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CASE NO.: Appeal (civil)  3902 of 1999

PETITIONER: Mangal Prasad Tamoli (Dead) By Lrs.                      

RESPONDENT: Narvedshwar Mishra (Dead) By Lrs. & Ors.                 

DATE OF JUDGMENT: 24/02/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J U D G M E N T

Srikrishna,J.

       One Harbans Mishra filed a civil suit  No. 1070 of 1950       impleading  as defendants Kesho Ram, Mst. Sukh Dei, Mst. Danpati,  Sukhi Lal and Nageshwar Kalwar. The suit was one for redemption of  a mortgage and with a chequered history.  

One Mst. Toranto had mortgaged the suit property on 26.1.1908  in favour of Kesho Ram for a period of 60 years. This property is said  to have been inherited by Smt. Sukh Dei, who on 1st April 1950  executed a sale deed selling her right of redemption in favour of  Narvedshwar Mishra (original plaintiff and respondent herein). Sukh  Dei had only a limited  interest being a Hindu widow not in  possession of the property. The plaintiff  contended in the suit that the  period of 60 years was fixed as the period of mortgage amounted to a  clog on the equity of redemption and hence, null and void, and  therefore, the plaintiff was entitled to redeem the mortgaged property  without waiting for expiry of the mortgage period.  Mst.Toranto died  leaving her son Harbans  Kalwar and daughter Harkali.  Harbans  Kalwar also died leaving behind his widow Sukh Dei the only heir.  Mst. Dhanpati filed a suit  No.904 of 1951 for redemption and  possession of the mortgaged property (the property which was the  subject matter of suit No.1070 of 1950) on the basis that she was the  daughter of  Mst. Toranto and had  inherited the property in dispute  after the death of Mst. Toranto and was, therefore, entitled to exercise  the right of redemption of the same. Similarly, one Sukhi Lal also  field a suit no. 1486/1953 for redemption of the same property on the  basis that he had purchased the right of redemption from Nageshwar  who was the son of Smt. Toranto and the only heir.  Mangal Prasad  Tamoli, Bindeshwari & Sarjoo Devi, the legal heirs of the original  mortgagee Keshav, contested all the three suits on various grounds.  

By judgment dated 30.11.1955 the First Additional Munsiff,  Gorakhpur dismissed  all the three suits holding as follows: That Smt. Danpati and Sukhi Lal had no right to the property  aforesaid, the aforesaid Plaintiff in Suit O.S.No. 904 of 1951 and 1486  of 1953 have failed to prove that they were the heirs of Smt. Toranto  or purchasers from the heirs of Toranto; that Smt. Toranto had a  limited interest in the mortgaged property and the mortgage became  void after her death in the year 1908. The heirs of Smt. Toranto  having not claimed any redemption within 12 years of the death of  Smt Toranto, the mortgagee became the possessor of the mortgaged  property and the mortgage did not remain permissive and the suit for  redemption  filed by the plaintiff was dismissed inter alia on the  ground that the Plaintiff had no right to redeem the property;  held that

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Harbans Kalwas son of Toranto died after Smt. Toranto and Sukh Dei  was the wife of Harbans Kalwar who claimed the property of Smt.  Toranto after the death of Harbans Kalwar;  the conditions of  mortgage did not amount to clog on redemption and the suit was  premature.

Narvadeshwar Mishra heir of the original plaintiff filed Civil  Appeal No. 44 of 1956 arising out of suit No. 1070 of 1950. Smt.  Dhanpati and Sukhi Lal did not file any appeal against the dismissal  of their Suit No. 904 of 1951 and 1486 of 1953, in view of the finding  of trial court that suit was premature.  On 23.4.1958 the Additional  Civil Judge, Gorakhpur dismissed the appeal on the sole ground that  the suit was premature and the terms of the mortgage were not a clog  on redemption. The other points urged in the appeal were left open.   On 18.1.1996 the High Court allowed the second appeal of  Narvadeshwar Mishra and others (the heirs of plaintiff-respondents  herein) holding that the finding of the courts below to the effect that  the terms of the mortgage was not a clog on redemption and that the  suit was premature was correct.  The High Court, however, went  further to hold that as appellant had made a statement before it that  he  would not take the possession of the property before actual expiry of  the mortgage time, i.e. before 26.11.1968, the suit  could be decided  on merit. In this view of the matter, the High Court partly allowed the  second appeal and remanded the suit to the first lower appellate court.  Although, according to the present appellants, this order of remand  was erroneous in law and contrary to the judgment of this Court in  Gangadhar vs. Shankar Lal ,  they were advised that there was no  need to challenge the judgment at that stage as their rights were not  finally adjudicated and the effect of the High Court judgment was that  the suit for redemption could not have been brought before 26.1.68. Sometime in 1965 Sukh Dei died. She was original defendant 2  in O.S.No.1070 of 1950 and arrayed as  a  respondent in the appeal  before the lower appellate court.  There was failure to bring the legal  representatives of deceased  Sukh Dei on record. The heirs of Sukh  Dei not having been substituted, the suit  abated.  An appeal carried  by the plaintiff against the abatement order was also dismissed by the  District Judge for default. An application for restoration was filed in  the appeal.  An attempt to serve notice issued for restoration of the  appeal elicited the report that three of the respondents had died in  1965-66. The Additional Civil Judge, Gorakhpur held that the appeal  stood abated against respondents 4 and 6 in the appeal.   

In appeal the First Additional District Judge took the view that  though one of the appellants Smt. Godawari (one of the heirs of the  original plaintiff) had died, and her heirs were not brought on record,  the appeal did not abate.  An application for amendment moved on  behalf of the defendants to amend the written statement, raising the  contention that Smt. Sukh Dei had only limited interest, was rejected  with the observation that the point could be urged at the time of  arguments.

On  26.3.1982 the first Additional District  Judge, Gorakhpur  allowed appeal No. 44 of 1956 and decreed suit No.1070 of 1950  setting aside the judgment of the First Additional Munsif, Gorakhpur  dated 30.11.1955.  Aggrieved thereby, Mangal Prasad Tamoli filed  second appeal No.1259/82 in the High Court of Allahabad.  The  second appeal was dismissed by the High Court on 17.9.1996.   Aggrieved thereby, the heirs of the said Mangal Prasad Tamoli are in  appeal before this Court by special leave.  Although the facts are  somewhat convoluted, the disposition of this appeal does not require  traversing the maze. The learned counsel appearing for the appellant  urged only one contention in favour of the appellant and we are  satisfied that the appeal must succeed thereupon.          Learned counsel contended that the position in law is that when

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a mortgage suit is filed prematurely it is not open to the Court to  continue with the suit on the ground that the plaintiff has agreed not to  take possession before the due date.  The suit has to be necessarily  dismissed, though it may be open to the plaintiff to bring the suit after  the period of the mortgage is over.

       The learned counsel invited our attention to the order of the  High Court dated 18.2.1966 in second appeal No.3033/58 and  contended that this order is wholly erroneous. Though the said order  was not challenged in the year 1966, the appellants were entitled to  canvas the correctness of the said order in the present appeal. We shall  presently examine these contentions.

       In Seth Ganga Dhar v. Shankar Lal & Ors.   (at p.512),  following the view taken by the Privy Council in Bakhtawar Begum  v. Husaini Khanam , it was held that "Ordinarily, and in the absence  of a special condition entitling the mortgagor to redeem during the  term for which the mortgage is created, the right of redemption can  only arise on the expiration of the specified period."

       In Gangadhar (supra) the term of the mortgage was 85 years  and there was no stipulation in the deed which entitled the mortgagor  to redeem during the said term.  The suit had been admittedly filed  before the expiration of the term of the mortgage.  After perusing the  authorities cited at the Bar and after taking the view that the period of  redemption of 85 years was neither oppressive nor so unreasonably  long as to amount a clog on redemption .  It was then held:  "we then  come to the conclusion  that the suit was premature  and must fail"

       Relying strongly on the authority of Ganghadhar (supra),  the  learned counsel  contended that as the suit filed by the plaintiff was  premature, it ought to have been dismissed and there was no  justification for the High Court to have made an order of remand in  suit No. 3033/58 by its judgment dated 18.1.1966.

       When we put to the learned counsel as to how he could in the  present appeal filed in the year 1999 challenge the order of remand  made by the judgment of the High Court on January 18, 1966 in  second appeal No.3033/58, the learned counsel drew our attention to  the decision of this Court in  Kshitish Chandra Bose v.  Commissioner of Ranchi  as authority for the proposition that an  order of remand by the High Court being an interlocutory judgment,  which did not terminate the proceedings, it is open to the aggrieved  party to challenge it after the final judgment. This Court in  Satyadhyan Ghosal and ors. v. Smt. Deorajin Debi & anr.  , under  similar circumstances, took the view that an order of remand was an  interlocutory judgment which did not terminate the proceedings and  hence could be challenged in an appeal from the final order.  This  view was again reiterated in KC Bose (supra)  wherein it is observed  (p. 767) "Mr. Sinha appearing for the respondent was unable  to cite any authority of this Court taking a contrary  view or overriding the decisions referred to above. In  this view of the matter we are of the opinion that it is  open to the appellant to assail even the first judgment  of the High Court and if we hold that this judgment  was legally erroneous then all the subsequent  proceedings, namely, the order of remand, the order  passed after remand, the appeal and the second  judgment given by the High Court in appeal against  the order of remand would become non-est."

       Having considered the questions urged by the learned counsel,  which appear to be backed by the two decisions of this Court, in the

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background of the facts of the case before  us, we are satisfied that the  appellants are entitled to succeed on both counts.

       The trial court and the first appellate court had held that the suit  for redemption brought by the plaintiff was premature and rightly     dismissed it. It is the High Court, by its judgment dated 18.1.1966 in  second appeal No.3033/58, which took an erroneous view  that  because of the plaintiff’s advocate had stated that he would not seek  delivery of possession before stipulated time (26.1.1968), the  suit  could be continued. It was on this wrong understanding of the legal  position that the remand order dated January 18, 1966 came to be  made by the High Court pursuant to which the appeal and further  proceedings continued.  If this remand order was bad in law, then all  further proceedings consequent thereto would be non-est and have to  be necessarily set aside.  That the appellants are entitled to urge this  point even at this point of time, is supported by the authority of this  Court in Gangadhar (supra).

       For the aforesaid reasons, the appellants are entitled to succeed.  The appeal is allowed. The judgment and order of the High Court of  Allahabad in second appeal no. 3033/58 rendered on 18.1.1966  remanding the appeal to the first Appellate Court is set aside.  Consequently, all proceedings and orders of the first Appellate Court  consequent to the remand are declared to be bad and non-est and set  aside.  The original judgment of the trial court and the first appellate  court dismissing the suit No. 3033 of 1958 as pre-mature  is  reaffirmed.  

The appellants are entitled to costs of the appeal.