- (1.) PLAINTIFFS Chhogalal and Laxminarain, the present respondents, instituted a suit against defendants appellants Chuna and Bhura in the court of the learned Munsiff of Nawa on July 3, 1962, for the recovery of Rs. 1047/- on the basis of a promissory note (Ex. 1) said to have been executed on June 24, 1960 in favour of Bhuramal and Chhogalal. Bhuramal died and the plaintiffs claimed that the promissory note having been executed in favour of the joint Hindu family, Bhuramal's interest devolved by survivorship on them. They admitted that Mst. Mangi, being Bhuramal's daughter, was his legal representative, and arrayed her as a proforma defendant on the ground that she was not present at the time of the institution of the suit. The plaintiffs, however, clearly prayed for the grant of a decree exclusively in their favour. The defendants denied the execution of the promissory note but pleaded, at the same time, that it had been written in favour of Chhogalal and Bhuramal in their individual capacity and not as members of a joint Hindu family and that the suit was not maintainable until the plaintiffs obtained a succession certificate in respect of Bhuramal's share. It was specifically pleaded by the defendants that, in these circumstances, Smt. Mangi was not a mere proforma defendant. In their replication, however, the plaintiffs stuck to their plea that they were the surviving members of the joint Hindu family and that no succession certificate was necessary. The learned Munsiff of Nawa reached the conclusion that the promissory note in question had been written individually in favour of Bhuramal and Chhogalal and that Bhuramal's share devolved by succession and not by survivorship. He was therefore of the opinion that the suit was not maintainable without a succession certificate in respect of Bhuramal's share. The learned Munsiff also held that the execution of the promissory note in question had not been proved and. , for all these reasons, he dismissed the suit on April 13, 1963. The learned District Judge, on an appeal by the plaintiffs, also reached the conclusion that the promissory note had been executed individually in favour of Bhuramal and Chhoga Lal, but he held that the plaintiffs had succeeded in proving its execution. The learned Judge was however under the impression that Bhuramal's daughter Smt. Mangi was also a plaintiff in the suit and he therefore ordered that a decree may be drawn up in favour of the plaintiffs on production of a succession certificate in respect of Bhuramal's share. Against that judgment and decree of the learned District Judge dated September 14, 1963, the defendants have come up in this second appeal.
(2.) IT has been argued on behalf of the appellants that the plaintiffs appeal before the District Judge was not properly constituted in as much as they left out Smt. Mangi altogether in their anxiety to show that she was not even a necessary party and that Bhuramal's share had really devolved on them by survivorship. IT has therefore been urged that the appeal was not maintainable because the trial Court had clearly reached the conclusion that the promissory note had been executed in favour of Bhuramal and Chhogalal in their individual capacity and Smt. Mangi being Bhuramal's only heir was a necessary party as a co-promisee. Mr. Maheshwari, learned counsel for the plaintiffs-respondents, has argued on the other hand, that in view of O. 1, r. 13 C. P. C. the objection of the defendants appellants cannot be heard now when they did not raise it before the learned District Judge. It is true that O. 1, r. 13 C. P. C. provides that all objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and that any such objection not so taken shall be deemed to have been waived but the rule does not apply in the case of the non-joinder of necessary parties. It would be sufficient to refer to a decision of this court in Chimna vs. Chunilal (1) in which it has been held that O. 1, r. 13 cannot apply to the non-joinder of necessary parties and that such a defect would be fatal in their case. The argument can therefore be allowed to be raised in this second appeal as the defendants have challenged the appellate judgment and the decree of the learned District Judge in favour of the plaintiffs on the ground that that appeal suffered from a fatal defect. It cannot be, and has not been, disputed that Smt. Mangi was not a joint promisee as she was the heir of Bhuramal who, according to the concurrent finding of fact of the two courts below, was a joint promisee himself. As such Smt. Mangi was undoubtedly a necessary party to the suit. As has been stated, she was made a proforma defendant in the suit. The defendants specifically raised the plea that, as a matter of fact, she was not a mere proforma defendant and that the suit was not maintainable in the absence of a succession certificate in respect of Bhuramal's share. It appears that when this view prevailed with the trial Court and it held that a succession certificate was really necessary, the plaintiffs dropped Smt. Mangi altogether in their appeal and once again prayed for a decree exclusively in their favour. As she was a necessary party, there can be little doubt that the plaintiffs committed a serious illegality in dropping her out altogether and their appeal could not therefore be said to be properly constituted in the absence of a necessary party. To get round the difficulty, Mr. Maheshwari has argued that the plaintiffs-respondents are entitled to the benefit of Order 41, rule 4 C. P. C. which according to the learned counsel, is sufficient to cure the defect of non-joinder, and the question is whether the argument is tenable. The learned counsel has placed reliance on Manghibai vs. Cooverji Umersey (2) and Narsingh Das vs. Bhairon Dan (3) to support his argument. Rule 4 of Order 41, C. P. C. is to the following effect: "r. 4. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defen dants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. " The question is whether this provision can be said to cure the defect in the framing of the first appeal. In my opinion, the answer must, for the following reasons, be in the negative. Firstly, Smt. Mangi was not a plaintiff in the suit but was arrayed as a proforma defendant and so one essential requirement of the rule does not appear to be fulfilled. Since the plaintiffs claimed the share of her father Bhuramal as well, on the ground of survivorship, and claimed a decree only for themselves to the exclusion of Smt. Mangi, she was not made a proforma defendant merely because she was not present at the time of the suit and as it seems that the real intention of the plaintiffs was to constitute their suit properly by impleading her as party and no more. So Smt. Mangi was made a proforma defendant only in the sense that the plaintiffs did not claim a decree against her, but not in the sense of claiming a joint decree in her favour as well. Thus the interests of the plaintiffs and Smt. Mangi were not common and she could not be said to be a plaintiff in any sense for the purpose of the aforesaid rule 4 of order 41. Secondly, it cannot also be said that the decree against which the first appeal was filed proceeded on any ground common to the plaintiff and Smt. Mangi, for even the plaintiffs' success in that appeal was not going to benefit her. She was not only being denied her share by the plaintiffs' claim in the suit, but was being estopped from raising a separate suit by being impleaded as a party to the suit. Thirdly, the plaintiffs, in their appeal wanted a reversal of the decree in their own favour, and not in favour of themselves and Smt. Mangi. It could not therefore be said that they had filed the first appeal on behalf of Smt. Mangi as well. Fourthly, Smt. Mangi's case stood on a footing different from that of the plaintiffs inasmuch as she was one of the two co-promisees and was entitled to a half share in the property of her father. As she was left out altogether in the first appeal, it cannot be said that all the interested persons were before the court of first appeal. It was therefore not open to that court to give a decision in favour of Smt. Mangi even if it wanted to do so. Fifthly, there is the further fact that as Smt. Mangi was a co-promisee and the entire suit was dismissed, that dismissal of the claim became final against her when she did not prefer an appeal herself and when the plaintiffs also did not make her a party to their appeal. There was thus the possibility of there being contradictory decisions in respect of the same suit in the first appeal as it was constituted.
(3.) FOR these reasons, the first appeal was not properly constituted in the absence of a necessary party and the defect could not be said to be cured by Order 41, rule 4 C. P. C. Manghibai vs. Cooverji Umersey (2) and Narsingh Das vs. Bharion Dan (3) cited by Mr. Maheshwari can be of no avail for purposes of that appeal as all the necessary parties were not before the court and it was not possible to make an appropriate order. So also, it would not matter if the plaintiffs now claim to have purchased Smt. Mangi's share from her because that development admittedly took place after the first appeal had been decided. In the view of the matter, it is not necessary to go into the merits of the present appeal any further. It deserves to be allowed straightway. The appeal is therefore allowed and the impugned judgment and decree of the learned District Judge are set aside. In the circumstances of the case, there will be no order as to costs in this court and the court below. .;