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1882, and the 23rd February 1884, so far as they affect the 4-annas share
of Kazim Husain in mauza Barwa Kotwa, the amount found due to the
defendant Hari Prasad in respect of Kazim Husain's 4-annas share in suit
under the defendant Hari Prasad's mortgages of the 10th September
1882, and the 23rd February 1884, as ascertained under the first issue,
thus remitted.

[522] I would leave the question of costs to the discretion of the
lower appellate Court under s. 220 of the Code of Civil Procedure.

For similar reasons I would decree the appeal of Mata Prasad (S.A.
No. 1213 of 1888), and would frame a decree on similar principles, but
since I understand that the views adopted by the majority of the Full
Bench are opposed to mine, I need not pass a decree which is opposed to
their views.

STRAIGHT, J. I have had the great advantage before coming into
Court of carefully perusing and considering the judgments of the learned
Chief Justice and my brother Mahmood, and it is not without having
given the fullest attention to all the arguments used in those two learned
and exhaustive judgments that I have come to the conclusion that the
view which the learned Chief Justice has taken is the correct one and that
in which I ought to concur. I have only a few words to add. In one
portion of my brother Mahmood's judgment there is an elaborate reference
to the difficulties likely to arise where the frame of a mortgage suit is such
as the learned Chief Justice holds it should .be, in the application of the
principle of res judicata between the parties arrayed as defendants. Now,
if I understand the law aright, when a statute specifically declares that a
particular form of suit is to have the parties who fill certain characters in
reference to the property to which the suit relates, arrayed therein, ; the
Court having to deal with that suit must not only deal with the rights of
the plaintiff and defendants on the one side and on the other, but must
deal with and adjust the rights of the defendants inter se, just as much as
in a partition suit where one of the several joint owners is seeking parti-
tion as against half a dozen others, not only has the measure of the
plaintiff's right and share to be determined, but also the measure of that
of each of the defendants. I believe that no doubt exists in the mind of
any lawyer that in a partition suit it is incumbent on a plaintiff to bring
in as parties all those who are interested in the subject matter. And why ?
Necessarily for the purpose of effectually once and for all ascertaining and
settling their respective rights and providing against the possibility of
further litigation. My brother Mahmood has more than once spoken of the

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13 All. 524



[523] statute of limitation as a statute of repose. From what I remember
when I first arrived in this country as to the multiplication of suits that
used to come before this and the other Courts with reference to mortgaged
property, the inconvenience which continually arosa and the mischiefs that
attendei them, I am not at all surprised that the Legislature put its foot
down very firmly, and determined by the framing of s. 85 of the Transfer
of Proreity Act to strike a deathblow to that multiplication of suits which
becoming a perfect pest to the Courts which bad to administer the law ;
and s. 99 is also illustrative of the drastic methods the Legislature adopted,
and, in my opinion, properly adopted. In the old days, it was often the
practice for a mortgagee to put his mortgage debt in suit; as a simple money
claim and not to ask for sale of the mortgaged property. It was also the
practice for a mortgagee having an independent money claim against the
mortgagor to bring a suit, obtain a decree and attach the mortgaged pro-
perty and subsequently to bring it to sale. I nead scarcely point out the
complications and difficulties which often arose when there were subsequent
incumbrances and as to what was the precise nature of the interest the mort-
gagee, if he purchased himself, as he invariably did, had acquired, and if
he did not purchase himself but some third party did purchase that person
almost always bought the luxury of a law suit, while, in either event, the
mortgagor suffered. It was to meet this that s. 99 was enacted, which
provided that where a person standing in the position of a mortgagee of
landed estate obtains a decree against his mortgagor for the satisfaction
of any claim, "whether arising under the mortgage or not," and not being
a decree for sale on his mortgage, and attaches the mortgaged property he
shall not bring the property to sale until he has first brought the suit
provided for by s. 67 in which the parties must be arrayed as provided in
s. 85 and he may do so without any bar of s. 43 of the Code of Civil Pro-
cedure. Now I say these two provisions are a strong indication that the
Lagislature intended, and most righteously intended, to have litigation with
regard feo mortgaged estate so far as possible dealt with and disposed of in a
single suit with all the parties interested in the mortgaged property before
the Court. I [524] just may in conclusion refer to the decree my brother
Mahmood would pass in the present suit, namely, that an account should
be taken declaring what was due on a particular date to the defendant Hari
Prasad, and necessarily also that an account should be taken aa to what was
due to the mortgagee, plaintiff, and that the puisne incumbrancer should
have a right to sell the property subject to the ascertained amount due to
Hari Prasad. Now if Hari Prasad had come into Court to enforce his
mortgage, making the present plaintiff a party defendant, as he would be
bound to, it cannot be denied that the only right the latter would have to
stand in the way 'of the sale prayed for would he a right to redeem. I
cannot myself see why because the plaintiff Mata Din was the first ta
come into Court his position is any better or stronger. No doubt the amount
of Hari Prasad's prior incumbranoe has been determined between Mata Din
and Ilari Prasad, but what about the absent mortgagor who has never
appeared in the suit, or Mata Pragad who has never been brought on as a
party, what is to prevent the mortgagor from hereafter, as against
Hari Prasad, denying the mortgage to Mata Din and Mata Prasad r
or Mata Din and Mata Prasad contesting with one another the genuineness
or otherwise of their several mortgages. In any event Hari Prasad is left
to the almost certain prospect of further litigation when he desires to
enforce hia prior mortgage. Now in the particular form of suit which is
contemplated by section 85 what hardship is there in the form of decree-

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[Yol.



1891

JULY 25.

FULL
BENCH.

13 A. 432

(F.B.).



that would have to be passed ? Ife would do no more than give effect
after investigation and determination to the actual rights of the respective
mortgagees which by the Transfer of Property Act are declared. In neither
of the present cases did Mata Din or Mata Prasad include the other as a
defendant, although they had full knowledge of each other's charge and
they each sought to bring to sale the whole eight annas of Barwa Kotwa.
In my opinion the learned Chief Justice's decree is the right one, the
provisions of section 85 being in my opinion mandatory and imperative
and the interests of each of these persons being known to the other in
each case and they not having been joined as parties defendant, the
f525] several suits were bad and were rightly dismissed by the lower
appellate Court.

TYRRELL, J. I concur in the judgment and decree of the learned
Chief Justice.

KNOX, J. This second appeal raises questions of great importance
with respect to the rights of second and other subsequent mortgagees. I
do not propose to recapitulate the facts of the case. They have been given
so fully by the learned Chief Justice and by my brother Mahmood. that
I shall content myself with formulating the results found into two or
three brief sentences. Mata Din, with whose rights this appeal is concern-
ed, occupies the position of a third mortgagee in point of time, and he
prays the Court for an order that a deed of sale over the mortgage,
property, subequent in point of time to his mortgage, and obtained by
the mortgagees prior to him in lieu of monies due to them under two
simple mortgage- deeds held by them may be set aside, and the mortgaged
property, the subject of his, Mata Din's, mortgage-deed, brought to sale.
He has made no tender of the amount due to the said prior mortgagee,
and, moreover, has not sought foreclosure of a simple mortgage executed
by his mortgagor in favour of a mortgagee subsequent to him, viz., one
Mata Prasad. Moreover, he has made Mata Prasad no party to this suit.

The question is whether, under the above circumstances, this Court
should grant him the relief he prays for, and whether he, under the said
circumstances, is entitled to an order for sale of the mortgaged property.

There can be, and there is, no question raised but that the law
controlling the present case is that contained in Act IV of 1882.

The several mortgage-deeds which have been filed in this record, read
in the light of the said Act, are amply sufficient to determine the position
which the parties occupy to one another.

Two persons, Kazim Husain and Nadir Husain, mortgagors, have
purported to create by transfer at different times rights in or over this same
immoveable property. The mortgaged property which Mata [526] Din
Kasodhan seeks to bring to sale is, so far as is material for the purposes
of the present appeal, a 4 annas share out of 8 annas of Barwa Kotwa.
The transferor, Kazim Husain, in Matadin's favour, gave or purported to
give Matadin on the 6th of August 1885, the right to bring this property
to sale if be did not repay on or before a date specified the monies borrowed
by him. But the same Kazim Husain had on a prior date joined in
creating an exactly similar right over the same property in favour of one
Hari Prasad, and on a second date still prior to the 6th of August 1885
had a second time purported to give the said Hari Prasad a similar right
over the same property.

In each case he purported to give Hari Prasad the same right which
he purported to create in favour of Matadin, via., the right to sell the
4 annas share in mauza Barwa Kotwa. So far as this property is concerned,

332



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13 All. 528



he imposed no limit, and when the parties contracted on the first and on
the second occasion, Hari Prasad may have been and probably was the
more ready to grant the loan asked for, by the knowledge that he by the
transaction acquired a right to ask the Court in the case of default by
the mortgagor to bring to sale the whole of the property until bis debt
was satisfied. He might well have refused to enter into the transaction
if he had known or contemplated that the whole or some portion of this
property would be brought to sale without his having a, hearing and
without, at any rate, his debt being repaid before that sale was ordered.
Property does not, as a rule, improve in value by being made the subject
of repeated transactions of sale, and it is not difficult to contemplate the
case of property originally sufficient in value to satisfy three or more
mortgages for which it is made security depreciating owing to sale, it may
be one sale only, to such an extent that it no longer commands in the
eyes of the buying public a value sufficient to cover two of tho three or
more mortgages for which it was accepted and would have sufficed as
security but for its having been put up to sale.

The rights to sell created by these mortgages were not rights which
could be exercised to their full extent together, and there [527] being in
the prior mortgages no special contract or reservation binding the earlier
transferee, the right created in favor of Matadin was subject to the rights
previously created and was neither more nor less than the right of a
subsequent mortgagee.

The rights of subsequent mortgagees as agaicst a prior mortgagee, so
far as regards redemption, foreclosure and sale of the mortgaged property
are defined and limited by section 75 of the Act. They are simply the
rights which the mortgagor has against the prior mortgagee and no other
right of any kind whatever. We are not left without guidance in the
Act as to what those rights are. They are enumerated in the sections
numbered as ss. 60 to 66, both inclusive, and throughout those sections
the word "sale" or the verb "to sell" in any form occurs only once,
vis , in s. 63, where it obviously has no reference to the question immedi-
ately before me. I fail to find any express right of sale conferred upon
the mortgagor as against his mortgagee throughout those sections.

Similarly, when I come to contemplate what rights Matadin Kasod-
han has so far as regards sale of the mortgaged property as against a
subsequent mortgagee, I find, on again returning to s. 75, that he is
confined to the rights which be has against his mortgagor. These are set
out in ss. 67 to 77 of the Act, and they are confined (the exceptional
circumstances of s. 69 which do not apply here being always excepted) to
an order from a Court for sale obtained in a suit to which such mortgagor,
or, in the case immediately under contemplation, subsequent mortgagees
the words must be interchanged is a party.

Thus, then, I hold that, as regards mortgagees prior to him, if a mesne
incumbrancer wishes to bring mortgaged property to sale, and joins in the
suit against the mortgagor, as he should do and has done in the present
instance, a prior mortgagee, he can do so only by redeeming or asking for
redemption. Moreover, he cannot, so long as he, the mesne incumbrancer,
occupies the position of a second or subsequent mortgagee, bring the pro-
perty to sale, if he can bring it to sale at all, except by a suit to which
every mortgagee is a [528] subsequent party. He has, in short, not the
free hands that a prior mortgagee has. Nor is there any hardship that I
can see in his being fettered and restricted in his right regarding the mort-
gaged property by the existeace of the prior and subsequent mortgages. He

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13 A. 482

(F.B.).



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[Yol.



1891

JULY 25.

PULL
BENCH.

13 A. 432

(F.B.).



took hia mortgage with notice of the existence of the mortgage prior to his
and presumedly with a knowledge that his right would always be subject
to it. Further, the fact of the mortgagor resorting to him and contracting
with him a subsequent mortgage should have rendered him alive to the
possibility of the mortgagor creating further and subsequent mortgages, if
he can obtain them.

I have not attempted to govern my judgment by president, for the
simple reason that this point has been so thoroughly exhausted by the
learned Chief Justice. He has reviewed the authorities to be found in
the judgments of this Court, of the other High Courts, and of their
Lordships of the Privy Council.

That review shows that in almost every case, and that virtually,
with the exception of two learned Judges, all other Judges who have con-
sidered a similar question to the one now before this Court have held
directly or impliedly that " a mortgagee had no right to bring mortgaged
property to sale under his mortgage without redeeming the prior mort-
gagee, if any, or affording the subsequent mortgagee, if any, an opportunity
to redeem, and that in a suit by a mortgagee for sale on his mortgage, the
other mortgagees, whether prior or subsequent, were necessary parties ;
and further, that the property which might effectively be brought to sale
under a decree for sale in a mortgage suit was the specific immoveable
property, and not merely the rights and interests of the plaintiff and his
mortgagor in such property." " I need hardly say that I have for myself
carefully examined these authorities, and I agree with him in the results
which he has deduced from them and which I have just given expression
to. It is therefore needless for me to say more upon this part of the
appeal than that with such authorities before me, it is impossible to arrive
at a conclusion which would have the practical effect of declaring those
authorities to be in error, unless I were able to prove [529] conclu-
sively from sources not considered in those judgments that there was
room for another and a different opinion.

Such sources I have not been able to discover, nor have I been
referred to them. On the contrary, the law appears to me to confirm,
and to have been framed, whether of set purpose or no';, in accord with
those of the authorities cited above which were prior to 1882.

It will be seen from the view that I have taken that, independently
of the presence of section 85 in the Transfer of Property Act, Mafcadin
Kasodhan could not have succeeded in the present suit without joining as
a party to it Mata Prasad. Whether he could have succeeded had he
arrayed Mata Prasad as a defendant, it is needless to consider, for he
has not so arrayed him.

Section 85 of the Act is, in my opinion, only the conclusion of the
whole matter discussed in the previous section. It shows that an insuper-.
able bar is placed in the way of all plaintiffs who bring a suit under
Chapter IV of the Transfer of Property Act, unless and until they array
as parties to the suit all persons having an interest in the property com-
prised in the mortgage sued upon, always provided that the plaintiff had
notice of such interest when he brought the suit, or at any time when he
could have asked the Court to make an interested person a party.

It is not open to the appellant to plead that he had not such notice.

I am of opinion that any mortgagee who brings a suit under the Act
touching the mortgaged property, does so at the risk of having his suit
rejected if he neglects to search the registers kept by the registrar of the
district in which the mortgaged property is situated and to array as

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13 All. 531



parties to his suit all whom from those registers he finds to be persons
having an interest in the mortgaged property. This precaution is neither
impossible nor impracticable and is only what every prudent man will
adopt upon seeing the stringent language contained in s. 85 and the
definition of the term " notice " in s. 3. In this case, however, there
was another course open to Matadin. At the same time that he brought
hia suit, a suit of a [530] similar nature had been filed by Mata Prasad,
the subsequent mortgagee, and was being prosecuted pari passu with his
suit. How can it be said, then, that he had no notice of the subsequent
mortgage, and that it was not open to him to ask the Court under s. 32 of
the Code of Civil Procedure to array as a party to his suit Mata Prasad ?

It is urged that s. 85 must be read as controlled by s. 34 of the Code
of Civil Procedure, and that this Court must consider the want of parties
as a matter which has been waived.

If the view which I hold regarding the rights of a subsequent mort-
gagee be correct, it is obvious that s. 34 of the Code cannot control s. 85
of the Transfer of Property Act, but must give way to it.

Further, waiver can only be made of advantages which the law confers
solely for the benefit and protection of an individual in his private capacity,
and where such law can be dispensed with without infringing on any public
right or oublic policy. There can, however, be little or no room for doubt
that s. 85 found its place upon the statute book, not merely for the
protection of individual persons, but to put an end to scandals which
prevailed and which were so graphically described by the Hon'ble
Mr. Evans when the Transfer of Property Act was being brought on fco
the statute book. He particularly notes that there then existed " no
machinery for bringing together into one suit the various incumbrances
on the properby ; endless confusion had been the result, and the decisions of
the courts upon the almost insoluble problems arising from this state of
things had been numerous and contradictory. The result was that the
mortgaged property could not fetch anything like its value. The debtor
was ruined, the honest and respectable money-lender discouraged, and a
vast amount of gambling and speculative litigation fosfcared : " and conclu-
ded with the pregnant words, " It had been one of the objects of this
chapter to remedy these and other similar evils."

It is also contended that a result of s. 85 will be to convert a suit under
the mortgage chapter into a suit for the settlement of all dis-[531]
putes that may arise between the parties interested in the mortgaged
property ; that it is easy to contemplate such a suit being of a most
complex nature and one for the determination of which in one and the
same suit the Civil Procedure Code makes no suitable provision. It may
be well doubted whether this be so, but even were this a good objection,
my answer to it is that I have to administer the law as I find it, and
not as I might prefer it to be.

I find that a similar rule prevails in England. The rule there as
enunciated by Fisher in his well-known Treatise on Mortgage is, " As a
general rule, all persons who have an interest either in the right of redemp-
tion, or in the security, must be joined, though the result may be the
trial of a legal right befcweeen parties thus brought before the Court for
different purpose" (Fisher on Mortgage, as. 13-60). And I observe on the
same authority a case quoted whereon a bill to redeem it became neces-
sary to decide as to the voluntary character of a post-nuptial settlement
(1 Eden. 55).



1891

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13 A. 432

(P.B.).



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[Yol.



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JULY 25.

FULL
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13 A. 432

(F.B.).



It would be difficult to contemplate a case involving more complex
interests.

It must not be overlooked that the language contained in s. 85 of
the Transfer of Property Act varies in a remarkable degree from the
language usually employed in statutes. For reasons best known to those
who drafted the section, and reasons which I think they have given ex-
pression to, the framers of the Act have not contented themselves with
saying that all persons having an interest in the property may or shall be
joined as parties to any suit under Chapter IV of the Act. They have
gone further and prescribed in language which may be inartistic, but is
most expressive, that all such persons must be joined as parties. I am
well aware of the conflict of opinion which has obtained over the inter-
pretation to be placed on the word " may " and the words " it shall be
lawful" in interpreting procedure authorized by a statute, a conflict; which
was fully considered in the case Julius v. Lord Bishop of Oxford (1).
Whether in this case I follow the rule of interpretation that the meaning
of words regulating procedure are to the "solved aliunde from the context,
from the particular provisions or from the [532] general scope and
objects" of the enactment under consideration, or the rule that "enabl-
ing words are always compulsory where they are words to effec-
tuate a legal right, " I see no reason for believing that the Legisla-
ture intended to leave with the parties interested in a mortgage any
option as to what parties they might or might not array or with the
courts who have to decide a suit brought under Chapter IV of the Act
any option as to whether they might or might not grant relief in a suit
where the parties were not arrayed as required by that section. For, in
considering this section, we are confronted with a word which is not mere-
ly in effect "must" but with the word "must" itself. The procedure so
imperatively enjoyed is possible, nay, more, it is practible. There is no
place for the argument than the section is merely one which confers a dis-
cretionary power. The parties, if they seek relief, are bound to array all
persons interested, and the courts before they grant relief are bound to
see that the parties do so array the persons interested.

On every ground, therefore, I have no hesitation in concurring with
the learned Chief Justice that this appeal must be dismissed.

Last of all, I would only add that I concur in the opinion that "the
rights, liabilities and reliefs of mortgagors and mortgagees, including second



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 51 of 155)