P L D 1967 Dacca 243 (PLP)

These appeals by the plaintiffs arise out of the following circumstances: Plaintiffs instituted two suits for redemption of two mortgages and, in the alternative, for specific performance of contracts entered into between the parties. The said two suits were Title Suits Nos. 46 and 47, of 1942. In respect of Title Suit No. 46 of 1942 a patta was executed (marked Exh. C‑2) on the 6th of April 1932, settling the suit‑land with defendant Lalit Mohan Das on receipt of a selami of Rs. 400 and at a nominal rent. On the self‑same date, namely, the 6th of April 1932, the recipient of the parta, Lalit Mohan Das, executed an Ekrarnama (Exh. 9‑A) in favour of the plaintiffs to .the effect that if the selami money (Rs. 400) be paid back by or within the 30th of ' Chaitra, 1347 B. S., the recipient of the pasta, i.e., the executant of the Ekrarnama, would give up possession of the land relating to the patta to the plaintiffs. Similarly, in Title Suit No: 47 of 1942; the plaintiffs executed a patta (Exh. C‑3) on the same date, namely, the 6th of April 1932, in favour of the same person, that is, Lalit Mohan Das, for a selami if Rs. 500 and on a nominal rent. At the same time and on the same date Lalit Mohan Das executed a Ekrar nama (Exh. 9‑b) by which Lalit Mohan Das agreed to give. up possession of the land relating to the patta and to re‑convey the same to the plaintiffs if the selami money be paid back by the plaintiffs by the 30th of Chaitra, 1347 B.,S. Plaintiffs in both the suits asked for redemption of the suit -lands alleging that the transactions covered by the aforesaid documents‑ represented mortgages acid they also sought to specifically enforce the undertakings given by defendant to perform the contracts. In accordance with the terms of the Ekrarnamas a transferee of a portion of the mortgaged properties from the plaintiffs tendered the stipulated amount, that is, the selami money to the defendant on both counts, and on defendants refusal to receive the same, sent the same by money order which was also refused. It is important to remember this. The defence is a traverse of the plaintiffs' case. It has been contended on behalf of the defendant that the mortgages, not being set out in writing cannot be treated as such because the same would be hit by the provisions of section 58(c) of the Transfer of Property Act. Defendant has claimed that each of the transac tions was out and out a sale and that a mortgage by conditional sale is required to be incorporated in the written document concerned. It has been further urged that the suits have abated because one of the' co‑plaintiffs, namely, the transferee of a portion of the mortgaged properties, died during the pendency of the, suits, his heirs not having been substituted in these proceed ings. It was again contended that the stipulated amount was tendered by the aforesaid transferee and not by the plaintiffs themselves. On this ground it was strenuously urged that there was no valid tender of the selami money which would give the plaintiffs the right, to bring a suit for redemption. It was moreover contended that in any event, a suit for specific performance was ‑ incompetent under the circumstances of the case. These suits, thereafter, embarked upon a chequered career. They were originally decreed by the trial Court and those decrees were affirmed by the appellate‑court below. On second appeal, this Court remanded back the cases to the appellate-- Court below for a re‑hearing of the appeals on legal points which were not mooted in the Courts below. The appellate Court below, on its turn, sent them back to the trial Court directing it to give a decision on all the points indicated above. On remand, the trial Court has held that the transactions, as, stated above, amounted to usufructuary mortgages and were, therefore, outside the mischief of section 58 (c) of the Transfer of Property Act. It was also held that inasmuch as the stipulated amount of money was tendered by the transferee in respect of a part of the mortgaged property, plaintiffs were entitled to enforce the agreement to recovery the land to the plaintiffs. On the point that the heirs of one of the co‑plaintiffs, 'Who was only a transferee of a fraction of the mortgaged property and had died during the subsistence of the suit, not being brought on record, the suits have abated in toto, the trial Court held that although the provisions of Order XXXIV, rule 1, of the Code of Civil Procedure would apply to these suits, they would not be incompetent because of the provisions of Order I, rule 9, of the said Code. The trial Court, however, held that the plaintiffs would be entitled to redeem the mortgaged property to the extent to their shares and on their making proportionate payments accordingly. On appeal the judgment and decrees passed by the trial Court were reversed. Hence these appeals. At the hearing of these appeals I was taken through the judgment passed by this Court as well as those passed by the Courts below. It seems to me that these cases raise questions of law which arc of some importance. In the first place, Mr. Syed Amjad Hossain, who has appeared on behalf of the defendant‑respondent, has contended that the aforesaid transactions do not disclose mortgages. I have examined the pattas as well as the Ekrarnamas, which have been translated into English by Mr. T. Ali, who has appeared for the appellants. It would be seen that the relevant Ekrarnamas describe the documents to be "An agreement made to redeem the lands by payment of the amount of Selami within the month of Chaitra in the coming year of 1347." Furthermore, towards the end there is the following recital: "You shall have the right to khas possession of the land on submission of the agreement to any Court if the same is not redeemed. If the land is not released on repayment of the amount of Salami from day till night of 30th Chaitra of the said year of 1347 then this agreement shall stand rescinded from 1st Baisakh of 1348 and the title of the said Patta shall remain in force and effective. And any objection raised by you or any of your successors‑in‑interest shall be refused. Be it mentioned that within the stipulated period at the end of any harvest of any year, i.e. I shall be bound to take the amount of Selami if paid back within 30th Falgoon otherwise I shall not be bound to take the amount". Construing the two documents together, there can be no manner of doubt that the aforesaid amount, which represented the Selami concerned, was nothing but a mere loan. Furthermore, it is patent that it was clearly the intention of the parties that in lieu of interests the usufructs of the mortgaged properties would be enjoyed by the transferees. Thirdly, there can be no manner of doubt that there was a stipulation for the return of the mortgaged properties on payment of the moneys representing the Selamis. The parties have expressed themselves in a manner, which leaves no room for any doubt that the transactions were mortgages and that those mortgages were usufructuary mortgages. Having found that the aforesaid mortgages were usufructuary mortgages I turn to the provisions of section 58 (c) of the Transfer of Property Act, which runs thus "(c) Where the mortgagor ostensibly sells the mortgaged property‑ on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale." It is, therefore, patent that the aforesaid provision of section 58 (c) does not apply, to the aforesaid transactions, which represent usufructuary mortgages. Section 58 (c) applies only to a mortgage by conditional sale and to transactions of the like nature. In the first place it would be like that the transference from the plaintiffs to the defendant was not by way of a sale. Mr. Syed Amjad Hossain has contended that it is a peculiar kind of lease under the Bengal Tenancy Act which has substantially the qualities of a sale and, therefore, it should be treated as a sale. It is true that the kind of lease which has beers created, carries peculiar incidents which are more akin to a sale. But, one cannot get rid of the fact that the transaction was a lease and nothing but a lease. There was no pretence to transfer ownership, which is an essential ingredient of a sale. Then again, it is further patent that the terms of section 58 (c) of the Transfer of Property Act apply only to a mortgage by conditional sale or a 4 mortgage of a similar nature and not to a sale or to a mortgage of any other kind, namely, a usufructuary mortgage. I hold that the aforesaid mortgages are not hit by the provisions of section 58 (c) of the Transfer of Property Act. It was next contended by Mr. Syed Amjad Hossain that in the light of the facts and circumstances stated above the mortgagors, that is, the plaintiffs, could not legally transfer the mortgaged properties or portion thereof without the leave and permission of the mortgagee, i.e., the defendant. This is correct and, probably, in a properly founded contest the aforesaid transference of a portion of the mortgaged properties to one of the co‑plaintiffs, that is Heramba, might have been found to b illegal. But such transference was voidable and not void ab initio. The legal consequence would be that as long as the transaction is not avoided it would be treated as a valid transaction for various purposes. The learned Advocate for the respondent has argued that in order to redeem a mortgaged property the amount of loan (in these cases the moneys represent ing the Selamis) must be either paid back or tendered by the mortgagors and that without such payment or such tender a suit for redemption or specific performance would be incompetent. This is true; but, in these cases the amounts were, in fact, tendered. Mr. Syed Amjad Hossain has argued that Heramba's transference not being legal he could not claim to have tendered the said amount. Such tender by him would not amount to a tender in the eye of law. Is this correct? Under the circumstances stated above, Heramba had, in fact; a right to redeem the property as long as the transference made; to him subsisted without being legally set aside. In any event there can be no manner of doubt that as long as the transference; of a part of the property mortgaged to him stood unavoided, he is "interested in the equity of redemption". The position, therefore, is that a person interested in the equity of redemption tendered the Selamis within the stipulated period of time and, on refusal by the defendant to accept the same, they were sent by money orders, which again were refused by the latter. In the context there has been a valid tender so as to give rise to a right to institute a suit for redemption by the plaintiffs. I do not think any authority is needed for this proposition, I may, however, cite the case of Pearce v. Morris (1869 5 C A 227). Lord Hatherley, L. C., delivering the judgment of the Court of Appeal, has observed in that case as follows‑ "Any person interested in the equity of redemption is entitled to redeem, and when, being so entitled, he tenders the mortgage money and interest, he, having a part in the equity of redemption, is entitled to the delivery of the title deeds, and to have a conveyance of the property. It is, furthermore, a well‑settled proposition of law that if the mortgage debt is paid, or a tender thereof is made, by any person interested in the equity of redemption, a mortgage suit can be instituted by any other person who has a right to the equity of redemption. There can be no manner of doubt that plaintiffs have a right to .the equity of redemption. When the mortgage amounts, namely, the Selamis, were tendered by Heramba it must also be held that the plaintiffs were entitled to maintain suits for redemption of the mortgaged properties and also to ask for specific performance of an agreement to reconvey the suit lands. It was next argued that the suits had abated in their entirety. This argument is based on the thesis that a transferee of a fraction of the mortgaged property, joined as a co‑plaintiff in the original mortgage suits, having died during the pendency of the suits, they (the suits) have abated, his heirs not having been substituted in his place. Reference was made to the provisions of Order XXXIV, rule 1, of the Code of Civil Procedure, which reads thus: "(1) Subject to the provisions of this Code, all persons having an interest either in the mortgage‑security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. "Explanation.‑A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit 'to redeem a subsequent mortgage." It was urged that as Heramba, who had a right to the equity of redemption, had died and his heirs were not joined in the suits, the suits were not maintainable in accordance with the terms of Order XXXIV, rule 1, quoted above. The answer to this is Order 1, rule 9, of the Code, which runs thus: "(9) No suit shall be defeated by reason of the mis-joinder or non joinder of parties, and the Court may in event suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." It is, therefore, clear that a suit would not necessarily be incompetent because of non joinder or mis-joinder of parties. The next question is, whether the terms of Order I, rule 9, of the Code would be available in face of the provisions of Order XXXIV, rule 1, thereof. To my mind, the answer seems to be clear. Order XXXIV, rule 1, of the Code expressly concedes l that it would apply subject to other provisions of the Code to which category undoubtedly Order I, rule 9, falls. This is also the view taken by a Division Bench of this Court in the case of Yadali' v. Benoy Kumar (54 C W N 2 D R 280). In the judgment delivered by Ahmad, J., there is the following observation (p. 283): "Even in the case of a mortgage suit it has been held in a number of cases that in view of the provisions of Order I, rule 9, of the Code, non‑compliance with Order XXXIV, rule 1 is not fatal to a mortgage suit. This is the general principle of law." In the case of Mst. Waleyatunnissa Begum v. Mst. Chalakhi (A I R 1931 Pat. 164) the decision was to the same effect. Another Division Bench of the Patna High Court in the case of Muhammad Yunus v. Champamani Bibi (A I R 1939 Pat. 49) has observed thus p. (51) " ..The general rule is that all persons having the equity of redemption ought to be brought on the record, the failure to bring any one of them on the record does not necessitate the dismissal of the suit if the Court in his absence can deal with the matters in controversy so far as regards the rights and interests of the parties actually before it " Apart from the aforesaid decisions; it would be seen that section 60 of the Transfer of Property Act does not require that all persons who have a right to the equity of redemption must be joined in a suit. But, such is the requirement of Order XXXIV rule 1, of the Code of Civil Procedure. I have already stated that Order I, rule 9, of the Code applies, in terms, even to a mortgage suit and prevails against Order XXXIV, rule 1, of the, Code. The most pertinent question is: Can the matters in controversy as between the parties to the suit be decided in the absence of the party who has not been impleaded? For such an enquiry the facts of each case should be viewed as a whole. In this case the suits were instituted by the original mortgagors against the original mortgagee, namely, the defendant. The original mortgagors also impleaded their transferee of a fraction of the mortgaged property as a co‑plaintiff, the transfer having been made by the plaintiffs themselves. The transference is by virtue of a contract which is confined to the mortgagors and the subsequent transferee. The defendant was not privy to the contract. If a decree is given in favour of the plaintiffs, the mortgaged property would stand transferred to the plaintiffs. Can it be said that Heramba or his heir or heirs, who had not been substituted have any further remedy against the defendant after a decree is passed in the suit? Clearly, the heir or heirs of Heramba have no right against the defendant for the simple reason that there is no privity of contract between the parties. So far as the plaintiffs are concerned, the decree obtained by them will not operate against a party who was not impleaded in the suit. It is not necessary for me to answer the question as to whether the heir or heirs of Heramba would have any remedy against the plaintiffs in the event of the latter obtaining the present decree. I have, therefore, no hesitation to hold that the suits are maintainable by the plaintiffs even in the absence of Heramba because of the provisions of Order I, rule 9, of the Code of Civil Procedure. Mr. Syed Amjad Hossain has contended that Heramba is a necessary party in these suits. I am not sure that he is so. The better view seems to be that, in the context of the facts and circumstances of the case, Heramba could, at best, be described as a proper party, and not a necessary party, because, as I have already held, the plaintiffs, even without him, could have maintained the suits against the defendant, who had no privity of contract between him and the said Heramba. I do not, however, finally decide this question as it is unnecessary to do so. I would take leave of this case by referring to the case of Balkishen Das v. W. F. Legge (I L R 22 All.149), which is a decision of the Judicial Committee of the Privy Council. This case lays down a well‑settled principle that a written contract cannot be varied by parole evidence. It is difficult to see how this case is relevant. Nobody has sought to vary the contents either of the Pattas or of the Ekrarnamas by parole evidence. All that is sought to be done is to give parole evidence in order to connect the two documents and to explain the nexus between them. The afore said principle has no manner of application to the facts of these cases. I may, in passing, observe that for reasons that I have stated above, plaintiffs are entitled to decrees for specific performance of the contracts. Since, however, I uphold the decrees for redemp tion of the suit‑properties, it is unnecessary for me to do so. I modify the decrees that have been passed in the following terms: Mr. Syed Amjad Hossain has rightly contended that the mortgages constitute an indivisible commitment. Therefore, there can be no redemption of a portion of the mortgage by propor tionate payment. Plaintiffs are entitled to redeem the whole of the mortgaged properties by payment of the entire Selami moneys to the defendant No.

1. The appeals are, therefore, allowed and the judgment and decrees passed by the appellate‑Court below are set aside and those of the trial Court are restored with this modification that the plaintiffs in each suit are entitled to redeem the whole of the mortgaged properties by repayment of the Selami moneys to defendant No.

1. I make no order as to costs of these appeals. Leave to appeal prayed for under clause 15 of the Letters Patent is refused. K.B.A. Appeal accepted.