Lallubhai Shah, Acting C.J.
1. The property in suit originally belonged to one Subrao. He mortgaged it to one Balwantrao in January 1898. Subrao died in January 1899. In March 1899, his eldest son Appaya sold the equity of redemption in five out of six lands to Govind Ganesh, and Govind conveyed his interest to Hanmant on May 26, 1908. In July 1908, Hanmant sold his interest in these lands to the father of defendants Nos. 1 and 2. In 1916, Appaya sold the equity of redemption to defendant No. 5 in the remaining land.
2. The plaintiff, who is the younger brother of Appaya, filed the present suit in August 1918 for the redemption of the mortgage in favour of Balwant by Subrao, alleging that Appaya was a minor when he conveyed his interest in the lands to Govind in March 1899; that he himself attained majority within three years prior to the date of the suit, and that he was entitled to redeem. It appears that the mortgage in favour of Balwant was redeemed by the father of defendants Nos. 1 and 2 in 1908, and the present suit was filed against defendants Nos. 1 and 2 who claimed to have purchased the equity of redemption in respect of the five lands, and against defendant No. 5, who purchased the equity of redemotion in respect of the remaining land from Appaya. The issues were not clearly framed, and only the following two issues were dealt with by the trial Court:-(1) What is the age of the plaintiff? and (2) Is the suit bad because it does not contain a prayer for setting aside the sale-deeds It was found that the claim was barred because the plaintiff attained majority more than three years before the date of the suit, and that as there was no prayer to set aside the sale-deed, the suit was bad.
3. The plaintiff appealed to the District Court which found that in fact Appaya was a minor at the date of the conveyance in favour of Govind, i.e., on March 7, 1899, that the sale in favour of Govind was void, and that it did not require to be set aside. The learned Judge, therefore, came to the conclusion that the suit required to be dealt with on the merits as regards the lands in respect of which the equity of redemption was conveyed to Govind, But as regards the land conveyed to defendant No. 5, the learned Judge was of opinion that even though the suit was within time, as there was no prayer to set aside the sale, the plaintiff's suit ought to be dismissed. This is rather an anomalous result; because it means that though the plaintiff may claim redemption of the whole mortgage as against defendants NOS. 1 and 2, and get back the mortgaged lands in their possession the equity of redemption in a part of the mortgage property conveyed to defendant No. 5 would remain outstanding. The learned Judge dismissed the suit as regards defendant No. 5 and remanded it as regards the other defendants for disposal on the merits.
4. The plaintiff has not appealed against the dismissal of the suit as regards defendant No. 5. But the present appeal is preferred by defendants Nos. 1 and 2 from the order of remand. It is urged by Mr. Nilkant, on behalf of the appellants, that the finding as to the age of Appaya should not be accepted in this appeal. Further, it is contended that even if Appaya was a minor, the plaintiff's claim is time-barred, because defendants Nos. 1 and 2 have acquired a title to the equity of redemption by adverse possession during the interval from 1899 to the date of the suit.
5. It is urged by way of reply that though no issue was raised as to the age of Appaya in the trial Court expressly, the fact was in controversy between the parties, that evidence was adduced by them on the point, that the omission to frame an express issue on the point has not prejudiced the parties in any Way, and that it is really a question of fact as to whether he was a minor at the date or not, It is also urged that the point as to adverse possession of the equity of redemption was not raised in either of the Courts below, and that even if the adverse possession commenced in 1899 it would not avail the appellants, us the learned Judge has found that the plaintiff has filed the present suit within three years from the date of his attaining majority.
6. As regards the first point as to the finding regarding the age of Appaya, it seems to us that it must be accepted as a finding of fact under the circumstances of this case. It is quite possible that this fact, which was undoubtedly in dispute between the parties, was thought to have been sufficiently' covered by issue No. 1 which was as follows;-'Do defendants Nos. 1, 2 and 5 prove the sale-deeds relied on by them, and are they binding against the plaintiff?' It also appears from the evidence referred to in the course of the argument that evidence was adduced on the point. We do not think that having regard to all the circumstances there is sufficient reason to allow the contention of the appellants that a fresh opportunity should be given to the defendants to adduce evidence on the point simply because an express issue was not raised. If that fact is accepted, as it seems to us it must be accepted as found by the lower appellate Court, viz., that Appaya was a minor at the date of the conveyance by him in favour of Govind, it is decisive of the present appeal.
7. The second point which has been raised by Mr. Nilkant does not appear to us to be a point of any substance. In the first place, it does not appear to have been suggested in the lower appellate Court, and rightly, because it could not be of any practical use to the present appellants, as the learned Judge found that the suit was filed within three years of the date of the plaintiff having attained majority. Apart from that, it would require a much stronger and clearer indication than we have in the present case of the adverse possession of such a right as the equity of redemption to justify the defendants' contention that they acquired a title to it by adverse possession. It is true that adverse possession of such a right as the equity of redemption is possible, and that in law a title to such a right can be acquired by adverse possession. But that does not mean that on the facts of the present case there is any clear case made out of such possession of an intangible right as would justify the contention that defendants Nos. 1 and 2 acquired that right by adverse possession. It is quite clear that before 1908 they did not get actual possession of the land in question. From 1898 to 1908 the possession was with the mortgagee, and there is nothing to show that defendants Nos. 1 and 2 or their predecessor-in-title had any kind of possession of the land. If the conveyance in favour of Govind was void, the title and such possession of the equity of redemption as was possible under the circumstances must be deemed to have continued to be with the rightful owner. The present appeal must, therefore, fail. We dismiss the appeal with costs.
8. At the same time we desire to make it clear that in the plaintiff's claim for the redemption of the mortgage, defendant No. 5 is interested as a part owner of the equity of redemption. Though the claim against him as regards the sale by Appaya has been dismissed by the lower appellate Court, it does not follow that his presence on the record as a person interested in the equity of redemption as regards one of the mortgaged lands is not necessary. It would be appropriate to keep him on the record as a party treating the question as to the sale-deed by Appaya as finally decided. The parties before us have not referred to this aspect of the question and defendant No 5 is not a party to the appeal. But we think it right to order that on remand he should be treated as a party to the suit as regards the claim for redemption.