LODHA, J. - (1.) -
(2.) THIS is a defendant's second appeal arising out of a suit for redemption of a house situated in village Giri, District Pali. Plaintiff Banshilal originally filed this suit alleging that the house in question belonged to Fojmal and his sons Kundanmal and Mishrilal, and that the same had been mortgaged by widow of Fojmal, Kundanmal and Mishrilal on Sawan Badi I, Smt 1961 for a sum of Rs. 72 with Ummadmal Ghasiram and Sugan Chand, ancestors of the defendant Budarmal. It was alleged that Mst. Rami respondent No. 2 was the sole surviving heir in Fojmal's family and was, therefore, entitled to redeem the house in question It was further averred that Mst. Rami had sold away the equity of redemption in favour of the plaintiff on Maha Sud 18, Smt. 2013 for Rs 99. It was, therefore, prayed that a decree for possession of the house in question by redemption of the mortgage may be granted in favour of the plaintiff. Subsequently the plaint was amended and Mst Rami was also joined as a plaintiff and it was prayed that if for any reason the sale of equity of redemption by Mst. Rami is not recognised, the decree for redemption may be granted in favour of Rami. The suit was resisted by the defendant on a number of grounds. The ownership of Fojmal, Kundanmal and Mishrilal to the house in question was denied. It was also pleaded that Rami was not the heir of Fojmal, Kundanmal and Mishrilal and that in any case if the right of any of the plaintiff to redeem the property is recognised the redemption may be granted on payment of Rs 400 (over and above the mortgage money) which the mortgagee had spent on improvements on the mortgaged property. After recording the evidence produced by the parties the Munsiff, Jetaran decreed the plaintiffs' suit for redemption in favour of Mst. Rami only on payment of Rs 72 as mortgage money. The defendant filed appeal but the same as rejected by the Civil Judge, Sojat Consequently the defendant has come in second appeal to this Court Learned counsel for the appellant has urged that Mst. Rami is not proved to be the heir of the mortgagor and therefore the present suit must fail In order to appreciate the contention raised by the learned counsel for the appellant it would be necessary to state that there is now no dispute between the parties that the mortgage of the property in question was made by the mortgage deed Ex. A. 1 of Smt. 1961, Sawan Bad 1 for a sum of Rs. 72 by widow of Fojmal alone, even though the names of Kundanmal and Mishrilal were also mentioned in the body of the document as mortgagors. The mortgage deed was executed by widow of Fojmal only. Evidence on behalf of the plaintiff, it must be said, was got recorded rather carelessly and it was not clearly brought out whether Kundanmal and Mishrilal survived Fojmal besides Fojmal's widow. However, from the contents of the mortgage deed Ex. A. 1 it is clear that Fojmal was survived by his widow as well as two sons Kundanmal and Mishrilal. The document has been produced from the custody of the defendant and no objection has rightly been taken to the correctness of the contents of the mortgage deed on behalf of the defendant. Consequently it must be held that Fojmal, who died in or about 1931 A. D. left behind him two sons. According to Mithakshram School of Hindu Law by which the parties are governed the house in question belonging to Fojmal devolved on his two sons Kundanmal and Mishrilal as the heirs and survivors of Fojmal, and widow of Fojmal was not competent to mortgage the house in question in favour of the ancestors of the defendant. It is also not in dispute that Kundanmal was the last male holder of the property in question and after his death Mst. Rami his widow became the sole heir of Kundanmal. In this view of the matter Mst. Rami cannot be said to claim the right of redemption as heir of the mortgagor, namely, the widow of Fojmal. The learned Civil Judge, in my opinion fell into error in holding that Mst. Rami was entitled to redeem the property as heir of widow of Fojmal. Faced with this position learned counsel for the respondents relied on sec. 91 of the Transfer of Property Act, 1882 and submitted that besides the mortgagor any person who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same may institute a suit for redemption of the mortgaged property. He submits that Mst. Rami being the sole heir of Kundan Mal the last male holder in Fojmal's family had interest in the property in question and could consequently redeem the property. In support of his contention he has relied on Sonnakka vs. D. Munekka (l), and Mitru Thapa vs. Surubari Goudani (2 ). On the other hand, learned counsel for the appellant has urged that Mst. Rami has no right to redeem the mortgage, though she may be entitled to sue on the basis of her title, and, therefore, the present suit by her for redemption of the mortgage is not maintainable. He has further urged that the possession of the mortgagee operated as an ouster of the real owners of the property, namely, Kundan Mal, Mishrilal and the plaintiff, and, therefore, the plaintiff cannot sue for redemption as a person interested in the equity of redemption beyond 12 years of possession of the mortgagee. In support of his contention learned counsel has placed reliance on Konnan Sanku vs. K. Parvathi Amma (3) and Nimba Ganba vs. Narayan Paikaj (4 ). After a careful consideration of the rival contentions raised by the learned counsel for the parties, I have come to the conclusion that sec. 91 of the Transfer of Property Act gives authority to any person who has any interest in the mortgaged property including that of an owner to institute a suit for redemption of the mortgaged property. The relevant part of sec. 91 of the Transfer of Property Act reads as under - "91. Besides the mortgagor any of the following persons may redeem, or institute a suit for redemption of the mortgaged property, namely - (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in the right to redeem the same; (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " The words 'any person, who has any interest' in the property mortgaged' do not refer only to persons having any interest in the mortgaged security, "interest in the mortgaged property" is not the same as "interest in the mortgaged security". Learned counsel for the appellant submits that there is apparent similarity between sec. 91 (a) of the Transfer of Property Act, and O. 34, R. 1 CPC. It must, however, be borne in mind that the latter provision speaks of persons having any interest either in the mortgaged security or in the right of redemption. But sec. 91 (a) of the Transfer of Property Act speaks of persons having interest in the mortgaged property not security, and also of persons having interest in the right to redeem. Thus to my mind there is a fundamental distinction between the two provisions and it would not be proper to interpret sec 91 (a) of the Transfer of Property Act in light of the language used in O. 34, r. 1 C. P. C. As observed by Hidayatullah J. (at present the Chief Justice of India) in Pawankumar vs. Jagdeo (5), O. 34, r. 1 C. P. C. is merely procedural and does not create substantive rights, and the matter is to be determined by a true construction of sec. (a), Transfer of Property Act. In Mirza Yadalli Beg vs. Tukaram (6) it was held that even the smallest interest in the mortgaged property is sufficient to entitle the plaintiff to redeem the mortgage. The same view was taken in Sonnakka vs. D. Munokka (l), and I respectfully agree with the view taken in these cases and overrule the contention raised on behalf of the appellant that the plaintiff does not fall within the definition of "any person, who has any interest in the property mortgaged" as provided in sec. 91 (a) of the Act. Consequently, I hold that the plaintiffs are entitled to institute a suit for redemption. As regards the question of ouster suffice it to say that the defendant never took objection of the suit being barred under Art. 144, Limitation Act. The question whether the defendant has been in adverse possession of the property is a mixed question of fact and law. and cannot be entertained for the first time in second appeal without there being a plea and issue on the point. Learned counsel as a matter of fact was unable to point out any evidence to show that the defendant has succeeded in establishing his adverse possession over the property in dispute. In this view of the matter the principle laid down in Konnan Sanku vs. Pavathi Amma (3) has no application to the facts and circumstances of the present case. The other case relied upon by the learned counsel for the appellant Nimba Sanba vs. Narayan Paikaji (4) has also no application to the present case inasmuch as all that was held in that case was that in a mortgage suit a person claiming paramount title is not a necessary party inasmuch as he has no interest in the mortgaged security or in the right of redemption and the only occasion on which a judgment-debtor could rightly be made a party to a mortgage suit is when he is in the position described in sec. 91 of the Transfer of Property Act. Thus the point of law decided in that case has no relevance to the points of dispute in the present case. No other point was argued. The result is that I do not see any force in this appeal, and hereby dismiss it. But in the circumstances of the case I leave the parties to bear their own costs. . ;