RAM PRASAD DAGDURAM versus VIJAY KUMAR MOTILAL MIRAKHANWALA & ORS.

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RAM PRASAD DAGDURAM

v.

VUAY KUMAR MOTILAL MIRAKHANWALA & OfIS.

April 18, 1966

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A. K. SARKAR C. J., J. R. MuuHOLKAR AND R. S. BACHAWAT, JJ.J

Code of Civil Procedure (Act 5 of 1908), 0. 1, r. 10(1) and (2}

Scope of.

Indian Limitation Act (9 of 1908), s. 22 and Art. 132-Addition of partie~uit when deemed to be filed-Suit for foreclosure-Pe riod of limitation-Indian Act extended to Part B State-Period o! limitation abridged by Indian Act-Law of limitation applicable.

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The appellant executed a mortga,qe in 1934 in favour of the pro prietrix of a firm in the State of Hyderabad. The mortgage amount became due in 1943. The first respondent, who was the daughter's son of the mortgagee, claiming to be her adopted son. filed a suit for foreclosure of the mortgage, m 1954, after the death of the mort gagee. The trial Court dismissed the suit on the ground that the adop- tion was not established. The first respondent appealed to the High Court and, pending the appeal, applied for adding his natural mother as a co-plaintiff and her two sisters as defendants as they were not willing to join as plaintiffs, and sought consequential amendments in the plaint. The High Court granted the application under 0. !, r. 10(1), Civil Procedure Code, on 4th November, 1958 and thereafter, disp05ed of the appeal by passing a preliminary decree for foreclosure in favour of the added parties. The High Court did not go into the question of adoption but dismissed the first respon- dent's suit.

HELD: (Per Sarkar, C.J.) : The order adding parties cannot be supported under either sub-r.(l) of sub-r. (2) of 0. 1, r. 10. Sub-r. (1) provided for addition of plaintiffs and could not therefore justify the addition of defendants. In the case of addition of parties under sub-r. (2), the provisions of s. 22 of the Limitation Act admittedly apply and under it in the present case, a suit by the added porties, on the date they were added, would have been barred. It would have been futile, therefore, to make an order under sub-r. (2). (190 G-H: 191 D-EJ

Ravji v. Mahadev's case (l.L.R. 22 Born. 672) doubted. There is no to

reason to think that s. 22 of the Limitation Act does not apply 0. 1, r. 10, sub-r. (1 ). (191 G]

A person suing as the proprietor of a firm does not sue in a re

presentative capacity. He sues in his personal capacity. [192 E-F]

Per Mudholkar and Bachawat JJ: The High Court had power to G

Join the co-plaintiff under 0. 1, r. 10(1) and to join her sisters as defen- dants under 0. 1, r. (2). and to allow onsequential amendments of the plaint under 0. VI, r. 17, but, as regards the added partles, by reason of s. 22(1) of the Indian Limitation Act, 1908. the suit must be regarded as instituted on the date on which they were added and was therefore barred by limitation. [197 CJ

In 1951, the Hyderabad Limitation Act was repealed and Indian Limitation Act was extended to the State. The Indian Act ab· tidged the period of limitation for the enforcement of the mortgage,

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ItA~l PRASAD t', VIJAY KU~IAR (8arkar, 0. J.)

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·'but did not impair or take away any vested right. Therefore, on the date of the institution of the suit, the Jaw of limitation applkable \ w~s the Indian Act. [194 E-F]

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The respondent, as the·original plaintiff, sued in his own right.

and on his own behalf. There;fore, the parties added must be regar ded as a new plaintiff and new defendant respectively. Section 22 of the Limitation Act in express terms applies \vhenever a new plain tiff or a new defendant is substituted under 0. 1, r .. 10(1) or (2). The effect of the section is that the suit must be deemed to have been instituted by the new plaintiff when he was made a party. [196 E-G]

Ravji v. Mahadev~-(1897) I.L.R. 22 Bom. 672, disapproved.

Since the suit in the instant ~ase was for foreclosure only it was governed by Art. 132 of the Limitation Act and must be regarded as .

C · instituted in November 1958, beyond 12 years from the date when

the mortgage money was due. [195 CJ

Vasudeva Mudaliar v. K. S. Shriniwas Pillai IL.R. 34 I.A. 186, applied

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OVJL APPELLATE JURISDICTION: Civil Appeal No. 1046 of

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Appeal from the judgment and decree dated November 17, 1959 of the Bombay High Court in First Appeal No. 484 of 1957 from Original Decree.

S. T. Desai, and J. B. Dadachanji, for the appellant. Sarjoo Prasad, B. P. Singh and Naunit Lal, for. respondents

Nos. 1 and 2.

Ganpat Rai, for respondent No. 4.

SARKAR, C. J. delivered a separate Opinion. The Judgment of

MuDHOLKAR and BACHAWAT JJ. was delivered by BACHAWAT, J.

Sarkar C.J. This appeal arises 'out of · a suit filed by

the the appellant on February 9, respondent Vijay Kumar against 1954 to enforce a mortgage. The plaint stated that the appellant executed the mortgage on December 13, 1934 in favour of Tarabai, . the proprietor of the firm of Narayandas Chunilal, and that the amount secured on it became due on December 13, 1943. Vijay Kumar claimed that he was adopted by Tarabai on July 16, 1948 as a son to her deceased husband Motilal Hirakhanwala and be came entitled to enforce the mortgage as her sole heir on her death on April 23, 1952. After setting out the particulars of the mort gage, Vi jay Kumar. asked for a decree for foreclosure. In his written statement the appellant admitted the mortgage but denied that Vijay Kumar had been adopted by Tarabai and stated t:bat she had died leaving as her heirs three daughters, Rajkumari, Premkumari and Mahabalkumari, the mother of Vijay · Kumar Besides denying Vijay Kumar's right to enforce the mortgage, the ·appellant took various other defences to the action to which it is unnecessary for the purpose. of this appeal to refer.

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190

SUPREME COURT REPORTS

(1966] SUPP. 8.C.B.

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The learned District Judge who heard the suit, held that the adoption ·of Vijay Kumar had not been established and on that ground alone he dismissed it, having rejected ~he other defences raised by the appellant. Vijay Kumar appealed against that judgment to the High Court of Hyderabad but that appeal was, on a subsequent reorganisation of States, transferred to the High Court of Bombay. Thereafter on November 3, . 1958, Vijay . B Kumar made an application in the appeal for an order adding his mother Mahabalkumari as a co-plaintiff with him as she was will- ing to be so added, and her sisters Rajkumari and Premkumari "who were not available for joining in the suit as plaintiffs", as defendants. He also sought permission to add a new paragraph to the plaint, in which after reiterating his right to enforce the mortgage as the adopted son of Motilal and Tarabai, he stated. C "In case, however, the plaintiff's adoption is held not to be proved or not to be valid, the estate of Motilal and Tarabai Hirakhan wala and of Mis Narayandas Chunilal will vest in Tarabai's three daughters, viz.; Rajkumari,' Premkumari and Mahabalkumari". The prayers in the plaint were also sought to be amended by ask- ing that the decree sought might be passed in favour of Vijay- kumar and Mahabalkumari.

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The appellant opposed this application but it was allowed by the High Court. The records of the appeal were, thereafter, re constituted by adding Mahabalkumari as an· appellant and Raj kumari and Premkumari as respondents and amending the plaint a~ sought. Premkumari filed a written statement denying the adoption of Vijay Kumar and his right to enforce the mortgage. JI Rajkumari never appeared in the proceedings arising out of the suit. The appeal was thereafter heard by the High Court and allowed. The High Court refused to go into the question of adop tion and passed a preliminary mortgage decree for foreclosure in favour of Mahabalkumari, Rajkumari and Prcmkumari and fur- ther directed that the suit as brought by Vijay Kumar would stand dismissed. . The present appeal has been brought by the original defendant against this judgment of the High Court under a certi- ficate granted by it.

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I think that Mr. S. T. Desai for the appellant was right when he said that the order adding parties could not be supported. The High Court purported to make the order under sub-r. (I) of 0. 1, r. (10) of the Code of Civil Procedure. We were not called upon G by counsel to consider any other provision. That sub-rule, how- ever, cannot justify the order, for it only permits addition of a plaintiff and does not provide for the addition of a defendant while the order directs addition of both a plaintiff and two defen- dants. Was it then properly made in so far as it added a plaintiff? I do not think so. The addition of Mahabalkumari as ·a plaintiff H could not be made under the sub-rule unless it was necessary for the determination of the real matter in dispute. Now, adding her

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n.A.:r.I Plti\SAD

I'. Vf.T.\Y KUMAR (8a.rko-r,

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as a plaintiff would have availed nothing unless Rajkumari ;ind Premkumari were also added as defendants, and that could not be done under the sub-rule. No decree could have been passed in her favour alone if the case of adoption failed, for she would then be entitled to the mortgagee's right along with her sisters. The addition of Mahabalkumari as plaintiff only would have been futile: it would not have helped in the decision of any matter in dispute.

Now, sub-r. (2) of 0. I, r. (10) permits the addition of both plaintiffs and defendants in certain circumstances. The order however was not sought to be justified under that provision and It was conceded-and in my opi there was good reason for it. nion rightly-that in view of s. 22 of the Limitation Act, the suit as regards the parties added under this sub-rule had to be deemed to have been instituted when they were added. This was also the view expressed by the High Court. Now it is not in dispute that a suit filed ot1 the date when the three >.isters were added. to enforce the mortgage would have been barred. We may add that there is authority for the view that even the addition of defendants limitation: see Ramdoyal v. alone may attract J1111me11joy('). Guravayya v. Datra1raya('). I think that the addi tion of Rajkumari and Prcmkumari as defendants was of the kind considered in these cases. Therefore, it would have been futile to In view of the bar of add any of the parties under this sub-rule. limitation, such addition would not have resulted in any decree being passed and. therefore. the addition should not have been ordered. I am, however, not to be understood as holding that apart from the difficulty created by s. 22 the order could have been properly passed under the sub-rule. I have the gravest doubts if it could. It is unnecessary to discuss the matter further.

the bar of

The High Court. relying on Ravji v. Mahadev,(') expressed the view that when a party is added under sub-r. (I l of 0. I, r. (I 0), s. 22 of the Limitation Act does not app;y and no bar of limitation arises. No other reason was given by the High Court or suggested by counsel in this Court to avoid the bar of limitation imposed by s. 22. If the bar operated, no addition of parties that the order could, of oourse, be made. As I am of opinion could not be justified by the terms of that sub-rule, it is not really, necessary for me to consider this question of limitation. I wish however to observe that, as at present advised, I am not <it all sure that s. 22 does not apply to an addition of parties under sub-r. (I) of r. (I Ol of 0. I. There is no principle to support such a view. Nor do l think that Ravji's case(') clcorly expresses it. All that is held-and that too in the judgment of one of the learned Judges only-was that when in a suit by a benamidar the real owner is

(1) (1887) f.L.R. 14 f\11. 'if1J.

(2) (!' 04) LL.R. :!R Ho; . ._ IT.

:21 118!-tS) I.I .R. :2~ TI1v11. li72.

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SVPHEME COURT REPORTS

[ 1966] SUPP. s.LR.

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added, it was really the original suit that was continued. Obvious- A that he was dealing with a case ly, the learned Judge It would seem that where there was no real addition of parties. that is not the case where an order under the sub-rule is made. That would be a case like that of a correction of a misdescription of a party for which a resort to the sub-rule would not be ncces· sary: Purslmtam Vmedbhai & Co. v. Manila/ & Sons.('). Then again Rarji's case(') does not seem to have been approved in later Bombay cases: see e.g. Krishnaji, v. Hanmaraddi('). Further Ravji's easel'! would not support the order in hand if my reading of it is correct. The present is not a case of a continuation of the wiginal suit. Herc parties were :1dded to press their own rights which are in conflict with and antagonistic to those which were being pressed in the suit as originally framed. I do not consider it necessary to pursue this matter further on the present occasion. It was then said that in the present case there was no sub stantial addition of parties as the original suit was in the capacity of a proprietor of the firm of Narayandas Chunilal and all that was done was to add persons who might be the real proprietors. This was said in order to get out of the bar of limitation by show- D ing that it was the original suit that was continued in spite of the addition of parties. There seems to be authority for the view that in a representative capacity, if it turns out when a suit is filed to be doubtful w17cther that capacity existed or had continued, the proper representative or the owner, as the case may be, might be added even after the date when the suit would be barred. I will assume that these cases lay down the law correctly. hut they E do not, in my view. afford any assistance in the present case. First, a suit by a person claiming to be the sole owner of the pro perties of a business carried on in a firm name, as Vijay Kumar's suit was, is not a suit in a representative capacity; he represents no one but himself. A firm is not a legal entity which could or had to be represented by any one else. As is well known, a firm F means only the partner' taken together. There is no such thin!! as the capacity of a prorrietor of a firm; the capacity of a pro prietor of a firm is only individual capacity. Secondly, no authority has been brought to our notice which shows that if parties are added with a claim which is antagonistic to the claim of the original plaintiff in the suit, as has happened here. that would still be a case where the original suit should be deemed to have been continued.

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It may be that if the suit had initially been filed in the fom1 in which it stood after the amendment, it would have been a good suit. as to which however I do not say anything on the pre~ent If it were so. that would have been under the other occasion.

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( 1 ) f IQ61 l 1 S.C.R. 9H2.

(1J (IR!IB) I.I .. R. 2~ B .. 111. 1\12.

(') ( 1934) I.L.R. 58 Born. 630.

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RAM PRASAD v. VIJAY KUMAR (Bachawat, J.)

19:3

provisions of the Code permitting joinder of parties and ~erhaps also of causes of action when instituting a suit, none of which was or could be pressed for our consideration. These provisions are "merely permissive and relate to what the plaintiff might do if he is so minded": Sri Mahant Prayaga Doss v. The Board of Com missioners for Hindu Religious Endowments, Madras.(') That is not the case where addition of parties is sought under 0. l, r. (10), sub-rr. (]) and (2); such additions can only be made under the provisions of these sub-rules only.

For these reasons, I think

that the order adding parties is If that order goes, as it should, the decree which insupportable. it; in favour of the added parties cannot stand, for they are then strangers to the suit. As there is no decree in favour of Vijay Kumar and as in fact the suit considered as brought by him has been dismissed by both the courts below-by the High Court with the tacit approval-and there is no appeal by him, this appeal In this view of the matter, I do not feel called must be allowed. upon to deal with the other grounds advanced by Mr. Desai.

I would allow the appeal and set aside the judgment of the trial Court. The appellant

High Court and restore that of the will not get the costs in any of the courts below or this Court.

Bachawat, J. On December 13, 1934 the appellant executed a mortgage in favour of one Tarabai, widow of Motilal Hirakhan wala. Tarabai had three daughters, Mahabalkumari, Rajkumari and Premkumari. On July 16, 1948, Tarabai is said to have adopted Vijay Kumar as a son to her deceased husband. Vijay Kumar is the natural son of Mahabalkumari. On April 23. 1952, Tarabai died. On February 10, 1954, Vijya Kumar claim ing to be the adopted son and heir of Tarabai, instituted a suit for foreclosure of the mortgage executed in her favour. The appellant contested the suit. On December 30, 1955, the District Judge, Aurangabad dismissed the suit, holding that Vijay Kumar was not the adopted son and heir of Tarabai. Vijay Knmar pre ferred an appeal to the former High Court of Hyderabad. After the reorganisation of States, the appeal was transferred to the Bom bay High Court. On an applicatior> made by Vijay Kumar on November 3, 1958, the High Court on November 4, 1958 made ah order for addition of Mahabalkumari as plaintiff and Rajkumari and Premkumari as defendants to the suit and for consequential amendments of the plaint. After the addition of the parties, the appeal came up for final disposal before the Higb Court. At the hearing of the appeal, the respondents submitted that the question whether Vijay Kumar was the adopted son of Tarabai should not be decided in this litigation and a decree should be passed in favour of the added parties on the footing that they were the heirs of Tarabai. The High Court accepted this submission, set aside the finding of the trial Court on the question of the adoption of

(1) 1927 I.T .. R. 50 ?tin.cl. 41.

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V1jay Kumar. dismissed the suit as brought by him and directed the trial Court to pas' the usual preliminary decree in favour or Mahabalkumari, Rajkumari and Premkumari. The High Court held that the mortgage money tdl due on February 9, 1943 anu the suit being inqituted within 12 years from this date, was not barred by limitation. lhe appellant now appeals to this Court on a cer11ticate granted by the High Court. The main question in this appeal is whether the claim of Mahabalkumari, Rajkumari and Premkumari to enfurcc the mortgage is barred by limitation. I he mortgage deed dated December 13, 1934 provided that the mortgage money wuuld be payable m annual instalment> within a period of nine Fasli years, and in the event of non-pay· ment of live instalments, the mortgagee would be entitled to re cover tbe entire mortgage money. The appellant did not pay any rightly held that the deed of the instalments. The High Court the mortgage in the gave the mortgagee an option to enforce event ol non-payment of live It was open to the mortgagee !lot to exercise this option. As the mortgagee did not exercise the option, the mortgage money fell due on the expiry of nine years. that is to say, on February 9. 1943. and limitation commenced to run from this date.

instalments.

On December 13. 1934 when the mortgage was executed and on February 9. 1943 when the mortgage money fell due, the Hyderabad Limitation Act was in force. By art. 133 of the Hy derabad Limitation Act, the pcrio:.J of limitation for a suit by a mortgagee for foreclosure was thirty years from the date when the money secured by the mortgage became due. But as from April 1. 1951. the Hyderabad Limitation Ac.t was repealed and the indian Limitation Act. 1908 was extended to the State o[ (laws) Act (Act III of 19511 Hyderabad by the Part·B States Prima facie. the Indian Limitation Act. 1908 which was in force on the date of the institution of the suit was the law of limitation respondents, it was applicable to the suit. On behalf of argued that by reason of the proviso to s. 6 of the Part-B States (laws) Act, 1951. art. 113 of the Hyderabad Limitation Act con· tinued to apply to the suit. There is no substance in this conten tion. The respondents had no vested right in the law of procedure for enforcement of the mortgage. They did not acquire under art. 133 of the Hyderabad Limitation Act any right or privilege as contemplated by the proviso to s. 6 o[ the Part-B States <Lawsl Act. 1951. No doubt. art. 132 of the Indian Limitation Act. 1908 the enforcement of the abridged the period of mortgage. But this abridgment did not impair or take away any vested right. Section 30 of the Indian Limitation Act. 1908 in serted by the Part-B States (Laws) Act, 1951 made suitable provi· sion safeguarding vested rights in cases where the period prescribed was shorter than that prescribed by the corresponding law previ· ously in force in the Part-B State.

limitation

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It was argued on behalf of the respondents that art. 14 7 of the indian Limitation Act applied to the suit. We are unable to ac cept this contention. In Vasudewi Mudaliar v. K. S. Shriniwas Pillai,(') the Privy Council held that Art. 147 applied only to an English mortgage as defined in the Transfer of Property Act be fore its amendment in 1929, as, in respect of such a mortgage "foreclosure or sale." That only, the mortgagee could sue for decision has never been questioned and we see no ground for differing from it. The deed dated December 13, 1934 created an anomalous mortgage and conferred a right of foreclosure only upon the mortgagee. 1he mortgagee had no right to sue for sale in the alternative. The present suit was for foreclosure only, and was governed by art. 132 and not art. 147. The suit would be b"rrcd by limitation if it were instituted on November 4, 1958 when Mahabalkumari, Rajkumari and Premkumari were added as purties to the suit. The question is whether the suit should be regarded as having been instituted on November 4. 1958 having regard to s. 22(1) of the Indian Limitation Act, 1908. Section 22 (I) reads:

"Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall. as regards him, be deemed to have been instituted when he was so made a party."

Admittedly, the name of the original plaintiff is not a mis clescription of the names of Tarabai's daughters. This is also not a case where a wrong defendant has been sued as represent the the estate of a deceased person and subsequently ing real representative is added as a defendant. Nor is this a case where a wrong plaintiff has sued in a representative capacity and the person whom he intended to represent was subsequently added as a plaintiff. This is a case where the original plaintiff sued in his own right and on his own behalf. No doubt, Vijay Kumar claimed the right to enforce the mortgage as the legal representa tive of Tarabai. But he made this claim on his own behalf and not as representing the daughters of Tarabai. Mahabalk11mari must be regarded as a new plaintiff and Rajkumari and Prem kumari must be regarded as new defendents and by reason of s. 22( I) the suit must as regards them be deemed to have been insti tuted when they were made parties.

In Moyappa Chetty v. Supramanian Cherry('), the Privy Council had occasion to consider the similar provisions of s. 22 of the Straits Settlements Ordinance No. 6 of 1896, which read:

"When. after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as

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(~\ \l!Hfi) L.R . . i3 IA. 113.121.

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regards him be deemed to have been instituted when he was so made a party ... "

Construing this section. Lord Parker of Waddington observed:

"Their Lordships are of opinion that s. 22 contemplates cases in which a suit is defective by reason of the per son or one of the persons in whom the right of suit is vested not being before the Court. Section 133 of the Civil Procedure Code provides against the defence of a suit on this ground and enables the proper party to be added or substituted. If A is the right person to sue, it would be clearly wrong to allow him, for the sake of avoiding the Limitation Ordinance. to take advant age of a suit improperly instituted by B."

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Similarly, in this case the daughters of Tarabai cannot, for the purpose of avoiding the Limit<.tion Act, take advantage of the suit improperly instituted by Vijay Kumar.

In Subodi11i Devi v. Cwnur Ga11oda Kalli Roy Bahadur('), the Calcutta High Court held that there was a difference between substituting a new person as plaintiff under s. 27 of the Code of Civil Procedure. 1882 and the addition of a new person as defen dant under s. 32 of the Code and that the change of parties as plaintiffs did not affect the question of limitation. This decision was followed by Parsons. J. in Rav;i v. Malwded'). But the learned Judges deciding those cases did ll<lt refer to s. 22 of the Indian Limitation Act. 1877 and they a:ipear to have completely over looked that section. Section 22 mat es no distinction between sub-r. ()) and sub-r. (2) of 0. I. r. 10. The section terms applies whenever a new plaintiff or a new defendant is substituted after the fastitution of a suit.

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The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like s. 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of s. 22 is to prevent this result, and tb effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party. see Ramsebuk v. Ramlall Koondoo('l. The rigour of this law has been mitigated by the proviso to s. 21<1) of the Indian Limitation Act, 1963. which en- ables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to s. 21<1) of the Indian Limi tation Act, 1963 has no application to this case, and we have no H

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(') (HISI) LL.H. fi CnL RJ;i, 823---824.

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RAM PRASAD r. \'JJAY Kt;;!AR (Bachawal, J.)

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;uwer to direct that the suit should be deemed to have instituted ,m a date earlier than November 4, 1958.

It follows that as regards Mahabalkumari, Rajkumari and Premkumari the suit must be regarded as instituted on November 4, J 958. As far as they are concerned, the suit is barred by limi talion and no decree can be passed in their favour. The decree passed by the High Court in their favour cannot be sustained and must be set aside.

We think that the High Court had power to join Mahabal kumari as a party plaintiff under 0. I, r. 10 of the Code of Civil Procedure and to join Rajkumari and Premkumari as defendants under 0. I, r. 10(2) and to allow consequential amendments of the plaint under 0. 6, r. 17. But having regard to the bar of limitation, the added parties are not entitled to obtain any relief.

So far as Vijay Kumar is concerned, the suit as brought by him was dismissed by the High Court. There is no appeal by him. On his behalf, it was not contended that we should exercise in his favour our powers under 0. 41, r. 33' of the Code of Civil Procedure, or that we should set aside the decree of dismissal of the suit against him and remand the case to the High Court for decision of the question whether he is the adopted son and heir of Tarabai. Even if such prayer were made, on the facts of this case we would not be inclined to exercise our powers under 0. 41, r. 33 and to set aside the decree of the High Court as to the dis missal of the suit against him.

In the result, the appeal is allowed, the decree passed by the High Court in favour of respondents Nos. 2, 3 and 4, Mahabal kumari, Rajkumari and Premkumari, is set aside and the decree of the trial Court dismissing the suit is restored. The suit is dis missed. We direct that the parties will pay and bear their own costs in this Court and in the Courts below .

Appeal allowed.

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