Indivisible Mortgage: Failure to Implead Necessary Party Leads to Dismissal

The court held that the plaintiffs were not entitled to sue for their share of the mortgage amount alone as the mortgage was indivisible. The suit was deemed incompetent due to the failure to implead a necessary party within the limitation period, leading to the dismissal of the appeal. The decision affirmed that the suit was barred by limitation and could not be maintained solely for the plaintiffs' share.

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Issues Involved:
1. Whether the plaintiffs were entitled to sue for their share of the mortgage amount alone.
2. Whether the suit as a whole was barred by limitation due to the late impleading of a necessary party.

Detailed Analysis:

Issue 1: Entitlement to Sue for Share of Mortgage Amount
The plaintiffs filed a suit to recover their 7/9th share of the mortgage amount, as the mortgage was originally executed by the 4th respondent in favor of Rokia Bi. The plaintiffs represented the interests of all heirs of Rokia Bi except Mahomed Sultan, who was adjudicated an insolvent. The learned Subordinate Judge initially held that the plaintiffs could maintain the suit for their share. However, Chandra Reddi, J., reversed this decision, emphasizing the principle that a mortgage is "one and indivisible in regard to the amount and security." The judgment cited the case of Huthasanan Nambudri v. Parameswaran Nambudri, which stated that a mortgage for an entire sum is indivisible and should not suffer any disintegration. The court also referred to Peer Ammal v. Nalluswami Pillai, where it was held that a co-mortgagee cannot sell the hypotheca subject to the other co-mortgagee's right. The principle was further supported by Sunitibala Debi v. Dhara Sundari Debi Chowdhurani, which held that a mortgage to tenants in common is a conveyance of the whole property and not a divided half. The indivisibility of the mortgage was reiterated in Adiveppa v. Rachappa, where it was held that a suit should be deemed instituted only when all co-sharers were impleaded.

Issue 2: Barred by Limitation
The plaintiffs failed to implead Mahomed Sultan or the Official Receiver within the limitation period. The learned Subordinate Judge initially ruled that the suit was not barred as the Official Receiver was brought on record. However, Chandra Reddi, J., held that the omission to implead the Official Receiver within the twelve-year limitation period was fatal to the whole suit. The judgment cited Order 34, Rule 1, Civil Procedure Code, which requires all mortgagees to be parties to the suit. The court also referred to Kailasa Iyer v. Sundaram Pattar, which held that a co-mortgagee must sue for the entire debt and make other co-mortgagees defendants if they refuse to join as plaintiffs. The principle of indivisibility of the mortgage debt and security was further supported by Mati Lal Datta v. Bejav Lal Chakrabarti, which required a prayer for taking accounts of the total dues and sale of the whole mortgaged premises. The judgment also cited Rameshwar Bux v. Ganga Bux, which followed the principle that a suit filed without impleading all co-mortgagees is defective.

Conclusion:
The court concluded that the suit was incompetent due to the failure to implead the Official Receiver within the limitation period. The addition of the Official Receiver after the period of limitation had expired did not render the suit competent. The appeal was dismissed, affirming Chandra Reddi, J.'s decision that the suit was barred by limitation and could not be maintained for the plaintiffs' share alone.

Result:
The appeal fails and is dismissed.

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