Authored By : Atkinson, Jwala Prasad
Atkinson, J.
1. This is an action brought on foot of a mortgage-bond dated the 4th of September 1897, and the amount for which that mortgage was security was the sum of Rs. 1,375. The bond provided that interest should be paid at 2 per cent per mensem, together with compound interest to he ascertained yearly. The bond also provided that certain lots of land set out in the schedule to the deed, 9 or 10 in number, should be hypothecated as security for this mortgage-debt. The bond purported to be made between Raghunath Prasad Singh as mortgagor and Elahi Bukhsh as mortgagee. On the 7th of March 1900 decrees which Raghunath Singh had procured against other parties for Rs. 862-9-6 together with a farther decree on the 25th of November 1900 for Rs. 840-1-1-0, making a gross total of Rs. 1,703-4-6, were transferred to Elahi Bukhsh and by mutual consent of the mortgagee and the mortgagor, the same were set off pro tanto in satisfaction of the mortgage-debt. On the 25th of November 1900 when the second decree was set off as against the mortgage-debt, there was something like Rs. 700 odd owing on foot of the bond for principal and interest. The receipts for these decrees, which were set off, are endorsed upon the bond itself and purport to have been signed by the mortgagor Raghunath Singh. From the 25th of November 1900 no application was over made by the mortgagee or those who represented him for payment of any portion of the interest that accrued due on foot of the balance ascertained in 1900. And thus when this action was brought on the 14th of June 1912, some 4 or 5 months before the action would have been barred by limitation of time, the interest had accumulated to the sum of Rs. 10,999, which is really regarded as principal by reason of the provisions as to compound interest under the deed, and some Rs. 4,000 representing simple interest, and Rs. 126 for costs, making a gross sum of Rs. 15,000 in all.
2. The plaintiffs in this suit represent Elahi Bukhsh the mortgagee, who died in the year 1907. The mortgagor is also dead, and the defendants in this suit are his representatives. Elahi Bukhsh at the time of his death left a son, Abdul Rahman, three daughters and two wives. The second wife survived her husband; of that there is no doubt, but the exact date of her death has not been ascertained. That she survived her husband and died subsequently is admitted; and that on her death she left two brothers, who were her heirs and entitled to succeed to whatever portion of her husband's assets might devolve upon her. Elahi Bukhsh died in 1907 intestate; and thus his son and three daughters and his two wives became entitled jointly to succeed to his assets, of which the property secured by this mortgage-deed formed a part. Clearly upon the death of the second wife, her two brothers became entitled to succeed to the share of the property that their sister had inherited through her husband. The action was instituted by the plaintiff Abdul Rahman as sole plaintiff, and the point was immediately taken in the defendants' pleading that all the proper parties had not been joined as plaintiffs in the action to entitle the sole plaintiff in the suit as originally constituted to succeed; and it was alleged expressly in paragraphs 4, 5, 6 and 7 of the defendants' written statement that they, the defendants, would rely on the omission to join as plaintiffs the two brothers of the second wife, as legal sharers in the assets of Elahi Bukhsh and of which this mortgage formed a part. The plaintiff's advisers thought fit on the 6th of September 1912 to file a petition on behalf of the three daughters of Elahi Bukhsh, asking the Court to join them as plaintiffs in the action, although in their petition they stated that it was unnecessary for the purpose of the case that they should be joined. The Court granted the petition and the suit proceeded with the original plaintiff Abdul Rahman and the three added plaintiffs; being the three daughters of Elahi Bukhsh the mortgagee. But the plaintiffs deliberately and wilfully abstained from talking any steps whatsoever; although forewarned, to add the two persons I have mentioned as parties to the action. I think it is undoubted law that the brothers of the second wife were entitled jointly with the son and three daughters of Elahi Bukhsh to a share of this mortgaged property; and the law seems to me to be accurately summed up in the case reported as Ahinsa Bibi v. Abdul Kader Saheb 25 M. 26 at p. 35, and at page 35 it is stated as follows: " When a right accruing to a single person from a covenant in his favour devolves on his death on two or more of his heirs in several shares, no question can possibly arise as to whether the covenant was joint or separate and the only difference caused by the death of the covenanted is, that the cause of action which resided in one person is by operation of law transferred to a number of parceners, who, as observed by Tindall, C. J., constitute one heir." I think it is quite clear that all the persons named and set forth in paragraph 4 of the written statement were jointly interested in the realisation of this mortgage security' and the fruits of the mortgage itself.
3. The action proceeded to trial in the form in which I have indicated. When it came before the learned Subordinate judge who tried this case, he held that it was unnecessary to join the two brothers of the deceased second wife of Elahi Bukhsh, because it was stated in the defendants' written statement that they were the 'heirs' of Elahi Bukhsh. I find no warrant for any such suggestion, because in paragraph 7 of the plaint the two classes specifically mentioned as being necessary parties to be added as plaintiffs are named as legal sharers and heirs. The Judge who tried the case appears to me to have completely overlooked the law, the well-decided law applicable to cases like the present one. When this action came on for hearing on the 30th of June before the learned Judge, no application by the plaintiffs was even then made to join the two brothers of the deceased 2nd wife of the mortgagee. But even if any such application had been made and acceded to, it would have been without avail, because by then the rights of the two persons, who might have been joined as plaintiffs jointly with the other plaintiffs as parties interested in the recovery of this mortgage-debt, would have been barred by limitation of time. The entire cause of action in this case would have been barred on the 20th of November 1912, and thus, as no attempt was made to join the two persons I have mentioned before that date, the Judge, on the authorities, could not have joined them at all at any time subsequent to the 20th of November 1912, because as against them limitation of time had run; and the joining of them as plaintiffs would not have entitled the Court to give the relief, either in whole or in part, claimed in this action.
4. We have been referred to the interpretation and construction to be put upon Order XXXIV, rule 1, and Order I, rule 9, which provides that no action is to be defeated by the reason of non-joinder or misjoinder of parties. That Order, Order I, rule 9, only applies to cases where relief can be given if the necessary parties are joined and the application is within time; but it has no application--and the law is too well-decided now to admit of any doubt whatsoever--it has no application to cases where the parties to be joined are barred in the assertion of their rights. If they are barred, then the Court, even though it may join them, can give no relief at all, and the action consequently must be dismissed. The reported cases dealing with this aspect of the matter and laying down the law, I think clearly beyond all doubt, are Ramsebuk v. Randall Koondoo 6 C. 815; Ramdoyal v. Junmenjoy Coondoo 14 C. 791 at p. 794; Kalidas Kevaldas v. Nathu Bhagvan 7 B. 217; Raj Chunder Sen v. Ganga Das Seal 31 C. 487 at p. 489 (P.C.) : 14 M.L.J. 147 : 1 A.L.J. 145 : 8 C.W.N. 442 : 31 I.A. 71 : 8 Sar. P.C.J. 623; Balkrishna Sakharam v. Mora Krishna Dabholkar 21 B. 154 at p. 168; Imam-ud-Din v. Liladhar 14 A. 524 at p. 528; Sidheshuri Pershad Narain Singh v. Dharamjit Narain Singh 22 Ind. Cas. 570 : 19 C.L.J. 437 : 41 C. 727; Saaed-ud-Din Khan v. Hira Lal 24 Ind. Cas. 25 : 12 A.L.J. 619; Shiam Sunder Lal v. Budddhu Lal 24 Ind. Cas. 252 : 12 A.L.J. 794 and Jotiram Ramkrishna v. Ramkrishna Nandlal 27 B 31 at p. 35 : 4 Bom. L.R. 754. Reading all these cases and applying them and the legal principle which they decide, it appears to me abundantly clear, that if it plaintiff proceeds to trial to recover property which is the joint property of two or more persons, and he omits to join all proper and necessary parties, and if when the case comes to trial, the rights of those who ought to he added as parties to the suit are barred by limitation, then, the Court has no alternative but to dismiss the application for want of proper or defective joinder of parties. The responsibility for what has happened in this case rests solely with the plaintiff's advisers. The case reported as Ambika Charan Guha v. Tarini Charan Chanda 19 Ind. Cas. 963 : 18 C.W.N. 464, I think, accurately in the head note sets out a summary of what the law is as follows:--"If a necessary party is not on the record, the proper course is to apply to have him joined. If he is not brought on the record at all, or if, when he is brought on the record, the suit as against him is barred by limitation, the suit will be dismissed." I think that head note accurately and carefully sums up the general principle decided by the long list of cases to which I have referred. No doubt, many of the cases deal with partnerships, but for the reasons which I have already stated, I think they apply with equal force to the cases where several persons are entitled jointly and seek to recover the assets of a deceased person There is no question in this case of Administration or Probate having been taken out by the plaintiff Abdul Rahman. His father died intestate and his issue and next of kin, together with the heirs of his deceased wife who survived him, became entitled according to their respective shares to recover the assets of the deceased Elahi Bukhsh.
5. It was mildly suggested, that the ordinary rule of devolution applicable to the estate of a deceased Muhammadan who dies intestate, does not apply in this case, because it is alleged in paragraph 3 of the plaint that a practice prevails in the plaintiff's family, whereby the entire estate of a deceased parent dying intestate vests in the eldest male heir of such deceased to the exclusion of the other next of kin and by reason of such custom the plaintiff Abdul Rahman was entitled alone to recover on foot of the mortgage-deed of 4th September 1897. I can only say that upon the evidence, which I have scanned very carefully, I cannot find one scintilla of justification for such a practice or custom. Custom may override the ordinary law if it be established clearly and unequivocally, but it must be certain, continuous, ancient and unambiguous. I dismiss this argument of the learned Vakil for the respondents in this case, by saying that the custom which he has asserted to have existed has not been established by any form of legal proof whatsoever.
6. The conclusion at which we have arrived on this aspect of the case in itself is quite sufficient to justify us in dismissing this action. Speaking for myself alone, because my learned colleague does not agree with me, I am of opinion that this action should also be dismissed upon the further ground that the plaintiffs in this case have not in any way whatsoever given any legal proof that any money was or in due, on foot of the mortgage-bond. The mortgage-bond is produced and thrown upon the table, and it is contended when that is done it establishes sufficient proof of the existence of the debt to throw the onus of rebutting it upon the defendants, the mortgagors. That may be so in some cases, but it is not universally true. Each case must depend upon its own facts. But when you find a mortgage, such as the present one, old, not recognised or acted upon for nearly 12 years, and peculiar in its terms, I think the onus is shifted. But more especially do I think that the obligation is upon the plaintiff to prove his debt, by reason of the account which he appends to his plaint as a summary of the debt which he seeks to recover. He says, in effect, that that account represents the money that he is entitled to, and although he calls several witnesses, he never asks one of them, who made the account what formed the basis of the account how it was prepared and if it accurately represents the money clue on foot of the mortgage. When the learned Judge gave a decree in this case, he had not before him one scintitla of legal evidence to show what was the amount due on foot of the mortgage-bond unless he accepted as obviously correct an unproved account, which, I understand, was prepared by the learned Vakil on behalf of the respondent. In my opinion that is not legal proof. No doubt, the account was prepared upon the basis of the machinery provided by the mortgage-bond itself. That is not sufficient to constitute legal proof of the existence of a debt. The learned Subordinate Judge directed no account to be taken but accepted without question the validity and accuracy of the unproved account annexed to the plaint. Therefore, I would have been prepared myself to have dismissed the action upon that ground; and more especially, because the validity of this account, the accuracy of this account, was put in issue expressly by the pleadings of the defendants, and the issue is directed and framed by the learned Judge, as to whether the account is correct or not. And without one scintilla of evidence to justify the finding on that issue the learned Judge found that the full sum claimed in this action is due. If the case was tried by a Jury the verdict could not stand for a moment. Why should it stand now Why should the Judge be permitted to make assumptions in a point of law, when there is no legal evidence to justify them
7. It is hardly necessary to discuss the question as to whether the two decrees which were transferred, and by mutual consent set off as against the mortgage debt, constituted valid payments, taking the case out of the Statute of Limitations. I am perfectly satisfied they did constitute valid payments. It is established beyond all doubt, that it is not necessary that payment should be actually made in money; for any arrangement between the parties intended to have the effect of discharging pro tanto the party indebted, has the same' effect as the payment of money. The Indian Limitation Act is based very largely upon the principles of the Limitation Acts in England, and the authority for the proposition I have stated, is to be found in the case of Maber v. Maber 2 Ex. 153 : 36 L.J. Ex. 70 : 16 L.T. 26.
8. For these reasons I think this action should be dismissed with costs here and in the Court below.
Jwala Prasad, J.
9. I concur with my learned brother as to the dismissal of the suit on the ground of non-joinder of the two persons interested in the mortgage, which is the foundation of the suit. I also agree with my learned brother that the plaintiff in this case has proved that there were valid payments as entered on the back of the mortgage-bond, so as to save the suit from being barred by limitation, As my learned brother has already pointed out, I am not in accord with him, as regards the view that the plaintiff has not established his claim as he has not proved the account upon which the suit is based. I need hardly give detailed reasons for my differing from my learned brother on this point. I would only briefly refer to same of the salient grounds.
10. In this case the execution of the bond was satisfactorily proved by the attesting witnesses called by the plaintiff; it was further proved that the consideration of the bond passed. After the death of the mortgagor Raghunath Charan Prasad Singh a petition under Act VIII of 1890, called a petition for guardianship of the minor grandsons of the mortgagor, was filed by his widow Musammat Bhagela Koer, defendant in the case, on the 5th September 1910, before the District Judge of Shahabad, and in the schedule, required by the Act for the specification of the debts and liabilities, this bond is mentioned as item No. 5. The bond itself shows, on the back of it, two, payments that have been credited in the account annexed to the plaint as a part thereof and duly verified. The defendants in this case never specifically alleged that they had paid anything beyond what was clearly stated by the plaintiff. The learned Subordinate Judge has held as clearly established that the mortgage-bond is a genuine document and was executed for good consideration. I think, in a money suit, where the claim is for the recovery of a specific amount, the defendant ought clearly to state what sum has been paid off, and if all the claim was discharged he ought distinctly to say so, vide Order VIII, rules 3 to 5. The allegation in the written statement that the account is incorrect does not necessarily go to show that there was nothing due. The issue relating to this matter is issue No. 4, "Is the account given in this plaint correct" The account is based entirely upon the mortgage-bond which distinctly mentions the amount advanced, the rate of interest, and on the back of it mentions the amount received. The further calculation is a matter of arithmetic. It is apparent from the finding of the learned Subordinate Judge on this issue that the defendants contested the correctness of the account only on the ground that compound interest should not have been charged, which, however, was rightly held to be allowable under the terms of the bond. The account based upon the bond being prima facie correct, I think it is for the defendant to show in what respects the account is. wrong. Regard being had to the pleadings in this case and the issues framed, I think that if the suit were not dismissed on the fatal defect of the non-joinder of some of the necessary parties to the suit, the claim of the plaintiff could not be thrown out on the ground that he had not proved the account in this case. No objection as to the account not having been proved has been taken in the grounds of appeal filed in this Court. It is unnecessary to go into this matter any further as the plaintiff's suit must he dismissed on the grounds already stated.
