Arthur Strachey, C J -
(1.) This appeal raises an important question, never yet decided, whether the doctrine of King V/s. Hoare (1844) 13 M. and W. 494, and Kendall V/s. Hamilton (1879) L.R. 4 A.C. 504, as to the effect of a judgment on a joint contract upon a subsequent suit against co-contractors who were not parties to the former suit, should be applied in these Provinces, notwithstanding Section 43 of the Indian Contract Act, 1872.
(2.) The suit was a suit for sale on four mortgages executed in 1886,1888, 1889 and 1890, and was brought against seventeen persons who are admittedly members of a joint Hindufamily. In the plaint the plaintiff alleges that the defendants Nos. 16 and 17, Budh Ram Singh and Mahabir Singh, who are pro forma defendants only, were the managers of the joint family carrying on its business, and that as such managers and for the purpose of meeting necessary family expenses, these defendants borrowed money from the plaintiff's father and the plaintiff himself on the security of the mortgages in suit, which are mortgages of shares in zemindari property owned and possessed by the joint family. On these mortgages, which were executed by the defendants Nos. 16 and 17 in their own names, the plaintiff formerly sued those defendants only, and obtained a decree for sale for Rs. 12,857-1-3, which became final on the 5 May 1894. In execution of the decree the mortgaged property was advertised for sale. Thereupon the defendants Nos. 1 to 15 brought a suit against the decree-holder for a declaration that, as they had not been made parties to the first suit, as they should have been with reference to Section 85 of the Transfer of Property Act, 1882, they were not affected by the decree, and their interests in the family property could not be sold in execution of it. The Court trying that suit gave the declaration prayed for, on the authority of the decision of the Full Bench in Bhawani Prasad V/s. Kallu (1895) I.L.R. 17 All. 537. Thereupon the plaintiff brought the present suit, claiming enforcement of the mortgages against the defendants Nos. 1 to 15 by sale of their interests. According to the pedigree annexed to the plaint, these defendants are brothers, brother's sons and cousins of Budh Ram Singh and Mahabir Singh. In defence the defendants raised various pleas, in which they denied that Budh Ram Singh and Mahabir Singh were managers of the joint family and that the loans were taken for purposes binding on the family, and other contentions to which it is unnecessary to refer. The Court below has dismissed the suit on a preliminary point of law. It has held in effect that by the decree of the 5 May 1894, against two only of the persons alleged to be jointly liable under the mortgages, the whole cause of action in the case of each mortgage was merged and could not be made the subject of a fresh suit against joint debtors not parties to the suit in which the decree was passed. The Subordinate Judge in his judgment says that he therefore dismisses the suit as barred by Section 43 of the Civil P. C.. The reference to that Section is an obvious mistake, as Section 43 of the Code applies only where the former suit was between the same parties or between parties under whom the parties to the subsequent suit claim. Balmakund V/s. Sangari (1897) I.L.R. 19 All. 379. I think, however, that the reference to Section 43 of the Code is a mere slip, as the judgment is expressly based on the decision in Nuthoo Lall Chowdhry V/s. Shoukee Lall (1872) 10 B.L.R. 200 : S.C. 18 W.R. 458, which proceeded, not on the principle of splitting claims now embodied in Section 43 of the Code, but on the principle of King V/s. Hoare (1844) 13 M. & W. 494. The question is whether, having regard to that principle and to the provisions of Section 43 of the Contract Act, the principle is applicable to cases of joint liability in this country.
(3.) The case of Nuthoo Lall Chowdhry V/s. Shoukee hall (1872) 10 B.L.R. 200 :S.C. 18 W.R. 458, was decided before the Contract Act came into force. Since then it has been held that, notwithstanding Section 43 of the Contract Act, the doctrine of King V/s. Hoare (1844) 13 M. & W. 494, should be applied to cases arising in the Presidency towns: Hemendro Coomar Mullick V/s. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353; Gurusami Chetti V/s. Samurti Chinna Mannar Chetti (1881) I.L.R. 5 Mad. 37; Lakmidas Khimji V/s. Purshotam Haridas (1882) I.L.R. 6 Bom. 700,and Bahmubhoy Hubibbhoy V/s. Turner (1890) I.L.R. 14 Bom. 408, which, however, related not to joint contractors but to joint wrong-doers, to whom of course Section 43 has no application. In Hemendra Coomar Mullick V/s. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353, Mr. Justice Markby's judgment appears to have proceeded partly on the fact that the case was one arising in the High Court's original jurisdiction and was governed by English law. In the other High Courts it has often been assumed, though never formally decided after argument, that the doctrine of King V/s. Hoare (1844) 13 M. & W. 494, would also be applicable in the Mufassil: Chockalinga Mudali V/s. Subbaraya Mudali (1882) I.L.R. 5 Mad. 133 at p. 135; Narayana Chetti V/s. Lakshmana Chetti (1897) I.L.R. 21 Mad. 256; Sitanath Koer V/s. Land Mortgage Bank of India (1883) I.L.R. 91 Cal. 888; Nobin Chandra Roy V/s. Magantara Dansya (1884) I.L.R. 10 Cal. 924; Roy Lutchmiput Singh Bahadur V/s. The Land Mortgage Bank of India (1886) I.L.R. 14 Cal. 469, note; Radha Pershad Singh Bahadur V/s. Ramkhelawan Singh (1895) I.L.R. 23 Cal. 302, Bhukhandas Vijbhukandas V/s. Lallubhai Kashidas (1892) I.L.R. 17 Bom. 562, and Laksmishankar Devshankar V/s. Vishnuram (1899) I.L.R. 24 Bom. 77, several of these relate to suits against joint mortgagors. In this Court the question does not appear to have been raised except in Dharam Singh V/s. Angan Lal (1899) I.L.R. 21 All. 301, where, however, it was not decided, as it was held that the liability there under consideration was not a joint liability. In two at least of the above cases much doubt has been expressed as to whether it is desirable to extend the doctrine of King V/s. Hoare (1844) 13 M. and W. 494, to India, at all events to cases in the Mufassil. Such doubts were expressed by Mr. Justice Markby in Hemendro Coomar Mullick V/s. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353, where, however, the learned Judge was clearly mistaken in saying that the doctrine has been repudiated in America. See Bigelow on the Law of Estoppel, 4 edition, pp. 104 to 110, and Vanfleet on the Law of Former Adjudication, pp. 1061 to 1063, and also by Mr. Justice Muttusami Ayyar in Gurusami Chetti V/s. Samurti Chinna Mannar Chetti (1881) I.L.R. 5 Mad. 37. The conclusion at which I have arrived is that the doctrine of King V/s. Hoare (1844) 13 M. and W. 494, is not applicable in India, at all events in the Mufassil, and since the passing of the Indian Contract Act. This conclusion, however, is not based on any view of the doctrine as a merely technical one, or as being inexpedient or unjust. That is a question on which many learned Judges have expressed conflicting opinions, and with which we as Judges are not particularly concerned. It was expressly held by the majority of the Law Lords in Kendall V/s. Hamilton (1879) L.R. 4 A.C. 504, and by Lord Justice Bowen in In re Hodgson (1885) L.R. 31 Ch. D. 177 at p. 188, that the rule was not a merely technical one, but was based on considerations of public policy relating to the protection of joint debtors. So far as general expediency or public policy is concerned, considerations of the importance, on the one hand, of checking undue multiplicity of suits, and, on the other hand, of compelling people to pay their debts, are, in India at least, fairly evenly balanced. My objections to the application of the doctrine are based on purely legal grounds. The doctrine now rests not so much on King V/s. Hoare (1844) 13 M. and W. 494, as on the judgment of the Law Lords in Kendall V/s. Hamilton (1879) L.R. 4 A.C. 504. As explained in those judgments, the doctrine that there is in the case of a joint contract a single cause of action which can only be once sued on is essentially based on the right of joint debtors in England to have all their co-contractors joined as defendants in any suit to enforce the joint obligation. That right was in England enforceable before the Judicature Acts by means of a plea in abatement, and since the Judicature Acts by an application for joinder which is determined on the same principles as those on which the plea in abatement would formerly have been dealt with. In India that right of joint debtors has been expressly excluded by Section 43 of the Contract Act, and therefore the basis of the doctrine being absent, the doctrine itself is inapplicable. Cassante ratione legis, cessat ipsa lex.;