1. This is an appeal in a suit brought by the plaintiff to obtain possession of certain property against which a decree had been recovered on the basis of a mortgage executed by Paran Patni deceased.
2. The facts found are that, on the death of the mortgagor, his mother Sita remained in possession of the premises. His widow Chinta, however, against whom alone the decree was obtained after an interval of several years, had, meanwhile, re-married and left her husband's house. The Court of first instance gave the plaintiff a decree and directed him to be put in possession of the promises (which he had purchased in execution) by ejecting the mother of the deceased mortgagor. On appeal, the Subordinate Judge has reversed that decision and dismissed the plaintiff's suit basing his judgment, for the most part, on the provisions of the Hindu Widows Remarriage Act (XV of 1856).
3. In second appeal before us, four contentions have been advanced for the plaintiff, first, that the mortgage decree was passed against the widow Chinta who was the legal representative of the deceased mortgagor Paran; secondly, that if she was not the legal representative, nevertheless, the decree binds Sita, the mother of Paran, unless and until it is set aside, in other words, that the sale in execution of the decree is a voidable sale only; thirdly, that inasmuch as the mother (Sita) did not pursue her application under Section 332, Civil Procedure Code, she is bound by the result of it because she has not brought any suit as contemplated by the last paragraph of the section; and, lastly, that in any view of the case, Sita cannot retain possession of the mortgage premises without redeeming the same.
4. We think the decision of the lower appellate Court is correct and must be affirmed.
5. The decree on the basis of the plaintiff's mortgage was undoubtedly passed against a person who, at that time, did not legally represent the estate of Paran and so the decree cannot affect the rights of Sita a person who was not brought in as a defendant in the mortgage suit. It may be as the learned Subordinate Judge observes, that Sita, the mother of the deceased, might have contested that suit and shown that no mortgage was ever executed, but, however that may be, at the time when the suit was instituted to enforce the mortgage, the widow Chinta had ceased to be the widow of the deceased Paran as she had taken to herself another husband.
6. In support of the view we adopt, we need only refer to the cases of Rasul Jehan Begum v. Ram Surun Singh 22 C. 589 and Vithu v. Govinda 22 B. 321. This is in accordance with the principle of Hindu law that a Hindu widow is part of her husband, so to speak, and continues his existence for the purpose of representing the property of which he died possessed.
7. The plaintiff-appellant before us, invites us in effect to convert a suit for ejectment into a mortgage suit and to compel the defendant Sita to contest it as such. We need hardly say that this course cannot be permitted, and the more so as it is still open to the plaintiff to bring a fresh suit, if so advised, on the basis of his mortgage.
8. I have observations dispose of the first two contentions raised, but with reference to the argument that the sale at which plaintiff purchased is voidable and still binding on the defendant Sita, we would further say that their Lordships of the Privy Council in Khiarajmal v. Diam 9 C.W.N. 201 : 32 I.A. 23 : 32 C. 296 : 2 A.L.J. 71 : 1 C.L.J. 584 : 7 Bom. L.R. 1, distinguished the case of Malkarjun v. Narhari 5 C.W.N. 10 : 27 I.A. 216 : 25 B. 337 and held that a sale of the property of a person unrepresented in the suit was without jurisdiction and null and void.
9. The third contention is concluded by the authority of the recent case of Kunj Behari Lal v. Kandh Prashad Narain Singh 6 C.L.J. 362, where Mr. Justice Mookerjee relied on the plain words of Section 335 of the old Code (1882), and pointed out that the only order upon which the character of finality is impressed is an order made upon inquiry. By parity of reasoning, the same effect can only attach to an order under Section 332 when an investigation has been made which was not done in the present case. Indeed, Section 335 is the more applicable section because the obstruction by the defendant Sita was made to the plaintiff as an auction-purchaser and not as a decree-holder executing his decree.
10. The last contention is one which has been sufficiently disposed of in the general views we have expressed. It is not here a question of augmenting the estate of the mother Sita, by disregarding the mortgage, but of relegating the plaintiff to a proper action against her as representing the entire property of the deceased Paran. Admittedly, she is in possession and the plaintiff has, all these years, ignored, her existence and obtained a decree against a person who was not representing the property.
11. In these views, we must dismiss this appeal with costs.