JUDGMENT N. Kumarayya, C.J.
1. These two second appeals have been referred to the Full Bench for they raise questions of allow of some importance involving inter alia the interpretation of the rivos to section 6 of the Hindu Succession Act on which there is no authoritative pronouncement either of this Court or of the Supreme Court.
2. Both the appeals arise out of the suits for recovery of amounts on foot of two simple mortgage deeds, one executed by Golla Chinna Reddy and the other by Jayaram Reddy in the year 1950 in favour of Potlapati Nagi Reddy, Chinna Reddy died leaving him surviving his widow as the only heir. Potlapati Nagi Reddy, the mortgagee so did not live long. He died in the year 1960 survived by his widow, four sons and two married daughters. His eldest sons Govinda Reddy thereafter brought the two suits, one against the widow of Chinna Reddy, on a last day of limitation. He did not at the time of the institution. make any of the others heirs of the mortgagee ass party to any of the suits. What all he averred in the plaint in this regard was that Poltapati Nagireddy died leaving him surviving his son the plaintiff who is in possession and enjoyment of all his properties. moveable and immovable. On that basis, the prayed for a decree in his favour. The plaint he filed in either of the two cases does not indicate in any manner whatsoever that the deceased had left any other heirs or the mortgage amount was the joint family asset and the plaintiff was suing in a representative capacity. Obulamma the widow of Chinna Reddy. raised two grounds against the claim. The first ground is that the mortgage stood redeemed during the lifetime of Chinna Reddy by payment of the entire amount to Potlati Nagi Reddy himself. The mortgagor demanded there turn of the mortgage deed but Nagi Reddy made him believe that it was not available with his as it was lodged with the Income-tax Officer. It is the positive case of the widow that as a result of this redemption never thereafter was there any demand of the mortgage amount either from Chinna Reddy or after his death from the defendant, whether orally or in writing or by registered notice all alleged. The second ground raised is that he suit is bad for non-joiner of the other heirs who are necessary parties sand is therefore liable to be dismissed. The alternative contention was that even otherwise suing all alone the plaintiff cannot claim more than his share in the mortgage amount. After the written statement was filed. the heirs of Nagi Reddy applied to the Court to be brought on record as co-plaintiffs. The plaintiffs also made a similar request. As a result, they were added as co-plaintiffs on 23-11-1962. In the other suit filed against Jayarama Reddy, Similar place of discharge and non-joiner of parties were raised as an answer to the suit. After the written statement was filed, even though the prayer for imploding the co-heirs of the plaintiff was made. it was not granted by the Court on the ground that they could not be validly impleaded after the time had run against them.
3. On merits, both the Courts concurrently found that the plea of discharge was not proved. They nevertheless dismissed both the suits on the ground of non-joiner of necessary parties.
4. These being second appeals the finding of fact relating to the plea of discharge is not open to review. The only point the survives for consideration is whether the non-joiner of the other heirs of Nagi Reddy within the statutory period was fatal to the suits. The legal effect of non-joiner, having regard to the facts and circumstances of the case, has to be considered from two different angles; what would be the position in law if the mortgage amount was the personal asset of Nagi Reddy? How does it operate if it be held that it relates to the joint family of which Govinda Reddy is the Kartha?
5. That Nagi Reddy and his sons lived joint does not appear to be a disputed fact. But it does not follow therefore that the asset in question belonged to the joint family at the time when it was advanced by Nagi Reddy. No such presumption can be raised in law. Nor is that proved in point of fact on the material on record. Even so, perhaps, non-joiner of the other heirs would not have assumed so much importance had the old Mitaksshara Law held the filed and Nagi Reddy who died intestate had left only hiss sons as his heirs. But the position now is different Nagi Reddy, as already noticed, had left behind him his widow and two married daughters besides his sons. The married daughters, according to Mitakshara Law could not be his in the presence of the sons even in relation to self-acquired properties. The case of the widow by reason of the advent of Act XVIII of 1937, as amended by Act XI of 1938, is somewhat different in that she acquires an equal share with her sons in the self-acquired property of her husband, he having died intestate. Even in coparcenary property she would step into the shoes of her husband and would be entitled to the same share as her husband would have had without disrupting the joint family status But in either case, the interest that would devolve on her would be a limited estate. The Hindu Succession Act (AC XXX of 1956) came into force on June 17, 1956. It mad further inroads on Mitakshara Law mainly in the matter of succession by introducing basic radical changes in the law of succession to the property of a Hindu dying intestate and incidentally in certain other connected matters. In has infact set down infirm comprehensive system of inheritance applicable to all schools of though. It has provided for, in Sections 8 to 13, a set of general rules in this behalf and also rules for ascertainment of shares and portion of each sharer. Separate general rules relating tot he succession to the property of a female Hindu dying intestate have been provided in Sections 15 and 16. The changes made in these line are of far-reaching consequence. The property possessed by a female Hindu either acquired before or after the commencement of the said Act is under this law her absolute property as provided in Section 14. with full power of disposition thereof. whether by acts inter-vivios or testamentary. Indeed the Widow’s limited estate has been rules of succession bearing on the joint family and adoption etc. have been introduced by the Act. Of these, Section 6. which we propose to deal with at some length in the latter part of this judgment, is concerned with devotion, of interest in coparcenary property. According to the substantive clause in that section. if a copartner dies intestate, his interest shall ordinarily devolve upon the surving members of the coparcenary by rule of survivorship without disrupting the joint family status. So far, there is no departure for the old Mitakshara Law. But the proviso to Section 6 has made all the difference where a coparcencer dies leaving a female relative specified in class I of the Schedule or a make relation specified in that class who claims through such female relative. The interest of the deceased in the corparcenary property then shall devolve under the Act and not by the rule if survivorship. Ordinarily the share of a copartner in the coparcenary property becomes determined only on partition. But for the purpose of this section and in order to further the cause of the proviso. the explanation has introduced a legal fiction. According to it, the interest of a deceased Hindu Mitakshara copartner shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partion or not. It is the change effected by the proviso that seems to be of vital importance for purposes of these cases if the asset in question be held to be a joint family asset in the hands of the deceased. We are no less concerned with the change of law under Hindu Succession Act of 1956 in relation to the nature of father’s self-acquired property in the hands of a number of his sons on its devolution on them on his death by rule of succession. Whereas according to the Mitakshara Law they would have would have held it as joint tenants, under Section 19(b) of the Hindu Succession Act they hold it as tenants in common and not as said property will not be joint family property in their hands is a is their sons as it would have been if the Mitakshara Law prevailed.
6. Thus the proviso to Section 6 and Section 19 (b) raise problems of some consequence in the present cases. We deal first with the latter section. It is manifest from Section 19(b) that if the mortgage amounts advanced to Chinna Reddy and Jayaram Reddy were the personal assets of Nagi Reddy, he having died interstate, his legal estate devolved on his heirs as tenants in common. It is so even if the sons were the only heirs who, he left behind. IN the instant case his heirs besides his sons are the married daughters and widow as well. Of course, the position is not altered by their presence so far as the nature of the property is concerned which has come by evolution, into their possession. actual or constructive. That being the case, the question is whether the actions for recovery of the same could be validly brought by a single co-heir or co-mortgagee without joining the other heirs. We have to judge this in the light of the provisisosns in the Transfer of Property Act, Indian Contract Act and the Civil Procedure Code.
7. These actions are on the foot of simple mortgages without possession which strictly fall within the ambit of Section 58 (b) of the Transfer of Property Act of 1882. The said statue has conferred certain rights and imposed certain obligations on both the mortgagor and the mortgagee. The mortgagor has a right of redemption within the meaning of Section 60 of the Transfer of Property Act and he can enforce this right by a suit for redemption at any time after the principal money has become payable. Such a suit may be filed not only by the mortgagor but also by any other person mentioned in Section 91 of the said Act. But, order XXXIV, Rule 1 C.P.C. enjoins that all those interested in the right to redemption or in the security have to be joined as parties to the suit. The idea of partial redemption is foreign to the provisions of section 60 of the Transfer of Property Act. The last clause of that section is specific that no person interested in a share only of the mortgage property is entitled to redeem his share alone on payment of a proportionate part of the amount remaining due on the mortgage unless of course the mortgagee or the mortgagees have acquired wholly or in part in any manner. whether by purchase or inheritance or otherwise, the share of the mortgagor. This rule recognizes the indivisibility of the mortgage security. the integrity of the mortgage is broken only in the special circumstances specified in that section and not otherwise.
8. The right of a mortgagee in transactions of simple mortgages, as provided in Sec. 67 of the Transfer of Property Act, consists in the sale of the mortgaged property through Court and to appropriate the sale proceeds towards the debt. He can enforce this right only after the mortgage money has become due. Of course, he can do so even earlier if a specific contract to that effect has been entered into between the parties and further it can be enforced only by way of suit to which Order XXXIV. Rule 1 C.P.C. applies. The principle contained in Section 67 of the Transfer of Property Act can in no manner be ignored whether in regard to the frame of the suit or in giving relief therein. If the mortgagee be interested only in a part of the mortgage property, clause (d) of Section 67 of the Transfer of Property Act places an embargo on laying the action only to the corresponding part of the mortgage property. This prohibition. however, will not apply to a case where the mortgagors had severed their interest in the mortgage. The principle embodied in the last clause of Section 60 Transfer of Property Act. It rests equally on the basic principle of the indivisibility of the mortgage security which admits of the only execution embodied in Section 67 itself. Save under the circumstances mentioned therein. no-mortgagee can split up the security and file a suit without joining the others or for only a part of the claim. He cannot violate the integrity of the mortgage security which is but basic.
9. This, in short, is the position as to the respective right of the mortgagor and the mortgagee in the mortgage security which is basically indivisible save for exceptional circumstances as provided in the last clauses of Sections 60 and 67 respectively.
10. We are concerned here with the right of the mortgage. Section 67 makes it severance of interests in the mortgage security with the consent of the mortgagor no person interested in the mortgagor, no person interested in part only of the mortgage security . It is not the case of any of the parties that three is severance with the consent of the mortgagor or his heir of interest in the mortgage security amongst the various heirs of the deceased ranking part pass ass co-mortgagees. The position then is clear that the integrity of the mortgage security remains inviolate. The indivisibility of mortgage security continues to be an accomplished fact. There can then be no action for a part only of the mortgage security. If at all it must be for the whole. Further, no effective decree in that behalf giving discharge to the persons entitled to the mortgage sidle only if they are joined as parties to the action. They are thus necessary parties to the constitution of the suit itself and must be joined at any rate within the period of limitation to avoid the adverse consequences of Section 22 of the Indian Limitation Act. So then it is not sufficient if the claim is brought in relation to the entire mortgage security. It is also necessary that all the co-mortgages who are interested that all the mortgage security and without whose presence no effective discharge can be given to the defendant must be made parties within time.
11. The same result follows if the transactions are judged in the light of the provisions of the Indian Contract Act. A mortgage is essentially contract transferring an interest in immovable property by way of security for a debt due or accruing due in fruit. The mortgagor. in a simple mortgage contracts that he will repay the total amount due to the mortgagee as a single debt or suffer the sale of the mortgage security through Court in default. The subject matter of contract thus is the amount or debt and security. The transaction is one and indivisible in relation to both of them. The cause of action likewise is a necessarily one and indivisible. If the mortgagee dies leaving several heirs. his right to enforce the mortgage, as a single debt devolves jointly on them by operation of law. The claim being embraced in one transaction it cannot be split and up has therefore to be enforced jointly. At any rate as valid discharge cannot be given by one or some of them but only all of them, they have to be parties to the action brought. That indeed is implicit in the very nature of the right they get. As a single right has devolved on them jointly the principle contained in Section 45 of the Indian Contract Act is necessarily attracted. That provision is explicitly clear that joint promises cannot divide the debt and sue severely for their respective portions unless a contrary intention appears from the contract. What is true in the case of joint promises equally applies to their representatives on their death. Section 67 of the Transfer of Property Act inter alia embodies similar principle as contained in Section 45 of the Indian Contract Act. No suit, therefore can be brought to enforce a mortgage which would involve splitting up of either the amount or security unless there is a contract tot he contrary. In this premises the action that should be laid must not only convert the entire right but also all the necessary parties must be impleaded therein.
12. That is what Civil Producer Code also says in Order 34, Rule 1 presumably because the procedural provision should only advance or give effect to the right accrued under the substantive law right than defeat or adversely affect the same in any wise. The said provision is in the following terms:
“Subject to the provisions of this Code 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.
Explanation: A poison mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage.”
The provision is specific and mandatory. According to it in a suit for recovery of mortgage debt all the persons interested in the mortgage security must necessarily be made parties to the suit either as plaintiffs or defendants. Ordinarily they should be plaintiffs but if any of them does not wish to be in the array of the plaintiff, there will be due complain with the provision if he is made defendant to the suit. The opening words however make this rule subject to the other provisions of the Code. Such provision must in reason have a bearing on the subject-matter of Order 34, Rule 1 C.P.C. The only rules contained in Order 1 Rules 9 and 10 providing for the situation where there is non-joiner and mis-joinder of parties. rule 9 reads thus:
“9. No suit shall be defeated by reason of the misjoinder or non-joiner of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
This rule provides against the dismissal of the suit on the ground of non-joiner or misjoinder of parties in case where it is possible for the Court to determine the rights and interests of the parties actuarially before it notwithstanding the defect in the suit as instated. The effect of the rule is but salutary within the field of its operation. It is a rule of procedure which cannot afford to deft or defeat the rule of substantive law.. Thus the Court has undoubted power to deal with the matter in controversy in relation to the rights and interests of the parties actually before it. whenever it is possible under law,. even though some other persons who were also interested in the controversy by reason of the right in the subject-matter of controversy are not made parties to the suit. that is not to say that this power can extend to right which are not severable i.e., which under the substantive law, are so inseparably intermixed as to constitute a single indivisible right which cannot be adjudicated upon; nor any effective decree can be granted in relation thereto in the absence of all the parties or persons interested therein. Could the defect then be cured by resort to Order 1. Rule 10 C.P.C. which gives discretion to the Court to add or strike out parties in certain cases where requisite conditions of the provision are satisfied? As may be seen in one of the suits with which we are concerned necessary prates were added after the expiry of the period of limitation. In the other suit the application for bringing them on record was rejected on the ground that the time has already run against the party for filing a properly constituted suit. They were time barred mortgagees who by virtue of Section 3 of the Limitation Act could not maintain their suit. Further, the suit already brought cannot be a suit of a representative character.
13. Rules 9 and 10 of Order 1 C.P.C. are mere rules of procedure. The avowed object of the rules of procedure is to enable the Courts to do full justice between the parties according to their rights and liabilities as under law. They cannot militate against the very substantive law which they seek to give effect to. They can in no way affect an enforceable right already accrued to the parties under substantive law. The provisions contained in Section 60 and 67 of the Transfer of Property Act are basic and cannot be set at naught in exercise of discretion under Rules 9 and 10 of Order 1 C.P.C. Section 60. Transfer of Property Act, deals with the mortgagor and Section 67 with the mortgagor and Section 67 with the mortgagee. There is distinction between the two in relation to the right to sue. Whereas one out of several co-mortgagors can sue for redemption on his own behalf inview of the provisions of Section 60 it is not possible for a single co-mortgagee to due on his own Behalf for a part of whole of the mortgage amount. He has to sue for the entire debt On behalf of himself and others and make them parties. Right to sue in the case of co-mortgagees in single had indivisible and cause of action is one common to all of them. No suit can therefore be maintainable unless laid the joint promises combine to enforce their joint right against the premieres and no relief on that basis can be granted by the Court in the absence of any of them whether as a plaintiff or defendant.
14. That being the mandate of law and also the seen of contract it is “obvious than claims_as brought in the instant cases, offend against the basic rule. relating to the indivisibility of the mortgage. This defect being general of substance and_not to mere procedure it cannot be cured by resort to Order 1 Rule 10 C.P. C. Judged thus, it is learn that all the jeers of the decree a led mortgagee must have been made parties to the action within the period of limitation. As they were not impaled within time, the non-joiner )s fatal to the claim as no effective decree can be passed in the absence of the other mortgagees/ Them is short is the position in law in the light of the provisions of the Transfer of Property Act. the Contract Act and the Cole of Civil Procedure.
15. There is ample authority in support of the various proposition stated above. We think id necessary in this connection to refer first to two Full Bench cases – on of he Bombay High Court in adivappa Channappa Quitter v. Rachppa Balappa. AIR 1948 Bom 211 (FB) and the other of the Allahabad $ High Court in Rameshwar Bux Qingh v. Ganga Bux Singh, (FB).
16. The facts in the first mentioned case were these: A simple mortgage was made in the name of a Kartha of a joint Hindu family. On his death the surviving copartners became David into tire branches with a Karthi for each separate branch. One of these Kathas of the separated family brought a suit for recovery of the entire mortgage security imploding only the mortgagors or persons go claimed through them. He did not implied any of the co-mortgages or the Kartjas do the said families as co-plaintiffs with him nor did he add them as defendants till 27-10=1941 big which time the statutory period had expired by nearly two year so far as they were concerned. The action was laid on the last day of limitation. The trial Court had held that the suit was maintainable because on-compliance with the provisions of Order 34, Rule 1 Civil P.C. was not fatal to the suit inview of the provisions of Or. 1 R. 9. C.P.C. which was at place to mortgage suits. After review of the case-law on the subject the Full Bench held that the mortgage was indivisible and the mortgage security could not be enforced without joining all the mortgagees as parties to the action, that in any of the, was{ not made a party to he {it within the period of limitation Or. 1 Rule 9, C.P.C. could not be availed of and the suit was liable to be dismissed and that the mortage Gee plaintiff could not recover even his share of the mortgage money. The learned Judge. in their concurrent but separate judgment. discussed the various aspects of he case at length. The learned Chief Justice, Stone C.J. observed that a mortgage is contract and what the mortgagors usually agree thereby is to repay the whole amount as a single debt and in default to have the said wingle debt railed by the sale of the security. If the mortgagee’s right devolved on several co-owners all the co-owners get the joint right 4o demand the total sum and recover the same through Court by sale of the entire security. They have no right to demand piecemeal a proportionate sum an get that right enforced unless, of course, there be al express agreement with the mortgagors to that effect. In coming to this conclusion the learned Chief Justice applied the principle in Section 45 of the Contract Act having regard to the nature of the mortgage ill question and its legal incidence. While dealing with the question of adding a co-mortgagee as a defendant after the statutory period of limitation had expired in cases like the present the learned Chief Justice observed thus:
“It is no doubt true that the Limitation Act bars the remedy and not the right the right remains; but it cannot been enforced by judicial process. Thus, in the Courts a time-barred mortgagee has no legal status, and no right he cannot and and his presence as a defendant cannot enlarge or in any way affected proceedings which without him are defective and must fail. There is no place for him in the structure of the proceedings before the Court for his capacity to activate them is dead. But apart from this, the vital section, Section 3 upon which the whole Limitation Act depends for its efficacy in terms says that he should not be there fore the section not only requires that every suit instituted after the period of limitation shall be dismiss but also, that every application made after such period shall meet a similar fate. In my judgment the application to add as defendant the two Karthas. against whom the limitation period had run, was such an application for its only object was to enable the plaintiff more effectively to enforce payment of the mortgage money and as such it ought to have been dismissed. It was an attempt by the device of procedural rules, to perfect an indivisible right, which a statute already held in part eclipse.”
Locker. J. in his separate Judgment referred with approval to the principle enunciated in (Kandhiva Lal v. Chandar. (1885) ILR 7 All 313 (FB): (Ballkrishna Moreshwar v. Municipality of Mahdad (1886) ILR 10 Bom 32) and also in (Bal-krishna v. More (1897) ILR 21 Bom 154) which was to the effect that upon the death of the obligee of a money-bond. the right to realise the money devolved by inheritance in specific shares upon his heirs and each of such heirs could not maintain a separate suit for the recovery of his share of the money due on the bond. He expressed the view that this principle is applicable also to a suit on a mortgage which is by its very nature, indivisible, in the absence of a contract to the country. Relying on the observations in Huthasana v. Parameswaran. ((1899) ILR 22 Mad 209) and also in Gobinda Chandra v . Jamaluddin Mandal. ILR 60 Cal 777=(AIR 1933 Cal 621) as to the indivisibility of the mortgage and applying the principle of Section 45 of the Contract Act. which defines the right of joint promises to claim performance, the learned Judge observed that the character of indivisibility exists with reference not only to the mortgagee, but also to the mortgagor save by special arrangement between all the parties interested: that neither the mortgagor nor mortgagee, nor persons acquiring a partial interest through him can obtain relief under the mortgage except in consonance with that principle of indivisibility and that if all the parties entitled to share in the money due on the mortgage are not on record the suit must be dismissed in its entirety. It was further observed that if a necessary party is made a party to the suit after the period of limitation, the suit must be dismissed. The learned Judge agreed with the view expressed in ILR 60 Cal 777=(AIR 1933 Cal 621) that co-mortgages are necessary parties not merely by reason of Order 34, Rules 1. C.P.C. but also because the plaintiff has no right to sue without them. The distinction between the rights of mortgagor and the mortgagee was well brought out when the learned Judge said that one of several mortgagors can sue in his own behalf under Section 60 of the Transfer of Property Act provided the suit is for redemption of the entire mortgage and allthe co-mortgagors are joined as parties to the suit; but a single mortgagee cannot maintain his suit single mortgagee cannot maintain his suit to recover the entire mortage money as the mortgage security is indivisible.
17. We may now refer to the views of the third Judge in the matter. Koyajee, J. referring to the nature of the legal estate vested in the three branches of the mortgagee observed that the three branches held the legal estate as tenants-in-common. He further opined that the principle of Section 45 of the Contract Act which applied to devolution of joint rights applied to that case as well and that the joint promises could not divide the debt amongst themselves and sue severally for their respective portions unless the mortgagor had consented to severance and thereby conceded a right contrary to the said principle. He remarked:
“If the cause of action is therefore one and indivisible. the suit as framed was defective in it very inception and if it was defective in its very inception. the next question arises whether the amendment under Order 1 Rule 10. C.P.C. could cure the defect.”
On the question of Order 1. Rule 10. C.P.C. the learned Judge observed thus:
“The question however is whether any Court would allow an amendment which would defeat a right already arising and accruing due to party. Normally no amendment would be allowed which would deprive a party of the substantive right that has accrued to that party and in the circumstances where the suit itself is bad inform and bad at its inception, it cannot in my opinion be cured by amendment bringing other parties on record after the period of limitation has expired when the amendment was granted. Therefore the suit at the date of the amendment was clearly bad and the remedy was already bare by the law of limitation.”
We. for the reasons given in the earlier part of the Judgment find ourselves in respectful agreement without he learned Judges who decided the above Full Bench case.
18. These views were shared by the Full Bench of the Allahabad High Court as well in (FB) (supra). The facts of the said case are briefly these. One Lao Singh had executed a possessor mortgage in favour of Kally Singh Kamal Singh and Shoe Prasad Singh. The suit was filed on the last day of limitation by the sons of Kallu Singh against the sons of the mortgagor for the recovery of the sum of due on the mortgage bond by sale of the entire mortgage property. The representatives of the other two mortgagees were not impleaded. It was, however stated that the plaintiffs themselves were the representatives of the original mortgagees. The defense taken was that the non-joiner of to Kamal Singh and Shoe Prasad Singh was was fatal to the maintainability of the suit. The trial Court held that the suit was liable to be dismissed because of the rule of substantive law under Section 45, Contract Act that in the case of joint promises the right to claim performance rests with the representative jointly. In their appeal against the order of dismissal the plaintiffs confined their claim to 1/3rd share. The appellate Court accepted their contention and allowed their claim to that extent . The question for consideration before the High Court was whether the principle of Section 45. Contract Act. applied to the case and whether the suit only for a part of the mortgage amount was maintainable in law. It was held:
“A suit by one of the mortgagees is not maintainable either for the whole or for a part of the share in the mortgaged property. The principle of the indivisibility of the mortgage and the principle that all the joint promises must combine to enforce the claim against the primroses applies. It is not possible to split up the mortgage and permit one of the mortgagees to enforce his claim either for the whole or for a part nor is it possible for him as one of the joint promises to enforce the claim without promises to enforce the claim without imploding his co-promises either as plaintiffs or in the case of their refusal, ass defendants within the period of limitation”
The decision follows the same lines as adopted by the Full Bench of the Bombay High Court and supports fully the view that we have taken of the matter.
19. The principle laid down in the Full Bench case of the Bombay High Court was followed by the Madras High Court in Mohammad Ismail Maracair v. Dorasami Mudaliara. AIR 1958 Mad 621. There the mortgage was infavour of one Rkia Big who died in 1937 leaving as her heirs four sons and one daughter. One of the sons Mohammed Sultan was adjudged in violent and his estate became vested in the Official Receiver South Argot. The plaintiffs who represented the interests of all the heirs of Rakia Big except Mohammad Sultan filed the suit to recover the mortgage debt. Their claim was confined to their 7/9th share in the mortgage. To this suit neither Mohammad Sultan nor the Official Receiver was made a party. When objection was taken to the frame of the suit on the basis that the interest of Mohammed Sultan under the mortgage was not represented. the plaintiffs applied for amendment which was ordered on 14-12-1948 by which time the suit had become barred in regard to the claim of Mohammed Sultan. the questions which arose for consideration were whether the plaintiffs were entitled to sue for their share of the amount of the mortgages and whether the suit was barred by limitation as a necessary party was not impleaded within time. It was held that the mortgage was one and indivisible both in regard the amount as well as security, that the several heirs of the mortgagee claiming the mortgage right got that right only jointly on the death of the mortgagee by devolution under law. that the right they got is an indivisible right which Rokia Big had as the sole mortgagee that the said right should be represented by all the co-sharers jointly and that in that view of the matter not only the suit should be for the entire debt but also all the heirs of the mortgagee should be made parties to the suit. So then, the omission to impaled any of them within time would result in the dismissal of the suit as the plaintiffs did not completely represent the mortgagee’s interest.
20. We now advert to the cases cited by the counsel for the appellant in support of his contention that the whole suit cannot fail by non-joiner of a few of the mortgagees. In Shahasaheb Mard Shabadralli v. Sadashiv Supdu. ILR 43 Bom 575=(AIR 1919 Bom 135) the plaintiff mortgagee sued to recover the mortgage debt by sale of the mortgage property. The original mortgagor died before the suit. Only his widow and daughter were made party defendants. It was intended that the deceased had left behind. his brother and sister’s children and the suit was bad for non-joiner of all the heirs. The learned Judges accepted the principle of indivisibility of the mortgage security. It was also accepted that the mortgagee must sue to easily the whole of the debt out of the property mortgaged and that that was the substantive law enacted in Section 67 of the Transfer of Property Act. But it was observed that non-joiner of some of the heirs of the mortgagor did not entail the dismissal of the entire suit as the mortgagee was entitled to enforce his charge to the extent he could against the parties to the suit in relation to whom the suit was properly constituted. In fact it was stated that the mortgagee’s claim in the form it was put forward was primarily a claim against the property. that it was made in time and that the persons cited as defendants. were correctly made defendants but that they did not comprise all who should be defendants. The relief therefore could be granted to the extent permitted by law having regard to the parties actually before the Court. This case was concerned with the heirs of the mortgagor and not of the mortgagee. We have already explained the difference between the case of a mortgagor and that of a mortgagee. As all the heirs of a mortgagee have joint and indivisible right in the mortgage security as tenants-in-common save where there is severance of their interests with the consent of the mortgagors one or a few of the, independently of others cannot give a valid discharge other mortgagors. Hence all must join in the action for enforcement of the mortage security according to the well-accepted principle of mortgage security is indivisible. The farm of the suit then would be basically defective if only a few of the mortgagees join in the action in the enforcement of the mortgage security for that right vested in all the mortgagees jointly and inseparably. The plaintiffs on record therefore cannot completely represent the the mortgage’s interest. Unless this defect is cured by imploding the other mortgagees, whether as plaintiffs or as party defendants to the suit within the period of limitation. the suit must fall. The case of the mortgagors stands on a different footing. Under the substantive law any one of the mortgagors can bring an action for redemption on behalf of himself and others for the entire property. (See Section 60. Transfer or Property Act). Of course even in this action all the mortgagors and the mortgagees should be made parties. But non-inclusion of some of the mortgagors may not prove fatal to the suit as the rights of the parties who are actually before the Court can be adjudicated upon without any offence to the substantive law leaving the rights of others who are not made parties to the action unaffected.
21. Judged thus, the rule in ILR 43 Bom 575=(AIR 1919 Bon 135) (supra) may not advance the case of the appellants. The other case relied on N.K. Muhammed Sulaiman Sahib v. N.C. Muhammaed Ismail Sahib, (1959) 1 Andh WR 220 also is a case concerned with the mortgagors and not the mortgagee. The decision in this case has been affirmed by the Supreme Court. See N.K. Mohd. Sulaiman Sahib v. N.C.Mohd. Ismail Saheb. AIR 1966 SC 972. We therefore pause here to note the observations of the Supreme Court in the case. The facts of the case will show that the property was mortgaged by three persons. One of the them died. The mortgagee, after bona fide inquiries found that two other mortgagors and three widows and a daughter of the deceased were in possession of the mortgaged property. He, therefore brought the suit against them and got a decree. In execution, he himself purchased the property with the leave of the Court. The sons of the deceased mortgagor, who were not parties to the decree, brought a suit for declaration that the mortgage decree was not binding on them. It was held that in the absence of fraud or collusion. the decree was binding on them as the creditor had. after making diligent and bona fide inquires, impleaded the parties in possession of the property in the genuine belief that there were no other persons interested in the estate. The principle or representation of the estate by the heirs in possession, who were joined ass parties. applied to the case. The cases on hand do not raise such a question. Further the distinction between the case of a mortgagor and that of a mortgagee as acknowledged by the substantive law cannot be overlooked. The case relied on therefore renders no assistance to the appellants.
22. The dictum in Subbaayudu v. Chinna Venkatasubbaiah, , also does not advance the case of the appellants. It was ruled in that case that if in a suit on a mortgage for sale, a benamindar for the real owners having interest in the mortgage property is made a party and even after the benamidar had disclosed the benumb nature of his interest in the suit property. the plaintiff mortgagee does not bring the real owners on record he does so at his own risk and the decision and the decree passed therein cannot in any manner affect the rights of the real owners. The learned Judges referred also in this case to the object of Order 34. Rule 1. C.P.C. There is nothing in the dictum which is in conflict with what we have said above.
23. Mr. Ayyapa Reddy. counsel for the appellants then referred us to several cases wherein it was held that a Kartha of a joint Hindu family can calmly represent all the members of the family and the suits filed by or against him will not fail merely because the other members of the family were not impleaded in the suits and even if the members were to be parties to the suits. the suits will not be dismissed merely because the said parties were brought on record after the time had run as they were not necessary parties but in the circumstances only proper parties who may be brought on record to avoid any scope for multiplicity of suits or to ensure that all defenses are raised and adjudicated upon completely. The principles enunciated. having regard to the provisions of the Mitakshara Law are unexceptionable. But this aspect of the matter can come up for pour consideration only if we hold that the right to the mortgage security has accrued to the plaintiffs alone as joint tenants and not as tenant-common. We have already noticed that the mortgage amount was not proved to be joint family asset in the hands of Poltapati Nagi Reddy. It follows that the right thereto did not devolve on his sons by survivorship, but only by succession. Of course, even so if the old Mitakshara Law had still held to filed, the asset in their hands vis-a-vis their sons would have been joint family asset. We have death with this aspect in the earlier part of this judgment. We have held that as a result of the advent of the Hindu Succession Act, the succession in relation to the asset will be governed by Section 19 of that Act and the asset will be held by them as tenants in common. But even assuming that the asset was coparcenary property (in as much as the first appellate Court in its judgment has posed the question on that assumption). in the circumstances of these cases, the plaintiffs will hold the said asset as joint tenants or coparceners.
24. A there seems to be some misunderstanding with regard to the meaning of certain legal concepts. we may, for proper appreciation of the points involved, deal at this very stage, as briefly as possible with the concepts of Joint Hindu family. Hindu coparcenary and Joint Hindu family property before we deal with the powers of the manager of a joint family. A Joint Hindu family consists of all persons linearly descended from a common ancestor including their wives and unmarried daughter. But the Hindu coparcenary is a much narrow body. Only such persons as acquire birth and interest in the joint or coparcenary property are included therein. No female enters in that category. Further a Hindu coparcenary is a creature of law and save by way of adoption no straighter can be introduced therein, Coparcenary property is no other than joint family property itself. It may be ancestral property or separate property of coparceners thrown into the common stock or the property jointly acquired with the aid of ancestral property. It is ordinarily managed by the father or by any senior member for the time being of the family. The manager is called Kartha. The manager of Kartha has vest powers in connection with the management. The powers of a manager of a joint Hindu family are too well known to require elucidation. He represents the family in all business truncations. He can inter also enter into contracts, give valid discharge for the debts due to the family. he can sue or be sued in his own name in the capacity of manager and all the members of the family being represented by him must be deemed to have sued or been sued through him. That being the substantive law, learned counsel is right in his assertion that even in mortgage suits, the Kartha of the family should be deemed to have represented its members while suing or being sue for the debts due to or from the family. This proposition is so well settled that it does not requires any elaborate discussion with reference to the authorities on the point. So, we do not wish to refer to the various cases cited by the counsel we refer to the following observations of shilappa. .
“In a suit by the manager of a joint Hindu family for enforcement of mortgagee an adult member who is interested in the mortgage security is not a necessary party though he can be joined as a proper party and failure to join a person who is a proper but not necessary party does not affect the maintainability of the suit nor does it invite the maintainability of the suit nor does in invite the application of Section 22, Limitation Act.”
25. In the premises it is unnecessary for us to go into further details in this regard. One thing however is clear that in order that the above principle be attracted it is essential that the suit must have been filed by the plaintiff as the manager of the joint Hindu family in relation to a debt which is due to the joint Hindu family as such. The counsel for the appellants was at great plains to suits for recovery of debts due to the joint Hindu family brought by the Kartha on behalf of entire body of members of that family. But the respondents dispute this position and contend that the actual position in law in altogether different. What is the exact legal position has to be judged with reference to Section 6 of the Hindu Succession Act for that is the relevant section relating to devolution of interest in coparcenary property. The provisions of this Act under Section 4 have an over doing effect and have to be followed in preference to any text, law in force immediately before its advent or custom or usage inconsistent with it.
26. Section 6 reads thus:
“6 When a male Hindu dies after the commencement of this Act, having at the time for his death an interest in a Mitakshare coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that if the deceased had left him surving a female relative specified in class I of the Schedule or a male relation, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshare coparcenary property shall devolve by test amendatory or intestate succession as the case may be under this Act and not by survivorship.
Explanation: 1: For the purpose of this section the interest of Hindu Mitakshara coparacener shall be deemed to be the share in the property that would have been allotted to him if a portion of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partion or not.
Explanation: 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparacenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”
The sections divided into two distinct parts according to its contents and effect. One of these parts is expressly in the form of a proviso. Two explanations are added to the section, by introducing a legal fiction and the other excluding an already separated copartner or his her is from claiming any share in the interest of the deceased coparcener to which he would otherwise have been entitled inter the terms of the proviso.
27. The section is concerned with Mitakshara coparcenary property. The coparacenary property, as already noticed. is no other than the joint family property in which according to Mitakshara law a coparcener gets eight by birth. It is distinct from separate property which devolves by rule of succession. Mainly and essentially it is apartibandhadya or unobstructed heritage which is not recognised by the Daya Bagha law. The later knows of only obstructed heritage in which the right accures not by birth but on the death of the last owner without leaving make issue. Every coparacener has joint interest and joint possession., The ownership of coparcenary property vests in the entire body of coparceners. The peculiar feature of the coparcenary is that no individual member so long as the joint family remains undivided can predicate that he has a precise or definite share in the property for his undivided interest in the joint property is liable to fluctuate with the births and deaths in the family. His interest in enlarged with the death of a male member and diminishes with the birth of such member. The undivided interest of the deceased coparcener devolves on the surviving coparceners on his death by ruloe of survivorship which is distinct from rule of succession. It is only on partition that a copartner becomes entitled to a definite share. Thus, the characterstic features of parcenary property are that it vests in each copartner on this birth and devolves on the surviving coparcener by survivorship on the death of coparcerner and the definite shares of each of the coparcenrs therein become specified only on partition. It is no according to Mitkahsara Law.
28. What then is the impact of Section 6 of the Hindu Succession Act on this legal position?
29. Section 6 of the Hindu Succession Act, as already stated, is divided into two parts and each part has inserting appointed province. The first part reclines the operation of Mitakshara Law in relation to devolution of interest of a deceased coparcener on all the surviving coparceners by rule of survivorship even though his death might have taken place after the commencement of the Hindu Succession Act. In fact it, in express terms. prohibits the operation of Act 30 of 1956 to such cases. But this prohibition as is obvious from the language of the proviso which is of vital importance is not unqualified. In fact that section read as a whole would show that the rule in the first part is absolute only in cases not falling within the ambit of the proviso. So then, if a case is attracted by the proviso, the rule in part one will not be applicable at all. The proviso infact is categorical that in cases covered by that part the interest of the deceased in a Mitakshara coparceneray property shall not devolve by survivorship but only in accordance with the relevant provisions of the Hindu Succession Act in relation to testamentary or intestate succession . as to case may warrant.Thus while determining whether the rule of survivorship will apply to a given case. it must be seen whether the facts of that facts of that case fall squarely within the ambit of the proviso in that section. If they come within it, it is that part and not the first part that will be applicable to the devolution of interest of the coparcener in the Mitakshara copacenary property. The first part is thus applicable only to cases outside the pale of the second part which satisfy the conditions of the first part. A reading of the section further makes it abundantly clear that both the parts put together provide for the entire gamut of law contemplated by the Act on the question of devolution of interest of a deceased coarser in the Mikakshara coparcenary property on his death. If the deceased to left only copacrcners the rule of survivorship will apply. But if the has left any female relatives specified in class I of the schedule viz., daughter, widow, mother, daughter of a pre-deceased son. widow of a pre-deceased son. daughter of a pre-deceased son of a pre-deceased son or widow of a pre-deceased son of pre-deceased son, or even a male relative claiming thorough females specified in that schedule such as son of a pre-deceased daughter. the devolution will be only under Act 30 of 1956 and not in accordance with the law of survivorship. All the heirs of deceased, whether coparcerns or otherwise, will then get their due share only under the Act. If the deceased coparcener had died insets to his interest would devolve by intestate succession upon the persons who are amongst the 12 preferential heirs specified in class I of the schedule. They will in heir that interest simultaneously as provided by Section 9 of the Act and more than one heir succeeding together shall take the interest ass tenants-in-common and not as joint tenants. Explanation 2. however denies the benefit of the proviso to a person who had separated himself from the coparcenary effort the death of the deceased and also to this heirs. His right will be ignored as though he was totally disinherited. Explanation 1 introduces out of necessity a legal fiction for ascertainemnt of interest of the deceased copartner. His interest according to it will be deemed to be the share that would have been allotted to him if there was a partion immediately before he died irrespective of the fact where he could claim such partion or not on that day. The need for the legal fiction arose out impelling necessity for according to Mitakshara Law so long as there is no partion no coparancer can predicate that he has got a definite share in the coparcenary property. The legal fiction was designed for a limited purpose viz., for computation of the interest of the deceased coparcerner for purposes of devolution of the same on his her is so that there may be no difficult in giving effect to the proviso. The explanation thus is connoted mainly and essentially with the proviso. The term “interest” no doubts is used even n the first part to the section. But the explanation is of no practical importance in realation there-to for there can be no occasion for separation or ascertainment of this interest if the case fell exclusively within the first part of the section. In fact in that event both the proviso and the explanation would be governed by the rule of survivorship and not by the provisions of the Hindu Succession Act.
30. One would do well to bear in mind that Section 6 of the Hindu Succession Act is concerned coparcenrs interest alone. It has nothing to do with the disruption of the joint family status. The coparacenrary will continue notwithstanding the death of a coparcener until partion is effected. Till then the Katha of the Joint family will be in charge of the management of the coparcenary property and will be entitled to exercise all powers which he enjoys by virtue of his position. The effect of Section of the coparacenay if at all is that in case the proviso applied to the devolution of the interest of the deceased that interest or specified share will be taken in pursicenary property in so far as the heirs of available for allotment to them. Otherwie the coparacenary will continue as part of the section applied. the copartcenary property will remain intact and the interest of the deceased will continue to remain as ever in the joint Hindu family is so by reason of application of the rule survivorship.
31. Thus the positionmius that he coparcenary will continue as ever with the Kartha managing the entire coparcenary property including the interest of the deceased coparcener if all the heirs of the deceased are the coparcenrs themselves. The Kartha, as manager. can then effectively bring a suit for enforcement of the mortgage security representing all the heirs of the mortgagee.The other coparceners who have interest in the mortgage security are not necessary parties to such action but they are only proper parties to the same and their non-in-collusion or inclusion out of time will not be fatal to the suit. On other hand if the proviso of Section of the Act applied on account of the existence of the heirs referred to there in there will be of course no disruption of joint family status but the coparcenary property will not include the interest of the deceased coparcener by reason of succession under the act and it will not then be available to the coparcenrs and heirs as coparcenary property and the Kartha in relation thereto therefore cannot exercise his powers as a Kartha. The interest having devolved on various heirs in specified shares and such heirs being tenants in common in relation to that property, the Kartha of the joint family property. the Kartha of the joint family property to which the coparcenrss belong cannot to which the coparcerns belong cannot represent the female heirs who are not coparcners. In fact all being tenants incommon in relation to the interest of the deceased copartner. each one of them, al already discussed ass either of the mortgagee is a necessary party to the suit for enforcing the mortgage security. That is the position warranted by Section 6 of the Hindu Succession Act, read with Section 67 of the Transfer of Property Act. Section 45 of the Contract Act and Order 34, Rule 1 .C.P.C. The clear language of that section leads to the conclusion.
32. We are supported in our conclusion by the Full Bench decision of the Kerala High Court in Venkiteswara Pai Rama Pai v. Luis, (FB), There the 2nd defendant to a suit for specific performance of contract for sale of landed property belonging to the Hindu coparcenarny of defendants 1 to 3 had died intestate after the advent of the Hindu Succession Act leaving behind him a widow two daughters and two sons. The writ was contested by defendant No. 1 and the plaintiff did not choose to bring on record the said heirs in time. The question was raised that the suit as against defendant No.2 had abated. It was argued that the suit being against the coparpcenanry defendant No.1 sufficiently and effectively represented the coparcenanry and defendants 2 and 3 were but pro forma defendants. They were not necessary parties to the sit. Non-inclusion of the 2nd defendant’s heirs therefore did not result in battlement. On a consideration of Section 6 of the Hindu Succession Act, the Full Bench held that the deceased having left behind him female relatives such as his widow and two daughters. the provisioned explanation of S.6 were attracted with the result that his share must be deemed to have been portioned out immediately before his death and to have devolved on his heirs. As that share no longer formed part of the coparcenary property, it was not competent for the 1st defendant, the rather of the joint family. to represent the 2nd defendant in the suit and therefore, the suit and abated in relation to the 2nd defendant and consequently in respect of his share in the property.
33. This view was followed by the Calcutta High Court in Narayan Prasad Ruia v. Mutuni Mohain. . The question there was whether in a suit for eviction of a thick tenant brought by the Narayan Prasad Ruia. The Kartha of the joint family consisting of himself and has three miner sons, one of minor sons having died during the tendency of the suit, on February 2. 1965 and his mother the only heir not having been substituted. The suit had abated as a whole. It was contended on behalf of the landlord that the Kartha. who brought the suit, could still continue it in that capacity. But the learned Judge was of the view that the effect of the conjoint operation of the proviso and explanation 1 to Section was a notional partion coupled with devolution of such notional partitioned property upon the deceased’s mother and therefore there could be no kartha of a divided property or of property notional portioned. The learned Judge observed:
“Narayan Prasad Ruia as Kartha cannot represent his deceased son’s mother and necessarily his wife upon whom devolves the share of the property after partion. The very nexus of the joint family property is gone.”
The Bombay High Court had occasion to deal with Section somewhat elaborately in Govindram Mihamal v. Chetumal Villar Das . A suit for recovery of a debt due under a sarkat note executed in favour of Mithamal. the father of the plaintiff, as Kartha, was filed by the plaintiff, he father having dies in or about February 1958. leaving among other heirs, two married daughter, who were not brought on record ass artiest to the suit. Of the several defenses raised in relation to the suit one related to the non-joiner of these heirs. It was contended that the suit must fails the her is could not be said to e represented by the plaintiffs. This plea was upheld by the High Court on the contraction placed on Section 6 of the Hindu Succession Act as the case fell within the proviso of the said section. The learned Judge expressed his view on the scheme of Section 6 thus:
“Both parts of Section 6 namely, the opening section and the proviso are substantive provisions enacted by the Hindu Succession Act for the purpose of modifying the customary Hindu Law and creating new heirs and heirships to the property of a deceased Mitakshara coparcner. If this is the correct premise, then whenever we find that there are female relatives specified in class I to the Schedule or male relatives specified in that class claiming through the female relatives the interest of the deceased in the Mitakshara coparcenrary property has to devolve by testamentary or interstate succession as the case may be under this Act and not by survivorship.” As on the death of a coparcener the female heirs coming under the proviso to Section 6 in heart as his interest in this joint family property with the result that the said interest becomes vested in them by succession. the learned Judge observed that the representative character of the Kartha is necessarily affected and he cannot represent that property which vests is a person other than a coparcener ad that since the interest of the two unmarried daughters was thus under represented in the suit. the frame of the suit is defective and it is liable to be dismissed.
34. This view accords with what we have stated above. On a proper construction of Section 6 of the Hindu Succession Act we are unable to agree with the learned counsel for the appellant that notwithstanding ascertainment of interest of the deceased copartner by national partition and devolution of the same by succession on various heirs including the female heirs by operation of the proviso to Section 6 of the Hindu Succession Act, the Kartha of the Hindi joint family can as such represent the interest devolved in specified shares on the female heirs and bring a suit for the enforcement of mortgage security. We are of the view that the mortgage by its nature being one and indivisible both in regard to amount as well as security and the interest of the mortgage having devolved or all his heirs jointly, no suit for enforcement thereof can be validly brought except inconsonant with the principle of indivisibility. Anyone or some of the heirs therefore cannot bring an action for recovery of their respective shares or for enforcing the entire security. All the persons entitled to a share in the amount due on the mortgage must join in the action and be made parties thereto. The cause of the action being one. the very frame of the suit will be defective if all of them have not been so made parties. They being necessary parties to the suit should be brought on record within time. The addition of any one on expiry of the period of limitation is fatal to the suit. In this view of the matter suits, as brought in the instant cases have been rightly dismissed. The order of dismissal can be sustained irrespective of the fact that the mortgage amount was the personal asset of Potalpati Reddy or was joint family asset of which Nagi Reddy was Kartha. The devolution of interest of Potlaparti Nagi Reddy on his heirs in either case being by way of succession under the rules of the Hindu Succession Act, all the heirs who got interest whether as coparceners or otherwise, are tenants common in relation tot hat interest and they as heirs jointly interested in the mortgage amount should have brought their suit jointly or, at any rate should necessarily have been included in the frame of the suit either as plaintiffs or defendants. The suit without the inclusion of all of them is basically defective and this defect cannot be cured out of time. The fact that the plaintiff is Kartha of the joint family property will not avail where the asset is not a joint family asset or cannot be treated as such or has ceased to be so by reason of the provisions of the Hindu Succession Act.
For the reasons given above, both the appeals must fail. They are accordingly dismissed with costs.
35. Appeals dismissed.
sarvepalli legal 