1. The first defendant in this case, one Debi Prosad, and his co-sharers 'executed an usufructuary mortgage of village Kathtal in favour of one Ramrup in 1885. He assigned it to the plaintiff Dharamjit and his brother Sarabjit. Thereafter, the two brothers leased half this property back to Debi Prosad; The rent fell into arrears and Debi Prosad then executed a simple mortgage of 8 annas share out of the entire 16 annas of Mouza Kathtal, etc., constituting my (Debi Prosad's) proprietary right which has from before been held in zurpesgi lease by the said creditor, in favour of Dharamjit. At that time Sarabjit was dead, leaving a son Masudan. Dharamjit and Masudan are joint and the former is the kurta.
2. The due date of payment was the beginning of September, ]892, and this suit was instituted by Dharamjit alone on the 15th August, 1904. It was decreed ex parte in that year and the decree was made absolute in 1908. The decree was set aside under Order IX, Rule 13, and was ultimately decreed in November, 1908. The defendants, who are Debi Prosad and several subsequent purchasers, appealed.
3. Two points are taken on their behalf. The first is that the suit must fail in the absence of Masudan, and the second is that the plaintiff; cannot sue on the mortgage of 1892 alone, while the usufructuary mortgage of 1885 is still unsatisfied.
4. It appears to me that the appellants must succeed on the first point. Masudans is certainly interested in the mortgage and the plaintiff is well aware of his interest. Therefore, under the plain terms of Section 85 of the Transfer of Property Act and Order. XXXIV, Rule 1 of the Code, the plaintiff was bound to make him a party. It may be argued that practically he is a party, being represented by the kurta of the family to which he belongs. It has been held in Hori Lal v. Munman Kunwar (1912) I.L.R. 34 All. 549 and Madan Lal v. Kishan Singh (1912) I.L.R. 34 All. 572 that Order XXXIV Rule 1, is not fatal to a suit like this. But that view has not been taken in this Court. It was put, if I may say so, as exhaustively and as effectively as it could be put, by Ghose J. in Lala Suraj Prosad v. Golab Chand (1900) I.L.R. 27 Calc. 724 But this Court did not accept it Lala Suraj Prosad v. Golab Chand (1901) I.L.R. 28 Cale. 517 and that decision must be taken as the law in this province. It has been argued that Section 85 and Order XXXIV, Rule 1, refer only to defendants. But this is an impossible contention. If the legislature had meant to say defendants, there is no conceivable reason why it should not have said so. But it enacted that all interested persons must be joined as parties. Indeed it would seem quite as important to join all the mortgagees as to join all the mortgagors in order to avoid multiplicity of suits. And in the present case where the plaintiff is a member of a joint Hindu family, who according to several decisions would be unable to sue alone for the recovery of land belonging to the family, it would seem especially necessary to make the other members of the family parties.
5. I think, therefore, that the suit offends against Section 85 of the Transfer of Property Act and Order XXXIV, Rule 1, and, as Masudan now cannot effectively be made a party, the suit must fail. I do not think it is a case of much hardship as the plaintiff put off the suit till the last moment and then apparently took no real proceedings for three years more.
6. In this view, it is unnecessary to come to any decision on the second point? but I may say that I cannot find anything in the law, as laid down in the statutes, to prevent a mortgagee, who holds an usufructuary mortgage and a subsequent simple mortgage, from suing on the latter alone, unless it be Section 99 of the Transfer of Property Act, now Order XXXIV, Rule 14 But the learned vakil for the defendants tells us that that rule has no application to the case and that he does not rely on it. It is not however, necessary to say more on this point.
D. Chatterjee, J.
7. I agree.