1 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 403 OF 2010 IN SUIT NO. 36 OF 1969 Mrs. Premabai Mathradas Goculdas and others .. Plaintiffs Vs. M/s The Provident Investment Co. Ltd. and others .. Defendants Mr. S. U. Kamdar, Senior Counsel a/w Ms. Poja Patil a/w Mr. S. S. Aole a/w Mr. B. S. Choudhary i/by Udwadia & Udeshi for the plaintiff. Mr. Pravin Patel a/w Mr. A. D. Nagarjun for Defendant No.1 Mr. S. R. Rajguru a/w Mr. Ashok Varma for Defendant No.2 Mr. R.D. Bindra for Defendant No.3 Mr. M. H. Kane i/by A. M. & S.A. Shroff & Co. for Defendant Nos. 4 and 5 CORAM : S. J. KATHAWALLA, J. ORDER RESERVED ON: 1st April, 2010 ORDER PRONOUNCED ON: 26th April, 2010 P.C.: 1. This Chamber Summons is filed by the Defendant No.1 inter alia for the following reliefs: "(a) Entire Suit be declared or directed to have been abated. 2 (b) Further hearing of the above Suit i.e. cross examination of the Plaintiffs' witness No.2 be stayed." 2. The plaintiffs have filed the present Suit in the year 1969 for redemption of the mortgaged properties and to have the same re-conveyed to them and have possession thereof. 3. On 4th September, 2009, this Court (Coram: S. C. Dharmadhikari, J.), after hearing the parties and perusing the pleadings, framed 10 issues for consideration. When the said issues were framed, it was not suggested on behalf of any of the defendants that the Suit has abated and consequently no issue in that regard was framed. On 16th December, 2009, the Suit was placed for recording evidence of the plaintiffs witness. However, on that day, the Advocate for Defendant No.1 informed the Court that the Defendant No.1 has filed a Chamber Summons being Chamber Summons No. 1999 of 2009 in the above suit for recasting of the issues and for certain directions. This Court therefore listed the Chamber summons first on board on 4th January, 2010. By the said chamber summons, the Defendant No.1 had sought framing of two additional issues, which admittedly did not pertain to the alleged abatement of Suit. Instead the Defendant No.1, in the Affidavit in support of the said Chamber Summons, submitted that " the plaintiffs be directed to disclose as to how many plaintiffs are alive and to delete the names of plaintiffs who are not alive" and prayed for 3 the following relief: "The Plaintiffs be directed to disclose as to how many plaintiffs are alive and to delete the names of the plaintiffs who are not alive". 4. The said Chamber summons was disposed of by an order of this Court dated 4th January, 2010. Para 9 of the said order is relevant and is reproduced hereunder: "The learned Advocate appearing for the Defendant No. 1 has further submitted that according to him all the plaintiffs have expired and that the Advocates for the plaintiffs have not taken any steps to bring the heirs of the plaintiffs on record. He, therefore, submits that necessary directions be passed calling upon the plaintiffs to disclose, which of the plaintiffs are alive and to delete the names of the plaintiffs who are not alive. In my view, no such directions are required . If the plaintiffs have expired as alleged by Defendant No.1 and their heirs are not brought on record, it is the plaintiffs who shall suffer the consequences." (emphasis supplied) 5. Thereafter the heirs of Plaintiff No. 8 took out Chamber Summons No. 113 of 2010 and sought to be joined as party plaintiff to the Suit. The said Chamber Summons was not opposed by the Defendants on any ground whatsoever and since 4 there was no opposition from any party pertaining to the relief sought by the legal heirs of the deceased plaintiff No.8 the Chamber Summons was allowed by an order dated 27th January, 2010. However, since the said heirs of the deceased plaintiff No.8 were desirous of being represented by different Advocates, they were joined as Defendant Nos. 4 and 5 to the Suit. 6. On 8th January, 2010 when the learned Advocate appearing for the Defendant No.1 was cross examining PW-1 and was asking questions whether his grandmother, uncle etc. were alive or had expired, Mr. Kamdar, the learned Senior Advocate appearing for the plaintiffs made a statement that "except for plaintiff Nos. 9, 11,12,13 and 14, all the other plaintiffs have expired and they be treated as deleted". The statement of Mr. Kamdar was recorded by this Court. At the request of Mr. Kamdar, this Court, on 4th March, 2010, passed an order allowing the plaintiffs to delete the names of the plaintiffs who had expired. On 8th March, 2010, Defendant No.1 filed the present Chamber Summons for the aforesaid reliefs. 7. The learned Advocate appearing for the Defendant No.1 has, in support of the present Chamber Summons, relied on O.22 R.2 and R.3 C.P.C. and has submitted that since the issues in the Suit are common to all the plaintiffs, in view of the demise of some of the plaintiffs whose heirs have not been 5 brought on record, the whole Suit deserves to be dismissed as abated. In support of this contention the Defendent No.1 has relied on the decision of the Hon'ble Supreme Court in Jaladi Suguna(dead) through Legal Heirs Vs. Satya Sai Central Trust, reported in AIR 2008 SC 2866 and the decision of this Court in Mahendra C.Shah & Ors. Vs. Shrimati P. Shah & Ors. reported in 1998 (4) LJ 576. It is further submitted on behalf of Defendant No.1 that O.34, R.1 C.P.C. provides that all the persons having interest in the mortgaged securities and properties and in the right of redemption should be joined as parties to any Suit relating to mortgage. It is submitted that since the legal representatives of plaintiff No. 1 to 7, 10 and 15 have not been brought on record, all the proceedings, without joining them in the above Suit, would be null and void. 8. Mr. Kamdar, the learned Senior Advocate, appearing for the plaintiffs has relied on the decision of the Hon'ble Apex Court in Narandas Karsondas Vs. S. A. Kamtam and another reported in (1977) 2 Supreme Court Cases 247, wherein it is inter alia held that the right of redemption which is embodied in Section 60 of the Transfer of Property Act is available to the mortgagor unless it has been extinguished by the act of parties. Mr. Kamdar has further submitted that as long as the right of redemption is not extinguished, one of the several mortgagor's has the right to redeem the whole mortgage. He has submitted 6 that if one of the co-mortgagors is entitled to redeem the entire mortgage, the omission to implead some of the persons who are also interested in the equity of redemption does not affect the Suit for redemption brought by one of the mortgagors. In support of his submissions, Mr. Kamdar has relied on the decisions in (i) Mirza Yadalli Beg Vs. Tukaram & others reported in 1921 Privy Council 125; (ii) Pala Singh Vs. Attar Singh and others , AIR 1954 PUNJAB 81; (iii) Bansidhar Pandey Vs. Masudan Singh and others AIR 1962 PATNA 191; (iv) Ayyan Govindan and others Vs. Ayyan Kunjan, AIR 1964 KERALA 309 and (v) Chandu Agasti and another Vs. Chandrabali Kalar and others, reported in 1965 Orissa 63 . 9. I have considered the submissions advanced by the learned Advocates appearing for the Plaintiffs and Defendant No. 1 and the above case laws cited by them on the subject. As held by the Hon'ble Supreme Court in Narandas Karsondas (supra) the right of redemption which is embodied in Section 60 of the Transfer of Property Act is available to the mortgagor unless it has been extinguished by the act of the parties. In India, it is only on execution of the conveyance and registration of transfer of the mortgagor's interest by registered instrument the mortgagor's right of redemption will be extinguished. The conferment of power to sell without intervention of the Court in a mortgage deed by itself will not deprive the mortgagor of his right 7 to redemption. In the present case, it is not the case of Defendant No.1 that the right of the plaintiffs to redeem has been extinguished by the act of the parties. 10. In the case of Mirza Yadalli Beg Vs. Tukaram (supra) the relevant facts stated in brief are: In 1893 one Laxmansa Balkrishnasa executed a mortgage in favour of Yadali in respect of sixteen fields in five villages authorising the mortgagee to take possession of the mortgaged premises if the mortgage money was not paid by a certain date. It also authorised the mortgagee to sell the mortgaged property for realization of the mortgage money. The mortgagor subsequently in the year 1896 sold one of the fields to the respondent Tukaram. In 1899, the mortgagee Yadalli sued on the mortgage to recover the principal with interest due under it. In this suit the subsequent purchaser of one of the fields Tukaram was not made a party. The suit was decreed by consent of the mortgagor whereby it was agreed that unless the mortgagor paid a certain sum of money within a year, nine of the fields including the one purchased by Tukaram should be foreclosed and the plaintiff mortgagee should be put in possession thereof. No payment was made and the final decree for foreclosure in respect of the nine fields was passed in favour of Yadalli on the 17th of December, 1900, and he was put in possession of the fields including the one purchased by Tukaram in January, 1901. 8 Tukaram then brought his Suit which went to the Privy Council claiming to be entitled to redeem all the nine fields. The Subordinate Judge held that he was entitled to redeem only the field purchased by him on payment of the proportionate amount of the mortgage money. On appeal the Judicial Commissioner held that the plaintiff Tukaram was entitled to redeem the entire mortgage, but, as he had confined his suit to the nine fields covered by the consent decree, a decree was made for redemption of those nine fields on payment of the entire mortgage-debt. In appeal, the Privy Council held- "Subject to the safeguarding of the equal title to redeem of any other person who has a right of redemption, the respondents were entitled to redeem the entire mortgage unless something had happened to extinguish the mortgage in whole or in part, or the conduct of the respondents had estopped them from asserting what would normally have been their rights". It was further held- "It was not the law in India any more than in England that one of several mortgagors cannot redeem more than his own share unless the owners of the other shares consent or make no objection, subject to the pro-safeguarding of the rights which those owners might possess." The above judgment of the Privy Council clearly lays down that one of the several mortgagors can redeem the entire mortgage subject to safeguarding the equal title to redeem of any 9 other person unless the mortgage is extinguished or the person seeking to redeem the mortgage is estopped by his conduct. 11. In the case of Bansidhar Pandey (supra), the facts stated in brief are : The suit was originally brought for redemption of 3.21 acres of khata No. 175 regarding which the plaintiff had purchased equity of redemption by the sale-deed dated the 16th April, 1946, from Bhrigun Singh. There was an objection taken by the defendant in the trial court that the mortgage deed comprised also an additional area of .39 acre. Thereafter the plaintiff amended the plaint and prayed for redemption of the entire area of 3.60 acres, including .39 acre of khata No. 176. Both the trial court and the lower appellate court granted a decree for redemption to the plaintiff, but the learned Single Judge set aside the decrees of the lower courts and dismissed the suit of the plaintiff for redemption on the ground that the owner of the equity of redemption for the area of .39 acre of khata No. 176 had not been impleaded in the mortgage suit. 12. In an Appeal preferred by the plaintiff before the Division Bench of the Patna High Court, it was submitted by the learned Government Advocate that the learned Single Judge of the High Court had proceeded upon an erroneous view of the law and the plaintiff was entitled to a decree for redemption even though the owner of equity of redemption with regard to the 10 area of .39 acre of khata No. 176 has not been impleaded. The above argument of the Government Advocate found favour with the Division bench as can be seen from paragraph 4 of the judgment, which reads thus: "In our opinion the argument of the learned Government Advocate is well founded and must be accepted as correct. Upon the findings of fact of the lower appellate court it is clear that the plaintiff has established his title of equity of redemption so far as 3.21 acres of khata No. 175 are concerned. It is also the admitted position that with regard to .39 acre of khata no. 176 the equity of redemption still remains with the original mortgagors namely, Brahamdeo, Jugaldeo and Radha Mohan who had not been impleaded in the suit. The legal position applicable to the case of this description has been recently set out in a decision of a Division Bench of this Court in Mt. Raj Mohini Debi Vs. Harihar Mahton, AIR 1958 Pat 67. It was pointed out in that case that the combined effect of Order 1, Rule 9 and Order 34, Rule 1 of the Code of Civil procedure, in so far as mortgages are concerned, is that all persons whose rights and interests are adjudicated upon and determined in the suit are to be added as parties and that failure to add one or more such persons should not have the effect of defeating the suit, if the court, in their absence, can deal with the matters in controversy so far as regards rights and interests of the parties actually before it. .................." It was therefore held- "...........We accordingly hold that the failure of the plaintiff to implead the owners of the equity of redemption with regard to .39 acre of khata No. 176 is 11 not fatal to the suit for redemption and the view taken by the learned Single Judge of this High Court is erroneous and must be overruled. The result, therefore, is that the decree of the Single Judge of this High Court dated the 1st May, 1956, must be reversed and the decree of the lower appellate court giving the plaintiff a decree for redemption of the entire area of 3.60 acres of land and also mesne profit with effect from the date of deposit under Section 83 of the Transfer of Property Act must be restored. ..............." 13. In the case of Ayyan Govindan and others (supra) the plaintiffs who were the children of Kaili Aiyan instituted the suit seeking redemption of the entire mortgaged property (Exhibits 'C" and "E"). Admittedly only one-half of the property belonged to Kaili Aiyan and the heirs of Chadayan Kunjan the co-morgagor were not joined as parties to the suit. The Subordinate Judge dismissed the suit on the ground that Chadayan Kunjan's heirs are not parties to the suit. In the second appeal before the Kerala High Court, the learned Single Judge followed the above decision of the Hon'ble Division Bench of the Patna High Court in Bansidhar Pandey (supra) and held thus: "(2) As I understand the judgment of the subordinate judge, his view seems to be, that without the heirs of the other-co-mortgagor on record, no decree for redemption could be passed. Under Section 91 of the Transfer of Property Act, a co-mortgagor is a person entitled to redeem the mortgage, but it is prescribed by O.34, R.1, C.P.C. that all persons having an interest either in the mortgage-security or in the right of 12 redemption shall be joined as parties to any suit relating to the mortgage. In this view, the other co-mortgagor also is a necessary party to the suit. But the question to determine is whether in his absence, a decree could not be granted to the mortgagor who sues for redemption. In this case learned counsel for the plaintiffs have also taken the point, that the objection as to non-joinder is not now open to the defendant, not having set up the objection at an early stage as laid down by Order 1, R. 9 C.P.C., his case being only that the plaintiffs have no right to redeem. However, that be, it has been held in Bansidhar Pandey Vs. Masuden Singh, AIR 1962 Pat 191 that the true test for deciding the point is, whether the rights of the parties on the record can be fully determined in the absence of the other co-mortgagor and whether that determination can be made so as not to affect the rights of the absent party. Following an earlier decision of the same Court in Mt. Rai Mohni Debi Vs. Harihar Mahton, AIR 1958 Pat 67 it was held, that one of the fractional owners of the equity of redemption may sue to redeem the whole mortgage and the suit is not liable to be dismissed for non-joinder of the other co-mortgagors. In the present case, as the owner of the half share of the equity of redemption, the plaintiffs can be allowed to redeem the mortgage by payment to the defendant of whatever is found due to him on settlement of accounts. This will effectually dispose of the case as between the plaintiffs and the defendant and will in no way affect or prejudice the rights of the heirs of Chadayan Kunjan. So, I think this is a case in which the ratio of the decision cited may be applied. (3) It has been concurrently found, that Chadayan Kunjan has left heirs and this will stand. In the result, in reversal of the decree of the lower courts dismissing the suit, a decree is given to the plaintiffs for redemption as 13 aforesaid, and the case will go back to the first Court for settlement of the amount payable to the defendant for redemption. The parties shall bear their costs throughout." The aforesaid decision makes it clear that even if the plaintiff/s as owner/s of a part of the mortgaged property have filed a suit seeking redemption of entire mortgaged property without joining the other owner/s co-mortgagor/s as parties to the suit, the plaintiff/s can be allowed to redeem the mortgage by settling the Accounts and making payment to the defendant/s and effectually dispose of the suit between the plaintiff/s and the defendant without prejudice to the rights of the co-mortgagors who are not parties to the suit. 14. A similar question arose before the Orissa High Court in Chandu Agasti and another (supra). In that case for the purpose of convenience, the mortgaged property was described as Items 1 and 2. Two contentions were advanced on behalf of the defendants, viz. "(i) plaintiffs having sold away equity of redemption in item No.1 property to Baidyanath Banerjee and Defendant no.4 having acquired title to item No.2 property by the sale from defendant no.3 and by adverse possession, plaintiffs have no subsisting title to the equity of redemption of the mortgage security, and so the suit for redemption at their instance is not maintainable; and (ii) even 14 assuming that the plaintiffs had a subsisting share in the equity of redemption in respect of item No.2 property, they were entitled to redemption on of that share only and not of the entire mortgage property." The learned Single Judge of the Orissa High Court, following the decision in Mirza Yadalli Beg (supra) and the Decision in Bansidhar Pandey(supra) , held - " ....... If one of the co-mortgagors is entitled to redeem the entire mortgage, the omission to implead some of the persons who are also interested in the equity of redemption does not affect the suit for redemption brought by one of the mortgagors. ..... ........ In this case, the entire mortgage security consisted of items 1 and 2 of the disputed property. The mortgage security is indivisible and one. If the plaintiffs can establish that they have a share in the equity of redemption of item No.2 property, they are entitled to redeem the entire mortgage security consisting of both the items even though Baidyanath Banerjee is not a party to the Suit." 15. I am in respectful agreement with the ratio laid down in the above decisions cited on behalf of the plaintiffs. I am of the view that it is rightly held in the said decisions that one of the several mortgagors can redeem the entire mortgage unless the mortgage is extinguished or the person seeking to redeem the mortgage is estopped by his conduct; and if one of the co- 15 mortgagors is entitled to redeem the entire mortgage the omission to implead some of the persons who are also interested in the equity of redemption does not affect the suit for redemption brought by one of the mortgagors. Therefore, in view of some of the plaintiffs(co-mortgagors) having expired and their heirs not being brought on record the question of the entire suit having abated does not arise. The surviving plaintiffs (co-mortgagors) can proceed with the suit. This will also not affect or prejudice the rights in any way of the heirs of the deceased co-mortgagors who are not brought on record and as held in Mohamad Ibrahim Hussain Sait (Supra) will only effectually dispose of the case as between the plaintiffs and the defendants. 16. The decision of the Hon'ble Supreme Court in Jaladi Suguna(dead) through L-Rs. (Supra) relied on by the Defendant No.1 pertains to a case where the respondent who had succeeded in a suit died during the pendency of the Appeal. In the Appeal before the High Court, the first respondent (Suguna) was the contesting respondent and second respondent (tenant) was only a proforma respondent. When the first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased Suguna on record to proceed with the appeal. It is in this back ground, the Hon'ble Supreme Court held that when the respondent dies during 16 appeal and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court can proceed further in the appeal. Defendant No.1 therefore in the present Chamber Summons cannot seek any assistance from the said decision of the Hon'ble Supreme Court. 17. The decision of this Court in Mahendra P. Shah (supra) is based on the decision of the Hon'ble Supreme Court in Ramgya Prasad Gupta and others Vs. Murli Prasad and others, AIR 1972 SC 1181, wherein the Hon'ble Supreme Court has ruled that in the appeal arising out of a suit for dissolution of the partnership and rendition of accounts, on death of one of the partners in appeal and failure to bring his legal representatives on record results in abatement of the appeal as a whole. In paragraph 16 of its decision, the Hon'ble Apex Court has ruled thus: "Under Rule 4(3) r/w Rule 11 of Order XXII C.P.C. this appeal abates as against the deceased respondent where within the time limited by law no application is made to bring his heirs or legal representatives on record. As pointed out by this Court in the State of Punjab V. Nathu Ram, (1962) 2 SCR 636= (AIR 1962 SC 89) it is not correct to