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A.M. Hughes Vs. Delhi and London Bank - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal35
AppellantA.M. Hughes
RespondentDelhi and London Bank
Excerpt:
parties - practice--wife having an english domicile suing without her husband--representatives of mortgagors--priorities of mortgagees. - .....way in which these proceeds are distributed, but, as the accounts will have to be taken in this suit, i think they should have an opportunity of being present at the taking of such accounts, and moreover, should either of the parties seek to obtain their costs out of the fund, there is no doubt that they would not obtain such costs except by an order made in the presence of the mortgagors.3. the representatives of the mortgagors must be made parties to this suit.4. i do not think that the plaintiff's husband is a necessary party to this suit.5. the plaintiff and her husband have both got an english domicile. it is contended that she is under disability and incapable of suing alone. this is a question of the capacity of a married woman. there is no doubt that in england she could bring.....
Judgment:
ORDER

Trevelyan, J.

1. This case having coma before ma for settlement of issues, I have settled the issues, and have only now to decide two questions as to parties. The first is whether the representatives of the mortgagors are necessary parties to this said; the second is whether the plaintiff's husband is a necessary party to this suit.

2. As to the first question, I think that the representatives of the mortgagors are necessary parties to the suit. The object of this suit is to determine the rights of the mortgagees inter se; but it seems to me that such rights cannot be determined without at the same time determining the liability of the mortgagors, a liability which unless the mortgagors be made parties to this suit, might have to be determined in other suits, a result which would entail an unnecessary multiplicity of actions. The mortgaged property has been sold, and the proceeds are insufficient to pay off both mortgagees. Probably the mortgagors are not very much interested in the way in which these proceeds are distributed, but, as the accounts will have to be taken in this suit, I think they should have an opportunity of being present at the taking of such accounts, and moreover, should either of the parties seek to obtain their costs out of the fund, there is no doubt that they would not obtain such costs except by an order made in the presence of the mortgagors.

3. The representatives of the mortgagors must be made parties to this suit.

4. I do not think that the plaintiff's husband is a necessary party to this suit.

5. The plaintiff and her husband have both got an English domicile. It is contended that she is under disability and incapable of suing alone. This is a question of the capacity of a married woman. There is no doubt that in England she could bring a suit; of this description, but as the statutes which have freed married women from disability have not bean extended to this country, it is said that she cannot here sue alone.

6. The result, if this were the law, is a curious one. All married women domiciled here can sue without their husbands. English women can sue in England without joining their husbands, yet, when an English woman comes to India, it is said that she is thereby placed under disability.

7. I think that the answer to this question is clear. Section 4 of the Succession Act lays down, I think, the general law of this country with respect to the capacity of married persons other than those expressly excluded from the operation of the Act. Mrs. Hughes' capacity is governed either by the law of England, the place of her domicile, or by the law here, i.e., Section 4 of the Succession Act. Both laws permit her to sue without joining her husband, and therefore she can, I think, sue without him. I hold that Mr. Hughes is not a necessary party to this suit. The suit will come on in due course for final disposal.


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