Prasad Tamoli Vs. Narvedshwar Mishra & Ors  Insc 137 (24 February 2005)
Balakrishnan & B.N. Srikrishna Srikrishna,J.
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.
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.
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.
judgment dated 30.11.1955 the First Additional Munsiff, Gorakhpur dismissed all the three suits
holding as follows:
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 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.
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.
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.
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
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.
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.
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.
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.
counsel contended that the position in law is that when 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.
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.
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.
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 background of the facts of
the case before us, we are satisfied that the appellants are entitled to
succeed on both counts.
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).
the aforesaid reasons, the appellants are entitled to succeed.
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.
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.
appellants are entitled to costs of the appeal.