RAMNARAYAN Vs. LACHHMAN PRASHAD

JUDGEMENT

(1.) THE applicants have come up in revision against the interlocutory order of the Additional District Judge, Nagpur, Dated 15-1-1927, ordering them to amend their plaint in Suit No. 9 of 1926 by including a relief to the effect that the decree passed in favour of the defendants non-applicants Lal Behari and Ramcharan, is not binding on them and to pay ad valorem Court-fee in respect of this relief.

(2.) ADMITTEDLY , preliminary 'and final decrees had been obtained before the filing of Suit No. 9 of 1926 against the Defendants Nos. 1 and 2 under a mortgage in favour of the non-applicants Nos. 4 and 5. Defendant No. 1 is also admittedly the manager of the joint family, of which the plaintiffs are members. It is, no doubt, true as pointed out by Mittra, A.J.C., in Motiram v. Asaram [1919] 16 N.L.R. 64 that although in a suit on a mortgage brought against the father in his representative capacity the father represents the joint family, the sons may, in certain circumstances, re-open a decree against him on grounds personal to 'themselves, e. g., that the debt for which the mortgage was given was not binding on them under the Hindu Law. At the same time, apart from this incidental matter, the decision of Batten, A.J.C., on the main question involved in Gore v. Kashiram [1913] 9 N.L.R. 1 still remains good law in these Provinces and I am wholly unable to appreciate the position of the applicants:

(3.) VERY obviously, however, they cannot, in effect, obtain the partition they desire unless they also claim a declaration that the mortgage-decree in favour of the non applicants Nos. 4 and 5 is not binding on them. The fact that they were not parties in the mortgage suit is quite immaterial in view of the law laid down by Batten, A.J.C., in the case quoted, Gore v. Kashiram [1913] 9 N.L.R. 1, a decision with which I respectfully declare my concurrence.