JUDGMENT
1. This appeal arises out of a suit brought on June 29tb, 1910, by the appellants upon a mortgage made on October 29th, 1873, in favour of two out of four brothers who were joint in estate. The plaintiffs-appellants are the thirteen sons of the four brothers. The defendants-respondents, in their written statement filed on September 25th, 1910, objected that the eleven sons of the plaintiffs should have been made parties to the suit, and that in their absence, the suit could not be maintained. The Munsif dismissed the suit holding that it was too late to make the sons of the plaintiffs parties to the suit. On appeal, the Additional District Judge took the same view.
2. First Appeal from Order No. 98 of 1911 arises out of a suit brought on August 6th, 1910, upon a mortgage made on December 14th, 1830, in favour of one Chet Ram. The plaintiffs were the two surviving sons and the son of a deceased son of Chet Ram, Objection was taken on September 6th, 1910, that the three sons of the first and second plaintiffs should have been made parties to the suit. The sons were then made plaintiffs. The Munsif dismissed the suit but on appeal the Additional Subordinate Judge held that the sons were not necessary parties and remanded the suit for trial on the merits.
3. First Appeal from Order No. 50 of 1911 arises out of a suit brought on August 1st, 1910, upon a mortgage made on August 6th, 1868 in favour of one Adit Dyal. The plaintiffs were two of the sons and the son of a deceased son of Adit Dyal. Objection was taken on September 12th, 1910, that the two sons of the first plaintiff and the son of second plaintiff were necessary parties, and they were then made defendants. The Munsif dismissed the suit. On appeal the District Judge held that the suit was maintainable and he remanded it for trial on the merits.
4. Second Appeal No. 302 of 1911 arises out of a suit brought on July 9th, 1910, upon a mortgage made on April 4th, 1892, in favour of one Kamal Rai, The plaintiffs were the two sons of Kamal Rai. Objection was taken on August 16th, 1910, that the son of the first plaintiff was a necessary party to the suit. He was then made a defendant. The Munsif dismissed the suit. On appeal the District Judge held that the suit was maintainable and he decreed the claim.
5. Second Appeal No. 249 of 1911 arises out of a suit brought on August 6th, 1910, upon a mortgage made on June 19th, 1884, in favour of one Earn Prasad. The plaintiff was the grandson of Ram Parsad. Objection was taken on September 29th, 1910, that the plaintiff's son was a necessary party. The Munsif dismissed the suit and on appeal his decision was confirmed by the District Judge.
6. These five appeals are in no way connected with each other but they all arise out of suits the period of limitation for which has, so far as this Province is concerned, been reduced recently from 60 years to 12 years. All five suits were instituted at or near the end of the special period of grace provided by Section 31(1) of the Limitation Act of 1908 and they are all suits by one or more members of a joint Hindu family upon mortgages made to secure the re-payment of advances made out of joint family funds. In all of them objection was taken at the first possible moment by the respondents that one or more members of the family to which the plaintiff or plaintiffs belonged had not been impleaded but when the objection was taken, the special period of grace had expired. In using the expression period of grace we do not mean to prejudge the question raised in other cases whether the period of two years allowed by Section 31 of the Limitation Act expired on August 6th or on August 8th, 1910. That question does not arise here, for all the suits were instituted on or before August 6th and the objection was taken in every instance after August 8th, 1910.
7. Broadly stated, the contentions put forward by the plaintiffs in each of these cases are that the person or persons who instituted the suit sufficiently represented the family to which he or they belonged, that under Order I Rule 9 of the Code of Civil Procedure no suit is to be defeated by reason of the non-joinder of parties; that on the objection being taken, it was the duty of the Court to add the necessary parties, and that in doing so, the Court was not bound by any rule of limitation; that if, however, it was too late to make the remaining members of the family plaintiffs, the Court should have made them defendants as it did in two of the cases, and that when that was done, no question of limitation could arise as the plaintiffs on the record claimed no relief against the added defendants who would be made parties merely for the purpose of safeguarding the interests of the original defendants.
8. The defendants in each case contend that all the members of the family to which the plaintiffs belong are interested in the mortgage security and, therefore, under Order XXXIV, Rule 1, are necessary parties to the suit; that the suit must be duly instituted within the period of limitation prescribed therefor; that apart from limition, it is not open to the Court to make other members of the plaintiff's family defendants inasmuch as the only recognized exception to the rule that all joint creditors must be plaintiffs in a suit to enforce payment of a debt is the case where some of them decline to join as plaintiffs and nothing of the kind was suggested in any of these cases; that if it was too late to add the necessary parties, the Court was bound to dismiss the suit notwithstanding the provisions of Order I, Rule 9, because it was impossible to deal with the interests of the plaintiffs apart from the rest of the family.
9. The questions which arise in these cases are of no less importance than those which arose in the case of Gendan Lal v. Babu Ram 9 A.L.J. 86 : 13 Ind. Cas. 197 which was referred to during the arguments. In that case, after the period of limitation for the suit had expired, it was discovered upon the objection of the defendants that a person, who had acquired an interest in the mortgaged property and was, therefore, interested in the right to redeem, had not been made a party. The plaintiffs were bound to claim relief against him. It was held that the suit must be dismissed as it was impossible to deal with the interests of the parties to the suit which could not be separated from those of the person not before the Court. In that case, the person omitted was the minor son of a person who had been made a defendant. In the cases now before us, the persons omitted were, with two or three exceptions, minors. In every instance their fathers are plaintiffs on the record. The only question common to that case and the cases now before us is how far the interest of a minor is represented by his father when the latter is a party to the suit.
10. Apart from authority, it might, we think, have been possible to hold that a father in a joint family consisting of himself and his brothers and his and their children might be treated as representing sufficiently the interests of their minor sons whether he is a plaintiff or a defendant; but in the face of the authorities extending over a number of years, it is impossible to hold this. Indeed, as we understood the arguments, it was not contended by the plaintiffs that they sufficiently represented the persons who, according to the defendants, ought to have been made plaintiffs merely because they or some of them were the fathers of those persons. What was contended was that those persons were unnecessary parties because the managing members of the family were already parties. It is now definitely settled by the decision of their Lordships of the Privy Council in the case of Kishen Prasad v. Har Narain 33 A. 272 : 38 I.A. 45 : 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 : (1911) 2 M.W.N. 395 : 9 Ind. Cos. 739 that managing members of a Hindu 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 own names. This decision does not cover any of the cases now before us 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 managaing member of an undivided Hindu family suing as such was 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. In none of the cases now before us, did the original plaintiffs sue as managers of their family but there can be little doubt that in each case the manager of the family (if there is a manager at all) is one of the plaintiffs in the suit. In two of the cases at all events, all the adult members of the family are plaintiffs and they must be the managers on behalf of themselves and the minors who were not impleaded. It might be permissible in these cases to presume that the suits have been brought by persons competent to represent the family. In the other three cases, no such presumption could be made and it is impossible to hold that all the necessary parties were impleaded in them originally. It is, therefore, necessary to consider whether the defect could be cured after the period of limitation applicable to the suit had expired.
11. The members of a Hindu joint family entitled to claim payment of a debt, whether secured by mortgage or not, are in the position of joint creditors. It is needless to go back to the English rules regarding the joinder as plaintiffs in a suit of all joint creditors or other persons jointly interested in the subject-matter of a suit, or to consider the consequences of failure to comply with those rules. It is quite clear that all the members of the families, to which the plaintiffs in these suits belong, are interested in the mortgage securities on which the suits are brought and are, under Order XXXIV, Rule 1, necessary parties to these suits if, as we will now assume, they are not sufficiently represented by the original plaintiffs. But there is no hard and fast rule that they must be plaintiffs. It has been ruled repeatedly in all parts of India that if of several persons jointly interested in the subject-matter of a projected suit one refuses to join as plaintiff he may be made a defendant. In addition to this, there is the express provision in Order I, Rule 10 that the Court may, at any stage of the proceedings, order that the name of any person, who ought to have been joined whether as plaintiff or defendant, or whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added; but no person can be added as a plaintiff without his consent. With this provision must be read Section 22 of Limitation Act which provides that when, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was so made a party. So far as the addition of parties by the Court is concerned, no question of limitation can arise, but when parties have been added by the Court, Section 22 of the Limitation Act comes into play with the result that if a person is added as plaintiff after limitation has expired, the suit must he dismissed so far as he is concerned and if a person is added as a defendant after limitation has expired in respect of the claim against him, the suit as against him must be dismissed. In the cases now before us, the interests of the original plaintiffs and of the other members of the family who were not made parties are inseparable and the suits must be dismissed if the latter are made plaintiffs. It is contended that the result must be the same if the latter are made defendants. But we cannot accept this contention. No relief will be claimed against the other members of the plaintiff's family, if they are added as defendants, as they were in some of the cases, and Counsel for the original defendants in these cases have been unable to show that the claim of the original plaintiffs will be barred by limitation as against them. Upon this point, the only argument advanced by Counsel for the original defendants is that all the necessary parties must be brought before the Court before the period of limitation for a suit against the original defendants has expired. This argument appears to us to have little weight. If the claim against the original defendants, the only defendants against whom relief is claimed, is not barred by limitation, we see no reason why the suit should not proceed. One object of the Legislature in enacting Order XXXIV, Rule 1, was to protect mortgagors against repeated suits on the same cause of action. The mortgagors in the cases before us seek to use this provision as a means of evading payment of the mortgage debt. Courts should, we think, be chary of lending support to the use of rules of procedure as a means of working injustice. In the cases before us, there is no difficulty in curing the defect of want of parties. The only question is whether we are debarred from curing the defect by the authorities which hold that only under exceptional circumstances can some members of a joint Hindu family sue on behalf of the entire family. The question, however, seems to us to be rather one of procedure than of substantive law. If a suit is instituted by some members of a joint Hindu family to which the remaining members are added as defendants and if a decree passed therein is satisfied by the mortgagors, the latter are [relieved of all liability in respect of the mortgage debt, except, of course, in case of fraud.
12. It is plainly the intention of the Legislature that a suit shall not be defeated for nonjoinder of parties. It seems to us that where, as in these cases, a claim is made for the benefit of a joint family and objection is taken that subordinate members of the family should have been impleaded and the Court is able to cure the defect by making them defendants, the Court should ordinarily do so. This seems to have been the view of the Punjab Chief Court in the case of Lakhu Ram v. Kashi Ram 57 P.R. 1905 : 76 P.L.R.1905. The Punjab Chief Court quote the decision of the Bombay High Court in Gururayya v. Dattatraya 28 B. 11 : 5 Bom. L.R. 618 as an authority for this view but we find that in the Bombay case the suit was instituted by the manager of the joint family and the points actually decided were that the objection on the score of non-joinder had been taken too late, and that as the suit had been instituted by the manager of the family, the joinder of fresh parties for the purpose of safeguarding the rights of the substantive defendants did not affect the right of the original plaintiff to continue the suit. The Bombay case is, therefore, distinguishable from the cases now before us. But, for the reasons which we have given, we think that the other members of the families, to which the plaintiffs in these cases belonged, might and ought to have been added by the Court as defendants and on that being done, the suits should have been allowed to proceed.
13. In Second Appeal No. 623 of 1911, we allow the appeal, reverse the decrees of the Courts below and remand, the suit through the lower Appellate Court to the Court of first instance with directions to dispose of it according to law.
14. Costs in this Court and in the lower Appellate Court will be costs in the cause. Costs in this Court will include fees on the higher scale.
15. We make the same order in Second Appeal No. 249 of 1911.
16. First Appeal from Order No. 50 of 1911 is dismissed with costs including fees on the higher scale.
17. We make the same order in First Appeal from Order No. 98 of 1911 and in Second Appeal No. 302 of 1911.