1. This appeal arises under the following circumstances. One Har Dayal was the owner of the property in suit in this case and he was separate from his brothers Har Gyan and Baldeo, in estate. Har Dayal died about 40 years ago leaving a widow Musammat Samai Kuar who succeeded him to the estate. Samai Kuar, died in May 1909 and Bhagwani Kuar, the daughter of Har Dayal, claims the property in suit as part of her father's estate. Her case is that on the death of her mother succession opened out to her and she is entitled to the property. It appears that soon after the death of Har Dayal, Samai Kuar entered into a marriage in the karoo form with Har Gyan. This was in the year 1872. The parties belong to the caste of Gujars among whom second marriage in the karoo form is permissible. The fact of the karao marriage is not disputed, but it is urged on behalf of the defendants that by the custom of the caste a widow entering into a karao form of marriage forfeits all interest in her former husband's estate and that, therefore, Samai Kuar forfeited her interest in this property on her marriage in 1872. The defence is that the plaintiff, therefore, is not entitled to claim, this property as the estate of Har Dayal and that the possession of Samai Kuar was adverse to the plaintiff. Her rights, if any, as the daughter of Har Dayal same to an end and she has no right of inheritance now in the property. The Court of first instance found that Samai Kuar, being in adverse possession for more than twelve years, acquired herself in her own right an interest in the property, that the said property was her stridhan to which Musanimat Bhagwani, as her daughter, was entitled to succeed and on that ground has decreed the claim of the lady. The first defendant, Pershadi, is the son of Har Gyan by Musammat Samai Kuar. On her death he took possession of the property. The plaintiff, therefore, sued for possession of the property against Har Gyan. It further appears that on February 4th, 1895, Pershadi and Samai Kuar executed a deed of simple mortgage in favour of the other defendants. Under this deed, Pershadi has mortgaged the property inherited by her from Har Gyan and Samai Kuar the property which she at one time inherited from her former husband and over which she had acquired ownership by reason of adverse possession. These other defendants brought a suit on the simple mortgage of February 4th, 1895, for the sale of the mortgaged property. They made Musammat Bhagwani Kuar also a defendant to that suit. Bhagwani Kuar in her defence urged that the mortgagor, Samai Kuar, had no power to mortgage the property now in suit and that the mortgage was not binding upon her. She set up in that suit her claim to the property as the daughter of Har Dayal. On Bhagwani Kuar's setting up a title adverse to that of the mortgagor, the plaintiffs in that suit applied to have her name struck, off from the array of defendants and the Court made the order asked for by the plaintiffs. The suit was heard by the Court and on March 7th, 1911, the Court made a decree for the sale of the property mortgaged. That decree is under execution now, though the property has not yet been sold. The plaintiff's suit as against these other defendants is to obtain a declaration that the proceedings in that suit which culminated in a decree on March 7th, 1911, are not binding on her and do not affect her rights. The plaint as originally framed was not clear at all as to the relief claimed as against the mortgagee defendants. But on the day when the issues were settled the Pleadars for the parties made statements which made it quite clear what the plaintiff's claim as against them was. I may note here that the defendants in that case pointed out that they were mortgagees in possession under a possessory mortgage of the same day viz., February 4th, 1895. The plaintiff stated that she was unaware of that mortgage. They had claimed no relief in respect thereof in the suit and the defendants' claim to hold possession under the usufructuary mortgage was kept out of the purview of the plaintiff's suit, and the Court below has made no adjudication upon it. The claim has ben limited simply to the claim to avoid the decree and the proceedings in the suit which ended in the decree of March 7th, 1911. Nothing that has been decided by the Court below will affect the defendants title, if any, under the said mortgage, and the plaintiff's claim for possession is limited to a claim for that relief against the first defendant. The whole controversy in this appeal is with reference to the declaration granted by the Court below in respect of the said decree. The Court below having found that Samai Kuar was absolute owner of the property and that she held it as her stridhan, it naturally follows that she was competent to mortgage the property to the defendants-appellants by the document of February 4th, 1895. The plaintiff who succeeded to it as her daughter took it subject to that mortgage and on that finding the Court of first instance dismissed the suit as against the mortgagees. The plaintiff appealed against the said decree to the Court below. The only plea taken in appeal was in the following words:
2. Under the circumstances of the case the whole of the plaintiff's claim as against defendants Nos. 2, 3 and 10 for decree No. 813 of 1910, dated the 7th of March 1911, being held ineffectual ought to have been adjudicated upon and decreed. The decree aforesaid was not obtained within the prescribed time as against the plaintiff nor is it legally binding upon her. The lower Court has improperly left out some points in issue without adjudicating upon them'. It is noteworthy that the appeal raised no question as to the custom found by the Court of first instance, nor did it impugn the finding of that Court on the question that the property had become the stridhan of Samai Kuar. The only ground on which the appeal practically proceeded was that inasmuch as the plaintiff's name had been struck out of the array of defendants in the suit, of the mortgagees, no decree passed in that case was binding on her, nor could it affect her rights. The Court below on that ground alone decreed the plaintiff's claim. The mortgagees have appealed to this Court. It has been urged on their behalf by Mr. Kailash Nath Katjoo that in view of the defence set up by Musammat Bhagwani. in the mortgagees' suit and her disclaimer of any rights under.... Musammat Samai Kuar, she had no right now left in the property and reliance has been placed on the ruling of their Lordships of the Privy Council in the case of Nilakant Banerji v. Suresh Chandra Mullick 12 C. 414 (P.C.) : 12 I.A. 171 : 9 Ind. Jur. 439 : 4 Sar. P.C.J. 685. He has further urged that a person who sets up a title paramount to that of the mortgagor was not a necessary party to a suit for sale on the mortgage, and the Court in that case rightly struck out Bhagwani Kuar's name from the array of the defendants to that case. He has urged upon the strength of the findings of the Court of first instance that the only right left in Bhagwani Kuar under the mortgage was a right of redemption which under the ruling of the Privy Council she cannot now claim; the relief granted by the Court of Appeal was wrongly granted and the decree of the Court of first instance should have been affirmed. Mr. Sawhney, on behalf of the respondent, has urged that Bhagwani Kuar being no party to the decree of March 7th, 1911, any adjudication arrived at in that Court should not be binding upon her, that Musammat Samai Kuar also was not made a party to the suit by the mortgagees and any decree made in that case, therefore, for that reason also does not bind the present plaintiff. By way of explanation to that contention it was suggested on behalf of the appellants that Samai Kuar had died and that Musammat Bhagwani Kuar had been, made a party to the suit as already stated and the suit as framed was rightly instituted.: It was only on the disclaimer of Bhagwani Kuar of all rights under Samai Kuar that the mortgagees applied for her (Bhagwani Kuar's) name being struck off. It is a settled rule of law that a person who sets up a title paramount to the mortgagor is not a necessary party to a suit based on the mortgage and the same has been held to be the rule in a case reported as Jaggeswar Dutt v. Bhuban Mohan Mitra 33 C. 425 : 3 C.L.J. 205. So far, I think, this contention for the appellants, is well-founded. In her position as a person claiming paramount title the decree does not and could not contain any adjudication. But it does not follow that because such claimant under a paramount title is not a necessary party that she cannot set up and establish her paramount title in a properly framed suit. To that extent I think the contention of Mr. Sawhney is perfectly corset. Bhagwani Kuar could set up her paramount title as she did in this case. But the Court of first instance, found against. her on that point. Her claim to the estate of Har Dayal was held to be untenable. She had, therefore, no paramount title and the finding was not appealed against on that point. I must, therefore,, hold that upon the findings the claim to obtain a declaration that the decree was not binding upon her fails, and the Court of first instance in its decree rightly held that that title had not been establish-. ed and dismissed the claim.
3. There remains the further point, whether under her subsidiary or derivative title as heir of Samai Kuar the plaintiff is entitled to any relief. The only relief that she could claim on that footing was a relief for redemption. This has not been claimed in this suit nor has it been asked for even in this appeal. The question, therefore, whether she has a right of redemption is still left and does not arise. It is true that the Privy Council case relied upon very much supports the contention of the defendants-appellants. But there are two points of distinction between that case and this. In the first place in that case the Mullicks remained parties to the suit up to the last moment and there was an adjudication that they had a title paramount to that of the mortgagor and were, therefore, not necessary parties to the suit. The second distinction is that the property in that case was actually sold and purchased by the plaintiffs in that case and the Mullicks were seeking redemption after the sale had taken place. Whether the ruling in the Privy Council case rigidly applies to all cases or not, is still an open question and a Bench of the Calcutta High Court in Hare Krishna Bhowmik v. Robert Watson & Co. 8 C.W.N. 365 were inclined to take the other view. As, however, there is no claim for redemption in this case I need not adjudicate upon this. In my opinion, the plaintiff is not entitled to any declaration in this case, as to whether the decree of March 7th, 1911, is or is not binding upon her. In her capacity as heir of Samai Kuar, she cannot claim a declaration only when she can claim further relief by way of redemption. On that ground I decline to give her any decree for declaration as heir of Samai Kuar. This will leave the question of redemption open if she seeks it hereafter when she is so advised. For these reasons I dismiss the suit as against the defendants-appellants, so far as the plaintiff's paramount title is concerned, on the ground that she has not proved it, and so far as her title as heir of Samai Kuar is concerned, on the ground that as she could seek further relief other than a mere declaration she was not entitled to a mere declaration. I allow the appeal, set aside the decree of the Court below and affirm that of the Court of first instance upon grounds set forth by me. The appellants will have their costs in this appeal which will include Counsel's fee on the higher scale.