RAM NATH Vs. CHOTAN

JUDGEMENT

(1.) THIS is a second appeal by some of the defendants in a suit for redemption of mortgage. The plaintiff-appellant Mst. Chotan filed the present suit in the court of the Civil Judge, Sawai Jaipur on the 8th of December, 1945. It was averred by her that her real brother Ram Dev had mortgaged one haveli and one nohra situated in the village Jhotwara with one Sri Narain who was the father of the defendant-appellants Ram Nath, Jagan Nath, Har Narain and Chhitar Mal for Rs. 1199/- on the 8th of December, 1915. It was claimed by her that she was the nearest heir to her brother, that she had requested the defendant-appellants to redeem the mortgage property, that she had offered to pay to them the mortgage money together with an equal amount for interest, totalling Rs. 2398/-, that they refused to accept the money and therefore, it was prayed that the said amount be given to the appellants and a decree for redemption be passed in her favour. Four other persons namely Kalyan Bux, Anandi Lal, Jodhraj and Sada Sukh were also impleaded by her as defendants No. 5 to 8 saying that they were collaterals of the deceased mortgagor and that although she did not want any decree against them, she had impleaded them as pro forma defendants so that the defendant-appellants may not be able to delay the case by setting up their title to the property. The appellants admitted the fact that Ram Dev had mortgaged the property sought to be redeemed by the plaintiff with their father for Rs. 1199/- on the 8th of December, 1915, but it was pleaded that it was only a simple mortgage, that the period of limitation for redemption terminated on the 8th of December, 1927 and that according to the plaintiff's own showing, the deceased mortgagor had left collaterals who were nearer heirs to him and, therefore, the plaintiff had no right to institute the suit. The remaining defendants did not file any written statement and the case proceeded against them ex-parte. The trial court dismissed all the objections raised by the appellants and decreed the suit against them as also against the defendants No. 5 to 8. The defendants No. 1 to 4 went in appeal to the District Judge, Sawai Jaipur and Gangapur, but they were unsuccessful and so, they have filed the present second appeal in this Court.

(2.) THE appellants' learned advocate contends that the courts below have committed an error in holding that the plaintiff-respondent was the nearest heir to the deceased mortgagor. It was pointed out that according to the plaint itself, the defendants No. 5 to 8 were collaterals of the deceased and were nearer heirs to him in her comparison. She claimed her inheritance on the basis of the Hindu Law of Inheritance (Amendment) Act, 1945. That law was passed in the former British India in the year, 1929, but it was passed in the former State of Jaipur in the year, 1945 as Act No. XXX of 1945 and that it came into force on the 15th of January, 1946 when it was published in the Jaipur Gazette of that date. THE deceased mortgagor Ram Dev died in the year, 1935 and his succession opened immediately after his death. It is urged that in the year, 1935, the plaintiff Mst. Chotan was, according to the Hindu Law then in force in the Jaipur State, not as heir to her brother that the property which was once divested in the real heirs at that time could not be divested because the Hindu Law of Inheritance (Amendment) Act, 1945 was not passed with retrospective effect, and thus the plaintiff had absolutely no right to bring the suit. According to the appellants' learned counsel, the courts below were wrong in giving retrospective effect to the Hindu Law of Inheritance (Amendment) Act No. XXX of 1945 of the former Jaipur State.