1. The finding of the lower Court on the issue remitted is that Musammat Jaini died on the 31st October 1897.
2. The present suit for redemption of the mortgage was brought on 17th November 1909, i.e., more than 12 years after the death of Musammat Jaini. It is, however, pointed out that the Civil Courts were closed on 31st October 1900 for the annual vacation and only reopened on 17th November 1909.
3. As we have pointed out, the suit as framed at present is bound to fail. The plaintiffs claim to treat the sale of 29th July 1879 by the widow as a nullity and to have the right to redeem the original mortgage. But, as found by the lower Court, that sale was for legal necessity at least to the extent of Rs. 3,977-11 out of Rs. 5,500. It is clear, therefore, that the plaintiffs cannot treat that sale as a nullity. The widow had full power to pay off the debts of her husband and to sell property for that purpose. The plaintiffs, therefore, ought to have sued not for redemption of the mortgage, but for avoidance of the sale on payment of so much as was received by the widow for legal necessity. As they did not do this, the Court of first instance dismissed the suit for redemption.
4. The lower Appellate Court, however, treated the suit as if it had been brought in proper form and was not one for redemption of a mortgage. The plaintiffs made no attempt to alter the frame of their suit in that Court or to amend their plaint though in their fifth ground of appeal they pleaded that they were entitled to get possession on payment of the consideration which it was necessary for them to pay. It will be remembered that they had pleaded that the sale by the widow was an entirs nullity as made for no legal necessity and that they had nowhere in their plaint offered to pay to the vendees any part of the consideration covered by legal necessity. They sought to redeem the mortgage and they did so probably because they thought that their suit would be barred by limitation unless it was brought in the shape of a suit to secure the redemption of a mortgage.
5. We are asked by the learned Advocate for the respondents to allow the plaintiffs to amend their plaint so as to alter the suit into one whereby the plaintiffs: seek to avoid the sale of 29th July 1879 on payment of Rs. 3,977-11, the amount found by the lower Court to be covered by legal necessity. We are not inclined to allow this alteration at this stage.
6. In the first place, this amendment would completely alter the nature of the suit, as it was first brought. In the next place, the suit is a stale one and the litigation appears to us to be a piece of speculation on the part of the plaintiff, Lala Brij Narain, who has purchased from Mathra Pershad the greater portion of his right. It appears to us to be a mere traffic in litigation.
7. We, therefore, do not see our way to allowing an amendment which would completely alter the nature of the suit, at this late stage of the litigation The suit as framed must fail. There is no mortgage to redeem.
8. We, therefore, allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance. The appellants will have their costs in all Courts, which in this Court will include fees on the higher scale.