Sarda Prasad Singh v. Umeshwar Prasad — 1963 DIGILAW 14 (PAT)

Judgment Ramratna Singh, J. 1. The plaintiff has preferred this appeal against the decision of the Additional Subordinate Judge, Monghyr, affirming the judgment and decree of the First Additional Munsif, Monghyr, dismissing his suit for redemption of certain usufructuary mortgage bonds. 2. The admitted facts are these. Two persons named Prem Singh and Shobha Singh were the tenure holders in respect of certain mokarri interest in village Basudeopur. After their death, their heirs gave the tenure in usufructuary mortgage to defendant No. 1 of the first party under certain bonds. Thereafter, the mortgagors executed three simple mortgage bonds in respect of 12 annas interest in the tenure in favour of the same mortgagee. After some time, the mortgagors executed two sale deeds dated the 7th August, 1933 and 4th September, 1933 in respect of this 12 annas interest in favour of Subodh Prasad Singh (defendant No. 11 of the second party), who was then a minor. In order to enforce the simple mortgage bonds, defendant No. 1 instituted three mortgage suits, which were numbered as 217 and 218 of 1933 and 32 of 1934. In these suits, the original mortgagors and their heirs were impleaded as defendants first party, while minor Subodh Prasad Singh was impleaded as the sole defendant second party under the guardianship of his grand-father Hansraj Singh, as his father Uchit Singh died before the institution of the suit and after the execution of the sale deeds. As his natural guardian did not appear, pleader guardians ad litem were appointed to represent Subodh and they filed written statements on his behalf in the three suits. The suits were decreed, and in execution of these decrees, the -/12/- interest in the tenure covered by the three simple mortgage bonds was sold at auction sales in July, 1938 and purchased by defendant No. 1, who obtained delivery of possession through Court in 1941. 3. On the 29th April, 1951, Jagdeo Singh and others of the defendants second party sold -/4/-interest out of the interest purchased under the sale deeds dated the 7th August and 4th September 1933 to the plaintiff; and on the basis of this sale deed the plaintiff instituted the present suit for redemption of usufructuary mortgages in respect of this interest. On the 29th April, 1951, Jagdeo Singh and others of the defendants second party sold -/4/-interest out of the interest purchased under the sale deeds dated the 7th August and 4th September 1933 to the plaintiff; and on the basis of this sale deed the plaintiff instituted the present suit for redemption of usufructuary mortgages in respect of this interest. Defendants first party resisted the claim of the plaintiff on the ground that the right to redeem the usufructuary mortgages on the basis of the sale deeds dated the 7th August and 4th September 1933 had been extinguished after the sales in execution of the simple mortgage decrees. The plaintiff, however, pleaded that the processes in the three mortgage suits and the relevant execution proceedings against Subodh Prasad Singh had been fraudulently suppressed, and, the sales held in these proceedings were illegal and not binding on Subodh Prasad Singh and other members of the joint family inasmuch as they were not properly represented in the mortgage suits and execution proceedings. 4. The Court below found that the purchaser, Subodh Prasad Singh, was properly represented in the three mortgage suits and execution proceedings, and there was no fraud of any kind in the service of the processes. It was, therefore, found that the sales were valid and legal. It was further held that Subodh and others of the defendants second party were members of a joint family before the 10th April, 1954, and that -/12/- interest in the tenure was acquired by this joint family under the two sale deeds of 1933, although the sale deeds were taken in the name of minor Subodh Prasad Singh. But, at the same time, it was also held that Subodh represented the joint family in the mortgage suits and the execution proceedings as also in the sale deeds. The plaintiffs suit was also found to be barred by limitation under Article 12 of the Limitation Act, as it had been instituted more than one year after the execution sales. 5. Only two points were urged on behalf of the plaintiff-appellant in this appeal. The first point was that Subodh, being a minor, could not in law represent the joint family of the defendants first party. 5. Only two points were urged on behalf of the plaintiff-appellant in this appeal. The first point was that Subodh, being a minor, could not in law represent the joint family of the defendants first party. In support of this argument, reliance was placed on two decisions, namely, Alagappa Chetti V/s. Vellian Chetti, ILR 18 Mad 33 and Kishen Parshad V/s. Har Narain Singh, 38 Ind App 45. In the case of Kishen Parshad, the suit had been commenced by the first three plaintiffs on record. They were the managing members of an undivided Mitakshara family, and in that capacity they carried on the business of money lenders in the name of a firm. The loan transactions out of which the claim in the suit arose were negotiated and concluded by these three plaintiffs with the first three defendants who were also members of another undivided family. It had been found that the first three plaintiffs were in fact entrusted with, and regularly exercised, the powers to carry on the money lending business in the interest of the family as a whole. The question arose whether the three managing plaintiffs only could sue the defendants for recovery of the loan without joining the other members of the family; and their Lordships of the Privy Council answered this question in the affirmative. In fact, Shri Lal Narain Sinha, who appeared for the plaintiff-appellant, did not rely on this decision in support of his proposition, but he relied on the observation of the Privy Council approving to a great extent the decision in the case of Alagappa Chetti, ILR 18 Mad 33. The facts of that case were these. In 1887, the plaintiff appointed the defendant to serve for three years as manager of a business in Moulmein, which was the business of the undivided Hindu family to which the plaintiff belonged. In 1893 the plaintiff, without joining the other members of his family, sued the defendant for damages for breach of the contract of service, and their Lordships of the Madras High Court held that the suit was not maintainable in the absence from the record of the other partners in the business. In 1893 the plaintiff, without joining the other members of his family, sued the defendant for damages for breach of the contract of service, and their Lordships of the Madras High Court held that the suit was not maintainable in the absence from the record of the other partners in the business. Their Lordships observed that as a general rule all the members of a partnership firm ought to be joined as plaintiffs in a suit brought in respect of transactions with the partnership, and it makes no difference that the persons, carrying on business together, were also members of a Hindu family. This decision, in the opinion of their Lordships of the Privy Council, could be supported on the ground that the single plaintiff was not shown to be the managing member of the family. Shri Lal Narain Sinha, therefore, argued that, in the absence of the managing member, Subodh Prasad Singh, who was a minor could not represent the other members of the family in the mortgage suits or execution proceedings. But these decisions do not lay down such a broad proposition; and, in my opinion, the representation of an undivided family by a particular member depends upon the facts and circumstances of each case. 6. The view that even a non-managing member of an undivided Hindu family can in certain circumstances represent the family is supported by a large number of decisions. In Bungsee Singh V/s. Soodist Lall, ILR 7 Cal 739, a question arose whether the plaintiff (Soodist Lall) was entitled to sue alone to enforce a mortgage bond, when there were four other members of the same joint Hindu family and thus co-sharers with the plaintiff. In that case, the mortgage bond sought to be enforced had been executed in favour of the plaintiff alone. Their Lordships of the Calcutta High Court observed: "......the mortgage bond was executed is favour of the plaintiff alone. If this were not the case there would, undoubtedly, be much in the objection that the plaintiff, whether regarded as a member of the partnership or as a member of a Hindu family, could not alone maintain this suit. But we think that the fact of the mortgage-bond having been executed in the name of the plaintiff alone entirely alters the case. But we think that the fact of the mortgage-bond having been executed in the name of the plaintiff alone entirely alters the case. The plaintiff may be regarded as contracting not only on behalf of himself, but on behalf of undisclosed principals --i.e. the other members of the family". In support of this proposition, their Lordships relied on several English decisions as also on the decision of the Privy Council in Agacio V/s. Forbes, (1861) 14 Moo PC 160, wherein it was held that one partner with whom personally a contract was made was entitled to sue upon this contract in his own name without joining his co-partners as plaintiffs. 7. In Sheikh Abdul Rahman V/s. Shib Lal Sahu, AIR 1922 Pat 252, one of the grounds of dismissal of the plaintiffs claim to have a mortgage decree was that the grandson of the subsequent purchaser Mahadeo was not on the record. In that case, the plaintiff had impleaded not only Mahadeo Lal, in whose name the property had been purchased but also all the members of his family with a clear assertion that they were all the members of a joint family. It was through inadvertence or on account of some accidental omission that the name of the minor grandson of Mahadeo Lal was omitted. The defendants in the written statement did not disclose the name of that minor, nor was there any denial, that Mahadeo Lal or Jagarnath, the father of the minor, did not properly represent the minor in that suit. It was, therefore, held by their Lordships that there was a proper representation of the minor in that case. So far this decision does not help the contesting respondents in the instant appeal; but his Lordship Jwala Prasad, Ag. It was, therefore, held by their Lordships that there was a proper representation of the minor in that case. So far this decision does not help the contesting respondents in the instant appeal; but his Lordship Jwala Prasad, Ag. C. J. further observed: "Again the property was purchased in the name of Mahadeo and if he was competent to represent the entire family in the transaction of the purchase, there is no reason why he should not be held to be competent to represent the other members in the present litigation in respect of the same property." This observation does support the contention of the learned Advocate for the respondents that, if Sabodh was competent to represent the entire joint family in the two sale deeds of 1933, he was also competent to represent the other members of the family in the mortgage suits and execution proceedings. Of course, Shibnath, grandson of Mahadeolal was a major in the case of Sh. Abdul Rahman AIR 1922 Pat 252, while Subodh was a minor in the instant case; but this fact does not make any difference in principle, because in the two sale deeds Subodh was shown under the guardianship of his father and in the mortgage suits and execution proceedings he was shown under the guardianship of his grandfather on account of the death of his father. 8. In Hitlal Mahton V/s. Jiboo Mahton, AIR 1924 Pat 458, only some, of the members of a joint Hindu family got a mortgage bond which contained no indication as to whether it was made out of their separate funds or joint family funds and a suit was brought to enforce that bond. 8. In Hitlal Mahton V/s. Jiboo Mahton, AIR 1924 Pat 458, only some, of the members of a joint Hindu family got a mortgage bond which contained no indication as to whether it was made out of their separate funds or joint family funds and a suit was brought to enforce that bond. His Lordship Dawson-Miller, C. J., with whom Kulwant Sahay, J. agreed, observed: "It is now well established that a person who is named in a mortgage-deed as the mortgagee, although in fact merely a benamidar for those beneficially interested, can institute a suit in his own name either for sale or foreclosure and that the suit should not be dismissed merely because the beneficial owner is not added as a party......The only question is whether the plaintiffs in the present case, who had a beneficial interest in the mortgage-deed and who represented both themselves and the other members of the family in the transaction, should be regarded as on a different footing from a benamidar, who has no beneficial interest at all. I can see no ground on principle why any distinction should be drawn between the two cases. The mortgagors entered into the transaction with the mortgagees in the name of the latter alone, treating them as the other contracting party. If at the due date the mortgagors had tendered the principal sum advanced together with any interest remaining due to the plaintiffs as mortgagees it is conceded that the latter could have given a valid acquaintance binding upon the other members of the family who were interested in the mortgage. It must be presumed that in entering into the transaction they were authorised to do so on behalf of all the members of the family, and if they could grant a valid discharge to the mortgagors on payment of the principal sum, I can see no reason why they should not be presumed to have implied authority to enforce payment by a suit. The question appears to me to be one of authority and if they were authorised to enter into the transaction on behalf of the family, I think it must be taken that they were equally authorised to institute a suit to enforce it. In my opinion the plaintiffs were entitled to maintain the suit." 9. The question appears to me to be one of authority and if they were authorised to enter into the transaction on behalf of the family, I think it must be taken that they were equally authorised to institute a suit to enforce it. In my opinion the plaintiffs were entitled to maintain the suit." 9. In Shailesh Chandra Guha V/s. Bechai Gope, AIR 1925 Cal 94, there were more mortgagees than one, but the mortgage bonds in suit were in favour of one mortgagee alone. It was held that he sufficiently represented the other mortgagees, and the non-joinder of those mortgagees did not vitiate the suit. Their Lordships said: "Moreover the bonds being in favour of defendant No. 8, he alone was made a party and he represented the interest of his co-sharers, if any, sufficiently for the purpose of this suit." 10. A review of the aforesaid decisions shows that if the members of the joint family authorise only one of them to enter into a transaction on behalf of the family, that member alone is competent to represent the other members of the family as well, and it is sufficient in law to implead only that member as a defendant or a plaintiff to a mortgage suit. 11. In the instant case also, there is no indication in the two sale deeds of 1933 as to whether the property was acquired with the separate fund of Subodh or the joint family fund. It must be presumed that Subodh alone was authorised to represent all the members of the family. It is true that Subodh was a minor, but his natural guardian, that is, his father must be deemed to have represented him in the transactions relating to the two sale deeds. It cannot, therefore, be said that Subodh could not represent the family, as he was a minor. 12. Shri Ugra Singh, who also appeared for the plaintiff-appellant, submitted that, according to the findings of the learned Subordinate Judge, the property had been acquired by the two sale deeds of 1933 by the joint family of the defendants second party, though the sale deeds were taken in the name of minor Subodh. 12. Shri Ugra Singh, who also appeared for the plaintiff-appellant, submitted that, according to the findings of the learned Subordinate Judge, the property had been acquired by the two sale deeds of 1933 by the joint family of the defendants second party, though the sale deeds were taken in the name of minor Subodh. But the learned Subordinate Judge came to that conclusion only on the ground that Subodh was a minor at the time when the sale deeds were taken in his name; and he did not at all consider the possibility that even the minor could have a separate fund, which he might have got as a gift. The said ground alone is, therefore, not sufficient to justify his conclusion. It is remarkable that Subodh or his joint family did not get possession of the property acquired by the two sale deeds, because the same was in the possession of the usufructuary mortgagees before the auction sales in execution of the mortgage decrees; and, therefore, it cannot be inferred that the property had become a part of the joint family properties. Moreover, the aforesaid finding of the learned Subordinate Judge does not matter at all, because the members of his joint family allowed Subodh alone to represent them. 13. In view of the foregoing decisions, it must be held that the three mortgage decrees obtained by defendants first party and the sales in execution, thereof, were valid and legal, even though the other members of the family of Subodh were not impleaded therein. Consequently, the execution sales were binding on the plaintiff, and, therefore, Article 12 of the Indian Limitation Act operates as a bar to the present suit. (See Bhan Prasad Chaudhury V/s. Bhirgu Nath Choudhury, AIR 1929 Pat 323 and Ganpat Lal V/s. Bindbasini Prashad Narayan Singh, ILR 47 Cal 924: (AIR 1920 PC 1) ). 14. In conclusion, it must be held that the plaintiff did not acquire any interest in the suit property under the sale deed dated the 29th April, 1951, and the right of the plaintiff and his predecessors-in-interest to redeem had been extinguished by the execution sales. 15. The judgment and decree of the Court below must, therefore be upheld; and the appeal shall be dismissed with costs. Kanhaiya Singh, J. 16 I agree.