( 1 ) THIS second appeal filed by the plaintiffs has been referred by a Bench to a Full Bench of three judges for decision.

( 2 ) ON 14th September 1909 a possessory mortgage was made by one Lao Singh to Kallu Singh and Kamal Singh (sons of Rudan Singh) and Sheo Prasad Singh (son of Sheo Singh ). Sheo Singh and Rudan Singh were brothers. The mortgage was for Rs. 925/- with interest at one per cent. per mensem, The period fixed for redemption was 20 years. Although the mortgage was possessory; it is common ground that possession was not delivered. The suit out of which the present appeal arises was filed on 15th September 1941--the last date of limitation -- by the sons of Kallu Singh against the sons of the mortgagor for recovery of Rs. 1850/- which was the double of the original consideration of the mortgage deed by sale of the entire mortgaged properts. The representatives of the other two mortgagees were not impleaded but it was stated that the plaintiffs are the representatives of the original mortgagees.

( 3 ) THE defence was that Kamal Singh died leaving two daughters and Sheo Prasad Singh died leaving a sister, who also died leaving a son, who is alive. The plaintiffs, it was alleged, are not the heirs and representatives of Sheo Prasad Singh or Kamal Singh. It was pleaded that the non-joinder of the heirs of Kamal Singh and Sheo Prasad Singh was fatal to the maintainability of the suit.

( 4 ) ISSUE No. 2 was to the effect: "are the plaintiffs the only legal representatives of Sheo Prasad singh Kallu Singh and Kamal Singh mortgagees ? If not, its effect ?"

( 5 ) THE trial Court held that the suit was liable to fail not because of the non-joinder of the parties as required by Order 34, Rule 1, Civil P. C. , but because of the rule of substantive law Under section 45, Contract Act, that in the casa of joint promisees the right to claim performance rests with the representatives of the promisees jointly. The suit was accordingly dismissed.

( 6 ) THE plaintiffs filed the appeal but reduced the claim from Rs. 1850/- to Rs. 450/-, which represented their l/3rd share. They prayed that the decree of the trial Court be set aside and the plaintiffs suit decreed for Rs. 450/- only. The lower appellate Court upheld the view of the trial court.

( 7 ) THE question which falls to be considered in the present reference is whether the view of the courts below is right. An instructive case on the subject is the Pull Bench decision of the allahabad High Court in Pursotam Saran v. Mulu, 9 ALL. 68 (F. B. ). That was a case in which upon the death of the sole mortgagee his estate was divided among his heirs, one of whom, a son, was entitled to 14 out of 32 shares. The son executed a sale deed conveying the mortgagee rights under the mortgage to a third person. The representative of the purchaser sued the mortgagor for sale of the mortgaged property. Actually the mortgagor had acquired only the rights of the son of the mortgagee, though the deed purported to be the assignment of the whole mortgage. It was held by the Full Bench of five Judges that the plaintiff was not entitled, in respect of his own share, to maintain the suit for sale against the whole property, the other parties interested not having been Joined. It was further held that he was not entitled to succeed, even in an amended action, in claiming the sale of a portion of the property in respect of his own share. Sir John Edge c. J. , who delivered the judgment of the Pull Bench quoting with approval the following observation of the learned Judges in Bishan Dial v. Manni Ram, 1 ALL. 297, in respect of a foreclosure suit, "the whole of the mortgage-debt is due to the persons claiming under the original mortgagees jointly and not severally, and the mortgagors are entitled to a joint receipt for all sums they may pay in satisfaction of the debt; nor does the foreclosure law contemplate the issue of a notice of foreclosure in respect of a portion of the unpaid mortgag