Edward Maynerd Des Champs Chamier, Kt., C.J.

1. This an appeal by the plaintiffs in a suit against a decree of the District Judge of Saran, whereby the suit was dismissed with costs Three of the plaintiffs are sons of one Bhagwat Saran. The 4th plaintiff is a son of Harihar Saran. Bhagwat Saran, Harihar Saran and Shankar Saran were three brothers, being the sons of one Pundeo Narain Tewari. On January (sic)th, 1890, Pundeo Tewari mortgaged the three properties now in question to the father of defendants Nos. 1-4 and to Gopi Chand defendant No. 5. In 1903 the mortgaged brought suit for sale of the mortgaged property. They impleaded as defendants three of the sons of Pundeo Narain Tewari and also other persons who claimed interests in the property, but they did not implead any of the present plaintiffs. It has been found, and it is now admitted, that the plaintiffs Nos. 2, 3 and 4 may be disregarded as they were not alive at the date of the institution of the suit on the mortgage and that the plaintiffs' statement to the contrary in the plaint is false. Plaintiff No. 1 appears to have been about ten years of age when the suit on the mortgage was instituted and the mortgagees did not implead him as a defendant. There is a conflict of evidence on the question whether the mortgagees were aware, when they brought their suit, of the existence of plaintiff No. 1. For the purpose of my judgment I am prepared to assume that the mortgagees were aware of his existence or might have become aware of it if they had made any enquiry. A decree was parsed in that suit in April 1904 which was confirmed on appeal in August 1904 Execution proceedings followed and the property was put up for sale and was purchased by the mortgagees themselves in August 1908. Possession was delivered to the purchasers, in October 1909. The present suit was instituted in January 1911. The Court below in dismissing the claim has held as I understand its judgment, that the plaintiffs or at least plaintiff No. 1, not having been made a party to the former suit, would have been entitled to redeem the family property, had it not been proved that the property passed out of the possession of the family at various auction-sales which are referred to in its judgment.

2. As regards the village Bareja it is now common ground that the 1st plaintiff had not at the date of the present suit any subsisting interest in it. Therefore the suit as to Bareja was rightly dismissed.

3. As regards the village Shahbazpur I am of opinion that the District Judge was clearly right in holding that plaintiff No. 1 had at the date of this suit no subsisting interest in this village. It is true that the exact means by which Abdur Rahman became proprietor of this village has not been proved by direct evidence, but it has been shown that he was in possession of the village for many years and was recognized as proprietor by the Land Registration Department. The plaintiffs in the present case have totally failed to prove that any of them had any subsisting interest in Shahbazpur when this suit was brought.

4. The position as regards the third village Habibnagar is not quite so clear, but here again I am of opinion that the District Judge's decision is correct. As already stated, the suit on the mortgage was instituted and decided in 1904 and the execution sale took place in 1908. It appears that in 1907 Habibnagar was put up for Sale to satisfy a public demand and was purchased by Sheikh Bulaki who by his purchase acquired the right, title and interest of all the members of the mortgagor's family in the village. Nine months later the property was put up for sale again on account of arrears of land revenue and was purchased by one Ujagir Tewari who for the purposes of this judgment may be assumed to have been a farzidar for Harihar Saran or for the family of which he and the plaintiffs were members. The purchase made by Sheikh Bulaki and also the purchase made in the name of Ujagir were, of course, made Subject to the decree for sale which had been passed. The plaintiffs in the present case sue not by reason of any title which they have acquired through the purchase effected in the name of Ujagir but by virtue of the right which they had as members of a joint family before the property was sold to Sheikh Bulaki. It appears to me quite clear that whatever right the plaintiffs had in the property was wiped out by the purchase effected by Bulaki and that on this ground the present suit should be dismissed as regards Habibnagar.

5. Lastly I am of opinion that on the authorities the present suit is not maintainable at all in the absence of proof on the part of the plaintiffs that the debt for the recovery of which the property was brought to sale was not one for which they or their property were liable. It has never been suggested that the debt on account of which the mortgage was made was not binding on the family as a whole. On the contrary it has been proved that the money was borrowed for the purpose of paying Government revenue and it is quite clear that the interests of all the members of the family were liable for that debt. It is said that plaintiff No. 1 is entitled to redeem the property because he though then alive was not made a party to the suit by the mortgagees. In my opinion this is not a sufficient ground on which to base such a suit as this I need only refer to the decisions in Jaddo Kuar v. Sheo Shanker Ram  7 Ind. Cas. 902 : 33 A. 71 : 7 A.L.J. 945 confirmed on appeal by their Lordships of the Privy Council in Sheo Shankar Ram v. Jaddo Kunwar  24 Ind. Cas. 504 : 36 A. 383 : 18 C.W.N. 988 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 20 C.L.J. 282 : 12 A.L.J. 1173 : 16 Bom. L.R. 810 : 1 L.W. 695 : 41 I.A. 216 (P.C.), Bulwant Singh v. Aman Singh  7 Ind. Cas. 112 : 33 A. 7 : 7 A.L.J. 852 and Kehri Singh v. Chunni Lal  9 Ind Cas. 476 : 33 A. 436 : 8 A.L.J. 216. In some of these cases it was found that the mortgagees when suing upon their mortgage had no notice of the existence of the persons who subsequently sued to redeem the property and that was so in the suit decided by their Lordships of the Privy Council. The real ground of the decisions in all the cases referred to was that the plaintiffs seeking to redeem the mortgage and avoid the sale were effectively represented by the other members of the family in the suit brought upon the mortgage. Their Lordships of the Privy Council say: "There seems to be no doubt upon the Indian decisions (from which their Lordships see no reason to dissent) that there are occasions including foreclosure actions when the managers of a joint Hindu family so effectively represent all other members, of the family that the family as a whole is bound. It is quite clear from, the facts of this case and the findings of the Courts upon them that this is a case where this principle ought to be applied. There is not the slightest ground for suggesting that the managers of the joint family did not act in every way in the interests of the family itself." Every word of this passage applies to the present case. In my opinion on this ground also the present suit is liable to dismissal. If the cases of Bhola Jha v. Kali Prasad 34 Ind. Cas. 288 : 1 P.L.J. 180 and Ram Taran Goswami v. Rameswar Malia  6 C.L.J. 719 : 11 C.W.N. 1078 were rightly decided it would appear that the present suit is also barred by limitation but it is unnecessary to go into this matter. I would dismiss this appeal with costs.

Saiyid Sharfuddin, J.

I agree.