SHEO PRASAD SINGH Vs. RAM KHELAWAN SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit in which the plaintiffs claimed a declaration that they were entitled to redeem a certain mortgage dated 3rd September 1907, which had been executed by one Mt. Manki in favour of defendant 1. Harnandan was the last male owner of the property in dispute. His widow on his death took a widow's estate in the property. She executed a mortgage on 3 September 1907. The mortgage was a usufructuary mortgage and the mortgagor was entitled to redeem within 60 years. Mt. Manki died on 14th September 1929. The plaintiffs claimed that they were entitled as the reversionary heirs to succeed to the property. The contesting defendant on the other hand claimed that he was the reversionary heir. In these circumstances the plaintiffs filed a suit out of which this appeal arises. The finding of the Court of first instance and of the lower Appellate Court is, that the plaintiffs are the reversionary heirs of Harnandan. The trial Court decreed the suit and granted a declaration in terms of the prayer of the plaint. The lower Appellate Court confirmed the decree. The learned Single Judge before whom the matter came in second appeal has upheld the decree of the lower Appellate Court.

(2.) The finding that the plaintiffs are the reversionary heirs of Harnandan cannot now be disputed. The defendant however contended in appeal that the suit is barred under the provisions of Section 42, Specific Belief Act, inasmuch as the plaintiffs have not claimed possession by redemption. It is true that the suit is one for a declaration of a right to redeem. The main dispute nevertheless has all along been as to who are the reversionary heirs of Harnandan. Learned counsel for the appellant contended that the plaintiffs are not entitled even to a declaration that they are the reversionary heirs if they do not include a claim for redemption of the mortgage of 3 September 1907. The law upon this matter so fat: as this Court is concerned is not in doubt. The learned Single Judge has inferred to a number of decisions which support the view that it is open to a party claiming to be a reversioner to maintain a unit for a declaration that he is a reversioner without including in the prayer of his plaint a claim to redeem. The cases referred to by the learned Single Judge are Bujhawan V/s. Nanhau (1882) A.W.N. 73, Ram Charan v. Durga Prasad (1884) A.W.N. 78, Muhammad Husen Ali Khan V/s. Dharam singh (1895) 18 All. 31 and Gajadhar Singh V/s. Hari Singh . These decisions establish the principle that it is open to a mortgagor to bring a suit for a declaration of his title to the property mortgaged, against mortgagees who are casting a cloud upon his title without offering at the same time to redeem the mortgage; in other words that it is open to the plaintiff in Bach circumstances to bring a suit for a declaration even though he is not able or willing to pay the amount due on the mortgage at the time of the filing of the suit.

(3.) Learned Counsel for the defendant-appellant, while conceding that the decisions above mentioned are against his contention that such a suit is barred, maintained that the sound view of the law on the point is to be found in the decision in Ram dour Rai V/s. Harnam Das (1917) 4 A.I.R. Pat. 62. The learned Single Judge who entertained the second appeal refers to this case and he observes that "it is directly in favour of the appellant." A consideration of the terms of 6he judgment in that case however discloses that the decision is an authority directly in favour of the respondents. In that case a usufructuary mortgagee of land had himself recorded as the tenant of the land covered by the mortgage. It was held that: In a suit by the mortgagor for a declaration that the defendant was not a tenant of the land, and for a declaration that the plaintiff was entitled to redeem the mortgage on repayment of the mortgage debt, the plaintiff was entitled to the first declaration prayed for, but not to the second.