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Sheo Prasad Singh Vs. Ram Khelawan Singh and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1937All653
AppellantSheo Prasad Singh
RespondentRam Khelawan Singh and ors.
Excerpt:
.....air1925all421 in which it was laid down that where the plaintiff had 60 years from the time of the mortgage to redeem the property by tendering the mortgage money, and where long before the expiry of that period it turned out that the defendants were denying the title of the mortgagor and were casting a cloud on his title and there was a danger that by lapse of time reliable evidence might disappear, it was open to the plaintiff to bring a suit for a mere declaration even though he was not prepared to pay the mortgage money at that time. , a decree for sale in pursuance of his mortgage, and as he had omitted to claim a decree for sale the suit failed. in my judgment i am not allowed to have such doubts because these oases are clearly binding upon me and i cannot give any weight to the..........should have been dismissed. in lekhraj v. abdul ghafur khan (1894) a.w.n. 205 it was held that a suit by a mortgagee for a declaration that he was entitled to recover a sum by enforcement of a mortgage was not sustainable by reason of section 42, specific relief act. it was held that if the plain, tiff was entitled to the declaration asked for, he was also in a position to claim further relief, viz., a decree for sale in pursuance of his mortgage, and as he had omitted to claim a decree for sale the suit failed. it is to be observed that edge, c.j., who was a party to this decision, was also a party to the ease in nathu singh v. gumani singh (1896) 18 all. 320 to which i have referred, where it was expressly held that a mortgagor could bring a suit for a declaration only, though he.....
Judgment:

Harries, J.

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 3rd 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 3rd 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 14th 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.

4. There is however a proviso to this section which is in the following terms:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

5. It is contended on behalf of the appellant that the plaintiffs-respondents were in this case in a position to seek further relief than a mere declaration and had omitted to do so. According to the appellant the plaintiffs should have asked not only for a declaration that they were entitled to redeem but should have asked for redemption of the mortgaged property. On the other hand it is contended by the plaintiff-respondents that they were not bound to ask for redemption because the law gave them a period of 60 years from the date of the mortgage in which to redeem and only about 26 years had passed since the mortgage had been executed. The particular point before me has been before the Courts of India on many occasions and in my view I am bound, by authority of this Court to hold that the plaintiffs-respondents were entitled to bring a suit for a declaration simpliciter. In Bujhawan v. Nanhan (1882) A.W.N. 73 a Bench of this Court held that in a case where the mortgagees were denying the mortgagor's title, the mortgagor was entitled to bring proceedings claiming a declaration that the defendants were in possession of the land as mortgagees. In that case it was open to the plaintiff to ask for redemption but that he did not do, yet this Court held that a suit for a declaration only was maintainable and was rightly decreed. This case was followed in another Bench case in Ram Charan v. Gumani Singh (1896) 18 All. 320. In that case also the Court gave mortgagors a declaration though they could have also claimed redemption of the property.

6. In Nathu Singh v. Gumani Singh (1896) 18 All. 320 a Bench of this Court again gave plaintiffs a declaration of their rights as mortgagors in a case where they could have claimed redemption but had not done so. The last Bench case of this Court is the case in Gajadhar Singh v. Hari Singh : AIR1925All421 in which it was laid down that where the plaintiff had 60 years from the time of the mortgage to redeem the property by tendering the mortgage money, and where long before the expiry of that period it turned out that the defendants were denying the title of the mortgagor and were casting a cloud on his title and there was a danger that by lapse of time reliable evidence might disappear, it was open to the plaintiff to bring a suit for a mere declaration even though he was not prepared to pay the mortgage money at that time. In this case the case of Nathu Singh v. Gumani Singh Nathu Singh v. Gumani Singh (1896) 18 All. 320, to which I have referred was expressly approved of and followed.

7. On the other hand, oases have beery cited to me by counsel for the, appellant in which it has been held that in circumstances similar to the present a claim for a declaration simpliciter should have been dismissed. In Lekhraj v. Abdul Ghafur Khan (1894) A.W.N. 205 it was held that a suit by a mortgagee for a declaration that he was entitled to recover a sum by enforcement of a mortgage was not sustainable by reason of Section 42, Specific Relief Act. It was held that if the plain, tiff was entitled to the declaration asked for, he was also in a position to claim further relief, viz., a decree for sale in pursuance of his mortgage, and as he had omitted to claim a decree for sale the suit failed. It is to be observed that Edge, C.J., who was a party to this decision, was also a party to the ease in Nathu Singh v. Gumani Singh (1896) 18 All. 320 to which I have referred, where it was expressly held that a mortgagor could bring a suit for a declaration only, though he could also have brought proceedings for redemption of the mortgage. In my judgment the case of Lekhraj v. Abdul Ghafur Khan (1894) A.W.N. 205 can be distinguished from the oases to which I have referred on the broad ground that it is not a case of a claim by a mortgagor at all. There is, it is argued, little difference in principle between the two oases, but I am bound to follow the decisions of this Court and to hold that there is a difference between the position of a mortgagor and a mortgagee particularly when I find that that difference had been recognized by the then Chief Justice who decided both the oases in Nathu Singh v. Gumani Singh (1896) 18 All. 320 and Lekhraj v. Abdul Ghafur Khan (1894) A.W.N. 205.

8. In Zorawar Singh v. Dip Chand A.I.R. 1929 Pat. 104 Dalai, J. sitting alone appeared to have some doubts concerning the correctness of the earlier decisions of this Court. In my judgment I am not allowed to have such doubts because these oases are clearly binding upon me and I cannot give any weight to the criticisms of those judgments by Dalai, J. The case which he was called upon to decide was different from the present one and the actual decision in that case does not really affect the present case at all. The case in Hazari Lal v. Ambika Gir A.I.R. 1924 Pat 104 is a case directly in favour of the present appellant, but having regard to the cases of this Court I am unable to follow this Patna decision. In my judgment, there is a clear conflict between the authorities of this Court and the case of the Patna Court and that being so, the view taken in this Court must bind me. In Abdul Rahman v. Crisp Co. A.I.R. 1928 Rang. 134 the view of the Patna Court was followed, and the view of this Court expressed in Gajadhar Singh v. Hari Singh : AIR1925All421 was dissented from. Again all I need say is that I am bound by the decisions of this Court and therefore cannot follow this Rangoon decision.

9. In the case before me the title of the mortgagor was in my view clearly denied. The defendants so far from admitting that the plaintiffs were the next reversioners of Harnandan, deceased, claimed to be such reversioners themselves and thus claimed to be both mortgagees and mortgagors. That was a clear denial of the plaintiffs' right to redeem this mortgage and such denial was made when the plaintiffs still had some 34 years or so to redeem the mortgage. Had they not brought this suit for a declaration, difficulties of proof might have arisen later. To succeed they were bound to show that; they were the next reversioners of Harnandan deceased and there can be no question that they were in a very much better position to show that immediately on the death of Mt. Manki than 20 or 30 years later. In my view this case is completely covered by the reasoning in the judgment of Sulaiman J. in Gajadhar Singh v. Hari Singh : AIR1925All421 . For the reasons which I have given I hold that the plaintiffs were entitled to bring this suit for a declaration merely, and therefore the decree of the lower appellate Court must be affirmed. The, result therefore is that this appeal is dismissed with costs. There is considerable conflict of authority upon this question and I therefore give leave to appeals under the Letters Patent.


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