Ram Prasad Dagduram Vs. Vijay Kumar
Motilal Mirakhanwala & Ors  INSC 105 (18 April 1966)
18/04/1966 SARKAR, A.K. (CJ) SARKAR, A.K.
(CJ) MUDHOLKAR, J.R.
CITATION: 1967 AIR 278 1966 SCR 188
Code of Civil Procedure (Act 5 of 1908), 0.
1, r. 10(1) and (2)--Scope of.
Indian Limitation Act (9 of 1908), s. 22 and
Art. 132Addition of parties-Suit when deemed to be filed--Suit for
foreclosure-Period of Limitation-Indian Act extended to Part B State-Period of
limitation abridged by Indian Act-Law of limitation applicable.
The appellant executed a mortgage in 1934 in
favour of the proprietrix of a firm in the State of Hyderabad. The mortgage
amount became due in 1943. The first respondent, who was the daughter's son of
the mortgagee, claiming to be her adopted son. filed a suit for foreclosure of
the mortgage, in 1954, after the death of the mortgagee. The trial Court
dismissed the suit on the ground that the adoption was not established. The
first respondent appealed to the High Court and, pending the appeal, applied
for adding his natural mother as a co-plaintiff and her two sisters as
defendants as they were not willing to join as plaintiffs, and sought
consequential amendments in the plaint. The High Court granted the application
under 0. 1, r. 10(1), Civil Procedure Code, on 4th November, 1958 and
thereafter, disposed of the appeal by passing a preliminary decree for
foreclosure in favour of the added parties. The High Court did not go into the
question of adoption but dismissed the first respondent's suit.
HELD: (Per Sarkar, C.J.): The order adding
parties cannot be supported under either sub-r.(1) of sub-r. (2) of
0. 1, r. 10. Sub-r. (1) provided for addition
of plaintiffs and could not therefore justify the addition of defendants.
In the case of addition of parties under
sub-r. (2), the provisions of s. 22 of the Limitation Act admittedly apply and
under it in the present case, a suit by the added parties, on the date they
were added, would have been barred. It would have been futile, therefore, to
make an order under sub-r. (2). [190 G-H; 191 D-E] Ravji v. Mahadev's case
(I.L.R. 22 Bom. 672) doubted. There is no reason to think that s. 22 of the
Limitation Act does not apply to O.1, r. 10, sub-r. (1). [191 G] A person suing
as the proprietor of a firm does not sue in a representative capacity. He sues
in his personal capacity.
[192 E-F] Per Mudholkar and Bachawat JJ: The
High Court bad power to join the co--plaintiff under 0. 1, r. 10(1) and to join
her sisters as defendants under 0. 1, r. (2), and to allow onsequential
amendments of the plaint under 0. VI, r. 17, but, as regards the added parties,
by reason of s. 22(1) of the Indian Limitation Act, 1908. the suit must be
regarded as instituted on the date on which they were added and was therefore
barred by limitation. [197 C] In 1951, the Hyderabad Limitation Act was
repealed and the Indian Limitation Act was extended to the State. The Indian
Act abridged the period of limitation for the enforcement of the mortgage, 189
but did not impair or take away any vested right.
Therefore, on the date of the institution of
the suit, the law of limitation applicable was the Indian Act. [194 E-F] The
respondent, as the original plaintiff, sued in his own right and on his own behalf.
Therefore, the parties added must be regarded as a new plaintiff and new
defendant respectively. Section 22 of the Limitation Act in express terms
applies whenever a new plaintiff or a new defendant is substituted under 0. 1,
r. 10(1) or (2). The effect of the section is that the suit must be deemed to
have been instituted by the new plaintiff when he was made a party.
[196 E-G] Ravji v. Mahadev, (1897) I.L.R. 22
Bom. 672, disapproved.
Since the suit in the instant case was for
foreclosure only it was governed by Art. 132 of the Limitation Act and must be
regarded as instituted in November 1958, beyond 12 years from the date when the
mortgage money was due. [195 C] Vasudeva Mudaliar v. K. S. Shriniwas Pillai
I.L.R, 34 I.A.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1046 of 1963.
Appeal from the judgment and decree dated
November 17, 1959 of the Bombay High Court in First Appeal No. 484 of 1957 from
S. T. Desai, and J. B. Dadachanji, for the
Sarjoo Prasad, B. P. Singh and Naunit Lal,
for respondents Nos.1 and 2.
Ganpat Rai, for respondent No. 4.
SARKAR, C. J. delivered a separate Opinion.
The Judgment of MUDHOLKAR and BACHAWAT JJ. was delivered by BACHAWAT, J.
Sarkar C.J. This appeal arises but of a suit
filed by the respondent Vijay Kumar against the appellant on February 9, 1954
to enforce a mortgage. The plaint stated that the appellant executed the
mortgage on December 13, 1934 in favour of Tarabai, the proprietor of the firm
of Narayandas Chunilal, and that the amount secured on it became due on
December 13, 1943. Vijay Kumar claimed that he was adopted by Tarabai on July
16, 1948 as a son to her deceased husband Motilal Hirakhanwala and became
entitled to enforce the mortgage as her sole heir on her death on April 23,
After setting out the particulars of the
mortgage, Vijay Kumar asked for a decree for foreclosure. In his written
statement the appellant admitted the mortgage but denied that Vijay Kumar had
been adopted by Tarabai and stated that she had died leaving as her heirs three
daughters, Rajkumari, Premkumari and Mahabalkumari, the mother of Vijay Kumar
Besides denying Vijay Kumar's right to enforce the mortgage. the appellant took
various other defenses to the action to which it is unnecessary for the purpose
of this appeal to refer.
190 The learned District Judge who heard the
suit, held that the adoption of Vijay Kumar had not been established and on
that ground alone he dismissed it, having rejected the other defenses raised by
the appellant. Vijay Kumar appealed against that judgment to the High Court of
Hyderabad but that appeal was, on a subsequent reorganisation of States,
transferred to the High Court of Bombay. Thereafter on November 3, 1958, Vijay
Kumar made an application in the appeal for an order adding his mother
Mahabalkumari as a coplaintiff with him as she was willing to be so added, and
her sisters Rajkumari and Premkumari "who were not available for joining
in the suit as plaintiffs", as defendants. He also sought permission to
add a new paragraph to the plaint, in which after reiterating his right to
enforce the mortgage as the adopted son of Motilal and Tarabai, he stated.
"In case, however, the plaintiff's adoption is held not to be proved or
not to be valid, the estate of Motilal and Tarabai Hirakhanwala and of M/s
Narayandas Chunilal will vest in Tarabai's three daughters, viz., Rajkumari,
Premkumari and Mahabalkumari". The prayers in the plaint were also sought
to be amended by asking that the decree sought might be passed in favour of
Vijaykumar and Mahabalkumari.
The appellant opposed this application but it
was allowed by the High Court. The records of the appeal were, thereafter,
reconstituted by adding Mahabalkumari as an appellant and Rajkumari and Premkumari
as respondents and amending the plaint a,. sought. Premkumari filed a written
statement denying the adoption of Vijay Kumar and his right to enforce the
mortgage. Rajkumari never appeared in the proceedings arising out of the suit.
The appeal was thereafter heard by the High Court and allowed. The High Court
refused to go into the question of adoption and passed a preliminary mortgage
decree for foreclosure in favour of Mahabalkumari, Rajkumari and Premkumari and
further directed that the suit as brought by Vijay Kumar would stand dismissed.
The present appeal has been brought by the original defendant against this
judgment of the High Court under a certificate granted by it.
I think that Mr. S. T. Desai for the
appellant was right when he said that the order adding parties could not be
supported. The High Court purported to make the order under sub-r. (1) of 0. 1,
r. (10) of the Code of Civil Procedure.
We were not called upon by counsel to
consider any other provision. That sub-rule, however, cannot justify the order,
for it only permits addition of a plaintiff and does not provide for the
addition of a defendant while the order directs addition of both a plaintiff
and two defendants.
Was it then properly made in solar as it
added a plaintiff ? I do not think so. The addition of Mahabalkumari as a
plaintiff could not be made under the sub-rule unless it was necessary for the
determination of the real matter in dispute. Now, adding her 191 as a plaintiff
would have availed nothing unless Rajkumari and Premkumari were also added as
defendants, and that could not be done under the sub-rule. No decree could have
been passed in her favour alone if the case of adoption failed, for she would
then be entitled to the mortgagee's right along with her sisters. The addition
of Mahabalkumari as plaintiff only would have been futile; it would not have
helped in the decision of any matter in dispute.
Now, sub-r. (2) of 0. 1, r. (10) permits the
addition of both plaintiffs and defendants in certain circumstances.
The order however was not sought to be
justified under that provision and there was good reason for it. It was
conceded-and in my opinion rightly-that in view of s. 22 of the Limitation Act.
the suit as regards the parties added under this sub-rule had to be deemed to
have been instituted when they were added. This was also the view expressed by
the High Court. Now it is not in dispute that a suit filed on the date when the
three sisters were added, to enforce the mortgage would have been barred. We
may add that there is authority for the view that even the addition of
defendants alone may attract the bar of limitation: see Ramdoyal v.
Junmenjoy(1). Guravayya v. Dattairayaa(2). I think that the addition of
Rajkumari and Premkumari as defendants was of the kind considered in these
Therefore, it would have been futile to add
any of the parties under this sub-rule. In view of the bar of limitation, such
addition would not have resulted in any decree being passed and, therefore, the
addition should not have been ordered. I am, however, not to be understood as
holding that apart from the difficulty created by s. 22 the order could have
been properly passed under the sub-rule. I have the gravest doubts if it could.
It is unnecessary to discuss the matter further.
The High Court, relying on Ravji v.
Mahadev,(3) expressed the view that when a party is added under sub-r. (1) of
1, r. (10), s. 22 of the Limitation Act does
not apply and no bar of limitation arises. No other reason was given by the
High Court or suggested by counsel in this Court to avoid the bar of limitation
imposed by s. 22. If the bar operated, no addition of parties could, of course,
As I am of opinion that the order could not
be justified by the terms of that sub-rule, it is not really, necessary for me
to consider this question of limitation. I wish however to observe that, as at
present advised, I am not at all sure that s. 22 does not apply to an addition
of parties under sub-r. (1) of r. (10) of 0. 1. There is no principle to support
such a view. Nor do I think that Ravji's case(1) clearly expresses it. All that
is held--and that too in the judgment of one of the learned Judges only-was
that when in a suit by a benamidar the real owner is (1) (1887) I.L.R. 14 Cal.
(2) (1904) I.L.E. 28 Bom. 11.
(3) (1898) I.l.R. 22 Bom. 672.
192 added, it was really the original suit
that was continued.
Obviously, the learned Judge thought that he
was dealing with a case where there was no real addition of parties. It would
seem that is not the case where an order under the sub-rule is made. That would
be a case like that of a correction of a misdescription of a party for which a
resort to the sub-rule would not be necessary: Purshotam Umedbhai & Co. v.
Manilal & Sons.(1). Then again Ravji's case(1) does not seem to have been
approved in later Bombay cases: see e.g. Krishnaji, v. Hanmaraddi(2). Further
Ravi's case(1) would not support the order in hand if my reading of it is
correct. The present is not a case of a continuation of the Original suit. Here
parties were added to press their own rights which are in conflict with and
antagonistic to those which were being pressed in the suit as originally
I do not consider it necessary to pursue this
matter further on the present occasion.
It was then said that in the present case
there was no substantial addition of parties as the original suit was in the
capacity of a proprietor of the firm of Narayandas Chunilal and all that was
done was to add persons who might be the real proprietors. This was said in
order to get out of the bar of limitation by showing that it was the original
suit that was continued in spite of the addition of parties.
There seems to be authority for the view that
when a suit is filed in a representative capacity, if it turns out to) be
doubtful whether that capacity existed or had continued, the proper
representative or the owner, as the case may be, might be added even after the
date when the suit would be barred. I will assume that these cases lay down the
law correctly, but they do not, in my view, afford any assistance in the
present case. First, a suit by a person claiming to be the sole owner of the
properties of a business carried on in a firm name, as Vijay Kumar's suit was,
is not a suit in a representative capacity; he represents no one but himself. A
firm is not a legal entity which could or had to be represented by anyone else.
As is well known, a firm means only the partners taken together.
There is no such thing as the capacity of a
proprietor of a firm; the capacity of a proprietor of a firm is only the
proprietor's individual capacity. Secondly, no authority has been brought to
our notice which shows that if parties are added with a claim which is
antagonistic to the claim of the original plaintiff in the suit, as has
happened here, that would still be a case where the original suit should be
deemed to have been continued.
It may be that if the suit had initially been
filed in the form in which it stood after the amendment, it would have been a
good suit, as to which however I do not say anything on the present occasion.
If it were so, that would have been under the other (1)  I S.C.R. 982.
(2) (1898) I.L.R. 22 Bom. 672.
(3) (1963)I.L.R. 58 Bom 536.
193 provisions of the Code permitting joinder
of parties and perhaps also of causes of action when instituting a suit, none
of which was or could be pressed for our consideration.
These provisions are "merely permissive
and relate to what the plaintiff might do if he is so minded": Sri Mahant
Prayaga Doss v. The Board of Commissioners for Hindu Religious Endowments,
Madras.(1) That is not the case where addition of parties is sought under 0. 1,
r. (10), sub-rr.
(1) and (2); such additions can only be made
under the provisions of these sub-rules only.
For these reasons, I think that the order
adding parties is insupportable. If that order goes, as it should, the decree
which is in favour of the added parties cannot stand, for they are then
strangers to the suit. As there is no decree in favour of Vijay Kumar and as in
fact the suit considered as brought by him has been dismissed by both the
courts below-by the High Court with the tacit approval-and there is no appeal
by him, this appeal must be allowed. In this view of the matter, I do not feel
called upon to deal with the other grounds advanced by Mr. Desai.
I would allow the appeal and set aside the
judgment of the High Court and restore that of the trial Court. The appellant
will not get the costs in any of the courts below or this Court.
Bachawat, J. On December 13, 1934 the
appellant executed a mortgage in favour of one Tarabai, widow of Motilal
Harakhanwala. Tarabai had three daughters, Mahabalkumari, Rajkumari and
Premkumari. On July 16, 1948, Tarabai is said to have adopted Vijay Kumar as a
son to her deceased husband. Vijay Kumar is the natural son of Mababalkumari.
On April 23. 1952, Tarabai died. On February
10, 1954, Vijya Kumar claiming to be the adopted son and heir of Tarabai,
instituted a suit for foreclosure of the mortgage executed in her favour. The
appellant contested the suit.
On December 30, 1955, the District Judge,
Aurangabad dismissed the suit, holding that Vijay Kumar was not the adopted son
and heir of Tarabai. Vijav Kumar preferred an appeal to the former High Court
of Hyderabad. After the reorganisation of States, the appeal was transferred to
the Bombay High Court. On an application made by Vijay Kumar on November 3,
1958, the High Court on November 4, 1958 made an order for addition of
Mahabalkumari as plaintiff and Rajkumari and Premkumari as defendants to the
suit and for consequential amendments of the plaint. After the addition of the
parties, the appeal came up for final disposal before the High Court. At the
hearing of the appeal, the respondents submitted that the question whether
Vijay Kumar was the adopted son of Tarabai should not be decided in this
litigation and a decree should be passed in favour of the added parties on the
footing that they were the heirs of Tarabai. The High Court accepted this
submission, set aside the finding of the trial Court on the question of the
adoption of (1) 1927 I.T.R. 50 Mad.41.
194 Vijay Kumar, dismissed the suit as
brought by him and directed the trial Court to pass the usual preliminary
decree in favour of Mahabalkumari, Rajkumari and Premkumari.
The High Court held that the mortgage money
fell due on February 9, 1943 and the suit being instituted within 12 years from
this date, was not barred by limitation. The appellant now appeals to this
Court on a certificate granted by the High Court. The main question in this
appeal is whether the claim of Mahabalkumari, Rajkumari and Premkumari to
enforce the mortgage is barred by limitation.
The mortgage deed dated December 13, 1934
provided that the mortgage money would be payable in annual installments within
a period of nine Fasli years, and in the event of non-payment of five
installments, the mortgagee would be entitled to recover the entire mortgage
money. The appellant did not pay any of the installments. The High Court rightly
held that the deed gave the mortgagee an option to enforce the mortgage in the
event of non-payment of five installments. It was open to the mortgagee not to
exercise this option. As the mortgagee did not exercise the option, the
mortgage money fell due on the expiry of nine years, that is to say, on
February 9, 1943, and limitation commenced to run from this date.
On December 13, 1934 when the mortgage was
executed and on February 9, 1943 when the mortgage money fell due, the
Hyderabad Limitation Act was in force. By art. 133 of the Hyderabad Limitation
Act, the period of limitation for a suit by a mortgagee for foreclosure was
thirty years from the date when the money secured by the mortgage became due.
But as from April 1, 1951, the Hyderabad
Limitation Act was repealed and the Indian Limitation Act, 1908 was extended to
the State of Hyderabad by the Part-B States (Laws) Act (Act III of 1951), Prima
facie, the Indian Limitation Act, 1908 which was in force on the date of the
institution of the suit was the law of limitation applicable to the suit. On
behalf of the respondents, it was argued that by reason of the proviso to s. 6
of the Part-B States (Laws) Act, 1951, art. 133 of the Hyderabad Limitation Act
continued to apply to the suit. There is no substance in this contention. The
respondents had no vested right in the law of procedure for enforcement of the
mortgage. They did not acquire under art. 133 of the Hyderabad Limitation Act
any right or privilege as contemplated by the proviso to s. 6 of the Part-B
States (Laws) Act, 1951. No doubt, art. 132 of the Indian Limitation Act, 1908
abridged the period of limitation for the enforcement of the mortgage. But this
abridgment did not impair or take away any vested right.
Section 30 of the Indian Limitation Act, 1908
inserted by the Part-B States (Laws) Act, 1951 made suitable provision
safeguarding vested rights in cases where the period prescribed was shorter
than that prescribed by the corresponding law previously in force in the Part-B
195 It was argued on behalf of the
respondents that art. 147 of the Indian Limitation Act applied to the suit. We
are unable to accept this contention. In Vasudeva Mudaliar v. K. S. Shriniwas
Pillai,(1) the Privy Council held that Art.
147 applied only to an English mortgage as
defined in the Transfer of Property Act before its amendment in 1929, as, in
respect of such a mortgage only, the mortgagee could sue for "foreclosure
or sale." That decision has never been questioned and we see no ground for
differing from it. The deed dated December 13, 1934 created an anomalous
mortgage and conferred a right of foreclosure only upon the mortgagee. The
mortgagee had no right to sue for sale in the alternative. The present suit was
for foreclosure only, and was governed by art. 132 and not art. 147. The suit
would be barred by limitation if it were instituted on November 4, 1958 when
Mahabalkumari, Rajkumari and Premkumari were added as parties to the suit. The
question is whether the suit should be regarded as having been instituted on
November 4, 1958 having regard to s. 22(1) of the Indian Limitation Act, 1908.
Section 22(1) reads:
"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." Admittedly, the name of the original plaintiff is not a misdescription
of the names of Tarabai's daughters. This is also not a case where a wrong
defendant has been sued as representing the estate of a deceased person and
subsequently the real representative is added as a defendant. Nor is this a
case where a wrong plaintiff has sued in a representative capacity and the
person whom he intended to represent was subsequently added as a plaintiff.
This is a case where the original plaintiff
sued in his own right and on his own behalf. No doubt, Vijay Kumar claimed the
right to enforce the mortgage as the legal representative of Tarabai. But he
made this claim on his own behalf and not as representing the daughters of
Mahabalkumari must be regarded as a new
plaintiff and Rajkumari and Premkumari must be regarded as new defendents and
by reason of s. 22(1) the suit must as regards them be deemed to have been
instituted when they were made parties.
In Moyappa Chetty v. Supramanian Chetty(2),
the Privy Council had occasion to consider the similar provisions of s. 22 of
the Straits Settlements Ordinance No. 6 of 1896, which read:
"When, after the institution of a suit,
a new plaintiff or defendant is substituted or added, the suit shall as (1) L.R
34 I.A. 186 (2) (1)1916) LR, 43 1 A. 113,121.
196 regards him be deemed to have been
instituted when he was so made a party..." Construing this section, Lord
Parker of Waddington observed:
"Their Lordships are of opinion that s.
22 contemplates cases in which a suit is defective by reason of the person or
one of the persons in whom the right of suit is vested not being before the
Court. Section 133 of the Civil Procedure Code provides against the defence of a
suit on this ground and enables the proper party to be added or substituted. If
A is the right person to sue, it would be clearly wrong to allow him, for the
sake of avoiding the Limitation Ordinance, to take advantage of a suit
improperly instituted by B." Similarly, in this case the daughters of
Tarabai cannot, for the purpose of avoiding the Limitation Act, take advantage
of the suit improperly instituted by Vijay Kumar.
In Subodini Devi v. Cumar Ganoda Kant Roy,
Bahadur(1), the Calcutta High Court held that there was a difference between
substituting a new person as plaintiff under s. 27 of the Code of Civil
Procedure, 1882 and the addition of a new person as defendant under s. 32 of
the Code and that the change of parties as plaintiffs did not affect the
question of limitation. This decision was followed by Parsons, J. in Ravji v.
Mahadev(2). But the learned Judges deciding those cases did not refer to s. 22
of the Indian Limitation Act, 1877 and they a,')pear to have completely
overlooked that section. Section 22 males no distinction between sub-r. (1) and
sub-r. (2) of 0. 1, r. 10. The section in express terms applies whenever a new
plaintiff or a new defendant is substituted after the institution of a suit.
The Court has power to add a new plaintiff at
any stage of the suit, and in the absence of a statutory provision like s. 22
the suit would be regarded as having been commenced by the new plaintiff at the
time when it was first instituted.
But the policy of s. 22 is to prevent this
result, and the effect of the section is that the suit must be regarded as
having been instituted by the new plaintiff when he is made a party, see
Ramsebuk v. Ramlall Koondoo(3). The rigorous of this law has been mitigated by
the proviso to s. 21 (1) of the Indian Limitation Act, 1963, which enables the
Court on being satisfied that the omission to include a new plaintiff or a new
defendant was due to a mistake made in good faith, to direct that the suit as
regards such plaintiff or defendant shall be deemed to have been instituted on
any earlier date. Unfortunately, the proviso to s. 21(1) of the Indian Limitation
Act, 1963 has no application to this case, and we have no (1) (1887) I.J,.R. 14
(2) (1897) I.L.R.
(3) (1881) I.T,.R. 6 CAL. 815, 823-824.
197 power to direct that the suit should be
deemed to have instituted On a date earlier than November 4, 1958.
It follows that as regards Mahabalkumari,
Rajkumari and Premkumari the suit must be regarded as instituted on November 4,
1958. As far as they are concerned, the suit is barred by limitation and no
decree can be passed in their favour. The decree passed by the High Court in
their favour cannot be sustained and must be set aside.
We think that the High Court had power to
join Mahabalkumari as a party plaintiff under 0. 1, r. 10 of the Code of Civil
Procedure and to join Rajkumari and Premkumari as defendants under 0. 1, r.
10(2) and to allow consequential amendments of the plaint under 0. 6, r. 17.
But having regard to the bar of limitation, the added parties are not entitled
to obtain any relief.
So far as Vijay Kumar is concerned, the suit
as brought by him was dismissed by the High Court. There is no appeal by him.
On his behalf, it was not contended that we should exercise in his favour our
powers under 0. 41, r. 33 of the Code of Civil Procedure, or that we should set
aside the decree of dismissal of the suit against him and remand the case to
the High Court for decision of the question whether he is the adopted son and
heir of Tarabai. Even if such prayer were made, on the facts of this case we
would not be inclined to exercise our powers under 0. 41, r. 33 and to set
aside the decree of the High Court as to the dismissal of the suit against him.
In the result, the appeal is allowed, the
decree passed by the High Court in favour of respondents Nos. 2,3 and 4,
Mahabalkumari, Rajkumari and Premkumari, is set aside and the decree of the
trial Court dismissing the suit is restored. The suit is dismissed. We direct
that the parties will pay and bear their own costs in this Court and in the