1. The facts of this case, briefly stated, are that four brothers named Dumber Mahton, Meghraj Mahton, Fakera Mahton and Shamlal Mahton lent money to the defendants, taking as security for the loan a mortgage upon the property set forth in the schedule attached to the plaint. The date of that mortgage was the 19th May 1896 and the date of payment the 18th May 1901. The suit was instituted on the 17th May 1913 by 21 plaintiffs, describing themselves as the heirs and successors of the original mortgagees. The frame of the suit was at once challenged by the defendants. It was pointed out that no less than 10 members, of the descendants of the four mortgagees had been omitted from the suit. Thereupon the plaintiffs put in a petition dated the 8th August 1914 in the following terms:--

"Your petitioners Moulvi Mahton and Sham Lal Mahton are the heads and managers of their respective joint families and in their capacity as the heads and managers, they have instituted this suit on behalf of all the members of their respective joint families. Your petitioners Umrao Mahton, Jograj Mahton, Baiju Mahton and Nanhoo Mahton also have instituted this suit on behalf of all the members of their joint family. Your petitioner Jograj Mahton is the head and manager of his joint family and has instituted this suit on behalf of all the members of the joint family in his capacity as the head manager of the family. The persons named in paragraph 1 of this petition are not necessary parties to this suit, but as the defendants have raised the objection it is necessary, in order to avoid the objection of the defendants, to bring the undermentioned persons on the category of plaintiffs. Accordingly your petitioners in filing this petition pray that the persons named below may be brought on the category of plaintiffs. A petition on behalf of the above persons is also separately filed praying that they may be made plaintiffs. Your petitioners, therefore, pray that they may be brought on the category of plaintiffs."

2. The learned Subordinate Judge held that up to the 8th August 1914 the necessary parties had not been brought on the record and that on that date the suit was barred by limitation. Upon a close review of the case-law, he decided that he had no option but to dismiss the suit entirely. He also-made an order that costs be paid in two separate sets to the defendants. Against this decision the plaintiffs appeal, and in support of their appeal the learned Vakil urges, first, that as it was obvious from the first that all the kartas were on the record, therefore, the principle laid down in Kishem Parshad v. Har Naraim Singh 9 Ind. Cas. 739 : 33 A. 272 : 15 C.W.N. 321 (P.C.) : 8 A.L.J. 256 : 9 M.L.T. 343 : 21 M.L.J. 378 : 13 C.L.J. 345 : 13 Bom. L.R. 359 : (1911) 2 M.W.N. 395 : 38 I.A. 45 saved the suit. The law laid down therein is, that where there is an agent appointed to enter into contracts on behalf of the Mitakshara family, it is only proper that that agent should be regarded as representing the family in all suits brought to enforce the contract. It may also be taken as an authority for the proposition that where a contract has been entered into by one karta the succeeding karta, upon the death of the maker of the contract, would be entitled to represent the whole family in a suit upon the contract. But I take it as certain that if it is intended to sue in the name of a managing member of a family on account of a breach of a contract made by a former managing member, it must be clearly stated in the plaint that the suit is by that managing member as a managing member. The name of the present managing member must be clearly given. It is not sufficient that he should be accidentally on the record as one out of the many members of the family of whom 30 per cent had been omitted. This, I understand, to be the view taken in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 : 34 A. 549 : 9 A.L.J. 819 (F.B.). If this view is correct, the proper parties to the suit were brought on the record only on the 8th August when the managing members were named. On that date the suit was barred by limitation.

3. It is next argued that under Order I, rule 9, no suit shall fail by reason of misjoinder of parties. But this rule is subordinate to Order XXXIV, rule 1, which makes it imperative that all persons interested in the mortgage security shall be joined as plaintiffs. Nor is it merely a question of misjoinder. Two or three of the absent plaintiffs, if the suit of the present plaintiffs failed on the merits, would be entitled to bring a fresh suit upon the mortgage making the first set of plaintiffs defendants to the suit, and so on ad infinitum. Moreover a plaint must be so framed that, on proof of the facts set forth in the plaint, there can be no reasonable doubt in the mind of the Court as to the nature of the decree to be made upon the suit as framed. On the facts set forth in the written statement and admitted by the plaintiffs to be correct, it might be possible for the Court to ascertain what was the sum due to the persons on the record and what sum due to the persons not on the record, but what definite portion of the mortgaged property should be held liable for the sums due to those on the record, and what definite portion of the mortgaged property should be held not liable, it would be impossible to determine. The whole case-law of India has been directed to one common line of decision, that a mortgage is indivisible and that if upon the record there be not found all parties entitled to a share of the money due under the mortgage, the suit must be dismissed in its entirety. On this point I have had the advantage of reading the judgment of my brother Atkinson in the case of Musammat Bhagela Koer v. Abdul Rahman 36 Ind. Cas. 77 and I would quote the following passage therefrom:--

"Reading all these cases and applying thorn and the legal principle which they decide, it appears to me abundantly clear, that if a 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 be 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."

4. The present case is not distinguishable from that case. The suit stood barred by limitation on and after the 18th May 1913 and any subsequent joinder of parties could not cure the defect underlying the plaint. The suit was rightly dismissed.

5. The only question that remains is that of the costs of the lower Court. We cannot conceive any reasonable principle on which, on the simple argument on, which the case was dismissed, two sets of costs should have been given to the contesting defendants. We, therefore, order that the decree of the lower Court be modified to this extent that the costs be limited to one set to be taken by the defendants jointly. The appeal is, otherwise, dismissed with costs.