JUDGMENT Henry Richards, C.J.
1. This appeal arises out of a suit for sale on foot of a mortgage. The mortgage was dated the 14th of November 1870. The mortgagee was one Dharam Singh, husband of the plaintiff, and the mortgagor was one Naiti Singh. Tilok Ram purchased the mortgaged property on the 7th of January 1889 and the defendants Hori Lal Nath are the sons of Tilok Ram who is now dead. They pleaded amongst other things that their four sons constituting with themselves a joint Hindu family were not made parties to the suit. This is the plea with which we are concerned in the present appeal, Having regard to the respective dates of the mortgage and of the institution of the suit, the non-joinder of parties, if such there was, could not be cured by making the sons of Hori Lal and Jagan Nath parties, because the suit at the time their absence was pleaded was barred by limitation. Order XXXIV, Rule 1, of the Code of Civil Procedure, provides as follows:
Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the right of re-demption shall be joined as parties to any suit relating to the mortgage.
2. It is contended that all the members of the joint family have an interest in the right of redemption and that as they were not made parties originally and cannot now be added as parties, the suit should be dismissed.
3. I do not think that the words in the rule " subject to the provisions of this Code" can help the plaintiff. It is true that the Code provides that no suit shall fail for want of parties, but this does not mean that the defendants cannot insist on having all the necessary parties before the Court, either by their being made parties when the suit was instituted or being afterwards added as parties. I, therefore, think that, unless in the circumstances of the present case, Hori Lal and Jagan Nath can be said to represent their sons, or in other words that the sons are really parties to the suit through Jagan Nath and Hori Lal, the suit should be dismissed. All the members of the joint Hindu family have beyond doubt an "interest" in this mortgaged property.
4. It has been found by the Court below that Hori Lal and Jagan Nath are the managers of the family and that their names alone appear in the village record. I think that we should accept this finding, and my judgment presumes that Jagan Nath and Hori Lal are the managers of the joint Hindu family made up of themselves and their four sons. I propose in the first instance to deal with the question apart from decided cases.
5. Prior to the passing of Act V of 19C8 (the present Code of Civil Procedure), the" enactment dealing with parties to a suit relating to a mortgage was Section 85 of the Transfer of Property Act. That section is as follows:
Subject to the provisions of the Code of Civil Procedure, Section 437, all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this Chapter relating to such mortgage provided that the plaintiff has notice of such interest.
6. The only change material in any way to the present question is the dropping out of the words "provided that the plaintiff has notice of such interest" in Order XXXIV Rule 1. It must be remembered that neither Section 85 of the Transfer of Property Act nor Order XXXIV Rule 1 was any departure from the well established practice of the Courts. It was always necessary that persons interested in the mortgaged property should be made parties to a suit relating to the mortgage. If the mortgage-debt' belonged to a number of persons, they should all be parties so that the person paying off the mortgage might get a good discharge.
7. The persons to whom the property mortgaged belonged were entitled to be parties to enable them to defend the suit and have the amount due (if any) properly ascertained. I do not think, therefore, that any greater importance should be attached to the absence of some of the members of the joint family because their presence is now required by a rule of the Code of Civil Procedure instead of a well established rule of practice.
8. It seems to me that if it is intended by Order XXXIV, Rule 1, to provide that in a case like the present all the members of a joint Hindu family must be defendants by name and could not be represented by the manager, the law requires the plaintiff to do what in many cases must be a practical impossibility. The members of a joint Hindu family are frequently very numerous, comprising' of the absent members and infants of tender years. Furthermore, during the course of the litigation there would be in all probability frequent births of sons, and the array of defendants would never be strictly complete unless during the entire time the suit was running its course, every newly born son was added as a defendant, The plaintiff in many cases would have no possible means of ascertaining the existence of the infant members of the family.
9. It seems to me to be impossible to dispute the proposition that it is a general rule of Hindu law that the manager represents the family in all transactions with the outer world, provided these transactions are family matters. Indeed if it were not so, it is difficult to understand how the affairs of the family could be carried on. If the proposition is correct I can see no good reason why in a case, like the present, the manager should cease to represent the family when the family has to institute or defend a suit in a Court of justice. Before suit the manager can pay and be paid the family debts and take and give a valid discharge for the same. In the present case, the property was purchased by Tilok Ram presumably with family funds. On his death, the names of his sons, Hori Lal and Jagan Nath, alone were recorded. Every defence which can be pat forward in the present suit can properly and fairly ha put forward by the managers. I am very far from saying that a plaintiff in a mortgage suit would be prudent in refraining from making as many members of the family as possible parties to the suit. On the contrary, in all suits and particularly in suits in which the mortgage was made by a manager, and there is any possible question of the mortgage not having been made for legal necessity or a family purpose, the plaintiff would be wise to make all or as many members of the family as possible parties so that they may be bound by the result of the suit. Furthermore, I am of opinion that in all such suits notwithstanding that the manager is a party, the Court should not hesitate to add as a party any member of the family who applies to be made a party, so as to enable him to put forward any defence which he desires to make including, of course, a defence challenging the mortgage as not having been made for family necessity and family purposes.
10. In the course of the argument, a great mass of authority has been cited, and it seems to me that the great weight of authority of the Courts in India has been in favour of holding that a decree against a manager in a suit like the present is not void, but that on the contrary the members of the family who were not parties to the suit, are bound by the decree on the ground that they were sufficiently represented by the manager, and that they can only re-open the litigation by showing that the mortgage was not for family purposes. It seems to me inconsistent to hold that the family is represented by the manager when the question is. raised after decree and that they are not so represented if the question is raised before decree. In Bhawani Prasad v. Kallu 17 A. 537 it was, however, held that the sons, who had not"been made parties to a suit for sale on a mortgage brought against their father alone, could sue for and obtain a declaration that the property being family property could not be sold in execution of the decree against the father, and that they could obtain this declaration upon the sole ground that they had not been made parties to the mortgage suit. This was a Full Bench case and was the decision of four out of the five Judges who constituted the Bench. Banerji J., dissented from the view taken by the rest of the Court. The case was not unlike the present, the difference being that the question did not arise until after a decree had actually been obtained against the father, while in the present case the plea has been taken in the suit by the defendants who were parties. There was this farther difference that there was no finding that the father was the manager of the family though in all probability he was. The case seems to me to. have been decided by the majority of the Court upon the express words of Section 85 of the Transfer of Property Act which was the provision of law then in force, providing for the parties to a suit relating to a mortgage. It does not seem to have been argued that the absent members of the family were or could be represented, by their father as the manager. The effect of the decision has to same extent been modified by the case of Debi Singh v. Jia Ram 26 A. 214.
11. But it is, nevertheless, the decision of a Full Bench and I think it ought to be followed and treated as binding upon this Court unless we see cogent reasons for not doing so. Do such cogent reasons exist? I have already pointed out that Section 85 of the Transfer of Property Act has been repealed and re-placed by a rule of the Code of Civil Procedure. It, was evidently thought that a rule under the Code of Civil Procedure was a more fitting place for a provision relating entirely to a matter of procedure. It may well be that the Court might consider itself more strictly bound by the express words in a section in the Transfer of Property Act then by a rule of procedure. I think the repeal of Section 85 is some reason for holding that the ruling in Bhawani Prasad v. Kallu 17 A. 537 should not be followed in this case. I have also pointed out that no argument based on the manager being a party to the suit was put forward in the case. It is very probable that the father against whom the decree for sale was made was the managing member of the family but there was no finding to that effect, and it is, of course, possible that he was not. I have also pointed out that the weight of authority in India has been to hold that after decree, at any. rate, the absent members of a family are bound by the decree against the manager and the ruling in Bhawani Pershad v. Kallu 17 A. 537 has certainly not met with universal approval in the rest of the Courts in India. Edge, C.J., pointed out the importance of having all the parties interested in the property before the Court so, as to prevent further litigation. I agree that this is desirable but, as already mentioned, this in many cases is impossible. If Bhawani Prasad v. Kallu 17 A. 537 is applied to cases where the manager is a party, each member of the family who was not made a party can re-open the whole litigation on the sole ground even though it my turn out in the end that the mortgage was binding on the whole family. This it seems was the very thing the learned Chief Justice wished to avoid. As a matter of fact, there have been many such cases. In Kishun Pershad v. Har Narain Singh 33 A. 272 : 9 Ind. Cas. 739 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : 38 I.A. 45 : (1911) 2 M.W.N. 395 certain persons brought a suit to recover money. The defendants pleaded that the plaintiffs and certain other persons constituted a joint Hindu family and that the plaintiffs were not entitled to sue without joining as parties the other members of the family. The plaintiffs answered this plea by contending that they were managers and carried on the business, and, therefore, the other members of the family were not necessary parties but that if. the defendant wanted to have them made parties they were willing that they should be added. The Court of first instance made the other members parties but the time it did so the suit was barred so far as the added parties were concerned. The question arose whether or not the suit was barred by limitation. It had to be admitted that if the added parties were necessary parties originally, the making of them parties later on could not cure the defect by reason of limitation. The Subordinate Judge held that the absent members were not necessary parties and gave a decree. This Court reversed the decree of the Court of first instance holding that it was necessary that all the members of the family should join in the suit. Their Lordships of the Privy Council reversed the decision of this Court and restored the decision of the Court of first instance. It is true that in that case the suit was a suit on a contract and the persons who were originally plaintiffs were the parties to the contract; while the present case is a suit for sale on a mortgage executed by the vendor of the predecessor-in-title of the defendants. It seems to me, however, that there is no difference in principle in the two cases. I feel certain that their Lordships of the Privy Council intended to hold not merely that the actual parties to the contract could enforce it but also that the other members of the family would be bound by the decree and that such a decree could be enforced against the family property. I think this decision of their Lordships is a strong ground for not applying the ruling in Bhawani Prasad v. Kullu 17 A. 537 to the circumstances an findings in the present case. What seems to me to be in principle the same question as the question involved in this appeal has recently arisen in a different way. The case was argued before this Bench. It was the case of Madan Lal v. Kishen Singh 15 Ind. Cas. 138, infra. A father who was found to be the manager of the family brought a suit to realize a mortgage which admittedly belonged to the family. Ha did not make his son a party. The defendants pleaded the non-joinder of the son. The question was whether the son was a necessary party. The very same arguments were put forward as are put forward in this case. The son was interested in the mortgage security and should, therefore, it was urged, under Order XXXIV, Rule 1, be made a party. In such a case, it seems to me impossible almost to argue that the father could not represent the son. If no suit had been brought, the father could have received the mortgage-money and have given a good discharge to the persons paying the money.
12. In my opinion, the manager of a joint Hindu family can represent the family in a case like the present and the other members need not be made parties and I would dismiss the appeal.
Banerji, J.
13. The question to be determined in this appeal is whether the suit of the plaintiff, which is one for sale on a mortgage, is liable to dismissal on the sola ground that the sons of the defendants, Hori Lal and Jagan Nath, were not joined as defendants. The mortgage was made by Nait Singh who subsequent-]y to the mortgage sold the mortgaged property to Tilok Ram, the deceased father of the aforesaid defendants. The Court of first instance found on the merits against the defendants but dismissed the suit on the ground that the sons of Hori Lal and Jagan Nath, who have an interest in the mortgaged property by reason of their being, with their fathers, members of a joint family, were omitted from the suit. The lower Appellate Court has found that Hori Lal and Jagannath are managers of the joint family properties belonging to them and their sons and that they fully represent the interest of their sons. It has accordingly decreed the claim. The finding that Hori Lal and Jagan Kath are managers of the joint family of which they and their sons are members is a finding of fact and must be accepted by us in second appeal. We have, therefore, to consider whether in a mortgage suit all, the persons having an interest in the mortgage security or in the light of redemption are, in the case of a joint Hindu family, represented by the manager of the family."
14. Order XXXIV, Rule 1 of the Code of Civil Procedure, on which reliance is placed on behalf of the appellants, provides that "all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties." The requirements of this section are, in my opinion, fulfilled if all such persons are represented in the case of a joint Hindu family by the managers of the family. The powers of the manager in a joint Hindu family are well known. He represents the family in all business transactions, he can enter into contracts in regard to matters relating to the family, give discharges for debts due to the family and pay debts due by the family. When, therefore, in respect of a mortgage due to or by the joint family, he sues or is sued in his own name in his capacity as manager, all the other members of the family being represented by him must be deemed sued through him. If this view is correct, the omission to join in the array of parties members of the family other than the manager is not a defect in the frame of the suit and it cannot be said that there has been a nonjoinder of parties. All the persons interested are substantially parties to the suit through the manager. This was ruled by their Lordships of the Privy Council in the recent case of Kishun Perhad v. Har Narain 33 A. 272 : 9 Ind. Cas. 739 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : 38 I.A. 45 : (1911) 2 M.W.N. 395, Their Lordships held that the managing members of a joint family business of money lending are entitled to maintain suits brought to enforce contracts made in the course of that business, without joining in the suit with them, either as plaintiffs or as defendants, the other members of the family. This decision of their Lordships seems to me to settle the point. The case was, no doubt, that of a business contract but the principle laid down applies equally to a mortgage and is applicable as well in the case of the defendant as in the case of the plaintiff. It has been held by all the High Courts that a decree obtained against the manager of a joint Hindu family binds the other members though they were not impleaded in the suit in which the decree was passed. The cases on the point have been referred to at length in the judgments of same of my learned colleagues and I do not think any useful purpose will be served by repeating them. In Ram Narain Lal v. Bhawani Prasad 3 A. 443, a Full Bench of this Court held that when a member of a joint Hindu family is sued fora family debt, it may be assumed that he is sued for the same as the representative of the family; and when the decree in such a suit is substantially one in respect of the family debt and against the representative of the family such decree may properly be executed against the family property." This case accepts the rule that the members of a joint family, are represented by the manager in a suit brought against the latter alone in respect of a debt due by the joint family. This case was, it is true, decided before the passing of the Transfer of Property Act, but it has been repeatedly held that Section 85 of that Act, which with some modifications has been re-enacted in Order XXXIV, Rule 1 of the present Code of Civil Procedure, only gave legislative effect to what had always been the law. It was, no doubt, held, by the majority of the Court, in Bhawani Prasad v. Kallu 17 A. 537, that the omission of the son in a mortgage suit brought against the father entitled the son to bring a suit to repudiate the decree, simply on the ground that he was not joined as a party to the mortgagee's -suit. This view has not found favour with the other High Courts and seems to me to be opposed to the principle laid down by their Lordships of the Privy Council in Kishun Prasad v. Har Narain Singh 33 A. 272 : 9 Ind. Cas. 739 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : 38 I.A. 45 : (1911) 2 M.W.N. 395. The latest case on the point decided by the Madras High Court is that of Sheikh Ibrahim Tharagon v. Rama Ayar 21 M.L.J. 508 : (1911) 2 M.W.N. 442 : 10 Ind. Cas. 874.
15. The ordinary rule undoubtedly is that all persons interested in a suit should be made parties to it, but in the case of a joint Hindu family, this rule is complied with if the manager of the family is sued or sues and thus represents the other members of the family. What is required is that all persons whose interests are to be affected by the suit are sufficiently and substantially represented. In the case of a joint Hindu family, all persons interested are represented in the suit by the manager and are substantially parties to it through the manager. I do not think that it is essential that the manager, when he brings his suit, should state in distinct terms that he is suing as manager, or that the plaintiffs in a suit against the family, should describe the defendant as the manager of the family. All that is essential is that the manager is in fact suing or is being sued as such in respect of a family debt. If it is denied that the person suing or sued is the manager that fact must be proved. The question is merely one of procedure and I do not think it affects the substantive law as to the representation of members of a joint Hindu family by the manager of the family. "Procedure" said Lord Penzance in the well-known case of Kendall v. Hamilton 4 App. Cas. 504 : 48 L.J.C.P. 705 : 41 L.T. 418 : 18 W.R. 97 ''is but the machinery of the law, after all--the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights and is thus made to govern where it ought to subserve." In the present case, the appellants have no defence to the suit on the merits but they are seeking to defeat it on the ground of a defect in procedure. In my judgment there is no such defect, as the sons of the appellants are substantially parties through the appellants who have been found to be the managers of the joint family of which all of them are members. I would, therefore, dismiss the appeal.
Tudball, J.
16. The facts of this case are simple. One Nait Singh mortgaged the property in suit on 14th November 1870 to one Dharam Singh.
17. On 7th January 1889, Nait Singh sold the property to Tilak Ram, the father of defendants Nos. 4 and 5, Hori Lal and Jagan Nath The appeal has been argued on the assumption that Tilak Ram and his sons constituted a joint Hindu family and that the purchase was made out of joint family funds. The property thus purchased became the property of the joint family. It stood recorded in the name of Tilak Ram alone who, one may presume, was the manager. Tilak Ram died and the names of Hori Lal and Jagan Nath were recorded in Government records. Dharam Singh has died and the present plaintiff, his widow and successor, has brought this suit for sale on the basis of the mortgage.
18. To this suit she has made parties
1. The heirs and representatives of Naiti Singh.
2. Hori Lal and Jagan Nath.
19. The suit was brought at the extreme limit of time allowed by law.
20. Among other defences, Hori Lal and Jagan Nath pleaded that they had sons who were joint with them and, therefore, interested in the mortgaged property and that these sons were necessary parties under Order XXXIV Rule 1. This objection was taken at the earliest possible date.
21. On the merits, the Court of first instance found for the plaintiff but it dismissed the suit on the ground that the sons of Hori Lal and Jagan Nath were necessary parties to suit and not having been impleaded, the suit must fail. I presume that if there had been time to do so, the Court would, under Order I, Rule 10, have made the sons parties and proceeded to decide the suit. If they had been thus made parties, however, at that stage, the suit as against them would have been barred by time.
22. The plaintiff appealed and urged that Hori Lal and Jagan Nath were the managers of the family and fully represented the interests of their sons and that it was not necessary to implead the latter as the joint family was fully represented through its managing members,
23. The lower Appellate Court held that these two defendants Nos. 4 and 5 were the managers of the joint family and that, therefore, it was unnecessary to implead their sons, and decreed the suit. Hori Lal and Jagan Nath appeal.
24. Two points were taken:
(1) That the plaintiff has not proved that the appellants are the managing members.
(2) That the sons of the appellants are necessary parties and the suit must fail unless they are impleaded.
25. As regards the first point, there is a clear finding by the lower Appellate Court and there is no certificate that there is no evidence on record to support it. The plea, therefore, fails.
26. In regard to the second point, it is clear that all persons having an interest in the mortgage security or the right of redemption must be joined as parties, vide Order XXXIV, Rule 1, Civil Procedure Code. The proper procedure, I take it, where such a person has not been made a party, is for the Court to make him a party and then the question of limitation, if it arises, may be decided.
27. But the question to be decided in the present appeal is whether or not, as a matter of fact, the sons of the appellants are virtually parties to the suit-through their representatives, the managing members of the family; in other words, Can the managing member of a joint Hindu family be sued as representing the whole family without making the other co-parceners parties in a suit for sale on a mortgage.?"
28. The question is one of some difficulty by reason of the conflict of opinion disclosed in the various decisions of the High Courts in India. Order XXXLV, Rule 1, Civil Procedure Code, is a rule of procedure which was formerly embodied in the Transfer of Property Act, Section 85. The only differences are that the proviso of Section 85 as to notice has been omitted and the words "in the property comprised in the mortgage" have also been altered.
29. Unless there be some other law which operates in the case of a joint Hindu family, it is clear that the members thereof other than the manager would be necessary parties to a suit for sale on a mortgage. In the case of Bhawani Prasad v. Kallu 17 A. 537, it, was held by a majority of a Full Bench of this Court that where a mortgagee had obtained a decree on his mortgage against a father in a joint Hindu family without impleading the sons, the latter were entitled to a declaration that the decree-holder was not entitled to sell, in execution of his decree, the interests of the sons, on the sole ground that they were not parties to the suit on the mortgage.
30. In the course of his judgment in that case, the learned Chief Justice remarked: I have not yet heard any one suggest that the father in a joint Hindu family, is, as such, a trustee, executor or administrator, within the meaning of Section 437 of the Civil Procedure Code, of his son, particularly if that son is alive and sui juris.
Consequently, we may dismiss from the consideration of this case that Pemi in Bhowani Prasad's suit for sale of the interests of the sons in the family property represented his sons or could have been treated by Bhowani Prasad or by the Court in that suit as representing them for the purpose of Section 85, Act IV of 1882.
31. It will be noticed that there was no consideration in the above case of the position of the manager of a joint Hindu family and his power to represent the family in the course of any litigation in which it might be involved. In so far as the above ruling may have held that the sons were absolutely necessary parties to the suit against the father, the binding force of it has been considerably decreased by the Full Bench ruling in Debi Singh v. Jia Ram 26 A. 214. In the latter suit, the decision in which has since, with perhaps one exception, been regularly followed in this High Court and in other High Courts as well, it was held that where the property had been actually said, the sons could not succeed in a suit to recover it, on the sole ground that they were not parties to the suit but must base their suit on some ground which, under Hindu Law, would free them from their liability for the debt incurred by their father. The principle which is the basis of this ruling, it seems to me, must apply whether the property has been sold or not, but be that so or not, it is a clear instance of a case in which a person interested in the mortgage property was held bound by the decree and sale thereon even though he was not a party personally to the suit.
32. In other words, it is a clear decision to the effect that the substantive law to which he was subject was not overridden by the rule of procedure which makes it necessary to bring on to the record all persons interested in the right of redemption on the mortgage security.
33. Now the general rule of Hindu Law is that a joint family is represented by its manager in all its transactions or concerns with the outer world provided they are for family necessity vide Vishnu Dhondi v. Babaji Bairu 32 B. 375 : 10 Bom. L.R. 505. In certain circumstances, the manager has power to mortgage or sell the family property.
34. The manager is neither a partner nor a principal nor an agent of the family but a sort of representative owner, his independent rights being limited on all sides by the correlative rights of others, etc." (vide Cowell's Tagore Law Lectures, 1870, page 108). Were the manager borrows money on promissory-not for the purpose of a joint family business or to meet a joint family necessity, the creditor can recover the money from all the members of the family although they have not been parties to the notes vide Baisnab Chandra De v. Ramdhon Dhar 11 C.W.N. 139; Nagendra Chandra Dey v. Amar Chandra Kundu 7 C.W.N. 725 and Raghu-nathji Tarachand v. The Bank of Bombay 34 B. 72 : 11 Bom.L.R. 255 : 2 Ind. Cas. 173. One of the duties of a manager is to get in the income and pay the debts of the family (see Bhatacharya's Law of the the Joint Family, page 295).
35. He can give a valid discharge without the concurrence of the minor members of the family Ahinsa Bibi v. Abdul Kader Sahib 25 M. 26.
36. It is difficult to see, therefore, why a manager, if he can represent the family in its transactions and concerns with the outer world, should not be also able to represent the family in its litigations in the Courts.
37. In Daulat Ram v. Mehr Chand 15 C. 70 : 14 I.A. 187, the contention of the co-parceners other than the manager was that as they had not been made parties to the suit against the manager, they were not affected by the decree and their shares had not passed by the sale in execution thereof. In the original suit, the decree had been obtained against the managing members who had mortgaged the whole estate to pay off the family debt. Their Lordships of the Privy Council held that the other coparceners were bound by the decree and that the whole estate had passed. The managers had clearly represented the family in the litigation.
38. In Lala Surja Pershad v. Gulab Chand 27 C. 724 : 4 C.W.N. 701, the two learned Judges differed on this point. Ghose, J., ruled that the share of the son in the ancestral estate was liable for the satisfaction of the decree notwithstanding the provisions of Section 85, Transfer of Property Act, the father having incurred the debt in his representative capacity and as managing member of the family and the son having bean substantially a party to the suit in which the said decree was passed through the representation of his father, that Section 85 of the Transfer of Property Act laid down. only a rule of procedure and the words "all persons" in the section could hardly have bean intended to include a Mitakshara son in a suit where the father is sued in his representative capacity. He dissented from the ruling in Bhawani Prasad v. Kallu 17 A. 537. Since the above decision, Section 85 of the Act has been repealed and the rule laid down therein is now a rule of procedure in the Civil Procedure Code.
39. Harrington, J., differed and quoted the case of Bhawini Prasad v. Kallu 17 A. 537 in support of his decision though pointing out that Sheppard, J., had dissented from it in Ramasamayyan v. Virasami Ayyar 21 M. 222, which was followed in Palani Goundan v. Rangayya Goundan 22 M. 207.
40. It is unnecessary to set forth at length the arguments on which the learned Judges based their opinions. In Kunj Behari Lal v. Kandh Prashad Narain Singh 6 C.L.J. 362, it was held that if a decree is passed against the manager of a joint Hindu family in respect of a liability properly incurred for the necessities of the family, the binding character of the decree upon the interests of the other members depends not upon their having or not having been parties to the suit, but on the authority of the manager to incur the liability. See also the decision in Lutchmanan Chetti v. Siva Prokasa Modeliar 26 C. 349 : 3 C.W.N. 190, where the rule of representation was upheld.
41. In Gan Savant Bal Savant v. Narayan Dhond Savant 7 B. 467, it was pointed out that a Hindu family is regarded as a corporation whose interests are naturally centred in the manager, the presumption being that the latter is acting for the family unless the country is shown and that before the introduction of the Civil Procedure Code, this was equally so with regard to litigation as to other transactions."
42. I have already noted the rule of Hindu Law as pointed out in Vishnu Dhondi v. Babaji 32 B. 375 : 10 Bom. L.R. 505. In Ramakrishna Narayan Sindhe v. Vina-yah Narain Saswadkar 12 Bom.L.R. 219 : 34 B. 354 : 5 Ind. Cas. 967, it was held that the rule of procedure laid down in Section 85, Transfer of Property Act, does not interfere with the rule of Hindu Law, that it is open to the manager in a Hindu family to represent the other members (subject to certain conditions) in a suit brought upon a mortgage against him. In Chimna Sadashiv v. Sada Barka 12 Bom.L.R. 811 : 7 Ind. Cas. 990, the same rule was approved, dissent was expressed from the decision in Bhawani Prasad v. Kallu 17 A. 537. Sheppard, J.'s decision in Ramasamayyan v. Virasamy Ayyar 21 M. 222 and the decision in Debi Singh v. Jia Ram 26 A. 214 were quoted with approval.
43. In Arunachala Pillai v. Vithialinga. Mudaliar 6 M. 27, it was held that no member of an undivided Hindu family (except the manager as such) is entitled to bring a suit to establish a right belonging to the family without making the other members of the family parties to the suit.
44. But in the case of Angamuthu Pillai v. Kolandavelu Pillai 23 M. 190 it was held that the plaintiff could not sue without making his brother the other member of the undivided family a party to the suit, though he was suing as the manager to recover certain property for the family. The latest decision of the Madras High Court is to be found in Sheikh Ibrahim Tharagon v. R. K. Rama Iyer 21 M.L.J. 508 : (1911) 2 M.W.N. 442 : 10 Ind. Cas. 874, in which, after an exhaustive consideration of all rulings on the point, the rule of Hindu Law, (i. e., of representation of the family by the manager), was enforced and the manager's right to sue as such was maintained. In this Court in the case of Shamrathi Singh v. Kishan Prasad 29 A. 311 : 4 A.L.J. 194 : A.W.N. (1907) 58, it was ruled that the managing members of a joint Hindu family carrying on a joint family business are not entitled to maintain a suit in their own names against debtors of the family without joining with themselves either as plaintiffs or defendants all the other members of the family. The decision in Pateshra Partab Narain Singh v. Rudra Narain Singh 26 A. 528 was distinguished.
45. Their Lordships of the Privy Council have reversed this decision, Kishun Pershad v. Har Narain Singh 33 A. 272 : 9 Ind. Cas. 739 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : 38 I.A. 45 : (1911) 2 M.W.N. 395, holding that there was no principle of law or custom applicable to such a case under which the managing members of a Hindu joint family entrusted with the management of the business could be held incompetent to enforce at law the ordinary business contracts they are entitled to make or discharge in their own names.
46. The decision in Arunachala Pillai v. Vithialinga Mudaliar 6 M. 27 was quoted with apparent approval and the decision in Ramsebak v. Ram Lal Koondoo 6 C. 815 : 8 C.L.R. 457 explained, as also was that in Alagappt Chetti v. Vellian Chetti 18 M. 33. In respect to the latter, their Lordships expressed the opinion that the proposition there laid down to the effect that the manager cannot sue without joining all those interested with him, if literally construed, goes too far.
47. In Jaddo Kuar v. Sheo Shankar Ram 33 A. 71 : 7 A.L.J. 945 : 7 Ind. Cas. 902, this Court also applied the rule of representation and held that the other members of the joint Hindu family were bound by the action of their managing members. It is unnecessary to discuss any further rulings on the subject. While there, no doubt, is a conflict of opinion as to whether the rule of procedure does or does not override the rule of Hindu Law, which allows the manager to represent the family under certain conditions in the case of litigation as well as in the other concerns of ordinary life, the weight of opinion seems to me to be in favour of the rule of substantive law.
48. Prior to the introduction of the Civil Procedure Code and the Transfer of Property Act, this latter rule had fall sway. Afterwards, the pendulum has swayed bath ways. Of late the rule of Hindu Law has been given precedence over the rule of procedure and the latest decision of the Privy Council in Kishan Pershad's case 33 A. 272 : 9 Ind. Cas. 739 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : 38 I.A. 45 : (1911) 2 M.W.N. 395 can leave no doubt upon the point, I, therefore, am of opinion that the rule of Hindu Law must be given its full force, and that where the necessary conditions prevail, the manager of the family when acting as such can both sue and be sued in his representative capacity and suits in such circumstances cannot be dismissed simply because the other members of the family are not before the Court.
49. It will always be open to the opposite party to plead that the person alleged to be the manager is, as a matter of fact, not the manager and the issue as to this fact can be decided. It may also be similarly pleaded that he is not acting within the scope of his authority. The result of this no doubt will be to leave it open to the other members of the family to attack the decree on the ground of fraud etc., in a subsequent suit. This is even so now and suits by sons against their fathers and persons holding decrees against him are fairly frequent as it is.
50. It would, therefore, be still advisable for the Courts, where the objection of nonjoinder is taken, to make the absent mem-bsrs parties to the suit, if possible, so as to prevent the necessity of further litigation and to decide finally whether or not the action of the manager is within his authority and binding on his co-parceners.
51. In the present case, Hori Lal and Jagan Nath are the managing members. The property was purchased by the joint family with the burden of the plaintiffs' mortgage already upon it. There is no defence open to their sons which is not open to them. The sons cannot plead a debt contracted by their fathers for immoral or non-family purposes. The question is as to the validity or otherwise of the mortgage as created by the original mortgagors. There is, therefore, no valid reason in this case for not applying to the parties the rule of substantive law which. is binding upon them and I would, therefore, told that the decision of the Court below is correct and would dismiss the appeal.
Chamier, J.
52. I agree that the appellants cannot be allowed to challenge the finding of the lower Appellate Court that they are the managers of the joint family to which they belong. The only question which we have to decide in this appeal is whether a suit can be maintained against the manager of a joint Hindu family alone to enforce a mortgage against property belonging to the family.
53. A somewhat analogous question has arisen in Lala Madan Lal v. Kishan Singh 15 Ind. Cas. 138, infra, which has been heard by this Bench of four Judges, namely, whether the manager of a joint Hindu family suing as such can maintain a suit for the recovery of a mortgage-debt due to the family. I have stated the question in this way because I agree with my learned colleagues that the Court below ought to have allowed the plaint to be amended and that the case should be treated now as if the Appellant had from the first sued as the manager of a joint family.
54. The records of cases decided in these Provinces forty or fifty years, ago show that in those days a joint Hindu family ordinarily sued and was sued through the manager of the family or through the more prominent members of the family and the practice was recognized by their Lordships of the Privy Council as long ago as 1871 see the remarks made in the case of Jogindro Deb Roy v. Funindro Deb Roy 14 M.I.A. 367 : 11 B.L.R. 244 : 17 W.R. 104. But the reports show many instances of cases in which, after a decree had been obtained by or against one or more members of a joint family, attempts were made by members who had not been impleaded to show that they were not bound by the decree which had been passed. Whether on account of the difficulties which resulted from that practice or for any other reason, there is no doubt that in many parts of India a practice has been growing up of impleading as many members of a joint family as possible see the remarks made in the cases of Kashi v. Chimnaji 30 B. 477 : 8 Bom.L.R. 268; Naranji v. Mohi Govanji 9 Bom.L.R. 1126 and Harihar Prasad v. Mathura Lal 12 C.W.N. 598 : 35 C. 561 : 8 C.L.J. 256 . In these Provinces, it has been for many years the practice to join all the members of a joint family in a suit relating to the property of a joint family and there are instances in this Court of suits having been dismissed on account of the non-joinder of subordinate members of a family. But objections on the score of non-joinder of members of a family have generally been met by those members being added as parties or have been overruled as having been taken too late, and I know of no case in this Court in which it has been definitely held that a manager of a joint family cannot sue or be sued on behalf of the family.
55. An exhaustive review of the case law in the other High Courts will be found in the recent case of Sheikh Ibrahim v. Rama Iyer 21 M.L.J. 508 : (1911) 2 M.W.N. 442 : 10 Ind. Cas. 874. It shows, I think, that there has not been any uniform course of decisions in those Courts.
56. The case of Kishun Prasad v. Har Narain 33 A. 272 : 9 Ind. Cas. 739 : 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : 38 I.A. 45 : (1911) 2 M.W.N. 395 has been regarded by some Courts as deciding that a manager of a joint family can sue and be sued on behalf of the family. It seems to me that all that their Lordships of the Privy Council decided in that case was that managing members of a joint family entrusted with the management of a business are competent to enforce at law the ordinary business contracts which they are entitled to make or discharge in their names; but the language used by their Lordships in more than one place in their judgment suggests that they were of opinion that, apart from the case of a family business, the managing member of a joint family suing as such is entitled to maintain a suit to establish a right belonging to the family without making other members of the family parties. Indeed, this seems to be a necessary conclusion from their decisions in such cases as that of Daulat Ram v. Mehr Chand 15 C. 70 : 14 I.A. 187. On principle, it would seem that the decision should be the same whether the question of the right of the manager to represent the family is raised in the suit brought by or against the manager or in a subsequent suit brought by or against a member of the family not impleaded in the former suit to try the effect of the decision in the former suit as against him. The manager of a joint family represents the family in its dealings with outsiders in all the ordinary affairs of life, at all events where he is acting within the scope of his authority or for the benefit of the family, and there seems to be no reason why he should not represent the family in a suit whether as plaintiff or defendant unless there is some legislative enactment to the contrary. It has been held more than once that the rule of procedure which is now Order VII, Rule 4, applies to the case of a manager of joint family suing on behalf of the family. If those decisions are correct, the rule referred to shows that a manager can sue on behalf of a joint family.
57. Except possibly in a few cases there appears to be no presumption that a joint family has a manager or that any particular person is the manager. The question whether a person before the Court is the manager of a joint family is usually a question of fact to be dealt with like any other question of fact. In one of the cases now before us, the plaintiff claims to be the manager of a joint family and must be allowed an opportunity of proving his allegation if it is denied. In the other case, it has been found that the appellants are the managers of a joint family.
58. Both on principle and on authority I am of opinion that the manager of a joint Hindu family suing as such can maintain a suit alone for the recovery of a mortgage-debt due to the family and that a suit can be maintained against the manager of a joint family alone to enforce a mortgage against property belonging to the family. If the manager sufficiently represent the family, the provisions of Order XXIV, Rule 1, are complied with.
59. In conclusion, I desire to refer to the cases of Gendan Lal v. Babu Ram 9 A.L.J. 86 : 13 Ind. Cas. 197 and Nathi Lal v. Lola 9 A.L.J. 410 : 14 Ind. Cas. 35, in the decision of which I took part. In the former it was neither alleged nor proved that the family had a manager who could represent the absent member and, as my judgment shows, it was not even contended that the absent member was sufficiently represented by any person before the Court, a circumstance which supports what I have said about the practice of this Court in recent years. In the latter case a judgment was delivered which covered several cases. Some members of the families of the plaintiffs had not been made parties. We were disposed to hold that managing members could sue on behalf of the joint families to which they belonged, but none of the plaintiffs had sued as managers and in some of the oases at all events it was impossible to presume that the managers were before the Court. Consequently, we disposed of the appeals on another ground. I agree with the order proposed by the learned Chief Justice in' this case.
60. The order of the Court is that the appeal be dismissed but we make no order as to the costs in this Court. We extend the time for payment for six months from this date.