Sri Gouri Shankar Umanath and Others vs Mangal Mahton and Others

Agarwala, J.—This is an appeal by defendants 5-7 and arises out of a suit on a mortgage executed by one Hussaini Mian, the father of defendants 2-4, in favour of the plaintiff and his brother defendant No. 8. The last date within which this suit could have been filed within time was 4th September 1941. It was filed one day previously. Before the institution of the suit, defendants 2-4 had transferred their interest in the property to defendants Nos. 5-7. Each of the vendees took a one-third share in the property, Mewa Mahton, the shebait of a deity which was one of the vendees. In the plaint there is no mention of the deity, but on 11th March 1943, the plaintiff was allowed to amend his plaint by adding to the name of Mewa Mahton, defendant No. 5, a description of him as shebait of the deity that has purchased the one-third share in the property. The Court of first instance dismissed the suit holding that the mortgage debt had. been discharged by defendants 2-4. On appeal by the plaintiff, the lower appellate Court has held that the mortgage debt has been discharged only to the extent of the interest of defendant No. 8 and that the liability to the plaintiff is still outstanding.

Two points have been raised in this appeal on behalf of the appellants, defendants 2-4. They challenge the finding of fact of the Court below that the plaintiff has not been repaid and complain that the onus of proving this has been laid on them instead of on the plaintiff. No question of onus arises as there was conflicting evidence on the point and the Court has come to a conclusion which is binding on me as a finding of fact.

The second point relates to the question of non-joinder. It is contended that the deity was a necessary party to the suit and that as it was not impleaded within the period of limitation the suit must fail. Reliance was placed on a decision of this Court in East Indian Railway Co. Vs. Ram Lakhan Ram, The facts of this case were that a suit was instituted against the Agent of the East Indian Railway Company. It was held that the plaintiff was not entitled to amend his plaint after the expiry of the period of limitation by substituting the Company itself for the agent who was originally sued. Das, J. who delivered the judgment in this case observed:

When there were two known persons in existence and the plaintiff brings the suit against one of them and afterwards applies to have the other brought on the record as a defendant on the ground that he all along intended to sue the other and that in substance he sued the other, and no question of representation arises in this case, it is impossible to maintain the view that the case is one of misdescription.

The suit was accordingly dismissed against the Company. This decision was referred to in a later decision of this Court in Radhe Lal and Another Vs. East Indian Railway and Others, where it was observed:

If, however, upon a fair reading of the plaint it is made out that the description of the defendant is a mere error and that the Company is the real defendant, then the suit may proceed against the Company.

The objection raised by the appellants is a technicality and before a technicality is permitted to obstruct the course of justice, it must be seen what substantial question in issue is. Now the plaint discloses that the interest of the original mortgagor has been purchased, in equal shares by three persons, defendants 5-7 of whom defendant 5 latter (sic) is a deity. Although Mewa Mahton was impleaded as a defendant in the suit, no cause of action was alleged against him apart from the sale, by the sons of the original mortgagor. He was, therefore, being sued in respect of the interest that had been sold by the sons of the original mortgagor. He himself had not personally purchased any part of that interest. The only ground on which he was liable to be impleaded, on the mortgage was in his capacity of a shebait to one of the vendees.

In these circumstances the omission to describe him as a shebait or to sue the deity through him as shebait should, in my opinion, be regarded as a mere mis-description, the shebait being the real defendant.

In my opinion, therefore, the decision of the Court below on this point is correct and I would dismiss this appeal but in the circumstances, without costs.