JUDGMENT Chamier, J.
1. The following table will help to elucidate the statement of facts:
BHUABAL BHAGAT ________________________|___________________________________ | | | | | Bhoj Ram. Kunji Ram. Bisheshar Ram Hira Ram Jawahir Ram.
2. Bhuabal Bhagat and his descendants, who were joint in every respect, carried on an ancestral business in srji, sugar, and groceries under the style of Bhuabal Bhagat Bhoj Ram. They also did a litlle money lending and owned some zamindari property. After the death of Bhuabal Bhagat and five of his sons the management of the family business and properly came into the hands of Hira Ram and Dhondhi Ram. On July 4th, 1894, the two last named advanced money belonging to the family upon a mortgage of some villages, already mortgaged to the appellant, and on July 26th, 1894, they purchased with family funds another village which also had been previously mortgaged to the appellant. In 1895, the appellant sued upon her mortgages and obtained two decrees, one for sale and the other for foreclosure Both decrees were made absolute, and in execution of the decree for sale the appellant purchased the property covered by that decree. Hira Ram and Dhondhi Ram were parties to the suits brought by the appellant, but the plaintiffs were not made parties. In the present suit they claimed a decree for redemption of all the property mortgaged to the appellant on the ground that they ought to have been made parties to the suits for sale and foreclosure and not having been made parties are not bound by the decrees which were passed. The Court below has given them a decree for redemption of so much of the property as is covered by the mortgage-deed of July 4th, 1894, and the sale-deed of July 26th, 1894. Jaddo Kuar has appealed on the ground that the entire suit should have been dismissed. The plaintiffs have filed cross-objections on the question of costs.
3. The Court below has found, and the finding has not been challenged before us, that Hira Ram and Dhondhi Ram were the managers of the family property and business, that when the appellant brought her suits she was not aware of the existence of the plaintiffs, that Hira Ram and Dhondhi Ram defended the suits by authority of the adult; members of the family who were aware of what was being done in them as all expenses incurred were entered in the family accounts, and that the plaintiff Bishnath Ram had not been born when the appellant brought her suits. To this finding it may be added that the plaintiffs, Mathura Ram, Dwarka Ram and Sheo Prasad Ram, were minors when those suits were brought.
4. As purchasers and mortgagees of the properties already mortgaged to the appellant, the family of the plaintiffs were obviously bound by the mortgages held by the appellant. Dhondhi Ram in his evidence says that they decided not to redeem the appellant's mortgages because they anticipated that a suit would be brought by the minor son of Radha Kishan, a member of the mortgagor's family, to challenge the sale and the mortgages. He says that he did not consult the plaintiff, Sheoshanker Ram, But it is difficult to believe this. It is quite clear that the adult members of the family other than Hira Ram and Dhondhi Ram, acquiesced in, if they did not take part in, the decision of the managers not to redeem the appellant's mortgages. The sole ground, upon which the plaintiffs claim to be entitled to redeem the property, is that they were not parties to the suits brought by the appellant. The plaintiff, Bishnath Ram, may be disregarded as he was not in existence when the previous suits were brought. The case of the plaintiffs, Dwarka Ram and Sheo Prasad seems to be covered by our decision in Tehria Balwant Singh v. Aman Singh7 A.L.J. 852 : 7 Ind. Cas. 112, which is based upon several decisions of this Court including that of the Full Beneh in Debi Singh v. Jia Ram 25 A. 214 : (1903) A W.N. 21. Indeed the position of the plaintiffs, Dwarka, Ram and Sheo Prasad Ram, is much weaker than that of the plaintiff in the case first mentioned, for in the present case there cannot at any time have been any doubt that the plaintiffs were bound to pay the sum due to the appellant if they wished to retain the properties sold and mortgaged to their family. Pandit Sundar Lal, on behalf of the plaintiffs-respondents, relied upon the ease of Sundar Lal v. Chittar Mal 3 A L.J. 644 : A.W.N. (1906) 242 in which it was held that sons in a Hindu family could maintain a suit for redemption of their shares in the family property, although a previous suit by their father for redemption of the whole property had been dismissed on his failing to pay the amount found to be due or, the mortgage. The decision in that case would probably have been the other way if the previous suit for redemption had resulted, as apparently it ought to have, in a foreclosure or an order for a sale followed by a sale. For when property mortgaged by a father in a Hindu joint family has passed away from the family either by means of a foreclosure against the father or by means of a sale in execution of a decree against him upon a mortgage, it cannot signify whether the suit which resulted in the foreclosure or sale was instituted by the mortgagor or by the mortgagee. In neither case, consistently with the principle upon which the case of Debi Singh v. Jia Ram 25 A. 214 : (1903) A.W.N. 21, was decided, can the sons recover the family property or their interests in it merely because they were not parties to the suit brought by or against their father. to far then as the plaintiffs, Dwarka Ram and Sheo Prasad Ram, are concerned, I think, it is clear that the suit should have been dismissed.
5. There remains the case of the plaintiffs, Sheoshankar Ram and his son, Mathura Ram. The principle upon which the case of Debt Singh v. Jia Ram 25 A. 214 : (1903) A W.N. 21 rests, does not apply to them; but I am nevertheless of opinion that their claim also should have been dismissed. It was contended on their behalf that the provisions of Section 85 of the Transfer of Property Act were imperative and that they were in the position of ordinary puisne mortgagees who had not been made parties to a suit by a prior mortgagee and who, there-fore, must be given an opportunity of redeeming the prior mortgage. Section 85 does not in terms apply to the case, for the appellant was not aware of the existence of the plaintiffs when she brought her Quits. But a person may be a necessary party to a suit upon a mortgage although the plaintiff is not aware of his existence, in the sense that if he is not impleaded he cannot be concluded or his rights affected by the decree passed in the suit. Prima facie all persona interested in the right to redeem must be made parties to a suit by a mortgage, but the rule is not inflexible, for example, it is settled law that in certain circumstances a son in a joint family is bound by a decree upon a mortgage obtained against his father, and it would, no doubt, be held that an adopted son was sufficiently represented by his adoptive mother in a suit upon a mortgage In circumstances similar to those found in the cases of Dhurm Das v. Shama soondari 3 M.I.A. 229 : 6. W.R. 43 (P.C.) and Hari Suran v. Bhubaneswari 16 C 40 (P.C) 15 I.A. 195. in the present case there can be no doubt that Sheoshankar Ram and his son, Mathum Ram, were, in fact, represented by the managers of the family property in the suits brought by the appellants With the consent, expressorimplied, of Sheoshankar Ram and other adult members of the family the mortgage-deed of July 4th, 1894 and the sale-deed of July 20th, 1894, had been executed in favour of the managers alone and they alone were recorded as mortgagees and proprietors. With the same consent the managers had defended the suits and abstained from redeeming the appellant's mortgages, in somewhat similar circumstances the Bombay High. Court held that all the members of a joint family were bound by a decree obtained against the Karta of the family, see Narayan Gop Hubbu v. Pandurang Gonu 5 B 685. In that case the defendant had obtained a decree for possession of land against one Anant who was at the time the Karta of a joint family consisting of his two nephews and himself. It was found that the uncle and nephews had been living together when the suit was brought and that the nephews had assisted their uncle to defend the suit. In the circumstances the High Court held that the nephews had been effectively represented in the suit by their uncle, and a suit by the nephews for recovery of their shares in the property was held not to be maintainable. Westropp, C.J. referred to, and relied upon, the following passage in the judgment of their Lordships of the Privy Council in Jogendro Dab Roy v. Funindro Dab Roy 14 M.I.A. 367 at p 376 : 17 W.R. 104 : 11 L.R. 244. "Their Lordships think that this case cannot be likened to those which sometimes occur in India wherein the interest of a joint and undivided family being in issue one member of that family has prosecuted a suit or has defended a suit, and a decree has been made in that suit which may afterwards be considered as binding upon all the members of the family, their interest being taken to have been sufficiently represented by the party in the original suit." In Bissessur Lall Sahoo v. Luchmessur Singh 6 I A 233 : 5 C.L.R. 477, the facts were as follows:
One Nath Das died in 1853, leaving a son, Ram Nath Das, who died in 1855, and Ram-nath Das left two sons, Mosahib and Chooman Nath Das and Ram Nath Das had taken a lease of a village called Rudarpur; the landlord brought a suit for the rent against the widows of Nath Das and Ramnath Das as guardians of Mosahib and Chooman. A second suit was brought against Mosahib for the rent of a village called Ramnagar, the lease of which stood in the name of Nath Das. A third suit was brought against the widow of Rarnnath Das as guardian of Mosahib. In execution of the decrees in the three suits a village called Maddanpur was put up for sale and bought by the plaintiff in those suits. Maddanpur had been acquired in the name of Ramnath Das for the benefit of the family. A suit having been brought by the assignee of the rights of Mosahib and Chooman, their Lordships held on an examination of the proceedings that as all three decrees were in respect of a joint debt of the family and had been passed against a representative of the family property, they had properly been executed against the joint family property, and they concluded their judgment with a reference to two cases the effect of which is that in dealing with execution proceedings the Court should look at the substance of the transaction and should not set aside an execution upon mere technical grounds when the Court found that it was substantially right. In the case before them they came to the conclusion that the circumstances warranted the assumption that the defendant or defendants in each of the previous suits had been sued as representing the family and, as the claim in each suit had been for money due from the family, joint property of the family had rigidly been taken in execution. These cases show, I think, that where a joint family has been effectively represented in a suit and substantial justice has been done, the Court is not always bound to set aside the execution proceedings merely because every member of the family was not formally made a party. A loose interpretation of this rule might easily lead to disastrous results and cause great confusion, but in the case before us, I think, we are justified in holding that the plaintiff, Sheoshankar Ram, was effectively represented in the suits brought by the appellant and should not be permitted to re open the foreclosure or have the sale set aside.
6. The learned Counsel for the appellant referred us to the recent decision of the Bombay High Court in Ramakrishna Narayan v. Vinayak Narayan 12 Bom. L.R. 219 :34 B. 354 : 5 Ind. Cas. 967, in which it was held that the defendant appellant had been effectively represented by his undivided uncles, who were managers of the family property, in a suit brought upon a mortgage made by several members of the family. Chandavarkar, J said: The present appellant was, no doubt, omitted from the suit, but the adult members of the family represented him'. They were the managing members of the family ; there fore, according to Hindu law, we must hold, in the absence of any other circumstance, that the present appellant had been substantially represented upon the record and was virtually a party to the suit." As the remainder of the judgment shows, these remarks went beyond what was necessary for the decision of the appeal and there were other grounds upon which the same conclusion might have been arrived at. In former days, when the same strictness of procedure did not prevail as now, it was a common practice for the manager of joint family, to sue and be sued on behalf of the family, see Gan Savant Bal v. Narayan Dhond Savant 7 B. 467, where West, J. discussed the state of the law as it was in 1853, but it is generally recognized now that the manager is not, as a rule, entitled to sue or liable to be sued on behalf of the family, see Padmakar Vinayak v. Mahadev Krishna 10 B. 21 and Kashinath Chimnaji v. Chimnaji Sadashiv 30 B. 477 at pp. 485, 486 Bom. L.R. 233. Nevertheless, it seems that in certain circumstances the whole family may be held bound by the result of suits brought by, or against, the manager. In the particular circumstances of the present case, I think that we may properly hold that the plaintiff, Sheoshanker Ram, is bound by the proceedings taken against the managing members of the family by the appellant. If Sheoshanker is bound so also is his son, Mathura Ram. I would allow the appeal, dismiss the cross-objection, with costs, and dismiss the suit with costs in both Courts, the costs, in this Court, to include fees of the higher scale.
Tudball, J.
7. I concur.
8. The order of the Court is that the appeal is allowed, the cross-objections are dismissed with costs, and the suit stands dismissed with costs in both Courts, including in this Court fees on the higher scale.