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PETITIONER: DEVIDAS AND OTHERS

       Vs.

RESPONDENT: SHRISHAILAPPA AND OTHERS.

DATE OF JUDGMENT: 21/02/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. DAS, S.K. HIDAYATULLAH, M.

CITATION:  1961 AIR 1277            1961 SCR  (3) 896

ACT: Mortgage-Non-joinder of Parties-Proper, but not -necessary, added  beyond limitation-Suit instituted on behalf of  joint family-Plaintiff  not  described as manager in  the  plaint- Maintainability  of suit-Indian Limitation Act, 1908  (9  of 1908), s. 22.

HEADNOTE: The  manager  of  an undivided Hindu  family  consisting  of himself,  his  brother and their step-mother,  instituted  a suit  for  recovery  of  the amount  due  under  a  mortgage belonging to the family.  The step-mother who was interested in  the  mortgagee right was not made a party to  the  suit. Though  the manager (the first plaintiff) did  not  describe himself as the manager in the plaint, the allegations in the plaint showed that the suit was filed on behalf of the joint family.   No objection as to non-joinder was raised  in  the trial  court,  but when the appeal was pending in  the  High Court  the step-mother was added as a party on her  applica- tion.  The contesting defendants pleaded that as all persons having an interest in the mortgage security were not  joined as parties within the period of limitation prescribed for  a suit  to enforce the mortgage, and the first  plaintiff  did not,  in  any  case, purport to institute the  suit  in  his capacity as the manager, the suit must fail. Held:     (1)  that  the failure to join a person who  is  a proper  but  not  a  necessary party  does  not  affect  the maintainability   of  the  suit  nor  does  it  invite   the application of S. 22 Of the Indian Limitation Act, 1908 ; (2)  that  the question whether a suit as instituted by  the manager  of  an  undivided  Hindu  family  in  his  personal capacity  or  as representing the family  depends  upon  the circumstances  of  each  case and that the  failure  of  the plaintiff  to describe himself as the manager in the  plaint is not decisive of the question. (1) [1955] 28 I.T.R. 189. (2) [1955] 27 I.T.R. 176. 897 In  the  resent case, the step-mother was  not  a  necessary party, and the facts showed that the suit was instituted  by the   first   plaintiff   in  his   capacity   as   manager.

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Accordingly, the suit was maintainable. Guruvayya  Gowda and Others v.  Dattatraya Anant and  Others (1904) I.L.R. 28 Bom. 11, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 112 of 1957. Appeal  by special leave from the judgment and decree  dated January  28, 1954, of the Bombay High Court in First  Appeal No. 69 of 1950. Purshottam Trikamdas and Naunit Lal for the appellants. C.      K.     Daphtary,Solicitor-General     of      India, S. N. Andley, J. B. Dadachanji and P. L. Vohra for  respond- ents Nos.  I and 2. B R. L. Iyengar for respondents Nos. 6 to 9. 1961.  February 21.  The Judgment of the Court was delivered by SHAH,  J.-The  genealogy  which sets  out  the  relationship between some of the principal parties in this litigation  is as follows:                Mallappa                   | ---------------------------------------------------- |                 |            |                  | Balappa    Shivappa     Basavanappa             Chanamalappa |           |        Basalingappa                 | Rachappa    |            (Parvatewa            Balappa deft. 9     |             respdt. 12)             |                  |             |       --------------------------             |      |                         |             |    Shrishailappa           Shivappa             |     (Plaintiff 1)      (plaintiff 2)             |             |             |             | |----------|-----------|--------------|--------------| malappa   Chanabasappa   Balappa   Basavanappa  Shrishailppa (deft. 5) (deft.6) (adopted by    (deft. 7)    (deft. 8)                    Chanamalappa Mallappa  had four sons Balappa, Shivappa,  Basavanappa  and Chanamalappa.  These four sons, formed a joint Hindu family. Chanamalappa   separated  himself  from  the  joint   family sometime  in  the  year 1909 and his  other  three  brothers continued to remain joint.  Shivappa was the Manager of  the joint family 898 after  the  death of Mallappa.  Shivappa died in  1928.  and Rachappa  became  the  Manager of, the  family.   The  joint family  possessed  lands  in seventeen,  villages  and  many houses in Khanapur.  The family had also an extensive money- lending   business.    One   Bashettappa   Neeli-hereinafter referred  to  as  Bashettappawas married to  the  sister  of Rachappa.  On July 29, 1929, Bashettappa executed a deed  of simple mortgage in favour of Rachappa in respect of  certain parcels  of  lands  and houses belonging to  him  to  secure repayment of Rs. 1,73,000/-, Rs. 76,700/- out of which  were received  in cash and the balance represented amounts  which Rachappa  agreed to pay to Bashettappa’s creditors.  To  one Gurappa,  Bashettappa owed Rs. 8,000/- as an unsecured  debt and  Rachappa  agreed  to  pay  that  debt.   In  Insolvency Application  No. 22 of 1929 of the file of the  First  Class Subordinate  Judge, Dharwar, Bashettappa was adjudicated  an

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insolvent  and  receivers were appointed by  the  Insolvency Court to administer his estate.  The receivers applied for a declaration  that the mortgage deed, in favour  of  Rachappa was  in fraud of creditors and was ’accordingly  void.   The Assistant Judge, Dharwar, in Appeal No. 25 of 1934 from  the order  of  the  Insolvency  Court  held  that  Rachappa  was entitled out of the mortgage amount to recover Rs.  45,700/- as  a  secured  debt and Rs.  31,000/-  as  unsecured  debt. Gurappacreditor  of Bashettappa-in the meanwhile filed  Suit No.  84  of 1932 against Rachappa and other members  of  his family  in the court of the First Class Subordinate  -Judge, Dharwar,  for a decree for Rs. 8,000/claiming that  Rachappa had,  acting on behalf of the joint family of which  he  was the  manager, undertaken under the deed of mortgage  to  pay that   amount   and.  that  he-Gurappa-had   accepted   that undertaking.;  A  decree  exparte was passed  in  that  suit against Rachappa on February 28,1933, and the claim  against the  other  members of the family was either  withdrawn’  or rejected.  On July 23, 1939, the three branches of the joint family  by  mutual agreement severed the  joint  status  and properties  movables and immovables beloning to  the  family were divided.  Pursuant to 899 this division, lands and houses which fell to the shares  of the three branches were mutated in the Revenue and Municipal records  in  the  names of the managers  of  the  respective branches.  Movables were also divided.  The mortgage  amount recoverable  from Bashettappa and a claim against one  Desai were’  it  is the case of the plaintiff in the suit  out  of which this appeal Arises, kept joint.  Gurappa after  making certain  infructuous  attempts to execute the  decree  filed dharkhast  No.  176 of 1940 to recover  Rs.  11,061-6-9  and prayed for an order of attachment and sale of the rights  of Rachappa  under the mortgage bond dated July  29,1929.   One Ganpatrao  N.  Madiman-hereinafter referred to  as  Madiman- offered  the  highest  bid  at the  court  auction  and  the mortgage   bond  was  sold  to  him  for  Rs.  20,000/-   An application  filed  by Rachppa for setting  aside  the  sale pleading   that   the   sale  was   vitiated   by   material irregularities  and fraud in publishing and  conducting  the sale was rejected. The  mortgage bond was delivered by the executing  court  to Madiman  and orders were issued against Bashettappa and  the receivers  of  his  estate  prohibiting  them  from   making payments  of  the dues under the mortgage  or  any  interest thereon,  to  any person or personal  except  the  purchaser Madiman.   In  Miscellaneous  Application No.  57  of  1944, Madiman applied, to the Insolvency Court to be recognised as an unsecured creditor for Rs. 31,000/., and the  application was  granted on the footing that the entire  interest  under the mortgage bond was purchased by him.  Receivers appointed by  the  Insolvency Court thereafter put up  for  sale.  the equity  of  redemption in the mortgaged properties  and  the same  was purchased for Rs. 15,500/. by Madiman.   The  sale deed in this behalf was executed by the receivers in  favour of Madiman on January 28, 1947.  Madiman accordingly  became the  owner  of the equity of redemption and  claimed  to  be entitled to the entire mortgagee right as a purchaser of the right, title and interest of Rachappa. Basalingappa  who was the natural brother of   Rachappa  and was  adopted by his-uncle Basavanappa  died in 1946  leaving him  surviving his widow 900 Parvatewa,  and  two sons Shrishailappa and  Shivappa.   The sons of Basalingappa who will hereinafter be referred to  as

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the  plaintiffs filed Suit No. 253 of 1947 for a decree  for Rs.  1,23,400/- by enforcing the mortgage deed  executed  by Bashettappa  claiming that Madiman had at the court  auction acquired  in the mortgagee right only the right,  title  and interest  of Rachappa which was a third and  the  plaintiffs and  defendants 5 to 8 sons of Shivappa continued to  remain owners  of  the remaining two-third share.   The  plaintiffs prayed  for a decree that the amount due under the  mortgage be  awarded to them and in default of payment the amount  be realised  by sale of the mortgaged property.  To  this  suit were impleaded Bashettappa as defendant No. 1, receivers  of his  estate as defendants Nos. 2 and 3,Madiman as  defendant No.  4,  sons  of Shivappa as defendants Nos.  5  to  8  and Rachappa  and his son as defendants Nos. 9 and 10.   Madiman died  after the institution of this suit and his  sons  were impleaded  as  defendants  Nos. 4A to 4C and  his  widow  as defendant 4D.  Madiman’s sons were the principal  contesting defendants and the main contentions raised by them were: (1) that  the  mortgagee  right was  the  separate  property  of Rachappa  and  it did not belong at any time  to  the  joint family,  of Rachappa defendants 5 to 8 and  the  plaintiffs, (2)  that in any event, at the partition between  the  three branches  the  mortgagee right had failed to  the  share  of Rachappa  and that it was not kept undivided as  alleged  by the  plaintiffs, and (3) that in Execution Petition No.  176 of  1940, the entire interest of the joint family  was  sold and  it  was  purchased by  Madiman  and  consequently,  the plaintiffs could not enforce the mortgage. The trial court negatived the contentions raised by the sons of Madiman and held that only a third share in the mortgagee right  was purchased at the court auction by  Madiman.   The court  accordingly passed a decree against defendants  Nos., 4A  to  4D for payment of Rs. 60,933-5-4  and  proportionate costs  ’,with  future  interest  at 6%  per  annum  ’on  Rs. 30,466,10-8 901 from the date of the suit to the plaintiffs and defendants 5 to 8 within six months and in default of payment for sale of the mortgaged property.  Against that decree, defendants  4A to 4C-hereinafter referred to as the appellants-appealed  to the  High  Court at Bombay.  The High Court  held  that  the mortgagee  right  belonged  to the joint  family,  that  the agreement to pay Rs. 8,000/- to Gurappa was not binding upon that family and therefore in execution of the decree  passed in  favour of Gurappa only the right, title and interest  of Rachappa  was purchased by Madiman.  The High Court  further held that there was in 1939 severance of joint family status between  the members of the family of  Rachappa,  plaintiffs and others, but as in the state of the record in the view of the  court  a finding on the question whether  the  mortgage debt was kept undivided could not be recorded, they remanded the case for recording a finding on the following issue: " Whether it is proved that the mortgage debt of 29th  July, 1929,  fell  to the share of defendant No. 9 at  the  family partition  of July, 1939, " and directed the trial court  to allow both the parties to lead evidence upon this issue  and to certify its findings thereon.  The trial court recorded a negative  finding on that issue.  It held that the  mortgage claim  was kept undivided at the partition.  The High  Court confirmed this finding and dismissed the appeal filed by the appellants, subject to a slight modification as to the  rate of interest awarded by the trial court.  With special  leave under   Art.  136  of  the  Constitution,  this  appeal   is preferred. No serious argument was advanced before us on the plea  that

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the  amount due under the mortgage from Bashettappa was  not the property of the joint family.  At the material time when the mortgage deed was executed by Bashettappa, Rachappa  was the  manager  of the joint family.  In Suit No. 84  of  1932 filed  by  Gurappa  it was alleged  that  Rachappa  was  the manager  of the joint family consisting of himself  and  the branches  of Shivappa and Basavanappa and that the  mortgage transaction was for the benefit of the joint family and that Raohappa had entered into that 902 transaction  for  and on behalf of the joint family  and  in that  suit  Rachappa alone was declared liable  to  pay  Rs. 8,000/-.   Partition  of  the  year  1930  is  supported  by evidence  which  has  remained  unchallenged.Intimation  was given  to the village and Municipal authorities pursuant  to the  partition  for  mutating the  names  of  the  different branches to whom the shares were allotted.  The evidence  of Rachappa and Mallappa that the partition took place also has remained uncontradicted. The question which calls for consideration is whether at the partition,  the mortgagee right under the deed  executed  by Bashettappa was kept undivided.  Mallappa defendant No. 5 in his evidence when he was examined after remand stated that " an  equal  division was made of the lands according  to  the income  and that Rachappa was not given a smaller  share  in the lands.  " He also stated that the houses were divided in equal  shares  and  the outstandings  in  the  money-lending business  except  two bonds-the mortgage  bond  executed  by Bashettappa  and one Desai were kept undivided.   He  denied the  suggestion that the mortgage debt due from  Bashettappa was  allotted  exclusively  to Rachappa.   Rachappa  in  his evidence  also  stated  that  the  mortgage  bond  was  kept undivided  between  the three branches and that it  was  not true  that it was allotted to his shares at  the  partition. Devidas-defendant   No.  4  A-had  evidently   no   personal knowledge  about  this partition or the  terms  thereof  His statement  that  Rachappa  had told him  at  the  time  when Madiman  offered  his  bid at the  court  auction  that  the mortgage  bond was allotted exclusively to Rachappa’s  share could  not in the circumstances of the case be true and  was rightly "believed by the trial court and the High Court. On  an  analysis  of the various entries on  the  record  of rights relating to the lands held by the three branches, the trial  Judge hold that the plaintiff’s’ father had  received at  the  partition. lands admeasuring 203 acres  18  gunthas assessed  at Rs. 233-10, defendants 5 to 8 had received  127