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Judgment
Defendants 20 and 21 in O. S. No. 440 of 1115 on the file of the Dist. Munsiff, Thiruvella are the applts. The suit was to enforce a deed of hypothecation, Ext. A dated 28-6-1089 executed by defts. 1 to 3 in favour of deft 5 who assigned his rights to the pltf. Defendant 4 is a member of the tarwad of defts. 1 to 9 and was impleaded as such. In the suit as originally filed there were only 5 defts. Defendant 2 filed a written statement setting up sole title in himself over the hypotheca for certain reasons mentioned by him therein. He explained the execution of the hypothecation deed as having been resorted to not to evidence transaction but for enabling him successfully to prosecute certain proceedings relating to the title of items 1 to 4 of the properties hypothecated. These items 1 to 4 originally belonged to a divided branch of a tarwad of which one Krishnan Neelakantan was the last surviving member. Defendant 2 contended that he had been in some manner affiliated to that divided branch with the result that on Krishnan Neelakantan''s death, deft. 2 became the last surviving member and in that way became solely entitled to the properties. Kriahnan Neelakantan executed a will bequeathing items 1 and 2 in favour of his wife and son. That will was produced for registration after the death of the testator in connection with which deft. 2 appeared and opposed registration impeaching the will as a forgery. His contentions were overruled and he will was directed to be registered. On account of this order for registration, he filed a suit O. S. 302 of 1089 for a declaration that the will directed to be registered was a forgery. Subsequently be appears to have withdrawn the suit. The petn. for withdrawal is Ext. I in the case dated 8-8-1089. The deed of hypothecation sought to be enforced in the suit appears to be executed during the pendency or the suit.
Defendant 2 also contended that the wife and child of Krishnan Neelakantan already mentioned, assigned the properties to deft.19 from whom defts. 20 and 21 got a transfer and they, in their turn, assigned the properties to deft. 6 who was in that manner in possession and enjoyment of the properties. Now these transactions relate only to items 1 and 2 in the plaint, item l being a paramba and item 2 being a building on that paramba. In this appeal, we are concerned only with items 1 and 2. Upon this written statement of deft. 2 certain new defts. were impleaded at the instance of the pltf. They were defts. 6 to 16. Defendant 6 filed a written statement referring to the fact that he was the owner of the properties in question and in possession as owner having derived his title from defts. 20 and 21 with an indemnity that should the title conveyed be found to be defective in any manner, the transferors would be liable to indemnify the transferee, deft. 6.
Defendant 6 also prayed that defts. 20 and 21 as also deft. 19 from whom defts. 20 and 21 derived title and some other parties may be impleaded as parties to the suit. Upon this written statement, the ct. asked the pltf. whether he was prepared to impaled these new parties. The pltf. stated that he did not propose to implead them at his expense, but that he had no objection to their being brought in at the expense of deft. 6. Accordingly additional defts 17 to 24 were brought on record. Defendant? 25 to 39 are the legal representatives of defts. 6 and 10.
In a written statement filed by the pltf. after the written statements of defts. 2 & 6 were filed, we find the pltf. setting up a new Case. In the plaint the pltf''s only case wa3 that the properties sought to be Bold belonged to the AIR
tarwad of defts. 1 to 4 which existed as a distinct entity. In the written statement filed, be has added a new ground, viz., that though there was a partition in the main tarwad from which defts. 1 to 4 parted away and the aforesaid Krishnan Neelakantan and some other parties formed a different ''Sakha'' there was subsequently a reunion between deft, a and his brother with the Sakha of Krishnan Neelakantan with the result that the properties of the Sakha of Krishnan Neelakantan came to the surviving members of that Sakha whose last surviving member was deft. 2 and that, though originally the properties hypothecated did not belong to the Sakba of defts. 1 to 4 as was first stated by the pltf., they nevertheless became available for the pltf. for enforcement because deft. 2 who is one of the executants, subsequently acquired title thereto though in a different manner.
It will thus be seen that deft 6 and the other defts. deriving title to items I and 3 from Krishnan Neelakantan were brought in not as parties deriving title to the hypotheca from the mortgaged, but as parties having independent title thereto.
In a suit to enforce a mtge., ordinarily the parties necessary are those interested in the properties primarily, viz., the mtgors. or derivatively viz. the persons obtaining title to the mortgaged properties under the mtgors. subsequent to the mtge by act of parties or by operation of law. Persons claiming title independently of the mtgors., that is to say claiming title paramount, are ordinarily not necessary or even proper parties to a mtge. suit. There may be cases where though a stranger may claim title to the properties independently of the mtgor, the mtgee. may set up a case that the independent title holder is merely a benamidar for the mtgor,, in which case though the title set up may appear apparently to be paramount, really it is not. These cases apart, the case of a real title paramount would be beyond the scope of a suit to enforce a mtge. especially in view of the ct.-fee paid by the pltf. is limited to a specific relief.
The pltf.resp. here raised a primary objection that" the appeal filed by defts. 20 & 21 is incompetent becaus9 upon their own showing they had no interest in the properties, as, whatever interest they had, they assigned to deft. 6. He also contended that .the applts. in their written statements did not raise a plea in what manner they are interested in the properties. The answer to this objection is that the applts., having assigned the properties to defts. 6 as their own not subject to the plaint or any other mtge. with an indemnity that in the event of the title transferred proving to be ineffective or defective in any manner, they would be answerable to the transferee to the extent of that defect. The pltf. having agreed to bring on record defts. 20 & 21, he cannot now be heard to say that they have no interest in the suit. If they had interest at the time they were impleaded, it is not contended that they ceased to have that interest for any reason thereafter. In Devassy v. Variath 4 D.L.R 181 (KER) , Anantbakrishna Iyer C. J., stated that, in a suit to enforce a mtge, wherein. a deft, was impleaded, though he had already parted with the title to the property before the suit, with an indemnity as in this case, "the transferor had sufficient interest in that he had to protect himself against the enforcement of the clause of indemnity in favour of the transferee." Though that case related to the transfer of the property mtged., the principle is the same in this case also and therefore we are of opinion that applts. have sufficient interest. We find also that defts. 20 & 21 who came into the suit to fight the battle in the name of deft. 6 can take advantage of the written statement filed by deft 6 in which case, the absence of a plea in their written statement will be immaterial. In this view the preliminary objection raised by the pltf-resp. to the maintainability of the appeal has to be overruled.
The question then arise as to whether the title paramount set up by deft. C and by defts, 20 & 21 as aforesaid should be investigated in these proceedings. We consider that it would be improper to go into that question in this case as it does not appear to be either just or convenient. We would, therefore, delete from the judgment of the Ct.below the portions thereof relating to the title paramount set up by these defts. The question of the title paramount is left open.
The pltf. is entitled to get a decree for sale of the hypotheca, that means the sale of the right, title and interest of the mtgors. in the hypotheca as on the date of the mtge. Such a decree is given to him. The decree will not affect any interest that the defts. setting up title paramount would be entitled to, independent of the mtgors.
The appeal is allowed to the extent mentioned above. In the peouliar circumstances narrated above, we direct that the parties shall bear their own costs in this appeal. The applts. would also be exonerated from the liability for costs in the trial Ct. In other respects the decree of the lower ct. is confirmed.