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5. It was contended on behalf of the defendants that though the plaintiff held a succession certificate in his favour, he was not entitled to sue upon the mortgage by himself since the other heirs of Safiabai and Shiraz were not joined as parties. Thereupon the plaintiff made an application for amendment of the plaint. In that application he not only asked for joinder of two sisters as defendants Nos. 2 and 3 but also for being permitted to raise an additional plea to the effect that a certain document which tears the signature of the defendant operates as an acknowledgment of liability and brings the claim with respect to the personal liability within time. The application was allowed by the learned Single Judge on 15th April 1959 without prejudice to the rights of the first defendant to raise the question of limitation, that the claim of the plaintiff was barred by limitation. It may be mentioned that in his application for amendment the plaintiff pleaded that the second and the third defendants were being joined merely as pro forma defendants and thereafter the defendant filed a supplemental written statement and in that written statement, amongst other things he raised a contention that the claim in so far as the second and the third defendants are concerned was barred by limitation despite the allegations made in the application for amendment and further that the document upon which reliance was placed by the plaintiff does not amount to an acknowledgment within the meaning of Section 19 of the" Limitation Act. The defendant also pointed out that even after the addition of the 2nd and the 3rd defendants as pro forma defendants to the suit, the plaintiff's suit was not properly constituted. Thereupon at the hearing the plaintiff made a further application for amendment of the plaint seeking thereby to obtain a decree in respect of the mortgage also in favour of the 2nd and the 3rd defendants. The Court allowed the amendment and thereafter tried the suit and eventually decided it on the basis of all materials placed before it.

10. Mr. Chitre, however, says that these two person should have been joined as plaintiffs and not merely as pro-forma defendants. The sama argument appears to have been advanced before the Court below and while dealing with that argument, the learned Judge has referred to decision of the Privy Council in Monghibai v. Cooverji Umersey . In that case their Lordships have observed:

"It has long been recognised that one or more of several persons jointly interested can bring an action in respect of joint property, and, if their right to sue is challenged, can amend by joining their co-contractors as plain tiffs if they will consent or as co-defendants if they will not .... Once all the parties are before the Court, the Court can make the appropriate order, and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants."

Now, here, as in the case before the Privy council, an the heirs are before the Court and, therefore, it was open to the Court to pass a decree in their favour.

11. Mr. Chitre then said that a person who should have been joined as a co-plaintiff would not be entitled to be given relief after being made a defendant to a suit unless it is shown that that person was unwilling to be joined as co-plaintiff. In other words, according to him, where a person, who ought to have been joined as a plaintiff to the suit, was not joined as a co-plaintiff because he has refused to be so joined then only he would be entitled to be granted a relief after being made defendant to the suit but not otherwise. Mr. Chitre points out that in this case there is no evidence to show that the second and the third defendants had originally refused to be joined as plaintiff to the suit, and, therefore, they would not be entitled to any relief whatsoever. The result of this, according to him, would be that these persons can be regarded as pro forma defendants only, who would not be entitled to any relief. Since the plaintiff alone would not, according to Mr. Chitre, be entitled to claim relief in respect of the mortgage, his suit must be regarded as bad. We think that a suit should not be dismissed upon the sole ground that the plaintiff has not averred or proved that some persons who ought to have been made co-plaintiffs and were subsequently made defendants to the suit refused to be joined as co-plaintiffs. In this connection we may refer to the decisions in Pyari Mohun Bose v. Kedarnath, ILR 26 Cal 409 and Biri Singh v. Nawal Singh, ILR 24 All 226. In both these cases the learned Judges of the two High Courts took the view that it would not be proper in the circumstances like those present before us to dismiss the plaintiffs suit.