JUDGMENT Henry Richards, C.J.
1. This appeal arises out of a suit to realise the amount of a mortgage, dated the 11th August 1884. It was pleaded by way of defence amongst other things that the plaintiff and his minor son Bisheshar Dayal were a joint Hindu family and that the suit could not be maintained because the mortgage was of family property and the son was not made a party. Plaintiff urged against this plea that he was manager and represented the family. Plaintiff also asked that the plaint might be amended by stating therein that he sued as manager. The Court below refused to amend the plaint and dismissed the suit on the ground that the son was a necessary party to the suit.
2. The appeal has been referred to this Bench because of the conflict of judicial decisions on the question.
3. Apart from authority, I can see no reason why the son should be a necessary party to the suit. It must be assumed for the purpose of this appeal that the plaintiff is the manager of the family. If before the emit was instituted, the owners of the equity of redemption had been ready and willing to pay off the mortgage, 1 think it is absolutely clear the plaintiff as manager could receive the mortgage money and give the person paying off the money a good discharge and I can see no reason why the Court should require the presence of any other party.
4. Order XXXIV, Rule 1 of the Code of Civil Procedure, no doubt requires that persons interested in the mortgage security should be parties but I think in a case like the present the son is virtually a party through the manager and that Order XXXIV, Rule 1, is substantially complied with.
5. The same question in. principle arose in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 ante, which was argued before this Bench. In my judgment ' in that case, I gave my reasons for holding that the manager of a joint family can represent the family. I would allow the appeal and remand the suit.
Banerji J.
6. The point raised in this appeal has practically been decided in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 ante, in which judgment has this day been delivered.
7. In this case the plaintiff omitted to join with him as plaintiff his minor son who is four years old. For this omission, the suit has been dismissed. It is manifest from the plaint that the debt which the plaintiff seeks to recover is alleged to be a debt due to the joint family of which he and his minor son are members. The mortgages which form the basis of the claim are in favour of Ram Prasad, the grandfather of the plaintiff and the great grandfather of his son. This is recited in the plaint. At an early stage of the suit, the plaintiff stated to the Court that he was suing in his capacity as manager of the joint family and applied for amendment of the plaint. The Court, in my opinion, improperly rejected the application. The defendants clearly had notice that the plaintiff was suing as manager, I have in my judgment in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126, ante stated my reasons for holding that where a suit is brought, by the manager of a joint Hindu family, the other members of the family must be deemed to be parties to the suit through him and the omission of the names of those members from the array of parties would not be a defect fatal to the suit. Of course, if in a suit like this the other members wish to join or apply to be added as parties the Court should never refuse to add them but the suit ought not in any event to be dismissed if in fact it has been instituted by the manager of the joint family for the recovery of a debt due to the family. As the manager is competent to give a full discharge to the debtor, the latter can have no reason to complain of the omission of the persons whom the manger represents. In this respect, the case of a joint Hindu family is different from that of other joint creditors. The matter is, in my opinion, concluded by the principle of the decision of their Lordships of the Privy Council in Kishan Prasad v. Harnarain 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. I would allow the appeal, set aside (he decree of the Court below and remand the case to that Court for trial on the merits.
Tudball, J.
8. This appeal arises out of a suit for sale on a mortgage against the heirs of the original mortgagor and certain subsequent transferees. It has been dismissed on a preliminary point, the lower Court having held that the plaintiff alone is not competent to maintain the suit.
9. The original mortgages was Lala Ram Pershad, the plaintiffs' paternal grandfather, and the plaintiffs' case as disclosed in the plaint was that his grandfather, his father, his uncle and himself formed a joint Hindu family and that the three former having died, he was the sole owner of the mortgage-debt by the right of survivorship and entitled to sue. But it is an admitted fact that the plaintiff has an infant sou who is joint with him.
10. Before the first date fixed for the case, the plaintiff applied to the Court to be allowed to amend his plaint by adding thereto that he was suing as manager of the joint family (consisting of himself and his son). The Court below, without passing any orders on this application, dismissed the suit holding that the amendment could not improve the position of the plaintiff because the manager of a Hindu family cannot sue without joining those interested with him. The decision was based on the ruling of this Court in the case of Shamrathi v. Kishan Pershad 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.
11. This decision has since beer overruled by their Lordships of the Privy Council. In Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 ante this Bench has fully discussed the right of the manager of a joint Hindu family to represent the family and have held that he can sue and be sued as such so that the decree under certain circumstances may be binding on the other co parceners. It is unnecessery to repeat what has already been said in the judgments in that case.
12. In my opinion, the plaintiff ought to have been allowed to amend his plaint and the suit as amended is maintainable. Of course, it is open to the defendants to plead that he is not the manager though, in the circumstances of the case, that appears to be a hopeless plea.
13. I would, therefore, allow the appeal and remand the suit to the lower Court with orders to allow the plaint to be amended and to decide the suit on the merits.
Chamier, J.
14. I agree that the Court below ought to have allowed the plaint to be amended. The question for decision in this appeal appears to me to be whether 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. For the reasons which I have given in my judgment in Hori Lal v. Nimman Kunwar 15 Ind. Cas. 126 ante, I am of opinion that he can. 1 agree in the order proposed by the learned Chief Justice.
15. The order of the Court is that we allow the appeal, set aside the decree of the Court below and remand the case to that Court with directions tore-admit the suit under its original number in the register and to proceed to try it on the merits after allowing the amendment of the plaint as prayed for by the plaintiffs. Costs here and heretofore will abide the result. Costs in this Court will include fees on the higher scale.