1. This is a second appeal from the judgment of the Subordinate Judge of Ottapalam, reversing the judgment of District Munsif of Tirur. The plaintiff is suing for the redemption of a mortgage. He and the defendant were at one time joint mortgagees. He puts his right to redeem the mortgage mainly on the ground that he was a purchaser or assignee of the rights of certain legatees under the Will of the mortgagor. It was alleged by the defendant that the Will was not valid, and so in effect he said : 'you have no title under the Will. Whoever is in a position to redeem it, you are not.'
2. The District Munsif found as a fact that the Will was duly executed and was genuine. The Subordinate Judge found as a fact that the Will was not duly executed. Sitting in Second Appeal, it is not open to us, I regret to say, in this case, to review the judgment of the Subordinate Judge on a question of fact. The plaintiff however, said : 'I have got another ground on which I am entitled to redeem, and that is, I have taken a fresh lease or a renewal of the lease of the property from the jenmi,' and he says, that he has raised that in his plaint.
3. The defendant replied to it by saying that this demise was invalid and could not in any way be enforced. In framing issues, there was an issue framed : Is the suit as brought not maintainable?' but there was no specific issue directed as to whether the plaintiff had a right to redeem under this new demise.
4. I think it was for the Court to frame such an issue although on such application for issues the parties are heard. The result was that this matter was never gone into in either of the Courts below. The first Court, finding the Will genuine, had no particular reason for going into this point at all, even if it had been asked to.
5. The second Court, finding the Will not genuine, apparently had not its attention called to the fact that it left open the question whether or not there was a right under the demise. And it is impossible to blame either Court, because attention was not apparently called to the matter and there was no definite issue on the point before the Court.
6. Now, under Order 41, Rule 25, which contains the principles on which the Court ought to act when exercising its powers under Section 107 of the Code of Civil Procedure, 1908, it is provided that 'where the Court from whose decree the appeal is preferred has omitted to frame or try any issue' or to determine any question of fact which appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case direct such Court to take the additional evidence required; and such Court shall proceed to try such issues and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor.
7. Now, under that the Subordinate Judge's Court, if the point had been taken there, could have sent this matter back to be inquired into by the District Munsif in which case the case would come back to the Subordinate Judge's Court with the evidence taken by the District Munsif on the issue, but when a case is sent back by this Court, the practice, no doubt with a view of saving expense has been to send it to the lower Appellate Court and direct that lower Appellate Court to try that issue itself. In this case, I think that that is the right course to pursue. I had some doubt as to whether we ought not to set aside this decree and leave the whole matter to be gone into again ab initio so leaving open the question to be tried again, whether this Will was duly executed or not.
8. But, on the whole, particularly in view of the fact that I think that considerable blame attaches to the plaintiff for not having got this point decided at the same time, and I am convinced that the decision of the two lower Courts who heard the case would have been the same on the question of the validity of the Will, whether this point had been taken or not I do not think it is right to remand the whole case; and I think the proper course to adopt is that provided for by Order 41, Rule 25 to frame an issue and refer the same to the Subordinate Judge's Court at Ottapalam, and direct that Court to take the additional evidence required on the issue and return the evidence to this Court with its findings thereon and the reasons therefor.
9. My learned brother has framed the necessary issue. The findings will be submitted within three months from the receipt of this order and ten days will b& allowed for objections.
10. The question of costs of this appeal and in the lower Courts will be reserved until the final hearing after the receipt of the finding called for.
11. I agree and I frame the following issue:
Does the plaintiff hold directly from jenmi a new or a renewed demise, and, if so, is he entitled by force of that demise to redeem and eject the defendant from the suit property? And if he is so entitled, on what terms should the redemption be allowed?
Each party is entitled to adduce further evidence on this point.