SHEO PRASAD SINGH Vs. RAM KHELAWAN SINGH

JUDGEMENT

(1.) This is a defendant's appeal against concurrent decrees of the lower Courts passed in favour of the plaintiffs in a suit for a declaration. The plaintiffs brought this suit for a declaration that they were entitled to redeem a certain mortgage dated 3 September 1907, which had been executed by one Mt. Manki in favour of defendants 1 and 2 or their predecessors.

(2.) According to the plaintiffs, the last male holder of the property was one Harnandan who died and was succeeded by his widow Mt. Manki who took a Hindu widow's estate in the property. On 3 September 1907 she executed the mortgage to which I have referred which was a usufructuary mortgage which could be redeemed at any time within a period of 60 years. On 14 September 1929 Mt. Manki died and according to the plaintiffs they were entitled to the estate of Harnandan as being the next reversioners. The defend, ants who were the mortgagees denied that the plaintiffs were the next reversioners of the estate of Harnandan deceased and claimed themselves to be the next reversioners. It is therefore obvious that the plaintiffs right to redeem the mortgage executed by Mt. Manki was denied by the mortgagees because they alleged that the plaintiffs were not interested in any way in the mortgage and consequently could not possibly have a right to redeem the same. In these circumstances the plaintiffs brought the present suit claiming a declaration that they were entitled to redeem the mortgage in question. It is to be observed that they did not claim to redeem the mortgage and the suit was not framed as a redemption suit.

(3.) The defendants raised two defences. In the first place they denied that the plaintiffs were the next reversioners of Harnandan deceased, but both the lower Courts have found against them upon this issue, and the finding that the plaintiffs were the next reversioners of Harnandan Prasad, deceased, is no longer challenged before me. In the second place, the defendants pleaded that this suit was barred by reason of Section 42, Specific Relief Act. Both the lower Courts held that the suit was not so barred and gave the plaintiffs the declaration asked for. In this second appeal the only point which has been urged on behalf of the appellant is that the lower Courts were wrong in holding that the suit was not barred by reason of Section 42, Specific Relief Act. Section 42, Specific Relief Act, is in these terms: Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.