Adiveppa Channappa Kittur Vs. Rachappa Balappa Hosmane - Court Judgment

Leonard Stone, Kt., C.J.

1. This appeal from the judgment dated January 22, 1942, of Mr. B.C. Patil, who was then First Class Subordinate Judge at Belgaum, has come before this full bench as it raises questions of some importance with regard to the application of the Indian Limitation Act, 1908, to mortgage suits in cases in which the mortgagee was a Hindu joint family, which subsequently divided, so that the individual members of the family or the divided branches, represented by their kartas or managers, become co-owners of the mortgage. The same position may also follow, when the original mortgagee is a Mahomedan, who subsequently dies, and the mortgage devolves upon his heirs. Such difficulties are indeed inherent in any system which does not require rights in or to immovable property to vest in a legal representative, but which recognises a multiplicity of co-owners, who are often difficult to trace or who may be unwilling to co-operate.

2. By a mortgage dated November 1, 1926, one Shivappa, as karta of a joint Hindu family, lent the sum of Rs. 3,000 to defendants Nos. 1 and 2. Shivappa died, and the mortgage debt thereupon belonged to the surviving members of the joint family, who sometime thereafter separated and became divided into three branches, each of which had its karta. The plaintiff is one of the three kartas. Defendant No. 1 sold three of the properties subject to the mortgage to defendant No. 4 and he is the sole appellant in this Court.

3. It is not, nor could it be, disputed that the three kartas held the mortgage debt as co-owners by tenancy in common. The mortgage is in writing and by it the debt is to be repaid at the expiration of one year and it is provided:

These lands (which are specified by reference to survey numbers) are given in simple mortgage and the same are in our (the mortgagor's) possession. You shall recover the total amount due to you (the mortgagee) from these properties.

4. By Sub-section 58(b) of the Transfer of Property Act, 1882, a simple mortgage is one of the six types of mortgages there classified, and its attributes are : (1) a personal obligation on the mortgagors to pay, and (2) the transfer of the power to cause the property to be sold on default being made. Such a power is one, but only one, of the component rights that make up the aggregate of ownership, there is neither a transfer of title to the immovable property, nor of possession : but it does give the right to payment out of the property specified. In the case before us the mortgagors remained, and have at all times since been, in possession of the immovable properties. It is not suggested that any payment of interest or acknowledgment of the mortgage debt has been made, and it is Article 132 in the schedule to the Indian Limitation Act, and not Article 147, which is the relevant article applicable to a mortgage, such as the one before us. It follows that by the conjoint effect of Section 3 and Section 12 of the Act and Article 132 in the schedule thereto, the mortgagee's right to enforce payment became barred after November 1, 1939. On that very last day, the plaintiff instituted this suit, but the only defendants to it were the mortgagors or persons who claimed through them. The plaintiff neither joined the other two kartas as co-plaintiffs with himself, nor did he add them as defendants till October 27, 1941, by which time the statutory period had expired by nearly two years, so far as they were concerned.

5. By the prayer to his plaint the plaintiff asked that Rs. 6,000, that is to say the whole mortgage debt of Rs. 3,000 with an additional Rs. 3,000 claimed as arrears of interest, might be recovered with costs and future interest by the sale of the mortgaged property. In the trial Court the learned Judge, for reasons to which I will refer later, made an order for payment to the plaintiff of Rs. 2,000, that is to say, one-third of the total sum claimed to be due, and the order continued:

The amount due to plaintiff (as representing himself and his undivided son, defendant No. 10) under the suit mortgage is Rs. 2,000 at the date of suit. If defendants Nos. 1 to 4 pay plaintiff within six months this amount and one-third of the costs of suit and interest on Rs. 1,000 at 9 per cent. per annum from date of suit, the plaintiff's mortgage in suit shall stand redeemed and satisfied. In default of payment as aforesaid, the plaintiff will be at liberty to apply for a final decree for sale.

6. Section 3 of the Indian Limitation Act is as follows:

Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.

The explanation to the section so far as material provides:

A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer.

The explanation is to the same effect as Section 26 and Order IV, Rule 1, of the Code of Civil Procedure.

The first schedule to the Act contains Article 132 which is in these terms:

Description of suit. Period of Time from which periodlimitation. begins to run.To enforce payment of money charged Twelve years. When the money sued forupon immovable property. becomes due.

7. In the events which have happened in this case Sub-section 22(1) is also material:

Where, 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.

8. As instituted the suit was defective. Regarded as a claim for the total amount due under the mortgage, and for a sale of the mortgaged premises in default of payment, it was not competent for one co-owner to obtain a mortgage decree, unless and until the other co-owners were made effective parties to the suit. In Sunitabala Deli v. Dhara Sundari Debi Chowdhurani 22 Bom. L.R. 1 Lord Buckmaster, delivering the judgment of the Privy Council, said (p. 277):

Where a mortgage is made by one mortgagor to two tenants in common, the right of either mortgagee who desires to realise the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage decree, which would provide for all the necessary accounts and payments, excepting that there could be no judgment for a sum of money entered as between the mortgagee defendant and the mortgagor. So far, therefore, as this appeal depends on maintaining the correctness of the form of the proceedings, it must fail. The proceedings were wrong in form, but were capable of being amended so as to constitute a properly framed suit. It was within the competence of the Court to make such an amendment, and indeed it was their clear duty to do it if thereby delay and expense would be avoided. In their Lordships' opinion, the amendment of the plaint as directed by the High Court is not appropriately worded, and they consider that the trial Judge should, on the rehearing of the suit, make such amendments as may be necessary and proper.

See also K.P. Kanna Pisharody v. V.M. Narayanan Somayajipad I.L.R(1881) . Mad. 234 Gobindachandra Ghosh v. Jamaluddin Mandal I.L.R(1933) Cal. 777 and Ghanaram v. Balbhadrasai [1938] Nag. 370.

9. Regarded, as the trial Judge has regarded it, as an attempt to recover payment of one-third of the debt and a subsequent sale of the whole or some part of the immovable properties, it cannot in my judgment succeed, because a mortgage is indivisible : see Huthasanan Nambudri v. Parameswaran Nambudri I.L.R.(1898) Mad. 209 ; also Sitaram v. Sridhar (1903) 5 Bom. L.R. 91 in which Mr. Justice Chandavarkar said (p. 93):

The right which the several heirs jointly get on the mortgagee's death to enforce the mortgage is a right created by law in consequence of the devolution upon them of a single and indivisible right which the mortgagee had as the sole promisee, and not in consequence of their being 'joint promisees.'

10. A mortgage is a contract, whereby the mortgagors usually, and as in this case, agree to repay a single total sum to the lender or lenders, and in default to have the single total sum raised by the sale of the security. It is not the contractual bargain that if the mortgagee's title should devolve on several co-owners, that each co-owner should have the right to demand piecemeal a proportionate sum and have such proportionate sums raised by the sale of the whole or some part of security. Such an arrangement could only arise from an express agreement with the mortgagors. This accords with Section 45 of the Indian Contract Act, the illustration to which section is:

A, in consideration of 5,000 rupees lent to him by B and C, promises B and C jointly to repay them that sum with interest on a day specified. B dies. The right to claim performance rests with B's representative jointly with C during C's life, and after the death of C with the representatives of B and C jointly.

11. The trial Judge has come to the opposite conclusion because of Order I, Rule 9, of the Code of Civil Procedure and two cases in other High Courts, viz., Baldeo Prasad v. Bhola Nath I.L.R(1929) All. 134 and Haidar Ali v. Shafiuddin : AIR1932Cal34 , the former of which, he rightly points out, is 'exactly similar' to this case. Order I, Rule 9, is as follows:

No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

12. The fallacy underlying the view that Order I, Rule 9, permits a decree, either for the whole or for one-third of an indivisible mortgage debt to one of three co-owners of that debt, is that it makes the assumption that such a decree is the right of one co-owner alone, that is to say, 'the party actually before the Court.' Such assumption has no foundation in law or in the contract between the parties. In the notes to Order I, Rule 9, in Mulla's Code of Civil Procedure, 11th edition, p. 512, it is pointed out that the rule is a rule of procedure and not of substantive law; 'if the decree cannot be effected without the absent parties it is liable to be dismissed', and see Amirchand Nagindas and Co. v. Raoji Bhai Moti Bhai Patel : AIR1930Mad714 .

13. Order I, Rule 9, is taken from the first part of Order XVI, Rule 11, of the Rules of the Supreme Court of England, the latter part of Order XVI, Rule 11, is to be found in Order I, Rule 10 of the Indian Code. In the notes to Order XVI, Rule 11 (see Annual Practice 1945, at p. 268) it is stated:

The rule, however, in no way qualifies the necessity for having before the Courts the proper parties necessary for determining the point at issue. For instance, where rights to property arc in dispute the legal title must be represented.

14. I respectfully agree with this commentary, which is taken from cases of the highest authority.

15. An examination of Baldeo Prasad's case will show that it is indistinguishable from the case before us. Co-owners of 5/9 of a mortgage debt sued for a mortgage decree, but did not join as parties the co-owners of the remaining 4/9 shares until after the period of limitation had expired. A decree was passed in favour of the plaintiffs for 5/9 of the mortgage debt. The reasoning of this decision appears to rest only upon satisfying the provisions of Order XXXIV, Rule 1, of the Indian Code, which requires that all persons having an interest in the mortgage security shall be joined as parties to any suit relating to the mortgage, and the decision regards the added defendants as : 'pro forma defendants', against whom the plaintiffs are asking no relief:

nor can the defendants added get any relief, and accordingly Section 22, does not affect them if they are merely made pro forma defendants. By doing so, the provisions of Order XXXIV, Rule 1 are satisfied.

16. It does not appear from the report whether 5/9th only or the whole of the mortgage security was to be sold as the suit was 'remanded for disposal on the remaining issues.'

17. In Haidar Ali's case, some of the co-owners of a mortgage disclaimed all their interests, 'in the mortgage money claimed by plaintiffs Nos. 1 to 4 in the suit.' The report does not state in whose favour such disclaimer was made, but Mr. Justice Guha said (p. 85):

Although the disclaimer of interest in the mortgage security may be of no effect, there is no bar in the way of the plaintiffs getting a decree for their proportionate share of the mortgage money, as has been passed in their favour by the learned District Judge in the Court of appeal below, the question of any defect of parties not arising, for the reasons of the addition of parties in this Court.

And at p. 36:

A mortgage suit therefore will not be liable to be dismissed, simply for non-joinder or defeat of parties, as contended on behalf of the appellant in the case before me.

And the order of the appellate Court below for a proportionate part of the sum secured by the mortgage was upheld, in favour of those of the co-owners who were plaintiffs in the suit.

With the utmost respect to the learned Judges who decided these two cases, I am unable to take any other view, than that both of them are wrongly decided. The reasons for the decision in Baldeo Prasad's case spring from fine considerations of matters of procedure, and not from substantive legal rights, grounded in the contract between the parties.

18. The paramount object of Order I, Rule 9, as indeed of all the rules contained in the First Schedule to, the Code of Civil Procedure, is to regulate the business and procedure of the Courts, so that justice may be done between the parties, according to their rights and interests at law and by their contracts. Such rules are framed for expediency, in order, that judicial business maybe conveniently and expeditiously dispatched, and that there may be an end to litigation. Rules which regulate the business and procedure of the Courts are 'matters of mere machinery', they can never create new legal rights, where none existed before the parties crossed the threshold of the Court house. In Official Assignee, Bombay v. Madholal Sindhu : AIR1947Bom217 I had occasion recently to criticise the supposed special status of a pro forma defendant, and I repeat here, that, in my judgment, there is no such creature as a pro forma defendant known to the law; if by such terminology, it is intended to set up a defendant enjoying a different legal status to any other defendant to a suit, or whose fictional entry into the suit enhances the legal status of some other party to it. Until I had occasion to examine Baldeo Prasad's case, I had not appreciated the mischief which could flow from adding a defendant who is supposed not to be a substantive defendant.

19. It remains to consider what is the effect, if any effect there be, of adding a co-owner with the plaintiff, as a defendant to a suit after the statutory period of limitation has expired. It is no doubt true that the Indian Limitation Act bars the remedy and not the right, the right remains; but it cannot be enforced by judicial process. Thus, in the Courts a time-barred mortgagee has no legal status, and no rights}, he cannot sue and his presence as a defendant cannot enlarge or in any way affect proceedings which without him are defective and must fail. There is no place for him in the structure of the proceedings before the Courts for his capacity to activate them is dead. But apart from this, the vital section, Section 3, upon which the whole Indian Limitation Act depends for its efficacy, in terms says that he shall not be there, for the section not only requires that every suit instituted after the period of limitation shall be dismissed, but also, that every application made after such period shall meet a similar fate. In my judgment the application to add as defendant the two kartas, against whom the limitation period had run. was such an application, for its only object was to enable the plaintiff more effectively to enforce payment of the mortgage money, and as such it ought to have been dismissed. It was an attempt, by the device of procedural rules, to perfect an indivisible legal right, which a statute already held in part eclipse.

20. For these reasons this appeal, in my opinion, must be allowed and the suit dismissed so far as the appellant-defendant No. 4 is concerned. He is entitled to his costs against the plaintiff both here and in the Court below.

Lokur, J.

21. I agree. The facts, as far as they are required to be stated for the purposes of this appeal, are undisputed. On November 1, 1936, defendants Nos. 1 and 2 mortgaged without possession certain property to one Shivappa Mallappa for Rs. 3,000, agreeing to repay the amount and redeem the property in a year. Shivappa had two brothers Balappa and Basavaneppa, and was the manager of the joint family at the date of the mortgage. He died in 1928, leaving four sons defendants Nos. 11 to 14. The family continued to be joint, and the plaintiff, who is the son of the second brother Balappa, became the manager of the joint family. In that capacity he filed this suit to recover Rs. 6,000 from defendants Nos. 1 and 2 by sale of the mortgaged property. The suit was filed on November 1, 1939, which was the last day allowed by the law of limitation. Defendant No. 4 was impleaded in the suit as he had purchased from defendant No. 1 three of the mortgaged lands in August 1928. The plaintiff asserted in the plaint that he and his nephew were joint and that he had brought the suit as the manager of the joint family. But at the trial he conceded that in 1939, some time prior to the institution of the suit, there was a partition and that the three branches of the family had become separated. He was then allowed to add the members of the other two branches as defendants Nos. 7 to 9 (son and grandson of Basavaneppa) and defendants Nos. 11 to 14 (sons of Shivappa). He also added his own son as defendant No. 10, but that did not matter since they were still joint. These defendants were added on October 27, 1941, when the claim to recover the mortgage amount had become time-barred under Article 132 of the first schedule to the Indian Limitation Act. One of the grounds on which defendants Nos. 1 to 4 resisted the plaintiff's claim was that the suit brought by him alone was incompetent, and that as the necessary parties were added after the claim was time-barred, the whole suit must fail. The learned Judge below held that although the claim of the added defendants was time-barred, the plaintiff was entitled to recover the share of his branch in the mortgage money. Accordingly a preliminary decree was passed for Rs. 2,000 in the usual form in favour of the plaintiff and his undivided son, defendant No, 10. Out of the contesting defendants, defendant No. 4 alone has come in appeal.

22. Section 3 of the Indian Limitation Act requires that subject to the provisions, contained in Sections 4 to 25 (inclusive), every suit instituted after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence. In the explanation to that section it is stated that a suit is instituted, in ordinary cases, when the plaint is presented to the proper officer. This is in substantial accord with Section 26 and Order IV, Rule 1, of the Civil Procedure Code, which provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. The plaint in this suit was thus presented within the prescribed period of limitation, but it was presented by the plaintiff, who alone was not entitled to seek the relief claimed. He and defendants Nos. 7 to 11 stood in the position of co-mortgagees after the family partition, and if he wanted to file the suit alone on behalf of all, he should have joined them as defendants in time. When he added them as defendants, the period of limitation prescribed for a suit to recover the mortgage amount had expired.

23. Section 22(1) of the Indian Limitation Act provides that where 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. Hence so far as defendants Nos. 7 to 11 are concerned, this suit must be deemed to have been filed after the period of limitation. It is well settled that where the added parties are not necessary parties, but their joinder is merely proper or desirable, then their joinder out of time does not vitiate the whole suit. This distinction was clearly pointed out in Guruvayya v. Dattatraya 5 Bom. L.R. 618 where an ejectment suit brought by the manager and one other member of a joint Hindu family was held not to be barred merely because other members of the family were added after the period of limitation. Jacob J. observed (pp. 17-18):

Section 22 of Act XV of 1877 (the Limitation Act) does not in itself purport to determine directly whether the joinder of parties after the institution of a suit shall in all cases necessarily involve the bar of limitation, if the period prescribed for such a suit has then expired. Such a result must depend upon consideration of the question whether the joinder was necessary to enable the Court to award such relief as may be given in the suit as framed..If fresh parties are merely joined for the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination (by application of the provisions of Section 22 of the Limitation Act) of the date of the institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit, and would not therefore attract the application of the general provisions of the Limitation Act.

24. In order to apply the test, we have to consider the reason for the necessity of adding defendants Nos. 7 to 11 as parties to the suit. As co-mortgagees along with the plaintiff, they were interested in the mortgage security, and Order XXXIV, Rule 1, of the Civil Procedure Code requires that subject to the provisions of the Code, 'all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. Hence all co-mortgagees have to be made parties to a suit for recovering the mortgage money. But this provision which was contained in Section 85 of the Transfer of Property Act has been transferred to the Civil Procedure Code, and Order XXXIV, Rule 1, makes it clear that its provisions are 'subject to the other provisions of the Code,' including Order I, Rule 9, which says:

No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

25. Relying upon this rule, Guha J. (sitting singly) held in Haidar Ali v. Md. Shafiuddin : AIR1932Cal34 that in a suit for mortgage amount filed by some of the co-mortgagees, a decree for their share could be passed, though the other co-mortgagees were not parties to the suit. He observed (p. 35):

Non-compliance with the provisions of Order 34, Rule 1,.is not necessarily fatal to a suit to enforce a mortgage and that Order I, Rule 9 applies to a mortgage suit as well as to any other suit.

26. With all respect, I think that this would be so if Order XXXIV, Rule 1, was the only reason for requiring the other co-morgagees to be joined as parties to such a suit. In the case of a non-joinder, Order I, Rule 9, allows a decree to be passed so far as regards the parties actually on the record are concerned, unless the person not joined is a necessary party in the sense that, in his absence, no relief could be given at all even as regards the parties actually on the record.

27. Section 45 of the Indian Contract Act defines the right of joint promisees to claim performance, and in Kandhiya Lal v. Chandar I.L.R(1884) . All. 313 . a full bench of the Allahabad High Court held that when, upon the death of the obligee of a money-bond, the right to realize the money devolved by inheritance in specific shares upon his heirs, each of such heirs could not maintain a separate suit for the recovery of his share of the money due on the bond. This principle was followed in Balkrishna Moreshwar Kunte v. The Municipality of Mahad I.LR.(1885) 10 BOm. 32 and Balkrishna v. Moro I.L.R.(1896) 21 Bom. 154 and is all the more applicable to a suit on a mortgage which is, by its very nature, indivisible, in the absence of a contract to the contrary. As observed in Huthasanan Nambudri v. Parameswaran Nambudri (1I.L.R. 898) Mad. 209 :

A mortgage for an entire sum is from its very purpose indivisible; and that character of indivisibility exists with reference not only to the mortgagee, but also to the mortgagor; save by special arrangement between all the parties interested, neither mortgagor nor mortgagee, nor persons acquiring a partial interest through either, can obtain relief under the mortgage except in consonance with that principle of indivisibility.

28. In the application of this principle co-mortgagors and co-mortgagees stand on a somewhat different footing. In the case of a co-mortgagor, Section 60 of the Transfer of Property Act gives Him the right to redeem the entire mortgage, though in his suit for redemption he must join all the other co-mortgagors as defendants; but he cannot sue to redeem his own share in the mortgaged property. Similarly, as pointed out by the Privy Council in Sunitabala Debi v. Dhara Sundari Debi 22 Bom. L.R. 1 where there are more than one co-mortgagees, who are tenants-in-common as in the present case, no redemption can be effected of a part of the property by paying to one of the mortgagees his share of the debt. 'It is not a mortgage to each of a divided share, but a conveyance to them of the whole property.' Their Lordships then proceeded to add (p. 277):

Where a mortgage is made by one mortgagor to two [mortgagees as] tenants in common, the right of either mortgagee who desires to realise the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage decree, which 'would provide for all the necessary accounts and payments, excepting that there could be no judgment for a sum of money entered as between the mortgagee defendant and the mortgagor.

29. One out of several co-mortgagors can sue for redemption on his own behalf under Section 60 of the Transfer of Property Act, but his suit must be for the redemption of the mortgage, and all the other co-mortgagors should be joined as parties to the suit under Order XXXIV, Rule 1, of the Civil Procedure Code; whereas a single co-mortgagee cannot sue to recover the entire mortgage amount on his own behalf; nor can he sue to recover his own share of the mortgage amount, as the mortgage is indivisible. He must bring a suit to recover the entire amount on behalf of himself and the other co-mortgagees. The right to sue is one and indivisible, and there is a single cause of action for all of them. Hence the claim of all of them must be in time when a suit is filed on behalf of all. This is what is laid down in Gobindachandra Ghosh v. Jamaluddin Mandal I.L.R.(1933) Cal. 87 where Mitter and M.C. Ghose JJ. observed (p. 780):

.mortgage is indivisible and if all the parties entitled to share in the money due on the mortgage are not on the record, the suit must be dismissed in its entirety, and.when a necessary party has not been impleaded at the time of the institution of the suit, but has been brought on the record after the period of limitation has expired, the whole suit must be dismissed.

30. I respectfully agree with this view, not because Order I, Rule 9. of the Civil Procedure Code is subordinate to Order XXXIV, Rule 1, but because the co-morgagees are necessary parties not merely by, reason of Order XXXIV, Rule 1, but also because the plaintiff has no right to sue without them. Referring to this case, the learned Judge below has observed that 'no reference was made to a previous case of the same High Court, reported in the same volume, Umeshchandra Mandal v. Hemangachandra Maiti I.LR.(1932) Cal. 87.' But that case can be easily distinguished. There, there was a single mortgagee, and he sued for his mortgage amount. After the death of one of the defendants, who was a subsequent purchaser, only some but not all representatives were brought on record, and it was held that the suit did not fail for non-joinder, whether partially or wholly. The plaintiff had the right to claim the mortgage amount, and the defect of non-joinder of all the mortgagors as required by Order XXXIV, Rule 1, of the Civil Procedure Code, was not fatal to the suit under Order I, Rule 9.

31. The case of Shivubai v. Shiddheshwar Martand 23 Bom. L.R. 405 relied upon by the lower Court, has no application to the facts of this case, as it was a suit for redemption, filed by one of the co-mortgagors, who had a right to do so, under Section 60 of the Transfer of Property Act.

32. The case of Baldeo Prasad v. Bhola Nath I.L.R. (1929) All. 134 is quite in point, but it was decided more on equitable grounds. The facts of that case were almost similar to those in the present, and it was observed : The Court should not refuse to add a person as defendant merely on the ground that if he were plaintiff his suit would be barred; when the plaintiffs do not ask for relief by being added. Where it is possible for the Court to do justice between the parties before it, it should do so, and should not make Order XXXIV, Rule 1, a ground for dismissing the entire suit.

33. This reasoning is similar to that adopted by Guha J. (sitting singly) in Haidar Ali v. Md. Shafiuddin, and as I have already pointed out, it does not take into consideration the necessity of bringing a suit on behalf of all the co-mortgagees, apart from the provisions of Order XXXIV, Rule 1, of the Civil Procedure Code. All the co-mortgagees must conjointly make the claim, and if any of them cannot be joined as a plaintiff then, as pointed out by the Privy Council, he must be made a defendant, and the claim must be made on behalf of all the co-mortgagees. Hence they must all be parties to the suit, before the claim is time-barred. This view accords with the [decision in Gobindachandra Ghosh v. Jamaluddin Mandal I.L.R. (1933) Cal. 777 .

34. I am not unmindful of the hardship that may occasionally arise from this view, especially when a mortgagee dies leaving several heirs some of whom may be discovered after the claim on the mortgage is time-barred. But such cases will be extremely rare, and a sound rule of law cannot be changed for the sake of such exceptional cases.

35. For these reasons, I concur in the order proposed by my Lord the Chief Justice.

Coyajee, J.

36. The suit is filed by the plaintiff for the purpose of being paid mortgage moneys due under a mortgage dated November 1, 3926, the original mortgagee being one Shivappa who was the karta of a joint Hindu family. Subsequent to the mortgage a partition took place between the members of the joint family. In the result the legal estate of the mortgagee vested in three branches of the family. It is clear that in those circumstances the said three branches held the legal estate as tenants-in-common. The mortgage is dated November 1, 1926, and the due date for payment under the said mortgage is November 1, 1927. This is a simple mortgage and governed by the provisions of Section 58 (b) of the Transfer of Property Act, there being no possession of the property under the said mortgage. The object of a simple mortgage is to secure the debt only and a right to be paid can only be enforced through the intervention of the Court. The suit is filed on behalf of one of the three branches of the joint family which is now divided in estate, and the suit was filed on November 1, 1939, namely, the last day before the period of limitation expired. The Court passed a decree for payment of a one-third share of the mortgage money falling to that particular branch.

37. By exhibit 94 the plaintiff applied on October 27, 1941, to have the other parties added as party defendants, namely, those representing the other two branches of the family, and this was allowed after the period of limitation had expired as regards the claim of the other two branches on the ground that no relief was asked against those defendants and that under Section 22 of the Indian Limitation Act no prejudice could be introduced against the mortgagor inasmuch as the suit as regards the newly founded defendants would be deemed to have been instituted when they were made parties to the suit, and any claim by them would be dismissed under Section 3 of the Indian Limitation Act.

38. In these circumstances the question before the Court is whether the suit as framed is bad or whether it is good as regards the one-third share coming to the plaintiff's branch, and whether if defective in its inception, it could be cured by the amendment that was allowed.

39. To my mind the question is whether at the date of the insitution of the suit there was a cause of action arising on the pleadings. For this purpose one has to look to the fact that this is a simple mortgage without possession and therefore the only right of sale is one to be enforced through the Court. There is no allegation of any severance nor is the consent to severance by the mortgagor pleaded or set out. Therefore the question is whether in these circumstances the suit as framed was maintainable.

40. The trial Court has held that the suit is maintainable because non-compliance with the provisions of Order XXXIV, Rule 1, of the Code of Civil Procedure, was not fatal to the suit for enforcing a claim under the mortgage, because the provisions of Order I, Rule 9, of the Code of Civil Procedure, were applicable to mortgage suits and therefore the defect was not fatal but could be cured by an amendment. The learned trial Judge came to the conclusion that the Bombay High Court is in favour of the view that Order XXXIV, Rule 1, is subject to Order I, Rule 9, of the Code of Civil Procedure, as laid down in the case of Shivubai v. Siddeshwar Martand (1920) I.L.R. 45 Bom. 1009 : S.C. 23 Bom. L.R. 405. The learned Judge also relied upon the case of Gobindchandra v. Jamaluddin and the case of Baldevprasad v. Bholanath. After discussing these rulings the trial Court held that the suit was maintainable, but that the plaintiff could recover only his share of the mortgage moneys.

41. The reasoning adopted by the trial Judge seems to be erroneous, in my opinion, for the following reasons. The suit is one to enforce a claim under a single transaction, namely, to enforce payment of the amount due under the mortgage. The claim is embraced in one transaction and the claim is indivisible. It is in essence a contract of a particular kind and must be governed by the principle laid down in Section 45 of the Indian Contract Act which speaks of devolution of joint rights and is as follows :

When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.

42. The section apparently applies to all joint promisees whether they are partners, co-sharers or tenants-in-common, and the basic principle of the section is that joint promisees cannot divide the debt amongst themselves and sue severally for their respective portions unless the mortgagor has consented to a severance and thereby conceded a right contrary to that principle. If the cause of action is therefore one and indivisible, the suit as framed was defective in its very inception, and if it was defective in its very inception, the next question arises whether the amendment under Order I, Rule 10, of the Code of Civil Procedure, allowed by the trial Court could cure the defect at all. Under Order XXXIV, Rule 1, of the Code of Civil Procedure all persons having an interest in the mortgage security shall be joined as parties to any suit relating to the mortgage. So that this Order further supports the principles under the Transfer of Property Act to the effect that a transaction of mortgage is one and indivisible, e.g. see Section 67(d) of the Transfer of Property Act. There is in this case no contract to the contrary. Order I, Rule 9, says that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The trial Court seems to have come to the conclusion that therefore non-compliance with Order XXXIV, Rule 1, is not fatal inasmuch as the defect could be cured under Order I, Rule 9, of the Code of Civil Procedure. That is a mistake because the Code of Civil Procedure applies only to rules of procedure and they cannot in their application affect and defeat the rights of parties which have already accrued to them under substantive law.

43. The proposition that tenants-in-common as joint promisees cannot divide the debt amongst themselves and sue severally for their portions has been accepted and supported by a series of decisions. In the case of Balkrishna Moreshwar Kunte v. The Municipality of Mahad I.L.R. (1885) 10 Bom. 32 it was laid down that unless there is a special provision of the law, co-owners are not permitted to sue through some or one of their members, but all co-owners must join in a suit to recover their property, and that the defendant cannot be deprived of his right to insist on the other co-owners being joined on the record by the fact that they approve of the suit being brought by the plaintiff alone. Sargent C.J. in delivering the judgment approved of the case of Kattusheri v. Vallotil I.L.R(1879) Mad. 284 . In the case of Balkrishna v. Moro I.L.R(1896) . 21 Bom. 154 it was held that a co-sharer who is the manager cannot, even with the consent of his co-sharers, maintain, a suit by himself and in his own name to eject a tenant who has failed to comply with a notice calling on him to pay enhanced rent. Following the case of Balaji Bhikaji Pinge v. Gopal bin Raghu Kuli I.L.R.(1878) 3 Bom. 23 Mr. Justice Parsons held that the suit as framed was not maintainable inasmuch as it was to be taken as settled law that a co-sharer who was the manager even with the consent of his co-sharers could not maintain a suit by himself and in his own name. In an analogus case of Sitaram v. Shridhar 5 Bom. L.R. 91 it was held that where a property is mortgaged to a person who subsequently dies leaving two or more heirs jointly entitled to his estate, payment made by the mortgagor of the amount due on the mortgage to one of those heirs, without the concurrence of the rest, does not amount to a valid discharge to the mortgagor.

44. The controversy, if there is any, is set at rest by the leading case of Sunitabala Debi v. Dhara Sundari Debi Chowdhurani 22 Bom. L.R. 1 where it was held that where a mortgage is made by one mortgagor to two mortgagees as tenants-in-common, the right of either mortgagee who desires to realise the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage decree. Lord Buckmaster states as follows (pp. 179-180):

Where a mortgage is made by one mortgagor to two tenants in common, the right of either mortgagee who desires to realise the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage decree. So far, therefore, as this appeal depends on maintaining the correctness of the form of the proceedings, it must fail. The proceedings were wrong in form, but were capable of being amended so as to constitute a properly framed suit. It was within the competence of the Court to make such an amendment, and indeed it was their clear duty to do it, if thereby delay and expense would be avoided.

45. These remarks emphasise the position that the claim being one and indivisible all necessary parties must be before the Court when the suit is instituted. If the parties are not before the Court, as pointed out by Lord Buckmaster, a proper amendment would, in the circumstances, under Order I, Rule 10, of the Code of Civil Procedure, meet the situation. The question however is whether any Court would allow an amendment which would defeat a right already arising and accruing due to a party. Normally, no amendment would be allowed which would deprive a party of the substantive right that has accrued to that party, and in the circumstances where the suit itself is bad in form and bad at its inception, it cannot in my opinion be cured by amendment bringing other parties on record after the period of limitation has expired. The period of limitation had expired when the amendment was granted. Therefore the suit at the date of the amendment was clearly bad and the remedy was already barred by the law of limitation.

46. I may now refer to the cases relied upon by the trial Court. The case of Shivubai v. Shiddheshwar Martand 23 Bom. L.R. is a distinguishable one. It was a case filed by some of the heirs of a mortagor for the redemption of mortgage. The objection raised of non-joinder was met by an application for amendment which was refused by the lower Court. It was held that the plaintiff's right to redeem which they had, when they filed the suit, was not lost by their omission to make the remaining heirs as parties to the suit inasmuch as they were only necessary parties to save mulitiplicity of suits, and that they were necessary parties because Order XXXIV, Rule 1, of the Code of Civil Procedure, had to be complied with and the suit was only defective as long as Limba and Sugandha were not brought on the record. It was held that the plaintiffs' right to redeem against the heirs of the mortgagee was not barred when they filed the suit. Mr. Justice Fawcett further added that 'There is no provision in either the Civil Procedure Code or the Indian Limitation Act, which says that a party cannot be added after his right of suit or liability to be sued (as the case may be), is barred by the provisions of the Indian Limitation Act.' In this case there is no question of splitting up of the claim. The claim was for redemption of the whole of the mortgaged property and therefore in my opinion it cannot be held as a guide for the purpose of deciding the question arising in this appeal, as in that case the suit was by a co-mortgagor who possessed the right to sue under Section 60 of the Transfer of Property Act.

47. The next case relied upon by the trial Court is the case of Baldeo Prasad v. Bhola Nath I.L.R (1929) All. 134. In that case the suit was filed by the mortgagees owning a five-ninths share of the mortgagee rights and the relief claimed was the recovery of the whole mortgage money. Subsequent to the suit the plaintiffs applied that the other mortgagees-owners of a four-ninths share be added as parties to the suit. This application was rejected on the ground that at the date of the proposed amendment the suit by other mortgagees would be barred by time and the suit was dismissed. The High Court reversed the decision holding that as the plaintiffs were not asking for any relief against the newly added parties, Section 22 of the Indian Limitation Act would not affect the case and the provisions of Order XXXIV, Rule 1, of the Code of Civil Procedure, would be satisfied, but that the plaintiffs could recover only five-ninths of the mortgage money. The learned Judges delivered the judgment after considering in detail the question whether non-compliance of Order XXXIV, Rule 1, of the Code of Civil Procedure, could or could not be cured by amendment under Order I, Rule 10, of the Code of Civil Procedure, and they say that the principle is that in compliance with Order XXXIV, Rule 1, read with Order I, Rule 9, and Order I, Rule 10(2), the Court should add necessary parties and after they have been added apply Section 22 of the Indian Limitation Act to see the result on the relief asked for or against the parties added. The question whether the claim in suit is one and indivisible and whether one of several tenants-in-common could maintain such a suit however does not seem to have been either argued or considered in that judgment and therefore in my opinion that judgment cannot be relied upon for the purpose of arriving at a decision on the question involved in this appeal.

48. The case of Gobindachandra Ghosh v. Jamaluddin Mandal I.L.R(1933) Cal. 777 is in accordance with the principle that

a mortgage is indivisible and if all the parties entitled to share in the money due on the mortgage are not on the record the suit must be dismissed in its entirety and that, when a necessary party has not been impleaded at the time of the institution of the suit, but has been brought on the record after the period of limitation has expired, the whole suit must be dismissed.

In my opinion this is in accordance with the principle discussed above.

49. The rule, therefore, appears to be that all persons who have an interest in the mortgage debt should be necessarily joined in the same action to enforce the security as there cannot be an effective decree giving discharge to the defendants unless all parties entitled to the mortgage moneys happened to be made parties to the cause at the date of the institution of the suit, and if any of the mortgagees refuse to join as plaintiffs, then they should be made defendants in the suit, so that all parties interested in the subject-matter of the suit should be before the Court either in the form of plaintiffs or defendants. In the absence of the suit being framed as indicated above the suit is not maintainable and it being not maintainable at the date of the institution of the suit addition of parties after the period of limitation has expired cannot avail the plaintiff in such a suit inasmuch as there is no cause of action under Section 3 of the Indian Limitation Act, and in those circumstances Order I, Rule 9 ,of the Code of Civil Procedure, cannot cure the defect and resuscitate the suit which in fact disclosed no cause of action at the date when it was instituted.

50. Therefore the contention of the appellant must prevail and this appeal in my opinion should be allowed and the suit must be dismissed with costs throughout.