JUDGMENT
1. This is a defendant’s appeal arising out of a suit for redemption of a mortgage dated 22nd July 1867, executed by four brothers and their sons in favour of Ganga Prasad Singh, for Rs. 425. Bajrang, who was the father of the present plaintiffs and who on the findings was alive at the time, was not among the executants of the deed. But his elder brother Lachhman, his father Ram Sahai and three uncles as well as cousins joined in it.
2. A suit was brought on the basis of this mortgage deed and a mortgage decree was obtained on 22nd August 1878, against the survivors of the executants. Admittedly Bajrang was not impleaded in this suit. Seven gandas share which belonged to this family was put up at auction on 18th November 1878, and was purchased by the mortgagee himself. Subsequently in 1885 the mortgagee transferred the share purchased by him at auction to the mother of the contesting defendants.
3. The sons of Bajrang bring the suit for redemption on the ground that they are not affected by the auction sale because Bajrang, their father, had not been impleaded in the mortgage suit. The Court of first instance dismissed the suit. But on appeal the learned Additional Subordinate Judge allowed the appeal and decreed the suit for redemption in respect of the plaintiff’s share in the mortgaged property. That decree has been affirmed by a learned Judge of this Court.
4. The judgment of the learned Judge suggests that it was represented to him that Bajrang, the father of the plaintiffs, was among the mortgagors, and yet he was not impleaded in the mortgage suit. As a matter of fact, as stated above, Bajrang had not joined in the deed at all. That might be a possible explanation of his not having been impleaded in the mortgage suit. The lower appellate Court found as a fact that it was not proved that Lachhman, the elder brother of Bajrang, was really the head and manager of the family in 1878. This finding is a finding of fact and must be accepted. But the Court has not found that the family was not joint in 1878 but that its members were separate. As a matter of fact in the plaint there was no suggestion that there was any separation in this family in 1878, nor was there any issue framed in the trial Court as regards this point. The ordinary presumption of Hindu law is that brothers and uncles are joint. It therefore seems to us that the finding that Lachhman was not proved to have been the head and manager of the family in 1878 was not sufficient for the claim of the plaintiffs to be decreed.
5. When the plaintiffs come to redeem a mortgage executed by the members of their family other than their father, they must assume that at the time the mortgage was made the family was joint and the managing members had authority to execute the mortgage deed, otherwise their claim would be hopelessly out of time. If the family was joint in 1867 the presumption is that it continued joint till 1878. In that year Bajrang had two uncles and an elder brother and cousins alive. In the ordinary course one of the senior members of the family would be the head and the manager. One would not expect that a younger brother Bajrang would be the manager and the head when his elder brother and his uncles were alive. There was no suggestion of this kind made in the Court below, nor was there any finding that Bajrang was himself the head and manager of the family. Similarly there was no suggestion in the trial Court that Bajrang was separate from his brother Lachhman. It therefore follows that all the adult members of the family who were senior to Bajrang and who had executed the mortgage deed were actually impleaded in the mortgage suit. Bajrang had not joined in the deed and was not impleaded in the suit. It is impossible to say that Bajrang himself was the manager. It therefore follows that the manager of the family must have been one of the senior members who were all impleaded. Bajrang was therefore fully represented in the suit, land the mere fact that his name was omitted from the array of the defendants would not make the decree null and void as against him. It has been held in the Full Bench case of Hori Lal v. Mumman Kunwar [1912] 34 All. 549, that in a mortgage suit against a joint Hindu family in which the manager is impleaded, the family is sufficiently represented by him, and a suit is not defective by reason of the nonjoinder of the other members of the family. According to the view expressed by Banerji, J., in that case it is not even necessary that in that suit against the family the manager of the family should be described as such (p. 561).
6. The main question in this case has always been whether the plaintiff’s father Bajrang was or was not fully represented in the mortgage suit. On the facts as found by the lower appellate Court and as is to be assumed under the ordinary presumptions of Hindu law Bajrang must have been represented.
7. We are therefore of opinion that it is not now open to the plaintiffs to claim a redemption of a share in the property which was sold at auction against the family in 1878.
8. As the facts do not appear to have been put clearly before the learned Judge of this Court we would, although allowing the appeal and the suit, not allow the defendants their costs in this Court.
9. The result therefore is that this appeal is allowed, the decree of this Court and the lower appellate Court are set aside and that of the Court of first instance restored with costs in the Court below. The parties will bear their own costs in the appeal before the learned Judge of this Court and in the Letters Patent appeal.
