- (1.) THIS is a second appeal by some of the defendants in a suit for redemption of mortgage. The plaintiff-appellant Mst. Chotan filed the present suit in the court of the Civil Judge, Sawai Jaipur on the 8th of December, 1945. It was averred by her that her real brother Ram Dev had mortgaged one haveli and one nohra situated in the village Jhotwara with one Sri Narain who was the father of the defendant-appellants Ram Nath, Jagan Nath, Har Narain and Chhitar Mal for Rs. 1199/- on the 8th of December, 1915. It was claimed by her that she was the nearest heir to her brother, that she had requested the defendant-appellants to redeem the mortgage property, that she had offered to pay to them the mortgage money together with an equal amount for interest, totalling Rs. 2398/-, that they refused to accept the money and therefore, it was prayed that the said amount be given to the appellants and a decree for redemption be passed in her favour. Four other persons namely Kalyan Bux, Anandi Lal, Jodhraj and Sada Sukh were also impleaded by her as defendants No. 5 to 8 saying that they were collaterals of the deceased mortgagor and that although she did not want any decree against them, she had impleaded them as pro forma defendants so that the defendant-appellants may not be able to delay the case by setting up their title to the property. The appellants admitted the fact that Ram Dev had mortgaged the property sought to be redeemed by the plaintiff with their father for Rs. 1199/- on the 8th of December, 1915, but it was pleaded that it was only a simple mortgage, that the period of limitation for redemption terminated on the 8th of December, 1927 and that according to the plaintiff's own showing, the deceased mortgagor had left collaterals who were nearer heirs to him and, therefore, the plaintiff had no right to institute the suit. The remaining defendants did not file any written statement and the case proceeded against them ex-parte. The trial court dismissed all the objections raised by the appellants and decreed the suit against them as also against the defendants No. 5 to 8. The defendants No. 1 to 4 went in appeal to the District Judge, Sawai Jaipur and Gangapur, but they were unsuccessful and so, they have filed the present second appeal in this Court.
(2.) THE appellants' learned advocate contends that the courts below have committed an error in holding that the plaintiff-respondent was the nearest heir to the deceased mortgagor. It was pointed out that according to the plaint itself, the defendants No. 5 to 8 were collaterals of the deceased and were nearer heirs to him in her comparison. She claimed her inheritance on the basis of the Hindu Law of Inheritance (Amendment) Act, 1945. That law was passed in the former British India in the year, 1929, but it was passed in the former State of Jaipur in the year, 1945 as Act No. XXX of 1945 and that it came into force on the 15th of January, 1946 when it was published in the Jaipur Gazette of that date. THE deceased mortgagor Ram Dev died in the year, 1935 and his succession opened immediately after his death. It is urged that in the year, 1935, the plaintiff Mst. Chotan was, according to the Hindu Law then in force in the Jaipur State, not as heir to her brother that the property which was once divested in the real heirs at that time could not be divested because the Hindu Law of Inheritance (Amendment) Act, 1945 was not passed with retrospective effect, and thus the plaintiff had absolutely no right to bring the suit. According to the appellants' learned counsel, the courts below were wrong in giving retrospective effect to the Hindu Law of Inheritance (Amendment) Act No. XXX of 1945 of the former Jaipur State. In order to decide this contention, it would be proper to reproduce the genealogical table given by the respondent No. 1 in her plaint. It is as follows: - Hem Raj (Muris-i-ala) Panchulal Lachminarain Har Govind Heirless) Chotilal | | Sheobux | | Mst. Chotan (Daughter) (Pltf.) Ram Dev Kalyan (Defdt. No. 5) Sada Sukh (Defdt. No. 8) Jodhraj (Defdt. No. 7) Anandilal (Deft. No. 6) It would appear from the above table that according to the Hindu Law which prevailed in the former State of Jaipur before the Hindu Law of Inheritance (Amendment) Act, 1945 came into force, the plaintiff Mst. Chotan was certainly not a nearer heir to her brother Ram Dev in the presence of the defendants No. 5 to 8. This position is not contested even by the plaintiff's learned counsel. According to him, the Hindu Law of Inheritance (Amendment) Act No. XXX of 1945 had received the assent of His Highness the Maharaja Sahib Bahadur of Jaipur on the 24th day of November, 1945 and, therefore, the plaintiff was entitled to bring the present suit on the 8th of December, 1945. In the first place, the learned counsel for the respondent is not correct in saying that the Hindu Law of Inheritance (Amendment) Act, No. XXX of 1945 had come into operation in Jaipur in the year, 1945. The Act itself, is silent regarding the date of its commencement. Sec. 5 of the Jaipur General Clauses Act, 1944 which was applicable at that time ran as follows : - "where any Act is not expressed to come into operation on a particular day then it shall come into operation, if it is an Act of the Legislature, on the day on which the assent thereto of His Highness the Maharaja is first published in the Jaipur Gazette, and if it is any other Act, on the day on which it is first published as an Act in the Jaipur Gazette. " It is clear from the language of this section that where an Act was silent about the date of its coming into operation, its commencement was to be taken from the day on which the assent thereto of His Highness the Maharaja was first published in the Jaipur Gazette. It appears from the Jaipur Gazette of the 15th January, 1946, that although His Highness the. Maharaja Sahib Bahadur of Jaipur had given his assent to this Act on the 24th day of November, 1945, this assent was first published in the Jaipur Gazette of 15th January, 1946 and, therefore, this Act could be taken to come into operation from the 15th January, 1946 and not from the 24th November, 1945. It is, therefore, incorrect to say that this Act had come into operation on the 8th of December, 1945 when the suit was instituted. The next and real question which has to be decided in this suit is whether the said Act (Hindu Law of Inheritance (Amendment) Act, 1945) was to take effect retrospectively. It is common ground between the appellants and the plaintiff that Ram Dev had expired in the year, 1935, and, therefore, the question of his succession opened in that very year. If the Hindu Law of Inheritance (Amendment) Act, No. XXX of 1945 of Jaipur was not in operation on that day and if the plaintiff could not inherit her brother's property at that time on account of the presence of nearer heirs then those heirs could not be later on divested of their rights simply because the sister's right of inheritance to her brother's property was given by the said Act at a later date. It appears from the judgment of the learned District Judge that this point was raised in his court also, but he brushed it aside with the following remarks: - "the amendment in Hindu Law had already been made in 1929. In 1935 the plaintiff could be an heir to her brother only it was not recognised in Jaipur. But in 1946 the Jaipur Government, also recognised this by means of an amendment. " This reasoning of the learned District Judge is not sound. If all the laws that were passed in British India, could be enforced in Jaipur without the necessity of fresh enactment by that State, then there was no purpose in passing separate laws for that State. The Hindu Law of Inheritance (Amendment) Act No. 2 of 1929 was certainly passed in British India in the year, 1929, but it could not be made applicable to persons residing in the former Jaipur State so long as a similar law was not enacted by the legislature of that State and it received the assent of His Highness the Maharaja Sahib Bahadur of Jaipur. The plaintiff, could, therefore, inherit her brother's property only under the Jaipur Hindu Law of Inheri-tance (Amendment) Act No. XXX of 1945 and the similar law prevailing in British India could not be of any avail to her. As regards the plaintiff's next contention about the retrospective effect of the Jaipur Hindu Law of Inheritance (Amendment) Act of 1945, it may be pointed out that one of the cardinal rules relating to the interpretations of statutes is that unless it is expressly provided therein or necessarily implied, it cannot be made to have retrospective effect. The Hindu Law of Inheritance (Amendment) Act No. XXX of 1945 is a verbatim reproduction of the Hindu Law of Inheritance (Amendment) Act No. 2 of 1929 which was passed in the British India. In the case of Kanhaiya Lal vs. Mst. Champa Devi (1) (A. I. R. 1935 All, 203), the later Act was sought to be applied retrospectively by one of the parties, but it was held that the Act did not purport to be retrospective. The same view was held later by a Full Bench of that High Court in the case of Mst. Raipali Kanwar vs. Surju Rai and others (2) (A. I. R. 1936 All, 507. ). In the case of Svt. Shakuntla Devi vs. Kaushalya Devi and others (3) (A. I. R. 1936 Lah. , 124.), the learned Judges of the Lahore High Court also took the same view. Learned counsel for the opposite party has referred to the cases of G. Kanakayya vs. Janardhana Radhi and two others (4) (I. L. R. 36 Mad. , 439.), K. C. Mukerjee, Official Receiver vs. Mst. Ramratan Kaur and others (5) (A. I. R. 1936 P. C. , 49.), Motilal Hirabhai vs. Kasamhhai Hasanbhai (6) (A. I. R. 1926 Bom. , 16.), and Shantiniketan Co-operative Housing Society, Ltd. and another vs. Madhav Lal Amirchand and others (7) to support his argument that the Jaipur Hindu Law of Inheritance (Amendment) Act, No. XXX of 1945 can be construed to apply retrospectively. None of these cases have any bearing on the present case and, therefore, I need not discuss them here. The last case Shantiniketan Co-operative Housing Society, Ltd. and another vs. Madhavlal Amirchand and others (7) (A. I R. 1936 Bom. , 37.), on the other hand supports the contention of the appellants. It was observed in that case, that "where it is possible to construe the words of the legislature in more than one way, the Courts will always lean against an interpretation which will give retrospective effect to the terms of enactment. " In the Jaipur Hindu Law of Inheritance (Amendment) Act, there are no words to show that it was to have a retrospective effect. The plaintiff had, thus, no right to inherit her brother's property since the defendants No. 5 to 8 who were collaterals of the deceased were nearer in relation to him according to the law prevailing in the former Jaipur State in the year, 1935. The decree passed in favour of the plaintiff, is, therefore, fit to be set aside. Shri C. L. Mishra learned advocate for the defendant-respondents Anandi Lal and Jodhraj has presented an application to the effect that the defendants No. 5 to 8 namely, Kalyan, Anandi Lal, Jodhraj and Sada Sukh were rightful heirs of the deceased Ram Dev, that they should now be transposed as plaintiffs and the decree which was passed in favour of Mst. Chotan should be passed in their favour. Mst. Chotan's learned advocate has not contested it, but the counsel for the appellants has contested it very seriously. The applicant's learned advocate has argued that this Court is authorised to transpose the defendants No. 5 to 8 as plaintiffs according to Order 1 Rule 10 or Order 41 Rule 33 or sec. 151 of the Civil Procedure Code. In support of his arguments he has referred to the case of Ram Chand Gupta vs. Bhoop Singh and others (1) (A. I. R. 1927 Oudh, 484. ). In that case, one Ram Gopal had advanced a loan to a debtor Bhoop Singh. On the death of Ram Gopal, one Pandit Rahas Behari, Secretary of the Arya Samaj had brought a suit on the ground that the money borrowed by the defendant was the money of the Trust created by the deceased. The debtor Bhoop Singh contested Pandit Rahas Behari's right to institute the suit and contended that Mst. Tulsha Dei was entitled to sue for the same. In that case, Mst. Tulsha Dei was also impleaded as a defendant. The trial court removed her from the array of the defendants and transposed her as plaintiff and finally gave a decree in her favour. On the defendant's appeal, the subordinate Judge dismissed the suit on the ground that Tulsha Dei should not have been made the plaintiff. The learned Judges of the Oudh Chief Court restored the decree of the court of first instance. In that content, it was observed by their Lordships that the provisions of sub-rule 2 of Order 1 Rule 1 are of much wider scope and they clearly cover that case. It was further remarked that Mst. Tulsha Dei could well be joined as a co-plaintiff under Order 1 Rule 1 of the Code, as a person in whom the right to the relief asked for would lie in the alternative. " It may be pointed out that in the above case, the defendant himself had Admitted, Mst. Tulsha Dei widow of the deceased as a rightful heir land, therefore, there could be no difficulty in passing the decree in her favour. In the present case, the appellants have nowhere admitted that the defendants No. 5 to 8 were the nearest legal heirs of the deceased at the time of his death or that they were entitled to bring the present spit. None of the defendants No. 5 to 8 cared to present a written statement in the trial court and the case proceeded against them ex-parte, It is only now in second appeal when the plaintiff has found that her claim is no longer tenable, that they have come here to present this application. Order 1 Rule 10 of the Civil Procedure Code runs as follows : - " (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) The Court may at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. " It would appear from sub-rule 1 that it comes into play when a suit has been instituted in the name of the wrong, person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff and the court is satisfied that the suit has been instituted through a bona fide mistake. In the present case, the plaintiff does not appear to have made any mistake bona fide. The mistake can be said to be bona fide if it is not deliberate but one which is honestly made on account of some doubtful position. The plaintiff had come to the court with a specific claim that she alone was entitled to bring the present suit and it was clearly averred by her in her plaint that the defendants No. 5 to 8 had no right to inherit the property of her brother and that they were impleaded simply to avoid the delay in obtaining the decree. The defendant-appellants contested her right to bring the suit and inspite of that, neither she nor the present applicants cared to bring the defendants No. 5 to 8 on the plaintiff's side. Where a party persists in sticking to its position inspite of vehement opposition by the other party, it cannot be said that the mistake was made bona fide. Sub-rule 1 cannot therefore, come to the applicants' aid. Sub-rule 2 of Rule 10 similarly empowers the court to pass an order that the name of any person who sought to have been joined as plaintiff or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. This does not, however, mean that a person who has absolutely no title should be permitted to be substituted by another person against whom the previous plaintiff was setting up his own title. In the case of John Boisogomoff vs. Manmatha Nath Mallick and another (1) (A. I. R. 1931 Cal. , 76), it was observed by their Lordships that' - "not in a case where a man has a hopelessly bad suit and wants to substitute another person's suit upon a different title, but in a very different kind of case it may be right to let in a new plaintiff in order that the substance of the plaintiff's claim may really be decided. " Again in the case of Ramaswami Reddi vs. Deivasigamani Pillai and others (2) (A. I. R. 1947 Mad , 395.), it was observed by Chandrasekhara Ayyar, J. that - "if a person who has some interest as the plaintiff or a common or like interest with him does not join in the institution of the suit or is impleaded as a defendant, it would be proper for a Court to get him arrayed as co-plaintiff. But in a case where defendant is setting up title adverse to the plaintiff on the one hand and other defendants on the other it is wholly improper to make him a co-plaintiff and give him a decree in addition at the penultimate stage of the trial'. " These remarks with which I am in respectful agreement will fittingly apply to the facts of the present case. The plaintiff who had instituted the present suit had absolutely no title to the property which she wanted to redeem. The defendants No. 5 to 8 being collaterals of the deceased were nearer heirs as compared with the plaintiff, in 1945 but the appellants never admitted that they were the nearest heirs in 1935 that is at the time when the succession had opened. The appellants' learned counsel says that if the defendants respondents Anandi Lal and Jodh Raj consider themselves to be the rightful successors of the deceased Ram Dev, it is open to them to bring another suit and that it is not fair that the appellants should be compelled to contest their title in the present case. This contention seems to be correct because even if the application were to be allowed, the applicants would have to amend the pleadings to show as to which of the persons mentioned in the table were living at the time of Ram Dev's death and whether they were the nearest heirs of the deceased Ram Dev at the time of his death. It appears from the file of this Court that Kalyan defendant No. 5 died during the pendency of the present appeal. His name was deleted on the 15th March, 1952 and none of his legal representative has been brought on the record. Moreover, Sada Sukh defendant does not seem to have joined Anadi Lal and Jodh Raj in the present application. Under the circumstances, there is absolutely no justification for allowing Anandi Lal and Jodh Raj's application. The applicants' learned advocate has also requested this Court to exercise its power under Order 41 Rule 33 of the Civil Procedure Code. This rule does empower the appellate court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, but it has already been discussed above that so long as the applicants Anandi Lal and Jodh Raj are not transposed and substituted as plaintiffs in place of Mst. Chotan and unless they are further able to prove that they were the nearest heirs to Ram Dev at the time of his death, it is not possible to pass any decree in their favour. It would also be a wrong use of the discretionary power of this Court and unfair to the appellants if the case is remanded with the applicants substituted for Mst. Chotan as plaintiff and the appellants are required to fight this case afresh with the applicants. The application of the learned counsel for the respondents Anandi Lal and Jodh Raj is, therefore, dismissed. The appeal is allowed. The decree against the appellants is set aside and Mst. Chotan's suit is dismissed with costs throughout. . ;