The requirement for a suit to be brought in a representative capacity and the consequences of failing to do so.

Curgenven, J.

1. The plaintiffs obtained a mortgage of the plaint property from the 1st defendant on 20-7-22. They subsequently discovered that a few days previously this defendant had sold it to his wife. They accordingly brought the suit out of which this second appeal arises to set aside the sale on the ground that it was devoid of consideration and in fraud of creditors, impleading their mortgagor and his wife, the vendee. The 1st issue raised was whether the suit was bad as not having been brought in a representative capacity. The learned Additional District Munsif decided this issue in the negative and in the result decreed the suit. This decree was affirmed on appeal by the District Court, no contest there being raised regarding the issue in question. The only ground now pressed in second appeal is that the objection againt this suit as being nonrepresentative in character should have been allowed.

2. Mr. Ramadoss for the respondent has endeavoured to show that the suit was in fact a representative one by force of an allegation in para. 4 of the plaint, that "the sale had been executed with the treacherous intention of defrauding plaintiff and other creditors". But I think that, in order to be representative, a suit may be brought in the manner provided by Order 1, Rule 8, that is to say the permission of the Court must be obtained and the Court, at the plaintiffs expense must give notice of the institution of the suit to all those persons whom it is sought to represent. No such procedure was adopted here, nor does it seem to have been even contended before the trial Court that the suit was of this character. The question however is whether a party is entitled in second appeal to raise an objection of this character, when he has omitted to make it, one of his grounds of first appeal. It is no doubt true that questions of law involving jurisdiction or going to the root of the plaintiffs claim may be advanced in second appeal, notwithstanding the omission to bring them forward before the lower Court or even before the trial Court. It appears to me however that this is not a question of that character. There is a large variety of opinion, especially among the cases reported from this Court as to whether a plaintiff who brings a suit of this character must make it a representative once. The English law returns a clearly affirmative answer, and this view has been adopted in Calcutta. Hakim Lal v. Mooshabar Sahu [1907] 34 Cal. 999 and in Bombay Burjorjee Dorabiji Patel v. Dhunbai [1892] 16 Bom. 1 and Ishwar Timappa v. Venkappa (1903) 27 Bom. 146 In this Court the question was discussed by Krishnan, J., in Pokker v. Kunhamed [1919] 42 Mad. 143 although its decision was not necessary in the circumstances which arose there. He expressed the view, that there was no rule of Indian Law justifying dismissal of a suit brought under Section 53 of the Transfer of Property Act because it was not brought in a representative capacity. This view was quoted with approval by Spencer in Ramaswami Chettiar v. Mallappa Reddi [1920] 43 Mad. 760 and Sadasiva Iyer, J., gave utterance to a similar opinion. On the other hand in Palaniyandi Chetty v. Appavu Chettiar [1916] 30 M. L. J. 565 Coutts-Trotter, J., as he then was, held that the law in India was similar to that in England and that unless a creditor was a decree-holder who had attached the property he must sue on behalf of all the creditors. In this state of authority I should have felt compelled to refer the question of law to a Bench were it not that I must find that the appellant has waived her right to advance this objection by her failure to include it among her grounds of first appeal. The foundation for such a rule as is now in question is the inconvenience which would arise of allowing each and every creditor to sue to set aside an impugned transaction, and it is clear that the party which would suffer from such a course would be the defendant alienee, It is in consideration for