NISHA GUPTA,J. - (1.) This second appeal under Section 100 CPC has been filed against the judgment and decree dated dated 9.12.2011 passed by Additional District Judge, Kotputli Distt. Jaipur in Civil Regular Appeal No. 30/2006 whereby the appellate court has affirmed the judgment and decree of the trial court dated 24.4.2006 passed by Civil Judge (J.D.), Kotputli Distt. Jaipur in Civil Suit No. 94/2000 by which suit of the plaintiff for redemption of mortgage has been decreed.
(2.) The short facts of the case leading to filing of this appeal are that respondent No.1 Smt. Sita Sharma instituted a suit that by registered sale deed dated 16.10.61 her father Fateh Chand and uncle Jagdish Prasad has mortgaged the property to Hanuman Sharan Choudhary. It was further pleaded that the mortgagor did not repay any amount thereof. Thereafter, mortgagee Hanuman Sharan has let out the property to Mohan Lal Jain and it was further sub-let to Kailash Chand Bajrang Lal, insolvency proceedings were also initiated for Jagdish Prasad and Fateh Chand but on the death of them, the proceedings were annulled. During the pendency of insolvency proceedings, the right in the property has been assigned by Hanuman Sharan Choudhary to Sneh Lal and suit for redemption of mortgage has been filed pleading cause of action for the suit to arise from 16.10.61 i.e. date of mortgage and on 14.3.1977 i.e. date of acknowledgement by assigning the rights of property to Sneh Lal. The suit was decreed by the court below and appeal has also been dismissed, hence this appeal.
(3.) The contention of the present appellant is two-fold. His first contention is that respondent No.1 Sita Devi is not the sole heir of deceased Fateh Chand, mortgagor, she has not filed the suit with clean hands and she has concealed material facts that two legal heirs of deceased Fateh Chand, one daughter and one son is also there, hence for non joinder of legal heirs, the suit is not maintainable and his other contention is that right of redemption came to an end on expiry of 30 days. Admittedly, the mortgage deed is of 16.10.1961 and suit has been filed after 39 years and furthermore his contention that as per Article 61-B of the Limitation Act, property has been transferred by document dated 29.3.77 and within 12 years, the suit has not been filed, hence the suit is barred by limitation as well as be thrown out in absence of necessary parties and both the courts below has not considered this aspect of the matter in right perspective. Per contra, the contention of the respondents is that Ex. 7 agreement executed in favour of Sneh Lal, is admitted document of both parties and it is an acknowledgement in writing in clear terms and Article 18 of the Limitation Act gives a new life to the limitation by virtue of this agreement and his another fold of argument is that when Ex.7 is unregistered cannot be termed as a transfer, hence Article 61-B has no relevance and when mortgage has been admitted in Ex.7, a new cause of action will arise, hence it is not barred by limitation. As regards necessary party, his contention is that Fateh Chand has only one legal heir i.e. plaintiff Sita Devi and court below has rightly held that this fact has not been proved that Fateh Chand is having any other legal heir and if for the sake of arguments, it can be assumed that Fateh Chand is having any other legal heir, still under Section 91 of the Transfer of Property Act any legal heir has a right to redeem and in view of Order 1, Rule 9 Civil Procedure Code, the other legal heirs are not necessary party, they have not come forward to claim their rights and there is no perversity in the impugned judgments. ;