JUDGMENT
1. First Appeals Nos. 401, 425 and 459 of 1932 arise out of Suit No. 19 of 1931 filed by Raghuraj Singh against the defendant. The first two appeals are appeals by defendants while the third one is an appeal by the plaintiff. There were two simple mortgages of 17th August 1915 and 30th August 1916 executed by the plaintiff's father, Madho Singh, and others in favour of the defendant-appellant, Mt. Mustafai Begum, on the basis of which she brought a suit on 5th June 1919 for foreclosure. Her case was that there had been a previous agreement between the parties to consolidate the two mortgage deeds into one. Ultimately the parties agreed and on 12th June 1919 deed of mortgage by conditional sale was executed under which the amounts due under the previous documents were consolidated. This mortgage-deed was executed by a very large number of persons who practically represented all the adult members of the plaintiff's family, including near collaterals. The present plaintiff was a minor at the time and was represented by his brother who acted as his guardian and also for himself. On the application of the parties the mortgage suit was compromised in view of the execution of this third mortgage-deed. A suit was filed by the plaintiff's brother as well as other adults for the cancellation of the mortgage-deed and the compromise, in which the present plaintiff was included as a defendant. The matter came up to the High Court and the suit stood dismissed and the mortgage-deed and the compromise were upheld by the High Court.
2. The present plaintiff filed his suit first in forma pauperis in the Court of the Munsif of Shahganj on 23rd December 1929. The Munsarim reported that the value of the subject matter in dispute was much higher and the Munsif had no jurisdiction. Thereupon the plaint was returned by the learned Munsif for presentation to the proper Court. A preliminary decree based on the compromise had been passed on 23rd November 1920 and the final decree was passed on 25th August 1930. The present plaint was filed in the Court of the Subordinate Judge on 2nd January 1931. It has been assumed by the learned Subordinate Judge without any express finding that the final decree of 25th August 1930 was passed during the pendency of the previous suit in the Court of the Munsif, which may be assumed to be the fact. But the learned Subordinate Judge has not at all considered the effect of the final decree having preceded the institution of the suit in the Court of the Subordinate Judge. He has found that in view of the previous decision of the High Court upholding the compromise and the preliminary decree the latter are binding on the plaintiff and the principle of res judicata applies against him. He has accordingly held that it is not open to the plaintiff to challenge the preliminary decree which was passed in 1920 in the mortgage suit. He has, however, held that on the principle of lis pendens the final decree is ineffective because it was passed during the pendency of the suit in the Munsif's Court. He has accordingly not only set aside the final decree and not only reopened the proceedings for the preparation of the final decree, but has decreed the plaintiff's claim for redemption in toto.
3. It seems to us that the view taken by the learned Subordinate Judge cannot be supported. In the first place he has entirely overlooked the fact that the final decree was passed before the institution of the present suit and cannot be held to be ineffective on account of the institution of the subsequent suit. As a matter of fact the principle of Section 52, T.P. Act, applicable to transfers of property is not applicable to suits and decrees passed in such suits. The plaintiff should have taken steps to get the proceedings stayed and if he failed to do that and allowed a decree to be passed against him, then the mortgage suit became "a former suit" within the meaning of Section 11, Civil P.C., by virtue of Expln. 1 added thereto. Furthermore, putting the case for the plaintiff at its highest, all that could be said would be that the final decree would be subject to the result of the suit in the previous Court. But in point of fact the plaint was actually returned by the learned Munsif on account of want of jurisdiction and was therefore not fruetuous. The mere fact that the plaintiff instituted another suit subsequently would not make the final decree which had been obtained previously, null and void. Secondly, the learned Subordinate Judge's view is obviously erroneous inasmuch he has not only reopened the final decree, but has actually decreed the plaintiff's claim in full, ignoring the effect of the preliminary decree which he has himself held to be binding on the plaintiff under Section 11, Civil P.C.
4. We are, therefore, of the opinion that it is not open to the plaintiff to avoid the effect of the final decree which was passed against him on the basis of a preliminary decree which on the finding of the Court below is certainly binding on him. The final decree is not defective on the ground that it was passed during the pendency of the suit in the Munsif's Court, which is the only ground urged against it in the amended plaint. The learned Counsel for the respondents has urged before us that Ram Karan Singh who had been appointed the guardian of Raghuraj Singh in the mortgage suit was not a proper guardian because he had been a co-executant with Raghuraj Singh's, father. It cannot be laid down as a general proposition that even where there are a large number of the members of the minor's family who joined in the execution of the mortgage-deed and their in-terests are not adverse, each one of them is incompetent to be appointed guardian ad item of any of the minor members of the family. Every case would depend on its own facts. But the chief difficulty in the way of the plaintiff is that as found by the lower Court the judgment of the High Court delivered in 1926 operates as res judicata. At that time the preliminary decree for foreclosure had already been passed. A suit was brought by two brothers of the plaintiff Jairaj Singh and Ramdeo Singh, one of whom was certainly adult at the time, for cancellation of the decree and for recovery of possession of the entire property in the interest of the joint family consisting of the four brothers.
5. The present plaintiff Raghuraj Singh was impleaded as a defendant under the guardianship of his own mother. It has never been suggested that, the interest of his mother was in any way adverse to that of the present plaintiff. The relief claimed was in the interest of all the brothers. That was obviously a representative suit brought on behalf of the joint family by the adult brother and one minor brother. Being a representative suit the decision was binding not only on the plaintiff to the suit but also on the defendant, the present plaintiff, who was equally interested. Expln. 6 to Section 11 clearly applies. It has been laid down by their Lordships of the Privy Council in Lingangowda v. Bastangowda A.I.R. 1927 P.C. 56 that in the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to Expln. 6, Section 11, Civil P.C., to see whether or not the leading member of the family has been acting either on behalf of minors in their interest or if they are majors, with the assent of the majors. In the present case there can be no doubt that Jairaj Singh was acting in the interest of all the members of the joint family and was claiming a relief for the benefit of the entire family and was therefore litigating on behalf of the entire family. He lost the suit and the decree operates as res judicata against the present plaintiff as well. Without getting over this decree of 1926 it is useless for the plaintiff to challenge the propriety of the previous mortgage-decree on the ground that Ram Karan Singh was not a proper guardian. Even if Raghuraj Singh had not been impleaded in the 1926 litigation the dismissal of the suit brought on behalf of the joint family would have been binding upon him. The result therefore is that the defendants' Appeal No. 425 of 1932 must be allowed and the plaintiffs' suit dismissed.
6. First Appeal No. 401 of 1932 is an appeal filed by a pre-emptor who also was interested in the dismissal of the plaintiff's suit. As the plaintiff's suit has failed, this appeal also should be allowed. First Appeal No. 459 of 1932 is an appeal by the plaintiff Raghuraj Singh and raises a question as regards the amount of the money payable by him which he has been, called upon to pay. In view of our finding that the suit is barred by the principle of res judicata and is not maintainable, this appeal must be dismissed. In view of our finding that the mortgage decrees are binding on the plaintiff, it is not open, to us in this suit to consider the propriety of the rate of interest allowed under the decrees. The plaintiff, if he has any remedy, can apply separately in the execution department of the earlier case for a reduction of interest under the recent. Debts Act. The result, therefore, is that First Appeals Nos. 425 and 401 of 1932 are allowed and First Appeal No. 459 of 1932 is dismissed and the plaintiff's suit is dismissed as against the defendants-appellants with costs against the plaintiff Raghuraj Singh.
7. First Appeal No. 426. - First Appeal No. 426 is a defendant's appeal arising out of a suit for pre-emption brought by Jagannath Singh. The right of pre-emption is claimed on the ground that the defendant-appellant obtained a foreclosure decree and a right accrued to the plaintiff under Section 11, Agra Pre-emption Act. We have already noted that while the suit for foreclosure of the properties in dispute based on the mortgages of 1915 and 1916, was pending, a third mortgage-deed consolidating the amounts due under the earlier deeds was executed and a compromise was entered into under which the plaintiff's claim was decreed subject to certain conditions mentioned in the compromise. The Court treated the decree as a preliminary decree for foreclosure in respect of the properties specified in the plaint. After the expiry of the period fixed in the decree the defendant-appellant applied, for the preparation of a final decree TOT foreclosure under Order 34, Rule 3. This was done and a final decree was passed on 25th August 1930. In para. 7 of the plaint it was alleged by the plaintiff that on 25th August 1930 the defendant got the decree under Order 34, Rule 3, made absolute and since that date the right of redemption of the mortgagors became extinct and the defendant became the owner of the properties mentioned in the lists given in the plaint. This paragraph was accepted in its entirety by the defendant in her written statement, para. 7.
8. The learned Counsel for the appellant has urged before us that inasmuch as the suit in which this foreclosure decree was passed had not been brought on the mortgage of 12th June 1919, but had been brought on the two earlier mortgages; therefore the preliminary decree that was passed was not a preliminary decree within meaning of Order 34, Rule 2, Civil P.C., but was a compromise decree, and that accordingly the foreclosure decree passed on 25th August 1930 was not such a decree as is contemplated by Section 4(2), Agra Preemption Act. Under that section the words "foreclose" and "foreclosure" refer to the passing of a final decree for foreclosure under Order 34, Rule 3, Civil P.C. There is no mention there that such a -decree should be passed only in a suit which has been brought on the basis of such a mortgage, and that if a. preliminary decree which for all practical purposes is a decree under Order 34, Rule 2 is passed on the basis of a compromise in a pending mortgage suit for foreclosure, the definition would exclude such a case. In the present case the plaintiff had brought a suit for foreclosure of certain properties specified in the plaint claiming that a certain amount was due to the plaintiff and had not been paid. As a result of the compromise the amount was slightly altered and the date of redemption was also postponed, but when the suit was decreed the plaintiff's claim for foreclosure of the properties, mentioned in the plaint, subject to the additional conditions, was in fact decreed in terms of the compromise against those who had compromised the claim, and an ex parte decree was passed against the rest of the defendants. In any case the final decree was a decree for foreclosure under Order 34, Rule 3, and therefore fulfils the requirements of Section 4(2). We are unable to hold that merely because this foreclosure decree was based on a preliminary decree which had been passed as a result of a compromise in a pending suit for foreclosure, the right of pre-emption did not accrue under Section 11 in favour of the plaintiff. We think that the view taken by the Court below on this point was correct and we accordingly overrule this objection.
9. The next point urged on behalf of the defendant appellant is that although the preliminary decree was obtained in 1920 there was a great delay in handing over possession to the defendant mortgagee and the mortgagor withheld the income for the period 1920 to September 1922. It is claimed that the pre-emptor is liable to make good this amount. We are unable to accept this contention. The decree for foreclosure was for a sum of about Rupees 29,000 only and did not include the amount of damage which the defendant claimed the mortgagors were liable to pay. If there was any such liability on their part then it was the duty of the defendant mortgagee to have got this amount included in the preliminary decree or in the final decree. We do not think that the pre-emptor can be called upon to make good any such loss. As a matter of fact the Court below has found that the defendant was herself in possession for this period and was not out of possession. In any case we do not see how the pre-emptor can be made to pay anything more than the amount entered in the decree for foreclosure for a period prior to the passing of this decree.
10. The learned Subordinate Judge has allowed to the defendant mortgagee the amounts paid by her in discharge of prior encumbrances over and above the amount for which the property was foreclosed. This was perfectly just. It is however urged before us that the defendant mortgagee would have been allowed interest on such sums as well. We are unable to see how interest can be allowed. The defendant obtained possession of the entire property and has been in possession of the income for all these years. It must be presumed that the income was sufficient to pay off the interest due on all the encumbrances as well as the proper interest on the sale consideration paid by her. We therefore overrule this objection also. It is not disputed before us that the learned Subordinate Judge has included in the amount allowed to the defendant mortgagee all the sums paid by her in discharge of the prior encumbrances up to the date of the learned Subordinate Judge's decree. It is however urged that some more payment has been made by her to discharge prior encumbrances between the passing of the Subordinate Court's decree up to this date. On the principle explained above the pre-emptor is in equity liable to make good this amount because he cannot obtain possession of the property which has been freed from this encumbrance without paying over the same.
11. As this contingency is alleged to have happened after the passing of the decree of the Court below, there are no materials on the record to substantiate the claim. But we think that in order to avoid farther confusion this point should be made clear before a final decree is passed. We accordingly allow two weeks' time to the defendant appellant to file an affidavit supported by necessary original documents to show the payments made in discharge of the encumbrances which existed prior to 17th August 1915.