JUDGMENT
Basil Scott, Kt., C.J.
1. This was a suit brought by the plaintiffs who were mortgagees of a house and land situated at Mudi and had obtained a decree for sale of the same under the mortgage and purchased it at the Court-sale. Their complaint was that the defendant No. 2, who was the brother of the mortgagors, had obstructed them in taking possession.
2. It was found by the first Court that the mortgage had been passed by the two elder brothers in the family of the mortgagors a year after their father’s death for a past debt due to the mortgagee and or cash advanced for the marriage of the present respondent.
3. It was held in the first Court that the consideration for the mortgage was a family debt for which every one of the brothers in the joint family would be liable. Upon the authority of Sakharam v. Devji (1898) 23 Bom. 372 the Subordinate Judge held that the 2nd defendant was sufficiently represented by his brothers, the mortejors, who were proved to have been managers of the undivided family, and he accordingly passed a decree for possession in favour of the plaintiffs.
4. From that decree an appeal was preferred to the District Judge, whose finding of fact was that the debt was a family debt and that what had been sold and bought under the mortgage decree was the entirety and not only a fractional interest in the family property, but he held that as the 2nd defendant had not been made a party to the mortgage suit he was not bound by the decree and was entitled to redeem.
5. The question how far the provisions of Section 85 of the Transfer of Property Act can entitle a person to redeem if he is not made a party to a mortgage suit is discussed by Mr. Justice Shephard in Ramasamayyan v. Virasami Ayyar (1898) I.L.R. 21 Mad. 222 where he dissents from the conclusion arrived at by the Allahabad High Court in the case of Bhawani Prasad v. Kallu (1895) I.L.R. 17 All. 537. He is there discussing the case where a father has disposed of the estate by way of mortgage in order to pay a just debt. He says:-
The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit j so his creditor may bring about such sale by the intervention of a suit. It is not necessary that the son shall be called in whether the sale is voluntary or procured by a proceeding in invitum, and there is no object in joining him except to preclude him from afterwards questioning the nature of the debt. According to the decision in Bhawani Prasad v. Kallu (1895) I.L.R. 17 All. 587, a distinction must be made between a voluntary and an enforced sale, when such sale is the consequence of a mortgage suit; and in this latter case it must be held that no interest passes except that of those who are made parties to the suit, and this distinction is insisted upon because the legislature has enacted as a written rule of law what was previously a well-recognized rule of procedure. Having regard to the theory above stated I cannot think that this effect should be given to the section. The section is certainly imperative in its terms. Expressed in any other mood it would be vain. But a sanction is not wanting, for inconvenient consequences may follow on a neglect of the law. The mortgagee who omits to join persons interested in the property may have his suit dismissed or, if he obtains a decree, may find notwithstanding that he has to institute or defend another suit. Nevertheless as against the Hindu father the decree which is passed in the absence of his sons is a good and valid decree. The creditor, although he may have failed to obey the rule contained in the section, has got the-decree which he requires as a foundation for his application to sell the whole estate.
6. This view was adopted by the Allahabad High Court in a later case of Debi Singh v. Jia Ram (1902) I.L.R. 25 All. 214- We think, therefore,, that it cannot be held that, by reason merely of the provisions of Section 85 of the Transfer of Property Act, no interest passes upon a sale under a mortgage-decree except that of those who are made parties to the suit.
7. Dealing with the case apart from Section 85 of the Transfer of” Property Act, we have direct authority to show that the sale under this mortgage would be binding upon all the co-parceners. This appears very clearly from the judgment of Sir Barnes Peacock in Donlat Ram v. Mehr Chand (1887) L.R. 14 I.A. 187. Being a case of a sale under a mortgage decree it is more directly in point than that relied upon by the Subordinate Judge in Sakharam v. Devji (1898) I.L.R. 23 Bom. 372, but it entirely supports the conclusions at which he arrived.
8. We, therefore, reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with costs throughout.
