JUDGMENT
1. The plaintiff sued on a mortgage executed on the 10th of August 1888 by one Karam Khan. The deed specified the property mortgaged which was described in the body of the document as the mortgagor's personal share in his possession. This mortgage was sot out in paragraph 1 of the plaint which was admitted in the written statement filed by the defendants, who are the sons, daughters and widow of Karam Khan executant. In the last paragraph, of the written statement it is alleged that the property mortgaged originally belonged to one Salahi, father of Karam Khan, and that there were other persons besides Karam Khan, who were heirs to Salahi. On the other hand in paragraph 2 of the additional pleas of the written statement it appears that the mortgage was a mortgage of the entire property and that the mortgagee had been realizing the profits from the tenants. The Court of first instance finding that Karam Khan was entitled to a 2/5th share only in the property mortgaged gave the plaintiff a decree for sale of a 2/5th share of the property mortgaged. The plaintiff appealed and his appeal was dismissed by the lower Appellate Court. The sisters and another person said to be interested in the property were not joined as parties. The plaintiff appeals to this court and it is contended that on a true construction of the mortgage deed he was entitled to a decree for the sale of the entire property mortgaged; that the defendants, who stand in the shoes of Karam Khan cannot be allowed to say that Karam Khan had no power to mortgage the entire property. We think that this latter contention is well founded. If Karam Khan were alive, he would not be permitted to plead that he had no authority to mortgage the property which he purported to mortgage. The defendants, who are his representatives, cannot stand in a better position.
2. The sisters of Karam Khan may or may not have rights in the property in suit and we do not know whether they lay claim to any such rights. As they are not parties to this suit, their rights are not affected by the decree in this case. It is contended that having regard to the provisions of Section 85 of the Transfer of Property Act it was obligatory on the plaintiff to join them as parties. According to the deed of mortgage the sisters of Karam Khan had no interest in the mortgaged property. The defendants as said above cannot be allowed to set up a defence which Karam Khan could not have pleaded. In this connection we would refer to the ruling in Jaggeswar Dutt v. Bhuban Mohan Mitra 33 C. 425 in which Mookerjee J., held "that the ordinary rule is that the plaintiff mortgagee cannot be allowed so to frame his suit as to draw into controversy the title of a third party who is in no way connected with the mortgage and who has set up a title paramount to that of the mortgagor and mortgagee. "Much to the same effect is the lading in Mon Mohini Ghose v. Parvati Nath 32 C. 746. The same principal was followed in Khairati v. Banni Begam 5 A.L.J.R. 604. We think that in this case the plaintiff was entitled to a decree for sale of the entire property. We allow the appeal and setting aside the decree of the courts below in so far as they dismissed the plaintiff's claim in respect of 3/5th share of the property mortgaged, decree the plaintiff's claim against the entire property mortgaged. The appellant will get his costs from the respondents including fees on the higher scale.