Allahabad High Court
Chetan Singh And Anr. vs Sartaj Singh And Ors. on 7 May, 1924
Equivalent citations: 79IND. CAS.1001
JUDGMENT
1. This is an appeal by the plaintiffs in a suit for sale on a mortgage. The mortgage was executed in the year 1908 by three brothers the first two of whom are defendants Nos. 1 and 2 and the mother and heir of the third is defendant No, 3. The property mortgaged was joint family property. On an application made by the defendants during the pendency of the suit the defendants Nos. 6 to 10 who are the sons of defendants Nos. 1 and 2 the original mortgagors were added as parties. At the time when they were so added more than twelve years had elapsed from the date when the mortgage-money became payable. On this ground both the Courts below have dismissed the entire suit with reference to Order XXXIV, Rule 1, of the Code of Civil Procedure.
2. In appeal to this Court it is contended, as it was contended in the Courts below, that the added defendants are sufficiently represented in the suit by their respective fathers who are admittedly the managing members of the joint family. This plea is supported by the Full Bench ruling in Hari Lal v. Munman Kunwar 15 Ind. Cas. 126 : 34 A. 549 : 9 A.L.J. 819. The same view was followed shortly afterwards in Madam Lai v. Kishen Singh 15 Ind. Cas. 138 : 34 A. 572 : 9 A.L.J. 844 in a case in which the mortgagor was plaintiff; and in Krishna Jiva Tewari v. Bishnath Kalwar 16 Ind. Cas. 392 : 34 A. 615 : 10 A.L.J. 217 it was further held that where all the adult members of a joint Hindu family appear on the record "as plaintiffs or defendants it is a legitimate presumption that they are acting as managers on behalf of themselves and of the minor members.
3. We find it impossible to distinguish the present case from Sari Lai v. Munman Kunwar, 15 Ind. Cas. 126 : 34 A. 549 : 9 A.L.J. 819 All the material circumstances are the same. The suit was brought against the original mortgagors. Objection was taken that the sons ought to have been joined. At the time when the objection was taken a suit against the sons would have been barred by limitation. All these circumstances are present in the case before us. The learned District Judge has attempted to distinguish the case on the ground that it was not formally stated in the plaint that the defendants were being sued as managers. A perusal of the judgments in Hari Lal v. Munman Kunwar makes it sufficiently clear that this allegation was equally absent from the plaint in that case. As here it was at the instance of the defendants that the question whether the sons were represented by their fathers was raised. Following the ruling in that case we hold that the Courts below were wrong in dismissing the suit. The Trial Court decided all the issues before it except the issue of legal necessity. That issue must now be tried.
4. We accordingly set aside the decrees of the Courts below and remand the case through the lower appellate Court to the Court of first instance for decision after coming to a finding on the remaining issue. Costs here and heretofore will abide the result.