1. The suit out of which this appeal has arisen embraces two shares--a two pies share and a three pies share. We are concerned only with the two pies share in this appeal. The history behind the two pies share is as follows: It was owned by one Ram Narain Singh. On his death, he was succeeded by Musammat Sukhrani. She made a usufructuary mortgage by conditional sale on the 13th of July, 1916, for a sum of nearly Rs. 200 in favour of Harpal Singh, the appellant before us. Two persons, the present respondent Ram Paltan Singh and another who were related to Ram Narain Singh as agnates, brought a suit to obtain a declaration that the mortgage of 1916 made by Musammat Sukhrani was not for legal necessity and was not binding on the reversioners for the time being. In the relief, he wever, it appears, they said that the deed would not be binding on the plaintiffs. The result of the suit was that the learned Munsif before whom the case was, found that the mortgage was supported by legal necessity. There being no dispute that the present respondent and the other man who was the co-plaintiff with Ram Paltan were related to Ram Narain as alleged, and there being no dispute as to their being presumptive reversioners to the estate, the learned Munsif made a decree in the following terms:
I herewith declare that the plaintiffs will succeed to the property in dispute after the death of Musammat Sukhrani and that the mortgage-deed registered on 13th July, 1916, is binding on them, for it was executed for legal necessity.
2. After the suit was decided, Harpal, after the expiry of the term of mortgage, brought a suit for foreclosure against Musammat Sukhrani, Musammat Sukhrani confessed judgment and a preliminary decree for foreclosure was passed. Then came a final decree in favour of Harpal and Harapal was put in possession of the property. Musammat Sukhrani died and thereupon one of the two plaintiffs of the suit of lal4, Ram Paltan Singh, with another person to whom Ram Paltan assigned a part of the property in suit, brought the suit out of which the present proceedings have arisen for redemption of the two pies share against Harpal Singh. Harpal Singh's case was that the mortgage did not any longer exist, it having been foreclosed and there could be no decree for redemption.
3. The suit failed in the Court of the Munsif and the Subordinate Judge on appeal, but it succeeded in second appeal. A learned Single Judge of this Court held that the respondent Ram Paltan's right to the property had been declared by the suit of 1917 and, therefore, Ram Paltan was in a position to redeem the property.
4. It has been contended on behalf of Harpal that the learned Judge omitted to pay proper regard to the fact that before Sukhrani died and before Ram Paltan could succeed to Sukhrani, the property had ceased to be the property of Ram Narain Singh, inasmuch as Harpal had instituted a suit for foreclosure and had foreclosed the right to redeem the property.
5. In our opinion, this contention is sound and must be given effect to Musammat Sukhrani represented the entire estate when the suit for foreclosure was instituted. The decree of 1917 did not give Ram Paltan or to his co-plaintiff any present right to the property. Therefore, Ram Paltan and the other person were not necessary parties to the suit of Harpal Singh. Sukhrani, it has been found, confessed judgment he nestly and there was no collusion between her and Harpal. That being the case, on the foreclosure decree being made final, the entire interest of Ram Narain passed to Harpal. There remained nothing to succeed to and, therefore, the plaintiff has succeeded to nothing.
6. The result is that the appeal succeeds. We set aside the judgment of the learned Single Judge of this Court and restore the decree of the lower Appellate Court.
7. The appellant will have his costs of both the hearings in this Court.