Judgement

Appeal from a judgment and decree of the High Court (July 8, 1910) reversing a judgment and decree of the Subordinate Judge of Ghazipur (December 18, 1908).

The suit was brought by the appellants for the redemption of two mortgages, one dated September 16, 1887, in favour of the first respondents deceased husband, and the other dated January 6, 1891, in favour of the first respondent. The mortgagor under both the mortgages was Radha Kishan Singh, one of the respondents. The mortgaged properties consisted of certain villages which belonged to a joint Hindu family of which the mortgagor and his descendants were the members.

The appellants claim to redeem was based upon two subsequent transactions with respect to portions of the properties mortgaged and affecting only the equity of redemption. The first of these transactions was a possessor mortgage of a portion of the properties, made on July 4, 1894, by Radha Kishan Singh to Hira Ram and Dhundha Ram, under whom the appellants claimed; the second was a sale to the same persons of other portions of the properties by one Mahpal Singh, another member of the said joint family to whose share they had been allotted.

Law. Rep. 41 Ind. App. 216 ( 1913- 1914)

Sheo Shankar Ram V. Jaddo Kunwar 77

In 1895 the first respondent (her husband being then dead) brought suits against Hira Ram and Dhundha Ram, and obtained a decree for foreclosure of one of the mortgages and a sale decree in respect of the other mortgage. These decrees were made absolute, Hira Ram and Dhundha Rain taking no steps to redeem.

The appellants in May, 1908, instituted the present suit to redeem the two mortgages of 1887 and 1891, claiming, in effect, that in the matter of the mortgage and sale of the equity of redemption Hira Ram and Dhundha Ram acted on behalf of a joint Hindu family in which they (the appellants) were co-sharers, and that not having been parties to the suits in which the foreclosure decrees were obtained, they (the appellants) were not bound thereby.

The Subordinate Judge, by his judgment delivered on December 18, 1908, held that the appellants were joint with Hira Ram and Dhundha Ram, and that the mortgage and purchase were effected by them on behalf of the joint family. He found that the first respondent had no notice, actual or constructive, of the appellants interest, but that the latter, not having been parties to the suits in 1895, were entitled to redeem so much of the properties as were comprised in the mortgage and sale to Him Earn and Dhundha Earn.

Upon appeal to the High Court, this judgment and the consequent decree were reversed. The learned judges (Tudball and Chamier JJ.) held that one of the appellants not having been born at the date of the decree in the 1895 suits was not entitled to redeem, and that two other of the appellants, the sons of Hira Earn and Dhundha Earn respectively, were bound by the decrees against their father. With reference to the other appellants (including the first appellant) they held that, Hira Earn and Dhundha Earn being the managers of the appellants joint family, the decrees for foreclosure and sale were, under the circumstances of the case, binding upon the members.

De Gruyther, K.C., and Dube, for the appellants. The appellants, not having been parties to the suits in 1896, are not bound by the decrees then made and are entitled to redeem. The manager of a Hindu joint family is not in the same position as a trustee in English law. A Hindu joint family cannot be treated as a "person" within s. 85 of the Transfer of Property Act 1882, so as to make it unnecessary to join all the members as parties.

[SIR JOHN EDGE. That section does not apply since it was found in India that the mortgagee had no notice of the appellants interest in the property.]

The decision in Kishen Parshad v. Har Narain Singh (( 1911) L. R. 38lnd. Ap. 45.) is distinguishable, since it dealt with a suit brought by a managing member under a contract made by him on behalf of the joi