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 3rd 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 3rd 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. Nanhau (1882) A.W.N. 73, Ram Charan v. Durga Prasad (1884) A.W.N. 78, Muhammad Husen Ali Khan v. Dharam singh (1895) 18 All. 31 and Gajadhar Singh v. Hari Singh : AIR1925All421 . 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. 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.
4. The decision was that it was not open to a mortgagor to ask for a declaration that he was entitled to redeem the mortgage without at the same time offering to redeem it, but as a mortgagor he was entitled to a declaration that the defendant was not the tenant of the land but merely a mortgagee. Chamier C.J. remarks in the course of his judgment that the claim for a declaration that the defendant was not a tenant of the land stood in an entirely different position from that of the claim for the declaration of the right of redemption. He observes:
Here the plaintiff is suing as proprietor of the land and, according to the only cases in which this particular question has been raised, he is entitled to a declaration that the defendant is not a tenant of the land although he, the plaintiff, may have been entitled, when he instituted the present suit, to sue for redemption of the mortgage.
5. The learned Chief Justice refers to the decisions of this Court namely, Bujhawan v. Nanhau (1882) A.W.N. 73 and Ram Charan v. Durga Prasad (1884) A.W.N. 78. He then proceeds:
The plaintiff's right to claim a declaration that the defendant is not his tenant does not arise out of the mortgage at all. Section 42, Specific Belief Act, does not lay down that a plaintiff seeking a declaration in respect of one matter is bound to claim every relief that he may be entitled to against the defendant in respect of other matters.
6. The learned Chief Justice specifically approves of the two decisions of the Allahabad Court above mentioned. Now, in the present case, despite the wording of the relief, the plaintiffs in substance claimed a declaration of their rights as reversionary heirs. They did not in effect really raise any question as to their rights in connexion with the mortgage though the prayer of the plaint which is somewhat unfortunately worded does suggest that they were claiming as mortgagors.
7. In our judgment it is plain that the plaintiffs are entitled to a declaration that they are the reversionary heirs of Harnandan, the last male owner of the property in dispute. It was not incumbent upon them to claim at the same time possession of the property inasmuch as the mortgagees were in possession under the usufructuary mortgage of 1907. A declaration that they are the heirs of Harnandan is at the present stage all sufficient. As heirs they will be in possession of the property through the mortgagees.
8. So far as the question of redemption is concerned, in our judgment a claim to redeem the mortgage is not in the circumstances of the present case a consequential relief. It is not a 'further relief' such as is contemplated by Section 42, Specific Relief Act. It is not in any way connected with their claim to be declared reversioners of Harnandan. In this connexion we would refer to the decision in Aisa Siddika v. Bidhu Sekhar Banerjee (1913) 17 C.L.J. 30. In that case, a Bench of the Calcutta High Court held that:
A Court will not throw out a suit on the ground that it is barred by the Proviso to Section 42, Specific Relief Act, unless it is satisfied beyond all doubt that the plaintiff ought to seek further relief and yet has claimed nothing beyond a declaration of title.
9. Their Lordships approve, in the course of their judgment, of the view that where it is necessary for a plaintiff in order to complete the right in respect of which he claims relief by a claim for a further relief, then it is his duty to include that further relief and a purely declaratory suit cannot be maintained, but that where, as in the present case, the right which the plaintiffs seek is completed by the mere declaration that they are reversioners, it is not necessary for them to claim any further relief in relation to a matter which though connected with the property in dispute does J not affect their rights as mere owners of the property.
10. We are satisfied however that the plaintiffs cannot be given a decree in terms of the prayer of their plaint. They are not entitled in our view, in the circumstances of this case, to a declaration that they are entitled to redeem the mortgage of 3rd September 1907. They have not offered to redeem the mortgage and therefore they are not entitled to this declaration. They are however entitled to a declaration in view of the findings of the trial Court and of the lower Appellate Court upon what was in fact made without objection by the defendant, the main issue in the case that they are reversionary heirs of Harnandan. We accordingly dismiss the appeal, but we modify the order of the learned Single Judge and of the Courts below, and grant n declaration to the plaintiffs that they are the reversionary heirs of Harnandan. The plaintiffs are entitled to their costs throughout.