1. The only question involved in this appeal is whether the suit was maintainable in view of the fact that the plaintiff had not brought on the record the heir of one of the mortgagors.
2. The suit was for the enforcement of a mortgage-bond executed by defendant No. 1 and one Moiboo Shah who died before the date of institution of the suit. The suit was brought against the defendant No. 1 and one Abirjan Bibi who was described as the widow and heir of the deceased mortgagor Moiboo Shah. It subsequently transpired that the name of the widow was not Abirjan Bibi but Asiran Bibi. The first Court held that there was a bona fide mistake on the part of the plaintiff in giving the name of the widow as Abirjan and decreed the plaintiff's suit. On appeal the learned Subordinate Judge held that before instituting the suit the plaintiff was aware that the name of Moiboo's widow was Asiran and not Abirjan and that she had intentionally for some purpose known to her described her as Abirjan. He found that it was not a case of bona fide mistake and the estate of one of the mortgagors Moiboo Shah was not represented in the suit. He next proceeded to consider whether in the absence of one of the mortgagors the suit was maintainable or bad for defect of parties, and held that the entire suit failed since all the mortgagors or persons interested in the equity of redemption had not been made parties.
3. Against that decision the plaintiff has preferred this appeal, and it is urged on her behalf, first, that the finding of the learned Subordinate Judge that the estate of Moiboo was not represented in the suit is erroneous and, secondly, that conceding the finding on the first point to be correct the Court below erred in law in holding that the entire suit failed for want of representation of Moiboo's estate.
4. With regard to the first point we are unable to accept the contention of the learned Vakil for the appellant. The question is purely one of fact and the learned Subordinate Judge has found on the evidence that the plaintiff was actuated by some motive in intentionally misnaming the widow and that when she applied for the substitution of the widow by her correct name the suit was barred as against her.
5. The second question that is raised is of some importance. Order XXXIV, Rule 1, Civil Procedure Code, lays down that 'All persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.' The only exceptions to the rule are to be found in the explanation added thereto which relieves a puisne mortgagee from the necessity of making the prior mortgagee a party to the suit, and provides that a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage. This explanation makes it clear that in all other cases save those excepted all the persons Interested in the equity of redemption should be joined as parties. The Code does not say what would be the effect of not joining all the parties to the suit. On this point there has been considerable divergence of opinion. Under the old Code the view generally accepted was that in view of the wording of Section 85 of the Transfer of Property Act which has now been replaced by Rule 1, Order XXXIV, Civil Procedure Code, the whole suit ought to fail if the plaintiff did not join as parties all the persons interested in the equity of redemption. The same view has also been adopted in some cases under the present Code.
6. Some change was, however, effected in the law relating to defect of parties by the enactment of Order I, Rule 9, Civil Procedure Code, and it has been argued with some degree of force that Order I, Rule 9 being of general application qualified the provisions of Rule 1, Order XXXIV, inasmuch as no provision is made in that Order regarding the effect of non-joinder in a mortgage suit. This view is strengthened by the wording of Order XXXIV, Rule 1 which begins with the words 'subject to the provisions of this Code.' It may fairly be argued that Order I, Rule 9 is one of the provisions to which Order XXXIV, Rule 1, is subject. It cannot now be disputed, though there was formerly some difference of opinion on the point that the omission to make a puisne mortgagee or subsequent transferee of the mortgaged property party to a mortgage suit is not fatal to the suit. See the case of Basiruddin Biswas, v. Debendra Nath Biswas 12 C.W.N. 911 decided under the old law. The puisne mortgagee is as much a person interested in the right of redemption as a mortgagor or the heir of a mortgagor. We sea no reason why a distinction should be drawn between the case of a puisne mortgagee and of an heir of a mortgagor. The view which we are disposed to take is that a mortgage suit in which all the persons interested in the equity of redemption have not been joined need not necessarily fail. The provisions of Order I, Rule 9 appear to be just as applicable to a mortgage suit as to any other suit. We do not wish to lay down as a general rule that in all cases a suit need not fail by reason of non-joinder of necessary parties. In using the expression 'necessary parties' we do not desire to make any distinction between necessary parties and proper parties as has been attempted in several cases. The view that finds favour with us was adopted in a very recent case of this Court, Har Chandra Roy v. Mohamed Hasim (2). In that case the suit was brought by the mortgagee against the representatives-in-interest of the original mortgagor. The defendants pleaded that all the heirs who were in the enjoyment of the property left by the mortgagor had not been made parties to the suit and that consequently the suit should be dismissed for nonjoinder of parties. The issue framed on these pleadings was 'Is the suit bad for defect of parties?' The first Court held on the evidence that a widow of the mortgagor named Alimannessa and a daughter had not been brought on the record and concluded that all the representatives of the mortgagor were not, parties, the suit could not be maintained. On appeal the same view was held and the appeal dismissed, the learned Judges (Mookerjee and Fletcher, JJ.,) holding that the plaintiffs were at least entitled to a decree for a proportionate share of the mortgage-money as against the defendants who were on the record. The same view was adopted in the case of Subduralli v. Sadashiv Supde 51 Ind. Cas. 223 : 43 B. 575 : 21 Bom. L.R. 369. There the mortgagor who was a Muhammadan died leaving as his heirs a widow, two daughters and a brother. After his death the mortgagee sued the widow and the daughters for the sale of the mortgaged property but did not join the brother as a party to the suit. It was held that the entire suit ought not to fail, because of the defect of non-joinder and that a decree could be made for the sale of the right, title and interest of the widow and daughters only. The facts of the present case are indistinguishable from those of the above two cases. The Allahabad High Court at one time consistently held that the omission of an heir of a deceased mortgagor would invalidate the whole suit. But the recent decisions of that Court seem to be in agreement with the view which has been adopted by this Court: Sheo Tahal Ojha v. Sheodan Mai 28 A. 174 : 2 A.L.J. 630: A.W.N. (1905) 244 (F.B.) and Sanwale Singh v. Ganeshi Lal 20 Ind. Cas. 41 : 35 A. 441 : 11 A.L.J. 630. The only objection which can be urged against this view is that it violates the principle that a mortgage-debt is indivisible. It has been held, however, that in special circumstances a mortgage debt can be split up: see the case of Hari Kissen Bhagat v. Velait Hossain 30 C. 755 : 7 C.W.N. 723.
7. In the view of the law which we have taken we think that this appeal ought to succeed partially.
8. In some cases it has been held that every part or item of the property mortgaged is liable for the whole mortgage-debt, and on the strength of the case of Sanwale Singh v. Ganeshi Lal 20 Ind. Cas. 41 : 35 A. 441 : 11 A.L.J. 630 it is argued that whatever money may be found due to the plaintiff from the first defendant ought to be declared as a charge on the entire property mortgaged. We are not prepared to accept the view that has been expressed in the Allahabad case and we think that we should adopt the course taken in the case of Har Chandra Roy v. Mahomed Hasim 66 Ind. Cas. 312 : 25 C.W.N. 594.
9. The result, therefore, is that the decrees of the Courts below are set aside and the case remanded to the Trial Court in order that that Court may make a mortgage decree in favour of the plaintiff against defendant No. 1 proportionate to the share of that defendant in the mortgaged properties at the date of the suit.
10. The plaintiff is entitled to her costs of this appeal. The costs in the lower Appellate Court will be borne by each party, and the costs of the Court of first instance will be at the (discretion of that Court.
11. I agree.