or a member of the joint family, was not made a party to the suit in which the decree was obtained, be would be entitled to recover his share in the property, irrespective of any other consideration.
17. From these cases three principles may, I think, be well gathered: first, that in the case of a joint Mitakshara family, consisting of a father and minor sons, the father is 'necessarily' the manager of the joint family, and as such, for all purposes, is the representative of the family; second, that in the case of a joint Mitakshara family, where the father, the managing member, mortgages family property for an antecedent debt, and a suit is brought and decree obtained against the father, such suit and decree should be regarded as instituted and pronounced against him in his representative capacity; and third, that if a son, after a decree being obtained against the father, upon a mortgage executed by the latter, sues to have it declared that his share is not liable to satisfy the said decree, or after a sale in execution of such a decree, sues to recover possession of his share, he cannot succeed, unless he proves that the debt was contracted for immoral or illegal purpose, or that the debt was of an illusory character.
18. Such are the principles, as I take it, that were recognized at the time of the passing of the Transfer of Property Act; and the question here arises, whether it was the intention of the Legislature so to alter the law as to declare, as has been contended for before us, that the father of a joint Mitakshura family cannot be regarded, for the purposes of a mortgage suit, as the representative of his son, even of a minor son, and that the latter is entitled to succeed in an action against the creditor, as a matter of course, simply because he was not, in terms, made a party to the suit in which the decree was obtained.
19. Section 85 of the Transfer of Property Act, no doubt, enjoins (save and except in the case of persons mentioned in Section 437 of the Code of Civil Procedure) that all persons having an interest in the mortgaged property must be joined as parties to the mortgage suit; and it is quite possible, if the fact of the existence of the plaintiff as the son of the mortgagor had been brought to the notice of the Court in which the mortgage suit was instituted, and if there arose any question or doubt whether the father was sued in his representative capacity, the Court would have insisted upon the son being added as a party, or would have dismissed the suit upon the ground of non-joinder of necessary parties. But no such question was then raised, and the Court made a decree in favour of the mortgagee, declaring that the mortgaged property was liable to be sold in satisfaction of his claim. If this decree be regarded as one passed against the father in his representative capacity, there was no violation of the provisions of Section 85 of the Transfer of Property Act. That section, as I understand it, lays down only a rule of procedure. The principle embodied in it was for a number of years recognized in our Courts, and it was well understood that a mortgage decree obtained in the absence of a party interested in the property involved in the mortgage could not affect his interest in the property: see Syud Emam Momtazuddin Mahomed v. Raj Coomar Dass (1875) 14 B.L.R., 408, decided by a Full Bench of this Court. But it should be borne in mind that a Mitakshara son, acquiring by birth a joint co-parcenary interest with his father in the ancestral property, but bound at the same time to pay his debts out of that property, can hardly be regarded as occupying exactly the same position as any other person interested in the same property: his position is rather unique in character; for in all transactions--especially if he is a minor--the father represents him, and the father may validly sell or mortgage the ancestral property for an antecedent debt of his, if such debt is not incurred for immoral or illegal purpose. If the mortgage by the father in such a case is valid without the son being made a party to the transaction (and it must be upon the ground of representation), it is rather difficult to understand why a suit upon the mortgage against the father alone should not be regarded as a good suit for the purpose of binding the property, and having a lien declared upon it.
20. It has, however, been said that a father in a Mitakshara family, when sued alone, cannot be regarded as sued in his representative character, because the defence of the father would not raise the defence which is open to the son. As to this, I desire to say that, as held in the case of Suraj Bunsi Koer v. Sheo Pershad Singh (1879) I.L.R., 5 Cal., 148: L.R., 6 I.A., 88, the father is 'naturally' and 'necessarily' the manager of the estate, and therefore when the father is sued, he is sued in his representative capacity; and that it is evidently by reason of the consideration that the son is entitled to raise some other defence to the claim of the creditor, than what is open to the father, that the Privy Council have declared that it is open to the son in a suit of his own, or in defence to a suit brought by the purchaser in execution of a decree against the father, to show that the debt incurred by the father was tainted by immorality, or was not otherwise binding upon him. The argument against representation, if correct, would apply not only to a mortgage suit, but also to an ordinary suit for debt instituted against the father alone. If, in execution of a decree for debt against the father, the family property be sold, it could scarcely be contended that the decree was inoperative against the son, simply because the, son was not represented in the suit in which it was obtained, and that therefore the sale did not pass the interest of the son [see Nanomi Babuasm v. Modun Mohun (1885) L.R., 13 I.A., 1: I.L.R., 13 Cal., 211.
21. The Legislature, in framing Section 85 of the Transfer of Property Act, could hardly have intended to ignore or supersede the law, as it was laid down by the Judicial Committee in so many cases, and to include a Mitakshara son--much less a minor son--in the description of 'all persons having an. interest in the property comprised in the mortgage,' who must be, in terms, made parties to the mortgage suit. And it seems to me that the first portion of the section, where it refers to Section 437 of the Code, does not necessarily mean to lay down that the cases mentioned in that section are exhaustive, and that in no other instance could a suit be regarded as instituted against a party in his representative capacity. This view I think is, to some extent, supported by Section 436 of the Code of Civil Procedure, which allows of a corporation being sued in the name of an officer or trustee when so authorised.
22. The principle of representation of a Mitakshara son by his father, I observe, has also been recognized in some of the High Courts in India, even after the passing of the Transfer of Property Act In the case of Jagabhai Lalubhai v. Vijbhukan Das (1886) I.L.R., 11 Bom., 37, where in execution of a decree obtained against a father an ancestral property was attached, and the sons brought a suit to contest the attachment; West, J., following the decision of the Judicial Committee in Nanomi Babuasin v. Modan Mohun (1885) I.L.R., 13 Cal., 21: L.R., 13 I.A., 1, observed: 'The father in fact is made the representative of the family, both in transactions and suits subject only to the right of the son to prevent an entire dissipation of the estate by particular instances of wrong-doing on the father's part.' And later on he said: 'In the present instance the father was really sued as the head of a firm. It seems that the debt was one for which the sons would be liable,' etc.
23. As bearing, however, upon the question, whether a suit instituted by a mortgagee against the father alone, for the enforcement of his mortgage, should not be regarded as brought against him in his representative capacity, the matter for consideration is what may be the nature of the debt for which the mortgage was given. If the debt was contracted for an immoral purpose, it could not be said that the father represented the son, either in that transaction, or in the suit brought for enforcement of such debt; and it would follow from this that the decree was not operative against the son. But if, on the other hand, the debt was not incurred for an immoral or illegal purpose, the son being under obligation to pay his father's debt, and the father being the kurta and managing member of the joint family, the suit and the decree would be regarded as having been brought and obtained against him in his representative capacity, the touch-stone in such a case being the validity of the debt contracted.
24. It has, however, been said that the object of Section 85 of the Transfer of Property Act is to discourage multiplicity of suits, and therefore when a creditor suing to enforce a mortgage security has notice of the interest of the son, he is bound to make him a party to the suit, and that in this respect a suit for a simple debt stands upon a different footing; for in such a case the creditor, if he does not make the son a party, simply incurs the risk of having the fact or the nature of the debt questioned in a separate suit. No doubt Section 85 of the Act contemplates that all questions arising upon the mortgage should be, if possible, determined in one and the same suit, but it does not, I think, necessarily follow from this that a Mitakshara son, especially a minor son, must in terms, be made a party to the suit, if substantially he was so made a party through the representation of his father. No doubt, if he be specially named as a party, and in the case of a minor son some other guardian than the father is appointed by the Court to represent the minor, the decree would be absolutely binding upon the son; and this certainly has the effect of avoiding a subsequent litigation. But it will be observed that the object which the section has in view cannot be attained when the mortgagee has no notice of the existence of the son, and in that event the question of the liability of the son under the mortgage, though it is so desirable it should be determined in one and the same suit, must necessarily have to be decided in a separate suit, just in the same manner as if the decree was obtained against the father alone for a simple debt. It has again been said that in a case where the mortgagee has notice of the interest of the son, but does not make the son a party, he wilfully disobeys the law, and it would be anomalous to put him in the same position as a person who has no such notice. The whole question, however, is whether the father is sued in his representative capacity: if he is so sued, there is no wilful violation of the directions of the law. If the creditor has notice, but does not make a minor son (as in this case), in terms, a party, it is probably because he considers that the son is represented by the father: his conduct I think is hardly consistent with any other theory.
25. But even if we were to hold that there was a violation of the rule of procedure (as I take it to be) prescribed in Section 85 of the Transfer of Property Act, by reason of the minor plaintiff having not been, in terms, made a party to the mortgage suit, is the plaintiff entitled to succeed in this case as a matter of course?
26. In every instance, which occurred before the Transfer of Property Act was passed (when the same rule of procedure as embodied in Section 85 was thoroughly recognized), where in execution of a mortgage decree against the father alone the family property was sold, and a suit was brought by the son to contest the legality of the sale, or a suit was brought by the purchaser against the son, the Judicial Committee held that the only remedy left to the son was to prove that the debt for which the mortgage was given was not binding upon him, and, unless this was proved, the sale would be binding upon him.
26. Is there anything in Section 85 of the Transfer of Property Act which compels us to take a course different from that which the Privy Council so repeatedly laid down, and to hold that because the decree is defective by reason of the son being not, by name, made a party to the mortgage suit, he is entitled to relief, on that ground alone, in this case? Can he do so without proving that the mortgage given by the father, upon which the decree was obtained, is not binding upon him? If the decree was a money decree, and property was sold in execution thereof, as it was in the case of Nanomi Babuasin v. Madun Mohan (1885) I.L.R., 13 Cal., 21: L.R., 13 I.A., 1, he could not be heard to say what he now says, but he would be told as the Privy Council said in that case: assuming that you are not bound by the sale, it can avail you nothing, unless you prove that the debt was not such as to justify the sale. Should a different rule be adopted if there be a mortgage, and in execution of the mortgage decree obtained against the father the property is sold, or is sought to be sold? Having regard to the principle which underlies the cases decided by the Judicial Committee of the Privy Council, I am not prepared to answer this question in the affirmative.
27. Our attention has been called to the case of Bhawani Pershad v. Kallu (1895) I.L.R., 17 All., 537, decided by a Full Bench of the Allahabad High Court, in which a view contrary to that which I adopt, seems to have been expressed by the majority of the Judges who composed the Full Bench. In am, however, unable to accept the said view. I am rather inclined to follow the view that was adopted by the dissentient Judge, Banerji, J; and I observe that the decision of the Allahabad High Court has been dissented from by Shephard, J., in Madras in the case of Ramasamayyan v. Virasami Ayyar (1898) I.L.R., 21 Mad., 222, and by Subramania Ayyar and Moore, JJ. in the case of Palani Goundan v. Rangayya Goundan (1898) I.L.R., 22 Mad., 207.
28. For these reasons I would overrule the point raised before us in regard to the effect of Section 85 of the Transfer of Property Act.
29. The second point raised before us is as to the nature of the debt for which the mortgage was given by the father, it being contended on behalf of the appellant that the income of the family property was sufficient for the legitimate expenses of the family, and that the mortgage was given with a view to raise money for immoral purposes. There can be no doubt upon the evidence that the deceased Lachhanji led an immoral and extravagant life; but it is by no means clear that the money covered by the mortgage of the 4th April 1893 was borrowed for any immoral purpose. As already said, there were two decrees of Sant Pershad and Ram Buksh, respectively, for the sum of Rs. 1,700. The debt due to Sant Pershad was incurred by the mother during the plaintiff's minority, and in execution of the decree obtained by Ram Buksh, the father of the plaintiff was about to be arrested; and it was to discharge the debts under these two decrees, and also to pay off, as stated in the mortgage bond, certain petty debts, the mortgage in question was given. What those petty debts were, the defendant is not in a position to prove. But the plaintiff has not produced the account books which, it is said by his witness Bikramajit Lal, were kept by him. These account books, if produced, would have shown how the money borrowed by Lachhanji was spent. It was, however, stated by Bikramajit Lal that on the evening of the day when the partition suit instituted on behalf of the son was decreed against Lachhanji, the latter in a fit of wrath destroyed all the account papers. This story is obviously untrue. It may be, as the Subordinate Judge in his judgment states, that Lachhanji kept no accounts; but having regard to the story told by his man of business, Bikramajit Lal, who now comes to support the plaintiff's case, we are bound to say that the destruction of the account books, as alleged, is palpably false. It has also been stated by some of the witnesses on behalf of the plaintiff that out of the sum of Rs. 3,000, which was borrowed under the mortgage bond of 9th October 1891, and which was included in the later bond of the 4th April 1893, Rs. 1,100 was paid to a woman, Ghansbandi, who was in the keeping of the deceased, and that this amount was paid in the kothi of the mortgagee, and that the latter knew all about it. I am also unable to accept this story as true.
30. I therefore hold, upon the evidence, that it has not been proved that the money covered by the mortgage bond of the 4th April 1893 was borrowed for any immoral purpose. The Subordinate Judge seems to be of opinion that it was the duty of the plaintiff to show that any portion of the money raised by Lachhanji was actually applied to immoral purposes. He need not have done so. It would have been sufficient if he could show that the debt was contracted for an immoral purpose.
31. It has, however, been contended on behalf of the appellant that, having regard to the fact that Lachhanji began contracting debts within a short time after he attained majority, and to the fact that several bonds were executed by him within a short time of each other, the transactions should be regarded as unconscionable, because the lender evidently took advantage of the youth of the deceased. I am not prepared to accept this view of the matter, when it appears upon the evidence that the father of the deceased left debts to the amount of Rs. 2,000, which so far from being discharged by the mother of the deceased during his minority, augmented to Rs. 5,000, and where we also find that there were decrees outstanding against the deceased, and upon one occasion, that is to say, when the mortgage bond of the 1st May 1892 was executed, a considerable sum of money, Rs. 900, was required to pay the rent due upon one of the family properties.
32. The last point raised on behalf of the appellant was in regard to the commission said to have been deducted by the mortgagee at the time when the loans were contracted. The evidence no doubt raises a suspicion that some portion of the money was so deducted, but the story told on behalf of the plaintiff that 20 per cent, was deducted in every instance is incredible. But, however that may be, I am not prepared to find on the evidence, such as it is, that any commission was, as a matter of fact, deducted from the money for which the mortgage in question was given, and if deducted at all, what was the amount thereof.
33. Something was said about the partition decree obtained by the son against the deceased Lachhanji, and that the mortgagee is not entitled to enforce his security against the portion of the family property allotted to the plaintiffs. It will, however, be observed that the partition suit was instituted after the suit by the mortgagee for enforcement of his mortgage security, and yet the mortgagee was not made a party to the partition suit. It is obvious, therefore, that the rights of the defendant under the mortgage cannot be affected by the decree made in the partition suit, supposing that it was a perfectly bond fide proceeding.
34. Upon all these grounds I think this appeal should be dismissed.
35. The suit, which gives rise to the present appeal, was instituted by Lalla Suraj Prosad (a minor suing by his next friend Tapesar Koer) and Mussamut Lakh Rani Koer against one Golab Chand, for the purpose of obtaining a declaration that a certain mortgage bond and decree obtained thereon by the defendant were not binding on the plaintiffs, so far as their interest in the mortgaged property was concerned.
36. The plaintiffs are the son and the widow of one Lachhanji, who died in July 23rd, 1894: the defendant is a money-lender in the town of Chuprah. On April 4th, 1893, Lachhanji executed a simple mortgage bond in favour of the defendant, and by it mortgaged certain ancestral property alleged to be held by him in proprietary right as security for the repayment of a sum of Rs. 6,900 and interest. The mortgagee instituted a suit on this bond against Lachhanji under Chapter IV of the Transfer of Property Act, and in October 3rd, 1893, obtained a decree directing him to pay to the plaintiff or to deposit in Court the amount claimed with interest, and ordering that in default of payment the mortgaged property should be sold at an auction sale, and the proceeds applied in satisfaction of the decree. The plaintiff No. 1 in the present action objected to the sale, but was referred to a regular suit, which was accordingly brought, and against the decision in that suit the present appeal is preferred by the plaintiff No. 1 together with his mother. The plaintiffs rested their case mainly upon three grounds:
(1) That because they were not parties to the mortgage or mortgage suit, the decree in the mortgage suit was not binding on them.
(2) That the family property has been and therefore their two-third share cannot the attached.
(3) That the debts were contracted by the mortgagor for immoral purposes, and therefore are not binding on any members of the family other than the mortgagor.
37. The learned Subordinate Judge dismissed the plaintiff's suit, and, against that decision the present appeal is brought. The facts leading up to the execution of this mortgage, and the evidence in the case have been fully dealt with by my learned brother. I do not propose therefore to deal with them to any greater extent than is necessary to elucidate the conclusion to which I have come.
38. The second and third questions present but little difficulty, and inasmuch as I agree in thinking that on neither of these two points has any ground for interfering with the judgment of the Court below been established, they can be very shortly disposed of. I agree that the partition having taken place after a mortgage purporting to bind the whole family property had been validly created by the father whatever property the son or widow could take under that partition would be subject to the mortgage lien created by the father, and would be under a liability which the mortgagee by properly constituted proceedings would be able to enforce. This therefore disposes of the ease made by the widow, or raised by the son on the partition. It becomes unnecessary too to discuss the evidence as to whether the debts which are the subject of the mortgage deed in question were contracted for immoral purposes, inasmuch as I agree with the conclusion to which both my learned brother and the learned Judge in the Court below have come on this question. The mortgage formed one of a series of mortgage transactions, and the money, as my learned brother has pointed out, appears to have been borrowed for perfectly legitimate purposes. No doubt the plaintiff has given general evidence of immoral and improper conduct on the part of Lachhanji, but I do not think that general evidence justifies us in coming to the conclusion that the particular debt in respect of which this mortgage bond was given was in fact incurred for immoral or illegal purposes. I think, therefore, that the plaintiff fails to discharge his liability on the ground that the debts were created for illegal or immoral purposes.
39. I now pass on the remaining question which is one of considerable difficulty, and has been the cause of much conflict of judicial opinion.
40. That question is whether, assuming the liability created by the mortgagor to have been created perfectly validly, and to be binding on the ancestral property to the fullest extent, the mortgagee (having notice of the son's interest) is entitled to enforce that liability by a mortgage suit without making the son a party under Section 85 of the Transfer of Property Act, and, if he is not so entitled, whether the son is entitled in the present suit to have the decree so obtained declared void as against his interest. In other words, whether the plaintiff in the present action is entitled to say that liability, though properly created, cannot at present be enforced against his share of the family property, because at present the mortgagee has not taken the proceedings proper for binding his share, but has chosen to bring his action without making him a party in disobedience to an act which says he shall make him a party.
41. Shortly summarized, the argument on behalf of the appellants is as follows:
42. Section 85 of the Transfer of Property Act says that all persons having an interest in the mortgaged property of whose interest the mortgagee has notice must be made parties to a mortgage suit. Golab Chand had notice of the interest of Lalla Surja Prosad in the property comprised in the mortgage executed by Lachhanji, and therefore Golab Chand was bound to make Lalla Surja Prosad a party in the mortgage suit. This Golab Chand did not do. Lalla Surja Prosad therefore says that Golab Chand's suit was not legally constituted as far as he was concerned, and that he is entitled to claim that his liability which Golab Chand seeks to enforce against his interest in the mortgaged property shall not be enforced unless and until a decree is obtained against him in a suit properly constituted according to law.
43. The argument for the respondent is shortly this: Before the passing of the Transfer of Property Act there was a recognized rule of procedure by which all persons interested in a mortgaged property should be made parties to a suit relating to that mortgaged property, unless their interests were sufficiently represented in the suit. Section 85 affirms but does not extend this well recognized rule. It has been held in cases arising before the Transfer of Property Act that a decree obtained against the father of an undivided Hindu family in a suit on a mortgage of the whole ancestral property was binding on the son's interest notwithstanding that they were not parties to the mortgage or to the suit brought thereon, and that the only way in which a son could question the decree was by establishing in a suit of his own, that the debt either did not in fact exist or had been contracted, for illegal or immoral purposes. Under the law therefore, as it has been laid down previous to 1882, Lalla Surja Prosad would have been unable to succeed in the present suit, and therefore, the law not having been altered by Section 85, he is equally disentitled to succeed in the present action on any other ground than that the debts were non-existent or were incurred for illegal or immoral purposes, and that ground he has failed to establish.
44. If, therefore, the facts that the son is a person having an interest in the mortgaged property, and that the mortgagee had notice of that interest at the time he brought his suit are proved the sole questions in issue will be: (I) Does Section 85 of the Transfer of Property Act compel the mortgagee to make him a party, and (II) what are the consequences of a refusal by the mortgagee to make him a party?
45. Now, Section 85 of the Transfer of Property Act is in these words that 'Subject to the provisions of the Civil Procedure Code, Section 437 all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this Chapter (viz., Chap. IV) relating to such mortgage: Provided the plaintiff has notice of such interest.'
46. Section 437 of the Civil Procedure Code says: 'In all suits concerning property vested in a trustee, executor or administrator, when the contention is between persons beneficially interested in such property, and a third person, the trustee, executor, or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit, but the Court may, if it thinks fit, order them, or any of them to be made such parties.' 'Notice' is defined by Section 3 of the Transfer of Property Act, but it is unnecessary to set out that section for the evidence of Chattu Lal who was acting as agent for Golab Chand shows that he made enquiries as to Lachhanji's position before the money was advanced, and that he ascertained that Lachhanji had a son, and that he reported that fact to Lal Chand who carried on business jointly with Golab Chand: and though Golab Chand denies that he knew Lachhanji had a, son, he admits that Lal Chand consulted him about the propriety of making the advance. Clearly therefore the mortgagee had by his authorized agent notice of the interest of the present plaintiff. Indeed it is very improbable that the fact of the plaintiffs existence, which had been reported to his partner, would not have been brought to the knowledge of the mortgagee in the course of the discussions which the evidence discloses he had with his partner as to lending the money. That being so I think it is clear that the mortgagee had notice of the existence of the plaintiff, and the presumption being that the family is joint, such notice is equivalent to notice of the interest which the plaintiff had in the mortgaged property.
47. It being established therefore that the mortgagee had notice, does a son in, a Mitakshara family, who, on his birth, obtains a co-parcenary interest in the ancestral property, come within Section 85, or is he to be excluded on the ground that the section merely lays down a former rule of procedure, under which he has never been held to be a necessary party to a mortgage suit? This must depend on what the Legislature has expressed in Section 85, for to quote the words of an eminent English Judge, in a case reported a few years ago with reference to the duty of the Court in construing an Act--' our limited function is not to say what the Legislature meant; but to ascertain what the Legislature has said that it meant.' Applying that principle which has been stated in a varying language by numbers of eminent Judges, and is as applicable to a Court here, as to a Court in England, I do not think it is open to the Court to give any meaning to Section 85 other than that which the Legislature has expressed. The words in which the section is couched are the plainest and most explicit known to the English language. It is expressed to apply to 'all persons having an interest, except those whose interests are represented by trustee, executor, or administrator, provided the plaintiff has notice of the interest.' No authority is needed for the proposition that a son in a Mitakshara family takes on birth an interest in the family property. I do not think it open to the Court therefore to hold that a Mitakshara son does not fall within the section, because to hold otherwise would be to say that the Act had changed, not the law relating to the liability of the son's interest in mortgaged ancestral property, but the constitution of the suit by which that liability is to be enforced.
48. When the section is couched in ambiguous language and the meaning of the Legislature is not clear, no doubt it is important to consider which out of two constructions the language was intended to bear, but where the words of the act admit of no ambiguity I do not think I am entitled to add to or take from them; I can only construe them according to the ordinary meaning which the words bear in legislative enactments. The word 'person' need not necessarily mean individual. It might be used to express a number of individuals, as for example a corporation entitled to sue and be sued in its corporate capacity; but I do not think it could be said that the different members of a Hindu joint family could be described in law as a 'person.'
49. It was argued that although the son is not made a party to the mortgage suit by name he is in effect a party or his interests are sufficiently represented by his father, for whose debts, if not immoral, the son's interest in the family properties is liable. But I cannot agree to that contention, and I express my conclusion with diffidence as it differs from that arrived at by my learned brother. The Legislature have provided by a reference to Section 437 of the Civil Procedure Code that certain definite persons shall be treated as representing other persons interest, but neither by particular description, nor by general words have they authorized the plaintiff in a mortgage suit to treat the father in a Hindu joint family as representing the son's interests, and therefore I do not think it open to the Court to supplement the words of the act, and to say that they are entitled to be considered as represented by their father.
50. Moreover the defence open to the father would not raise the defences open to the son, for he would be liable on his mortgage even though the money he had raised had been applied to immoral purposes--whereas, if that fact was established on behalf of the son, it would discharge his liability. Having regard, therefore, to the words of the act, and to the fact that the liability of the father and of the son depends on different considerations, I do not think it can be said that the son is in effect a party through his natural representative.
51. For these reasons, therefore, I came to the conclusion that the plaintiff in the present suit ought to have been made a party to Golab Chand's mortgage suit.
52. This has not been done and the question arises what is the effect of not making him a party, and as to this I regret that the conclusion I arrive at differs from that to which my learned brother has come. Does it place the present plaintiff in the position he would have occupied, if the mortgagee had had no notice, and therefore had not been bound to make him a party, or does it entitle him to say that the mortgagee, having refused to make him a party as provided by Section 85, is not entitled to affect his interest by a decree obtained in his absence
53. This question has never, as far as I am aware, come before the Privy Council: the numerous cases cited from that tribunal deal with the liability of sons for their father's debts, and do not touch the question whether Section 85 of the Transfer of Property Act has rendered it necessary to make the son a party. But it has arisen in three cases in this country. The first is Bhawani Pershad v. Kallu (1895) I.L.R., 17 All, 537, in which it was held in a Full Bench reference by a majority of five Judges to one that where a plaintiff sued on a mortgage against a Mitakshara father as a mortgagor without joining sons of whose interest he had notice, and obtained a decree against the whole family property the sons in a separate suit were entitled to obtain a declaration that the mortgagee was not entitled to sell up their interests. This decision was dissented from in the case of Ramasamayyan v. Virasami Ayyar (1898) I.L.R., 21 Mad., 222, by Shephard, J., although the question did not really arise. The decision in the latter case was undoubtedly right as there was no allegation or evidence that the mortgagee had any notice of the plaintiff's interest, and it is on this ground that Davies, J., the other Judge composing the Court, who carefully guards himself against dissenting from the Allahabad case, rests his judgment. The judgment of Shephard, J., in this case has been followed in the case of Palani Goundan v. Rangayya Goundan (1898) I.L.R., 22 Mad., 207, but it is followed without any discussion as to the grounds on which it is to be supported. The learned Judge, who dissented from the opinion of the majority in the case of Bhawani Pershad v. Kallu (1895) I.L.R., 17 All., 537, ruled that Section 85 of the Transfer of Property Act did not lay down any rule of substantive law. For reasons which I have given I do not think it open to me to go outside the words of the section to determine what the Legislature meant, and in my opinion to say that the Legislature did not mean to lay down a substantive rule of law is to attribute to the Legislature a meaning other than that which has been expressed in the very positive language of Section 85.
54. He is influenced too in his judgment by the anomaly which is said to be created, if it be held that a mortgagee plaintiff is not entitled to sell up the son interest in the ancestral property, without making the son a party to the suit while the holder of a simple money decree is so entitled. I do not think there is any thing anomalous in the supposition, that a plaintiff, who is seeking by foreclosure or sale to extinguish the rights of persons other than his debtor in mortgaged property should be bound (if he have notice) to give those persons an opportunity of being heard in defence of their interests, and that a plaintiff, who is seeking a simple money decree against his debtor personally, should not be bound to make persons parties whose interests may be affected, if the defendant fails to pay the amount of the decree. At any rate, if any anomaly is created, it is due to the fact that the Legislature has given plaintiffs in ordinary suits for money under Section 28 of the Civil Procedure Code a discretionary power as to who they shall make defendants, while it has imposed on them a positive duty under Section 85 in mortgage suits under Chap. IV of that Act.
55. No general rule has, I believe, been laid down from which one can determine what are the consequences of a non-compliance with any particular statute: those consequences are to be ascertained by a consideration of the words of the statute, and of the mischief at which the statute is aimed. Here the words are imperative to the last degree, and, if it rested on the words alone, I should be inclined to hold that, even supposing the suit were not liable to be dismissed in toto, as to which I express no opinion, the Court was only entitled by virtue of Section 31 of the Civil Procedure Code to deal with the right and interest of the person actually before it.
56. The object; of the section appears to be to discourage a multiplicity of suits by compelling a mortgagee to make all persons of whose interest in the mortgaged property he has notice parties to his suit instead of leaving them to enforce their rights by bringing other actions.
57. If this is the object, it seems to me that it will be defeated, if it is held that the only consequence of non-compliance with it is to expose the mortgagee to other actions. It is to be observed that, in an ordinary action for debt, the plaintiff 'may' under Section 28 of the Civil Procedure Code make the sons of a joint Hindu family defendants, if he desires to enforce their liability for a debt contracted by their father: if he does not he runs the risk of having the fact or nature of the debt contested by a separate suit. Under Section 85, on the other band, he 'must' make persons of whose interest he has notice parties to the suit. It seems to me anomalous to hold that the consequences to a plaintiff are the same, whether he neglects to avail himself of the permission accorded by Section 28 of the Civil Procedure Code, or refuses to obey the imperative direction of Section 85 of the Transfer of Property Act.
58. The two learned Judges, who dissent from the majority of the Allahabad High Court, appear to consider that a suit brought in contravention of Section 85 of the Transfer of Property Act would be liable to be dismissed for non-joinder of parties [per Banerjee, J., in Bhawani Prasad v. Kallu (1895) I.L.R., 17 All, 537 (550), and Shephard, J., in Ramasamayyan v. Virasami Ayyar (1898) I.L.R., 21 Mad., 222 (224)], and one at least considers that a mortgagee so suing runs the risk of having his decree limited to the personal interest of the mortgagor. Now I cannot see how he can be exposed to these risks, excepting on the assumption that the person having an interest' is a necessary party under Section 85(if the plaintiff have notice), and that the Court cannot rightly make a decree in the absence of a necessary party affecting his interest in the mortgaged property, and, if it be once conceded that the Court could not rightly pass a decree affecting his interests, because he was a necessary party and not present, it seems to me a very anomalous position to take up to say that he on his part, on proving that he was a necessary party, and not present, is not entitled to a declaration excluding his interests from the operation of the decree.
59. Lastly, it is said, that he runs the risk of having to defend another suit in which the nature or fact of the debt may be questioned. But this risk does not depend on the non-observance of Section 85; it must exist where there are sons of whose existence the mortgagee has had no notice, and, who, in consequence he is not bound to make parties under Section 85 and moreover it is a risk which he runs in any simple action of debt, if he elects not to make the sons parties.
60. For these reasons, in view of the apparent object of the section and on comparing the words of Section 85 of the Transfer of Property Act with those of Section 28 of the Civil Procedure Code, I am led to the conclusion that a mortgagee is not entitled to a decree affecting the interest of any person of whose interest he has notice and whom notwithstanding he refuses to make a party, and that in the present case no decree ought to have been made affecting the interest of Lala Surja Prosad; and that having been done which ought not to have been done, the plaintiff in the present suit is entitled to a declaration that the mortgage decree does not affect his interest, not on the ground that he is not liable, but on the ground that the mortgagee has not taken proper steps to enforce his liability.
61. To hold otherwise would land one in this very anomalous position. We must decide that a plaintiff who has notice of other persons, interests, and who wilfully refuses to make them parties, gets, notwithstanding his wilful disobedience to the positive direction in Section 85 a decree binding the interest of those persons to precisely the same extent as it would have been binding, if from want of notice he had not been obliged to make them parties. This involving as it does the proposition that a mortgagee is able to bind the interest of persons not parties to the suit whom the law says he must make parties to precisely the same extent as he can bind the interests of those whom the law does not compel him to make parties, seems to me to involve a far graver anomaly than that involved by holding that Section 85 of the Transfer of Property Act has imposed duties on a mortgagee plaintiff, which are not imposed on a plaintiff in a simple action of debt under Section 28 of the Civil Procedure Code.
62. It is unnecessary to discuss the judgment (1895) I.L.R., 17 All., 537, of the Chief Justice and the other Judges of the Allahabad High Court, inasmuch as I agree with the conclusion to which they have come. In my view while it inflicts no hardship on a mortgagee to hold that he must make parties to his suit those whose interests he knows of and desires to bind; it confers a great advantage on the sons in a joint Hindu family to compel a plaintiff mortgagee to make them parties. For it is in the cases in which the father has borrowed money for immoral purposes that they are entitled to save their property, and it is just in those very cases that we should expect to find (if they were too young to look after their own interests) their rights least safeguarded by their father. To hold therefore that the statute applies will enable the Court to protect the interests of persons who are in many cases unable to protect themselves, and this is consonant not only with the spirit but with the actual words of Section 42 of the Civil Procedure Code, which enjoins that every suit shall be so framed as to prevent further litigation on the subject-matter in dispute.
63. For these reasons I come to the conclusion that the mortgagee was bound to make the plaintiff a party to the mortgage suit, that not having done so he was not entitled to obtain a decree affecting the plaintiff's interest. I am therefore in favour of reversing the decision in the Court below and giving the plaintiff the relief he seeks for in this action.
Ghose and Harington, JJ.
64. We do not think we are called upon in this case to refer the question, upon which we disagree, to a third Judge; but we prefer to follow the course prescribed by the second paragraph of Section 575 of the Code of Civil Procedure. The appeal will, accordingly, be dismissed with costs.