Ebrahim Mulla Rasulji vs Chhatrasinhji Samatasinhji and Another

Chhatpar, J.—The facts leading to this revision application are as under; - Rana Shri Chhatrasinhji Samatsinhji, a "Girasdar" of Dudhrej,

owned the ''Giras'' lands which are the subject matter of the suit. He mortgaged them with possession to Mulla Fazle Hussein, opponent 2 in 1940.

Chhatrasinhji then created a second mortgage in favour of the applicant Ebrahim Mulla Rasulji's wife Sugrabai in the year 1944, and thereafter he sold the property by a document dated 20-9-44 to Sugrabai on condition that he would redeem the property and hand over possession of the property to Sugrabai. This document is Ex. 16 in the case. On 6-2-1948, Sugrabai executed a document in favour of her husband, the present

applicant, declaring that she was a mere "benamidar" and that the real ownership of the property vested in her husband, the applicant. This deed of

declaration is Ex. 17 in the case.

Chhatrasinhji filed a suit on 10-9-43 against the second opponent Mulla Fazle Hussein for redemption of the mortgage. He died thereafter and his son was brought on the record as his legal representative and was represented by his guardian his mother. Sugrabai then applied on 24-12-45 for being substituted as a Plaintiff in place of Chhatrasinhji's minor legal representative under Order 22 Rule 10, CPC if the mother of the minor was not willing to continue the suit. No order appears to have been passed on this application. On 18-9-50, the present applicant filed an application under Order 22, Rule 10, CPC for substitution or addition as a co-Plaintiff after he had obtained the deed of declaration that Sugrabai was merely

a "benamidar" for him. To this application objections were taken.

These objections were that the execution of the deed of sale of the property in favour of Sugrabai (Ex. 16) by the deceased Chhatrasinhji was

denied. The deed of declaration executed by Sugrabai in 1948 in favour of her husband was also denied. It was further objected that the lands being tribute-paying lands belonging to a Talukdar could not be sold without the sanction of the Political Authorities and the sale was consequently

void, there being no such sanction. The last objection taken was that the applicant was guilty of laches. The two lower Courts found that the deed of sale in favour of Sugrabai as also the deed of declaration by Sugrabai in favour of her husband were duly executed and proved and that the applicant was not guilty of laches. But the lower Courts held that as the lands were tribute-paying lands, the transfer thereof was void because of want of previous sanction of Government. On this ground alone the lower Courts refused to join the applicant as a party to the suit. The present revision application has been filed to contest this decision.

I have heard Mr. M.O. Shah the learned advocate for the applicant and Mr. C.C. Shah for the first opponent. The second opponent has

supported the first opponent's case. Now the applicant, who invokes the aid of Order 22, Rule 10, CPC is not as a matter of right entitled to an order in his favour regardless of the delay and laches and other circumstances, but there can be no doubt that the Court has been given very wide discretion in the matter. The discretion has to be exercised judicially, and the application which will avoid multiplicity of proceedings and injustice should be allowed rather than dismissed. The mere fact that the'' assignment is denied by the opposite party is not a sufficient ground alone to enable the Court to refuse leave.

In the present case both the lower Courts have given findings in favour of the execution of the deed of transfer Ex. 16 and the deed of declaration

Ex. 17. "Prima facie" therefore the right of the applicant to be brought on the record is established but the lower Courts have given the finding as to

the validity of the transfer depending upon a law or State Policy peculiar to the former States of Kathiawar on the ground that a land held by a

Talukdar and paying tribute to Government was not alienable without the consent of the Government. Various notifications were cited before me,

which I do not propose to consider, as I think that this question should be decided in the suit itself rather than in an application for leave under

Order 22, Rule 10, Code of Civil Procedure.

The applicant "prima facie" is a person who is interested in the mortgage security and the equity of redemption and if the transfer had taken place

before the filing of the suit, there is no doubt that he would be a necessary party under Order 24, Rule 1, CPC in a suit for redemption and if he were not made so a party, he would be entitled to be made a party under Order 1, Rule 10, CPC on his own application; but in the present case the assignment has been made during the pendency of the suit and the factum of the assignment has been held proved by both the lower Courts.

There remains only the question whether such assignment was barred by the peculiar law or State Policy prevailing in the former States of

Kathiawar. This is a question which should appropriately have been decided in the suit itself rather than in the application for joinder. I cannot substitute the applicant for the Plaintiff nor join him as a co-Plaintiff against the wishes of the Plaintiff.

I think the proper course under the peculiar circumstances of the present case would be that he should be joined as a Defendant and he may be permitted to raise the question of his assignment and its validity; so that a separate suit by him, which might create complications, might be avoided and he may be at the same time in the present suit watch his own interests and see that there is no collusion between the original parties to the suit so far as the adjudication of the question relating to the redemption of the mortgage is concerned.

Mr. M.O. Shah the learned advocate for the applicant has particularly based his arguments on three grounds: (1) that the presence of the

applicant would be necessary, as he is interested in the amount of the redemption to be fixed by the Court, (2) that there is a covenant in the deed of transfer that the transferor Chhatrasinhji would redeem the mortgage and give possession through the Court to the assignee, which implies that after the redemption of the mortgage the possession of the property would be handed over through the Court to the applicant and (3) that in the event the Plaintiff failed to redeem the mortgage, the applicant might step in and get the property released in order to avoid the consequences contemplated by Order 34, Rule 8, CPC arising from the sale of the property through the Court. These grounds appear to me to be valid considerations why the applicant should be joined as a party to the suit. In the case of - Joti Lal Sah and Others Vs. Sheodhayan Prashad Sah and

Others, , Rowland J. remarked:

The true position is as explained in - "Rai Charan v. Biswa Nath" AIR 1915 Cal 103 (B): that the Plaintiff who has instituted a litigation may

prosecute it to its conclusion notwithstanding a devolution of his interest in the property. The litigation will continue in his name for the benefit of his

successor. In the alternative the Code of Civil Procedure, Order 22, Rule 10, provides that by leave of the Court the successor in interest may get himself substituted as Plaintiff. This is a provision against the danger that the original Plaintiff being no longer interested in the proceedings may not vigorously prosecute them or may even collude with the adversary. In such a case the successor in interest who has not got himself substituted is bound by the decision and has no remedy. No doubt Order 22, Rule 10, gives the Court a discretion in allowing or refusing such an application by the successor in interest but leave should not be unreasonably refused.

The Allahabad High Court in the case of - Muhammad Masihullah Khan and Another Vs. Jarao Bai and Others, , permitted the assignee to be brought on the record after a preliminary decree for redemption of the mortgage was passed by the present case remarking as under:

It is true that the preliminary decree was passed by the Subordinate Judge in December, 1908 just before the new Code came into force, but the

case, as already stated, was brought up to this Court and a decree was passed by this Court in May 1910, after the passing of the new Code.

Before the passing of the new Code there was considerable conflict of judicial opinion on the question whether proceedings after a preliminary decree for sale or redemption should be regarded as proceedings in a suit or as proceedings in execution of a decree. Under the present Code there can be no doubt that such proceedings must be held to be proceedings in a suit. We have no difficulty in holding that the suit with which we are now concerned was still pending within the meaning of Order 22, Rule 10, when the Appellants'' application to be made Plaintiffs was filed.

In the definition of decree contained in the present CPC it is explained that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. This makes it quite clear that a suit of this kind does not come to an end after the passing of a preliminary decree. In this view it is necessary to consider whether Order 22, Rule 10, applies to execution proceedings. It was held by this Court that Section 372 of the old Code of the Civil Procedure did not apply to execution proceedings. It is unnecessary to decide whether Order 22,

Rule 10, which has taken the place of that section, does or does not apply to execution proceedings. It is sufficient for the present case to say that the suit was still pending when the Appellants'' application to be made Plaintiffs was made.

The only other question is whether there has been a devolution of interest which entitles the present Appellants to be made Plaintiffs in the suit. The sale-deed executed by Mt. Maminna Khatun transfers the whole of the mortgaged property, to the Appellants and recites that a part of the price has been left in their hands in order that they may proceed to redeem the property. The sale-deed in fact comers very near being a transfer of the preliminary decree. It is quite clear from the terms of the deed that the parties considered that the purchasers of the property would be entitled to redeem the property in the suit in which the preliminary decree had been passed. Without holding that there had been a definite transfer of the

decree, we have no doubt whatever that there has been a devolution of interest which entitles the Appellants to be made Plaintiffs in the suit.

The Patna High Court case has been followed by a recent decision of the Rajasthan High Court in the case of - Dr. Niranjan Nath Vs. Sardar Mal and Another, , wherein the Court interfered in revision and set aside an order refusing an application under Order 22, Rule 10, CPC The Court held that in rejecting the petition the lower Court had committed an error of procedure likely to affect the decision of the case and the order was consequently revisable u/s 115, Code of Civil Proecdure the order being in breach of some provision of law or involving some error of procedure in the course of the trial which was material as it would affect the ultimate decision of the case.

I, therefore, allow this revision application, set aside the decisions of the lower Courts, and direct the applicant to be brought on the record as

Defendant in the suit. The applicant will have his costs from the first opponent, while the second opponent will bear his own costs.