Kuppuswami Naidu Veeraswami, J. -
(1.) THIS appeal is by defendants 2 and 3, the undivided sons of the first defendant, who executed a mortgage in favour of the plaintiff in about 1930 comprising several items of properties. The first defendant became insolvent and items 9, 10 and 14 remained with the Official Receiver, the other items having been sold, defendants 4 to 7 being the alienees. The defence to the action was that the suit mortgage was sham and nominal and not supported by consideration and that the suit was barred by limitation. As regards the first of the questions raised, the finding of the lower appellate court was that it was a sham transaction. But the lower appellate court found by reason of a previous decision in O. S. No. 8 of 1938 instituted by defendants 2 and 3 for partition, in which suit an issue was raised whether the suit mortgage was nominal and not supported by consideration and a finding was given that the mortgage was for binding purposes, would be 'res judicata', and that the appellants would not be entitled to raise the question over again in the present action.
It is, however, urged on behalf of the appellants, by Mr. Suryanarayana, that the issue in the suit for partition instituted by the appellants did not relate to the quantum of the consideration but as to whether it was necessary and binding on the appellants. The issues in that suit relating to the mortgage were three, (1) whether the alienations in favour of defendants in that suit including the plaintiff were nominal and not supported by consideration, (2) whether the suit alienations were made for antecedent debts or for legal necessity, and (3) whether the debts were tainted with illegality or immorality. The question of the binding nature of the mortgage was specifically in issue and that having been answered in the affirmative, it will not be open to defendants 2 and 3 to raise the question over again.
(2.) THE other plea as to limitation arises in this manner. The Official Receiver had become entitled to items 9, 10 and 14 of the suit properties mortgaged to the plaintiff, and admittedly he was made a party after the period of limitation and no mortgage decree was therefore passed against the Official Receiver in respect of these three items. The contention now raised is that by reason of the suit having become barred against the Official Receiver in respect of those three items, the entire suit is barred, and reliance was placed on the decision in - - 'Gur Charan v. (A). In that case, the mortgage was by one Bindeshwari Singh, and after the death of the mortgagor, his son, one Pratap Singh and his grandson, Ram Chandra, were found to have become entitled to the mortgaged properties. The plaintiff -mortgagee brought a suit against Ram chandra alone, leaving his uncle, Pratap Singh, and it was found that the grandson Ram Chandra being a minor could not represent his uncle, Pratap Singh, and that Pratap Singh was a necessary party, and he not having been added within the period of limitation, the whole suit was barred by limitation. But there the question was one relating to joint family properties, and both the uncle and the son were the only persons entitled, and the Bench was of opinion that the uncle was a necessary party.
Agarwal J. cited the decision in - - 'Sital Prasad v. Asho Singh', : AIR 1922 Pat 651 (B), in which it was observed that a suit to recover property against co -sharers, all of whom are jointly interested, cannot proceed in the absence of one or more of them, and after referring to Order XXXIV Rule 1 Civil Procedure Code which prescribes that all persons having an interest in the mortgaged property should be made parties, observed:
"But if no decree could be passed without affecting the rights of the absent parties the suit cannot proceed in their absence and should be dismissed 'in to
The facts of the present case are different. The three items of properties in the possession of the Official Receiver have been excluded from the mortgage decree. It will be open to a mortgagee to have a mortgage decree against a portion of the hypotheca, leaving the rest. There is no question of any joint mortgagor not having been joined or the suit having been barred against one joint mortgagor.
Even in such a case, it was held by Vivian Bose C. J. in - - 'Shamlal v. Babulal'., AIR 1951 Nag 445 (C), that a mortgagor's (sic mortgagee's) failure to join co -mortgagors to a mortgage suit, or the discharge of subsequent purchasers of a part of the mortgaged property because of the law of limitation does not affect his right to throw the whole of the mortgage debt on the rest of the mortgage security. After referring to the authorities the learned Chief Justice observed :
"The decisions I have cited makes it clear that the mortgagee can proceed against the remaining mortgagors without joining one of the co -mortgagors to the action. But of course one co -mortgagee cannot claim to realise the whole security for himself and so cannot sue in the absence of a co -mortgagee."
The latter proposition is well established and is also laid down in - - 'Govind Chander v. : AIR1933Cal621 . Even otherwise, the fact that the suit is barred as against the Official Receiver in respect of the three items of the hypotheca does not make the entire suit barred by limitation.
The third point urged by Mr. Suryanarayana as regards the abandonment of the mortgage amount was not raised before the lower court, and J see no reason to deal with it in second appeal.
(3.) THE second appeal is dismissed with costs.