Devidas & Ors Vs. Shrishailappa
& Ors  INSC 59 (21 February 1961)
CITATION: 1961 AIR 1277 1961 SCR (3) 896
Mortgage-Non-joinder of Parties-Proper, but
not -necessary, added beyond limitation-Suit instituted on behalf of joint
family-Plaintiff not described as manager in the plaint Maintainability of
suit-Indian Limitation Act, 1908 (9 of 1908), s. 22.
The manager of an undivided Hindu family
consisting of himself, his brother and their step-mother, instituted a suit for
recovery of the amount due under a mortgage belonging to the family. The
step-mother who was interested in the mortgagee right was not made a party to
Though the manager (the first plaintiff) did
not describe himself as the manager in the plaint, the allegations in the
plaint showed that the suit was filed on behalf of the joint family. No
objection as to non-joinder was raised in the trial court, but when the appeal
was pending in the High Court the step-mother was added as a party on her
application. The contesting defendants pleaded that as all persons having an
interest in the mortgage security were not joined as parties within the period
of limitation prescribed for a suit to enforce the mortgage, and the first
plaintiff did not, in any case, purport to institute the suit in his capacity
as the manager, the suit must fail.
Held: (1) that the failure to join a person
who is a proper but not a necessary party does not affect the maintainability
of the suit nor does it invite the application of S. 22 Of the Indian
Limitation Act, 1908 ;
(2) that the question whether a suit as
instituted by the manager of an undivided Hindu family in his personal capacity
or as representing the family depends upon the circumstances of each case and
that the failure of the plaintiff to describe himself as the manager in the
plaint is not decisive of the question.
(1)  28 I.T.R. 189.
(2)  27 I.T.R. 176.
897 In the resent case, the step-mother was not
a necessary party, and the facts showed that the suit was instituted by the
first plaintiff in his capacity as manager.
Accordingly, the suit was maintainable.
Guruvayya Gowda and Others v. Dattatraya
Anant and Others (1904) I.L.R. 28 Bom. 11, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 112 of 1957.
Appeal by special leave from the judgment and
decree dated January 28, 1954, of the Bombay High Court in First Appeal No. 69
Purshottam Trikamdas and Naunit Lal for the
C. K. Daphtary,Solicitor-General of India, S. N. Andley, J. B. Dadachanji and P. L. Vohra for respondents Nos. I and 2.
B R. L. Iyengar for respondents Nos. 6 to 9.
1961. February 21. The Judgment of the Court
was delivered by SHAH, J.-The genealogy which sets out the relationship between
some of the principal parties in this litigation is as follows:
---------------------------------------------------| | | | Balappa Shivappa
Basavanappa Chanamalappa | | Basalingappa | Rachappa | (Parvatewa Balappa deft.
9 | respdt. 12) | | | -------------------------| | | | Shrishailappa Shivappa |
(Plaintiff 1) (plaintiff 2) | | | |
|----------|-----------|--------------|--------------| malappa Chanabasappa
Balappa Basavanappa Shrishailppa (deft. 5) (deft.6) (adopted by (deft. 7)
(deft. 8) Chanamalappa Mallappa had four sons Balappa, Shivappa, Basavanappa
and Chanamalappa. These four sons, formed a joint Hindu family.
Chanamalappa separated himself from the joint
family sometime in the year 1909 and his other three brothers continued to
remain joint. Shivappa was the Manager of the joint family 898 after the death
of Mallappa. Shivappa died in 1928. and Rachappa became the Manager of, the
family. The joint family possessed lands in seventeen, villages and many houses
in Khanapur. The family had also an extensive moneylending business. One
Bashettappa Neeli-hereinafter referred to as Bashettappawas married to the
sister of Rachappa. On July 29, 1929, Bashettappa executed a deed of simple
mortgage in favour of Rachappa in respect of certain parcels of lands and
houses belonging to him to secure repayment of Rs. 1,73,000/-, Rs. 76,700/out
of which were received in cash and the balance represented amounts which
Rachappa agreed to pay to Bashettappa's creditors. To one Gurappa, Bashettappa
owed Rs. 8,000/as an unsecured debt and Rachappa agreed to pay that debt. In
Insolvency Application No. 22 of 1929 of the file of the First Class
Subordinate Judge, Dharwar, Bashettappa was adjudicated an insolvent and
receivers were appointed by the Insolvency Court to administer his estate. The
receivers applied for a declaration that the mortgage deed, in favour of
Rachappa was in fraud of creditors and was 'accordingly void. The Assistant
Judge, Dharwar, in Appeal No. 25 of 1934 from the order of the Insolvency Court
held that Rachappa was entitled out of the mortgage amount to recover Rs.
45,700/as a secured debt and Rs. 31,000/as unsecured debt.
Gurappacreditor of Bashettappa-in the
meanwhile filed Suit No. 84 of 1932 against Rachappa and other members of his
family in the court of the First Class Subordinate -Judge, Dharwar, for a
decree for Rs. 8,000/claiming that Rachappa had, acting on behalf of the joint
family of which he was the manager, undertaken under the deed of mortgage to
pay that amount and. that he-Gurappa-had accepted that undertaking.; A decree
exparte was passed in that suit against Rachappa on February 28,1933, and the
claim against the other members of the family was either withdrawn' or rejected.
On July 23, 1939, the three branches of the joint family by mutual agreement
severed the joint status and properties movables and immovables beloning to the
family were divided. Pursuant to 899 this division, lands and houses which fell
to the shares of the three branches were mutated in the Revenue and Municipal
records in the names of the managers of the respective branches. Movables were
also divided. The mortgage amount recoverable from Bashettappa and a claim
against one Desai were' it is the case of the plaintiff in the suit out of
which this appeal Arises, kept joint. Gurappa after making certain infructuous
attempts to execute the decree filed dharkhast No. 176 of 1940 to recover Rs.
11,061-6-9 and prayed for an order of attachment and sale of the rights of
Rachappa under the mortgage bond dated July 29,1929. One Ganpatrao N.
Madiman-hereinafter referred to as Madimanoffered the highest bid at the court
auction and the mortgage bond was sold to him for Rs. 20,000/An application
filed by Rachppa for setting aside the sale pleading that the sale was vitiated
by material irregularities and fraud in publishing and conducting the sale was
The mortgage bond was delivered by the
executing court to Madiman and orders were issued against Bashettappa and the
receivers of his estate prohibiting them from making payments of the dues under
the mortgage or any interest thereon, to any person or personal except the
purchaser Madiman. In Miscellaneous Application No. 57 of 1944, Madiman applied,
to the Insolvency Court to be recognised as an unsecured creditor for Rs.
31,000/., and the application was granted on the footing that the entire
interest under the mortgage bond was purchased by him. Receivers appointed by
the Insolvency Court thereafter put up for sale. the equity of redemption in
the mortgaged properties and the same was purchased for Rs. 15,500/. by
Madiman. The sale deed in this behalf was executed by the receivers in favour
of Madiman on January 28, 1947. Madiman accordingly became the owner of the
equity of redemption and claimed to be entitled to the entire mortgagee right
as a purchaser of the right, title and interest of Rachappa.
Basalingappa who was the natural brother of
Rachappa and was adopted by his-uncle Basavanappa died in 1946 leaving him
surviving his widow 900 Parvatewa, and two sons Shrishailappa and Shivappa. The
sons of Basalingappa who will hereinafter be referred to as the plaintiffs
filed Suit No. 253 of 1947 for a decree for Rs. 1,23,400/by enforcing the mortgage
deed executed by Bashettappa claiming that Madiman had at the court auction
acquired in the mortgagee right only the right, title and interest of Rachappa
which was a third and the plaintiffs and defendants 5 to 8 sons of Shivappa
continued to remain owners of the remaining two-third share. The plaintiffs
prayed for a decree that the amount due under the mortgage be awarded to them
and in default of payment the amount be realised by sale of the mortgaged
property. To this suit were impleaded Bashettappa as defendant No. 1, receivers
of his estate as defendants Nos. 2 and 3,Madiman as defendant No. 4, sons of
Shivappa as defendants Nos. 5 to 8 and Rachappa and his son as defendants Nos.
9 and 10. Madiman died after the institution of this suit and his sons were
impleaded as defendants Nos. 4A to 4C and his widow as defendant 4D. Madiman's
sons were the principal contesting defendants and the main contentions raised
by them were: (1) that the mortgagee right was the separate property of
Rachappa and it did not belong at any time to the joint family, of Rachappa
defendants 5 to 8 and the plaintiffs, (2) that in any event, at the partition
between the three branches the mortgagee right had failed to the share of
Rachappa and that it was not kept undivided as alleged by the plaintiffs, and
(3) that in Execution Petition No. 176 of 1940, the entire interest of the
joint family was sold and it was purchased by Madiman and consequently, the
plaintiffs could not enforce the mortgage.
The trial court negatived the contentions
raised by the sons of Madiman and held that only a third share in the mortgagee
right was purchased at the court auction by Madiman. The court accordingly
passed a decree against defendants Nos., 4A to 4D for payment of Rs. 60,933-5-4
and proportionate costs ',with future interest at 6% per annum 'on Rs. 30,466,10-8
901 from the date of the suit to the plaintiffs and defendants 5 to 8 within
six months and in default of payment for sale of the mortgaged property.
Against that decree, defendants 4A to 4C-hereinafter referred to as the
appellants-appealed to the High Court at Bombay. The High Court held that the
mortgagee right belonged to the joint family, that the agreement to pay Rs.
8,000/to Gurappa was not binding upon that family and therefore in execution of
the decree passed in favour of Gurappa only the right, title and interest of
Rachappa was purchased by Madiman. The High Court further held that there was
in 1939 severance of joint family status between the members of the family of Rachappa,
plaintiffs and others, but as in the state of the record in the view of the
court a finding on the question whether the mortgage debt was kept undivided
could not be recorded, they remanded the case for recording a finding on the
" Whether it is proved that the mortgage
debt of 29th July, 1929, fell to the share of defendant No. 9 at the family
partition of July, 1939, " and directed the trial court to allow both the
parties to lead evidence upon this issue and to certify its findings thereon.
The trial court recorded a negative finding on that issue. It held that the
mortgage claim was kept undivided at the partition. The High Court confirmed
this finding and dismissed the appeal filed by the appellants, subject to a
slight modification as to the rate of interest awarded by the trial court. With
special leave under Art. 136 of the Constitution, this appeal is preferred.
No serious argument was advanced before us on
the plea that the amount due under the mortgage from Bashettappa was not the
property of the joint family. At the material time when the mortgage deed was
executed by Bashettappa, Rachappa was the manager of the joint family. In Suit
No. 84 of 1932 filed by Gurappa it was alleged that Rachappa was the manager of
the joint family consisting of himself and the branches of Shivappa and
Basavanappa and that the mortgage transaction was for the benefit of the joint
family and that Raohappa had entered into that 902 transaction for and on
behalf of the joint family and in that suit Rachappa alone was declared liable
to pay Rs. 8,000/-. Partition of the year 1930 is supported by evidence which
has remained unchallenged. Intimation was given to the village and Municipal
authorities pursuant to the partition for mutating the names of the different
branches to whom the shares were allotted. The evidence of Rachappa and
Mallappa that the partition took place also has remained un contradicted.
The question which calls for consideration is
whether at the partition, the mortgagee right under the deed executed by
Bashettappa was kept undivided. Mallappa defendant No. 5 in his evidence when
he was examined after remand stated that " an equal division was made of
the lands according to the income and that Rachappa was not given a smaller
share in the lands. " He also stated that the houses were divided in equal
shares and the outstanding in the money-lending business except two bonds-the
mortgage bond executed by Bashettappa and one Desai were kept undivided. He
denied the suggestion that the mortgage debt due from Bashettappa was allotted
exclusively to Rachappa. Rachappa in his evidence also stated that the mortgage
bond was kept undivided between the three branches and that it was not true
that it was allotted to his shares at the partition.
Devidas-defendant No. 4 A-had evidently no
personal knowledge about this partition or the terms thereof His statement that
Rachappa had told him at the time when Madiman offered his bid at the court
auction that the mortgage bond was allotted exclusively to Rachappa's share
could not in the circumstances of the case be true and was rightly
"believed by the trial court and the High Courtís