1. The plaintiff's case was that their father, by inheritance and by joint purchases with his own brothers; i.e., defendants 2 and 3, had a 5 annas odd share in a certain taluk, that defendants 2 and 3 also, by inheritance and by joint purchases with the plaintiffs' father, had a 4 annas odd share therein, and that the plaintiffs' father thereafter made several separate purchases with his own funds in respect of a total share of 3 annas odd share of the taluk. Their case further was that although defendants 2 and 3 had thus only a 4 annas odd share as aforesaid, they mortgaged an 8 annas share to the father of defendant 1 and that the father of defendant 1 on the basis of the said mortgage obtained an exparte decree, got it made final, put the decree to execution and purchased the said 8 annas share, and after having obtained delivery of possession got his name registered in the Collectorate in respect of it. The plaintiffs' case was that they had been thus dispossessed from a 3 annas odd share in the taluk and they asked for a declaration of their title to that share, alleging that the said share did not pass by the mortgage sale, that they were minors at the date of the execution and sale, that no proper guardian was appointed for them in those proceedings and that the entire proceedings were tainted with collusion and fraud and were accordingly not binding on them. The defence was a denial of the allegations made in the plaint, and an averment that the plaintiffs were bound by the decree on the mortgage and the sale thereunder.
2. The facts which require mention are the following: defendants 2 and 3 executed the mortgage in 1902. In 1909 the mortgagee instituted , the suit with defendants 2 and 3 as the principal defendants, and impleading the plaintiffs' father as the pro forma defendant. An exparte preliminary decree was passed in 1909, and it was eventually made final in 1911. After that, as has been found by both the Courts below the plaintiffs' father died, and after his death, execution was taken in respect of the decree. The plaintiffs were admittedly minors at the time. The sale took place in 1912, and the mortgagee auction-purchaser took delivery of possession in 1913. In 1915 the plaintiffs, represented by their maternal uncle as their guardian, applied to set' aside the exparte decree, but failed in the trial Court as well as in appeal. In 1916 the mortgagee obtained a personal decree for the balance against defendants 2 and 3 and as against the assets of the plaintiffs' father in the hands of the plaintiffs. Subsequently, the father of defendant 1, and thereafter in 1925, defendant 1 himself got his name registered in respect of the purchased 8 annas share The present suit was commenced on 4th May 1927. The Munsif held that the question of the plaintiffs' title is not barred on any principle of res judicata by reason of the decision in the mortgage suit; but that there was no collusion or fraud in connexion with the execution proceedings and the sale, and that the decree and the sale were binding upon the plaintiffs because their father was a party to the mortgage suit just as much as defendants 2 and 3 were. He held accordingly that the plaintiffs' right to the taluk had passed to defendant l's father by his purchase. In this view of the matter the Munsif dismissed the suit. It appears to have been conceded before the Subordinate Judge on behalf of the defendants that if the mortgage decree did not bind the plaintiffs, the execution proceedings culminating in the sale of the mortgaged properties and the purchase thereof by the father of defendant 1 would not bind the plaintiffs. On that concession being made the Subordinate Judge did not feel called upon to adjudicate upon the validity of those proceedings. He observed however that,
the plaintiffs had impeached the execution proceedings as not binding on them as they were not properly represented therein by their legal guardian.
but he found that 'there was a good deal of force in their contention.' As regards the merits of the decree itself, his finding was that defendants 2 and 3 had, when they had only a 4 annas odd share, misrepresented their share to have been 8 annas, and there was no evidence to show that the plaintiff's father was in any way benefited by the mortgage. He held on the evidence thus:
On the other hand, the evidence for the plaintiffs clearly proves that the father of the plaintiffs was in affluent circumstances and had no necessity for raising any money by loan through his brothers defendants 2 and 3.
3. He held that the decree in the mortgage suit did not operate as a bar to the trial of the question of the plaintiffs' title because the question of title that has been raised in the present suit could not and need not have been raised in the previous suit, having regard to its frame and constitution. The Subordinate Judge therefore made a decree in plaintiffs' favour. Defendant 1 has then preferred this appeal. The question raised on his behalf is whether the plaintiffs are precluded from claiming the share they have claimed in this suit, seeing that their father was a party to the mortgage suit in which the decree for sale was made. The Subordinate Judge has dealt with this question in these words:
In the plaint of the mortgage suit defendants 2 and 3 to this suit were impleaded as the principal defendants and the father of the plaintiffs as pro forma defendant. In the body of the plaint there is no allegation that defendants 2 and 3 had contracted the mortgage-debt in the interest of the joint family property, but in a remark just before the verification it was stated that as defendants 2 and 3 had borrowed on the mortgage of joint family property and for joint property purposes, the suit should be tried in the presence of the father of the plaintiffs as pro forma defendant 3 in that case * * * The matter is not altogether free from doubt and difficulty. As far as I have been able to hunt up, this matter seems to have been set at rest by the decision of the Calcutta High Court in the case reported in : AIR1929Cal672 * * * In my opinion the facts of the case also attract the application of the principle laid down in Madhu Sudan v. Brae (1889) 16 Cal 300 (FB).
4. The Subordinate Judge thus held in affect that the principle of constructive res judicata cannot apply to the case, that it was not necessary for the plaintiffs' father in the mortgage suit to set up his own title to the share, and that therefore the plaintiffs are competent to canvass their title to the share they have claimed in the present suit, a title which on the merits he found in their favour.
5. Now, the answer to the question must depend entirely, on the question whether upon the plaint, as framed, the plaintiffs' father was bound to raise in that suit the question of his title to any share in the mortgaged property. The suit was tried exparte in all its' stages. If the suit had been a contested one the course of litigation, the judgment and the terms of the decree would have been of considerable assistance; because in that case the answer would have depended upon what was actually decided and possibly also on what could betaken to have been understood by the parties as the issues involved. Upon the judgment that was passed exparte as aforesaid, I think it is fairly clear that the Court meant to decide that the plaintiffs' father was bound by the mortgage that had been made by his brothers, and intended to pass an effective decree for sale in respect of the eight annas share mortgaged, binding the plaintiffs' father also. But unless the decree was one which the plaint, in its natural meaning, called for, the plaintiffs' father would not, in my opinion, be legitimately bound by it. We have therefore to fall back upon the plaint in order to understand its plain import and significance.
6. I have read the plaint as carefully as I could. I attach no importance what ever to the fact that the plaintiffs' father, who was defendant 3, was only a pro forma defendant. Nor am I prepared to regard the statement, contained though it was in a solitary paragraph after the prayers that were embodied in the plaint, as a statement not contained in the plaint. In other words, in my opinion, it made no difference that the statement on which the defendants in the present suit relies was not contained in the body of the plaint, but in a separate paragraph after prayers, and under the heading 'remarks.' But what was the statement? Translated it runs thus:
As defendants 1 and 2 had borrowed the money by mortgaging (ijmali) joint property for purposes of the joint family, defendant 3 is impleaded as a party in order that the suit may be decided in his presence.
7. My attention has been drawn on behalf of the appellant to the fact that in the body of the plaint and in the prayers the general word 'defendants' has, been used without making any discrimination between the principal defendants and the proforma defendant ; and from this it has been argued on their behalf that a decree binding against all the defendants and in respect of the entire 8 annas share mortgaged was asked for. In such a case however the explanation under the heading of remarks' would have been wholly unnecessary; and, on the other hand, it would have been very necessary to make an averment that the two principal defendants had mortgaged the share of their brother as well under an implied authority from the latter, an averment which is not to be found anywhere in the plaint. It may then be asked, why if no such averment was implied, was the statement and the heading of 'remarks' made at all. The explanation, in my opinion, is that the two brothers had mortgaged an undivided share in a joint family property, and the plaintiff mortgagee may have been advised that to make such a mortgage valid it was necessary to show that money was necessary for joint family purposes. This however is a mere speculation. But I cannot omit to attach very great weight to the fact of the omission to plead in the plaint that the mortgage had been in respect of the plaintiffs' father's share as well. I am disposed to take the view that when there was no contest, a decision was obtained which purported to go beyond the scope of the suit and the claim made in the plaint.
8. I do not propose to discuss the decisions to which the Subordinate Judge has referred, nor the decisions to which the respondents have drawn my attention, because they are decisions on facts not at all identical and easily distinguishable. But I am of opinion that if in answer to such a plaint, the plaintiffs' father, as pro forma defendant, had raised a plea that the mortgagors had no right to mortgage anything more then their own share or that in the share eight annas which had been under mortgage, he had a share which the mortgagors had no authority to mortgage, such a defence would have raised a question of title paramount which fell outside the scope of the Bait as framed. It was only by pleading expressly in the plaint that the share of plaintiffs' father had, in fact, been mortgaged, under an authority express or implied, that the suit could have been made to embrace a scope sufficient to be open to such a defence. In my opinion, the question of the title of the plaintiffs' father did not arise in the mortgage suit, and any decision that may have been intended was not a decision by which the plaintiffs' father was or the plaintiffs are bound. Nor could the omission on the part of the plaintiffs' father to raise the question of his own title in that suit preclude him from raising it in any subsequent litigation, or the plaintiff from setting it up in the present suit. I think I should agree with the view of the Subordinate Judge. The appeal is accordingly dismissed with costs. Leave is granted to the appellant to prefer an appeal under the Letters Patent.