1. This is a second appeal by certain defendants against whom the plaintiffs' claim for a declaration has been decreed by both the Courts below. The essential facts maybe stated as follows : Gyan Singh, father of the defendants, mortgaged with possession certain zemindari property to one Prem Masih on August the 20th, 1881. On November the 4th, 1886, Gyan Singh executed in favour of the same Prem Masih a deed of simple mortgage hypothecating the same property. This deed contained the usual covenant giving the mortgagee power of sale, but it also contained a special covenant to the effect that in no case would the mortgagor be entitled to redeem the usufructuary mortgage of August the 20th, 1881, without first paying off whatever was due from him under this later deed of 1888. On December 31st, 1894, the sons of Prem Masih executed a deed of sale by which they purported to transfer all their proprietary and mortgagee rights in certain zemindari, including that mortgaged to their father by Gyan Singh, to the father of the present plaintiffs. On the 31st of July 1910 the plaintiffs instituted the present suit. They said that the defendants were denying their right under the deed of November the 4th, 1886, and claimed to be entitled to a declaratcory decree, to the effect that this deed was binding on the defendants and that the defendants could not redeem the usufructuary mortgage of August the 20th, 1-81, without first paying whatever might be found due to the plaintiffs under the said deed of November the 4th, 18-6. There was an alternative prayer for a decree for sale under the simple mortgage of November the 4th, 1886 : but the plaint was not properly stamped, as it should have been in respect of the larger of two alternative reliefs sought. It was stamped only with reference to the prayer for a declaration. On this point there has been a certain amount of confusion in the Courts below.
2. The Court of first instance did not require the plaintiffs, as it should have done, to make up the defciency in Court-fees to the full amount which would have been due from them on the alternative prayer for sale, nor did it offer the plaintiffs the alternative between doing this and amending their plaint, by themselves striking out all reference to the alternative prayer for sale.
3. When the case came before the learned District Judge on appeal, he held that the plaintiffs should have been compelled to stamp their plaint properly in the first instance in accordance with its terms, and he gave them an opportunity of doing this. The plaint was then properly stamped. These considerations affect one only of the pleas now taken before me in second appeal. Both the Courts below have held that the plaintiffs were under the circumstances entitled to a declaratory decree. It is pleaded before me that on the facts stated, the suit for a simple declaration should not have been permitted to be brought under the terms of Section 42 of the Specific Relief Act (I of 1877). To this the plaintiffs have replied that they did seek in the alternative a decree for sale, and that they cannot be bound by the order of the first Court striking out that relief from their plaint more especially after the lower Appellate Court has compelled them to pay Court-fees on the plaint as originally drafted. I must say that the position thus arrived at is somewhat unsatisfactory, but it would be difficult for me, as the case now stands, to substitute a decree for sale for the decree passed by the lower Appellate Court, and it would certainly be inequitable under the circumstances to dismiss the plaintiffs' suit altogether, if the only valid point against them is that they were not entitled to sue for a simple declaration. On the whole 1 am not prepared to say that the-words of Section 42 of the Specific Relief Act would necessarily preclude the plaintiffs from suing for a simple declaration on the facts stated. I think it somewhat doubtful whether this is not the kind of case in which a declaration might not, as a matter of discretion, have been refused and the plaintiffs told either to press their claim for a decree for sale, or to be content to wait until a suit was brought for redemption of the usufructuary mortgage. As the case now stands before me in second appeal, I am not prepared to interfere with the discretion of the Courts below on this ground. I now pass on to consider the other points raised by this appeal.
4. It is said that the sale-deed of December the 31st, 1894, does not amount to a valid transfer in favour of the plaintiffs of the rights of the sons of Prem Masih under the simple mortgage of November 1886.
5. In so far as it is based upon any suggestion that the Courts below have misinterpreted the sal-deed of the 31st December 1894, I think this plea is not sustainable. The terms of that deed are wide enough to transfer any mortgagee rights, whether by way of a usufructuary or a simple mortgage, the land in suit which the sons of Prem Masih might possess on the date of the transfer. If the contention be that the transfer is void, under Section 20 of the Indian Contract Act (IX of 1872), by reason of both parties to the sale having been under a mistake of fact, that is to say having been at the time in ignorance of the existence of this deed of November the 4th, 1886, then it appears to me that the appellants are challenging what is essentially a finding of fact. It was for the lower Appellate Court to consider the effect of the evidence given by one of the sons of Prem Masih with reference to the existing facts at the time of the sale-deed of December the 31st, 1894, and to determine whether it could be said that the parties to this sale were under a mistake as to a matter of fact essential to the agreement.
6. The next point taken is that the covenant contained in the deed of November the 4th, 1886, barring redemption of the usufructuary mortgage of 1881 until the deed of 1886 was paid off, is one which a Court should not enforce, or at any rate should not enforce after the period of limitation for a suit for sale on the deed of the 4th of November 1886 had expired. I think this point is concluded by the ruling in the case of Ranjit Khan v. Ramdhan Singh 2 Ind. Cas. 859 : 31 A. 482 : 6 A.L.J. 654. The deed in question in this case did undoubtedly create a charge on the mortgaged property and, if the covenant therein contained affecting the redemption of the older mortgage of 1881 was ever enforcible at all, it must continue enforcible until the usufructuary mortgage has been redeemed or has become irredeemable by operation of the law of limitation. This substantially disposes of the suggestion put forward on behalf of the appellants that this present suit should be regarded as burred by limitation. As a suit for a declaration it is certainly within time under Article 120 of the first Schedule to the Limitation Act (IX of 1908). It was also within time when filed as a suit for sale under Section 31 of the same Act. The result is that this appeal fails and is hereby dismissed with costs.