1. The suit which has given rise to this appeal was brought by the plaintiffs-appellants for the redemption of three mortgages of different dates and comprising some common and some separate properties. The first mortgage was effected by Sakaldip Singh and Ghazi Mal in favour of Naurang Singh and Ujagar Singh on the 10th of June, 1865, and the period fixed for redemption was 8 years. The second mortgage was effected byway of a zaripeshgi lease by Sakaldip Singh, Suba Karan Singh and Prayag Singh on the 19th of February, 1869, in favour of the same mortgagees for a period of 10 years. The third mortgage was made by Binda Singh in favour of the same mortgagees on the 31st of March, 1870,
2. On the 26th of July 1869, Sakaldip Singh and Prayag Singh sold their interests in the equity of redemption to Bhawani Din Singh, Thakur Prasad Singh and Dawan Sing and left a portion of the sale consideration for the satisfaction of the first two mortgages. Bhawani Din Singh was the uncle and Thakur Prasad Singh was the nephew of the mortgagees. Dawan Singh is said ho have been the brother of the wife of Ujagar Singh, and it is common ground that his name was fictitiously entered in the sale-dead. Whether the vendees paid the money left with them for the satisfaction of the prior mortgages to the prior mortgagees is not clear. On the 17th of June, 1872, Binda Singh sold his interest is the equity of redemption to Bhawani Din Singh and Thakur Prasad Singh and left a portion of the sale consideration for the payment of the third mortgage above referred to, but whether the vendees paid the money to the prior mortgagees is not clear.
3. The plaintiffs claimed to be the legal representatives of Thakur Prasad Singh and as such they sued for the redemption of half the properties sol 1 by the above deeds of sale alleging that the interest of Bhawani Din Singh, the owner of the other half of the equity of redemption had passed to Naurang Singh; the predecessor-in-title of the defendants Nos. 1 to 5 and that Naurang Singh and the defendants Nos. 1 to 5 had in their capacity as the owners of the other half of the equity of redemption got the mortgaged property redeemed from Ujagar Singh or his heirs to the extent of the interest of Ujagar Singh in the said mortgages. The suit was contested by the defendants Nos. 1 to 5 on various grounds. In order to understand the nature of their defence it will be necessary to refer to the pedigree appended to the judgment of the lower Appellate Court, showing that one Subansa Singh had two sons, Pheran Singh and Dayal Singh. Pheran Singh was the father of Naurang Singh and Ujagar Singh the mortgagees. Dayal Singh was the father of Bhawani Din Singh, one of the purchasers of the equity of redemption. Thakur Prasad Singh, the other purchaser was the son of Sarabjit Singh, a brother of Naurang Singh and Ujagar Singh. The defendants Non. 1 to 5 denied that the plaintiffs had any right to sue and pleaded that the name of Ujagar Singh was fictitiously entered in the mortgage deed, that he had never bean in possession of the mortgaged property and that the sale-deed in favour of Thakur Prasad Singh, Bhawani Din Singh and Dawan Singh was similarly fictitious. Their contention really was that Naurang Singh had taken the mortgages in question with his own funds and had got the name of his brother Ujagar Singh fictitiously entered in the deeds, that the real purchaser of the equity of redemption from the original owners was Naurang Singh himself and that neither Thakur Prasad Singh nor Dawan Singh nor Bhawani Din Singh had paid any portion of the consideration or obtained possession of any portion of the property in dispute. In other words they set up Naurang Singh's exclusive title as a mortgagee and then as a vendee and thereafter by reason of his adverse possession for a period of more than 12 years.
4. It is admitted in the written statement that there had been a separation in the family of the parties in the time of Pheran Singh and Dayal Singh and that the sons of Pheran Singh had also separated after the death of Pheran Singh, but it is nowhere asserted that the mortgages in question had been obtained by Naurang Singh and Ujagar Singh as members of a joint Hindu family or that the sales aforesaid had been obtained by Thakur Prasad Singh and Bhawani Din Singh for the benefit of the said family in satisfaction of the said mortgages.
5. The Court of first instance found that the defendants had failed to establish that the name of Ujagar Singh was entered fictitiously in the deeds of mortgage and that the names of Thakur Prasad Singh and Bawani Din Singh were fictitiously entered in the deeds of sale. It also found that every fact and document were consistent with the theory of the co-ownership of Thakur Prasad Singh and Naurang Singh after the disputed sales, and as an explanation for the exclusive possession of Naurang Singh it suggested that the mortgages and sales were taken for the benefit of the joint family comprising the two mortgagees and Thakur Prasad Singh, that the sales had thus the effect of extinguishing the mortgages and that by some arrangement Naurang Singh had become the exclusive possessor of the disputed properties. It then proceeded to find that Naurang Singh had been in adverse possession of the properties in question for more than 12 years prior to the suit and that the claim was barred by limitation.
6. The lower Appellate Court upheld those findings. It pointed out that an attempt was made in 1902 by Naurang Singh to set up his own exclusive title and seek the removal of the name of Thakur Prasad Singh from the revenue papers but without success. It also pointed out that on the death of Thakur Prasad Singh his son Baksha Singh, one of the plaintiffs to the present suit, applied for the entry of his name in place of Thakur Prasad Singh and. his application was opposed by Naurang Singh on the same ground and that though-the application of Baksha Singh was allowed the name of Naurang Singh continued throughout entered as that of the person in actual possession of the property. From, that fact the lower Appellate Court concluded that the exclusive title of Naurang; Singh and his heirs by adverse possession for more than 12 years had been established beyond dispute-In effect the Court below further hold that the mortgages in question had ceased to subsist and that no suit for redemption. was maintainable.
7. It is conceded that unless the mortgagee were paid or that soma other event had-happened to put an end to the equity of redemption a suit for redemption would be maintainable, if brought within 6O years from the data when the right to redeem accrues. The contesting defendants did not set up anywhere in the pleadings that the mortgages in question had been redeemed except in so far they alleged that Naurang Siugh was really the sole mortgagee and sole purchaser of the equity of redemption. The Courts. below however, found that the entire family owned the mortgages,: including the two mortgagees Naurang Singh and Ujagar Singh and that the entire family had purchased the equity of redemption. It is noticeable, however, that one of the mortgagors, namely Ghazi Mai, had not joined in the sales and his interest in the equity of redemption still remains unaffected. It is-further noticeable that neither party set up in its pleadings any thing suggesting that all the descendants of Pheran Singh, the father of Naurang Singh and Ujagar Singh were the owners of the mortgagee rights or had purchased the equity of redemption of the persons who had effected the sales. On the other hand one of the purchasers was Bhawani Din Singh, the-son of Dayal Singh, who was admitted in the written statement to have been separate from Pheran Singh. The effect of the purchases could not in the circumstances have been to extinguish the mortgages or to vest the rights of the mortgagors in the mortgages except to a limited extent. The Courts below have dismissed the claim of the plaintiffs on a ground which was not set up in the written statement, namely, that the mortgages and the purchases had been made by the joint family and the very basis on which the Courts below have proceeded cannot therefore be sustained.
8. A mortgagee is not in a position to deny the right of the mortgagors or their successors-in-interest to redeem the mortgage so long as the equity of redemption subsists, and as pointed out in Seshamma Shettati v. Chickaya Begade (1902) 25 Mad. 507, a person who lawfully comes into possession of land as a mortgagee cannot by setting up during the continuance of such relation any title adverse to that of the mortgagor inconsistent with the real legal relation between them, and that however notoriously and to the knowledge of the other party acquire, by the operation of the law of adverse possession a title as owner or any other title inconsistent with that under which he was let into possession. In Kunwar Sen v. Darbari Lal (1916) 38 All. 411 and in Khairaj Mal v. Daim (1905) 32 Cal. 296 the same rule was enforced.
9. It is not therefore open to Naurang Singh and his successors-in-interest to set up an adverse title so long as the right of the plaintiffs to redeem the mortgages subsists and is not barred by limitation. The orders passed in the mutation proceedings did not operate to extinguish the title of the plaintiffs. In fact the orders referred to upheld or allowed the entry of the names of Thakur Prasad Singh and his son Bikha Singh in the revenue papers and the possession of Naurang Singh which appears to have continued in spite of the entries of their names can only be attributed to the title which he possessed as a mortgagee, of the whole of the mortgaged properties till redemption was effected in due course of law.
10. The appeal in these circumstances must be allowed and the case remanded to the lower Appellate Court with a direction to reinstate the appeal to its original number and to dispose of it after deciding the other points involved in the case in the manner provided by the law. The costs here and hitherto will abide the result.
11. The cost in this Court will include fees on the higher scale.